Dysfunctional Democracy

July 1, 2023

Dysfunctional Democracy

dysfunctional democracy

Mark Rubin

Our system broke down, somewhere along the way. I see a Nixon / Goldwater to Reagan to Trump lineage. I know Trump-a-phobes who see Trump as a one-off (and think the other Rs I mentioned served us well), and a significant minority of us think we need Trump to solve our problems.

Without doubt, our divisions weaken us. However, at the end of the day, we have an 18th century system for a 21st century world. A dysfunctional democracy, so to speak.

Many among us venerate the states, yet we expect our federal government to solve our problems. We like the notion of elected representatives to reign in POTUS, but we hold him or her (someday soon, maybe) responsible and accountable for whatever goes wrong. Some of us don’t like having our fourth branch – the administrative agencies – telling us what we can and can’t do, but Congress lacks the knowledge and time to make decisions about the myriad issues that require attention.

We greatly increase the foregoing challenges by adhering to a set of procedural rules that make decision-making impossible. (Filibuster. Multiple bill readings. Etc.) That we do so in furtherance of one side gumming up the works, and then, complaining about the absence of solutions, shames them. (Yes, R pols, I’m writing about y’all!)

The decision in Biden v. Nebraska, No. 22-506, prompts some of my thinking. Should student borrowers get loan forgiveness? Not my point here. The federal government crafted a plan that fits within the plain language of the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act). Did that matter to the textualists on the Court? No, because years ago they fashioned something called the Major Questions Doctrine. It requires Congress to use Magic Words – known only to the Court majority, and only after the fact – when the executive branch wants to act in accordance with the plain language of a statute on what the Court calls – again, with no guidance – Major Questions.

Did Congress intend for the level of debt relief the government offered up some two decades later? Probably not. Does Congress provide a forum for even considering a BIG issue like debt relief? Uh … No.

The dysfunction gets worse when we get to scientific issues. In West Virginia v. EPA, No. 20-1530, the Court rejected EPA regulations which relied on the Clean Air Act of 1970, as amended. Again, the Court held that because Congress did not get close enough to the concepts associated with the challenged regulations, the regulations must fail. As if Congress could, or should, know enough to write laws that specifically address the details associated with addressing an existential threat to humankind that might arise in the future … when Congress has expressly delegated to an agency its laws formed the power to deal with stuff that might arise in the future. (I know, I know, I’m just some Lefty who buys the climate change BS, and we did get snow, once. To climate change deniers – as if any of them visit this site – I ask one question: What if you’re wrong?)

Lots of us believe we can’t have a group of people who make rules without having to account for their actions, like the administrative agencies. Except, we do! Nine people wearing black robes.

I don’t want to rag on the Court, as if its role matters alone. Focusing on the Court happens every year in June and July, and its actions affect us every day. That said, our system needs more than an improved Court.

If I had my way, we would modernize our national structure. We live in a highly mobile and fast-paced nation, in a global community that looks not at all like the one that existed when we adopted our Constitution between 1787 and 1790. Nevertheless, we rely on that document, as amended, as if we read tarot cards for a living. In an AR-15 era, we look for guidance to 27 words in the Second Amendment which were written for musket and militia times. And written effing poorly at that. (I recall Brown v. Entertainment Merchant’s Ass’n, No. 08-1448, in which Justice Antonin Scalia worked hard to glean the thoughts of the Founding Fathers concerning video games and the First Amendment. Amazingly, he managed to reach the conclusion that the FFs would not have agreed with California and its Second Time Around Governor Jerry Brown.)

What if we took Thomas Jefferson’s guidance to heart and reviewed the Constitution regularly? What if we considered a parliamentary model, aligning the executive and legislative branches to provide for more accountability? (Blah, blah, checks and balances; they have a lesser place in a complicated society than we thought they did.) Divide the nation, letting the South go away, as its people have been talking about for almost 200 years? (Yes, secession occurred 162 years ago.)

I appreciate the fact that none of what I have suggested will happen anytime soon. I know, though, that we have a dysfunctional democracy when we cannot effectively address climate change or AI, but have time to address a woman’s right to turn down same-sex couples if they seek her website design services. Same old, same old ain’t cutting it!







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