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Opinion

Opinion

U.S. facing constitutional crisis

November 30, 2011

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The failure of the congressional ‘supercommittee” to reach accord on deficit reduction legislation is, to put it mildly, discouraging.

The structure of government established by the Founding Fathers placed budgetary authority in the hands of Congress so that there could be an effective check on executive power. Now Congress has abrogated its authority in one of the most important budgetary issues of the century and has also basically destroyed one of the most important of the “checks and balances” built into constitutional government.

This is a crisis that goes beyond incompetence. This is a constitutional crisis of the highest significance. As a result of Congress’ inability to craft deficit reduction legislation, the president can now implement draconian cuts both on the military and on entitlement programs, cuts that may well threaten the longterm national security and reduce American influence in the world, not to mention the horrific effect it will have on the lives of many poor and elderly Americans whose benefits will be reduced.

Even more frightening from a constitutional standpoint are the president’s remarks that, now that the supercommittee has failed, he will not permit Congress to fashion an alternative deficit reduction plan. Presumably, by these statements the president means that he will veto any budget legislation passed in an attempt to prevent the automatic cuts now mandated. If the president actually intends to do this, then he, too, is deliberately sabotaging the constitutional checks and balances we have always lived with. If he is simply posturing, then, in my opinion, such posturing is utterly inappropriate.

The failure of Congress and the recent statements by the president may well prove to be a catastrophe for the American economy and an equal catastrophe for our present form of constitutional government. I think it was a terrible error to create this situation in the first place. Why must we have a situation that sets an artificial date for legislation to be passed and, thereafter a default to automatic cuts in the budget? This is more like a children’s game of “chicken” than the behavior of responsible adults who have been given the care of American government.

Can anyone imagine what the reaction of Jefferson or Madison or Hamilton would have been to the current scenario? Why are we, the people who elect these men and women, permitting them to behave in such a manner? Why is there no public outcry against what is going on in Washington?

The latest opinion polls indicate that the popularity ratings for Congress have plummeted to a historic low, in the single digits. The president’s popularity rating is not much better. It seems to me that when Congress and the president can no longer run the government effectively, when the financial operations of the government are set on autopilot, then it is time for the American people to recognize that we have far more than a fiscal problem. We have a constitutional problem that must be resolved if the nation is to continue to thrive.

There is a solution here. It is time for responsible Americans to take back control of the government. It is no longer acceptable to leave the fate of our nation to the special interests who elect officials incapable or unwilling to govern. There are elections coming up within the next 12 months. Perhaps, it is time to wipe the slates clean and start fresh. If Congress and the president cannot govern, then they should be tossed out of office and replaced by those who can.

— Mike Hoeflich, a distinguished professor in the Kansas University School of Law, writes a regular column for the Journal-World.

Comments

atiopatioo 3 years ago

" I think it was a terrible error to create this situation in the first place. Why must we have a situation that sets an artificial date for legislation to be passed and, thereafter a default to automatic cuts in the budget? "

This is not an Obama error Mike. This is the means to the process of Transformation that Obama is talking about.

The sooner people that voted for him realize what he means by Transformation, the sooner everyone will be better off in the methods towards responding to him.

Crazy_Larry 3 years ago

Stop with the partisan B.S. already, please. You're sorely mistaken and/or an idiot if you think this Transformation was created by Obama and the Democans. The Transformation you suggest has been in the works for decades if not longer...George H W Bush spoke of the New World Order when he was in charge of the charade that is our federal government. And the Constitution was turned to toilet paper 10 years ago. The left-right division is a tactic The Establishment uses to move the Transformation forward. As long as We the People remain divided, The Transformation will continue. Who knows, maybe the New World Order will be like Shangri La? It's the Gee: http://www.youtube.com/watch?v=Rc7i0w... Riding a Southbound Pachyderm: http://www.youtube.com/watch?v=6xb898...

Cait McKnelly 3 years ago

Wow! I didn't know zombies actually talked!

beatrice 3 years ago

Zombies are certainly in need of braaaiiiinnnnssss!

beatrice 3 years ago

Obama wasn't anointed, he was elected.

This is a lesson that should carry over from on logon name to the next.

verity 3 years ago

Bea keeps repeating the same thing only because certain people keep repeating the same misstatement and she feels the need to counteract it.

Bea, I admire you for continually calling people on their misstatement. Keep up the good work.

beatrice 3 years ago

BAA: I'm pretty sure this is the first time I've written anything about the "anointed one" to "its_just_math." Are you suggesting that perhaps I wrote this to him before? But how could this be? Please explain.

Oh, and just because I repeat it, that doesn't make it any less accurate.

TopJayhawk 3 years ago

So, is the article wrong about Obama and the Congress trashing the Constitution?

If Bea knows so much, how can she support the communist?

He does not care about the Constitution.

esteshawk 3 years ago

That's funny. . . I can only assume you're joking that "even the most lame debater" would grill Obama in a debate? If that were the case, McCain would be President right now.

Crazy_Larry 3 years ago

Bury your head deep in the sand. Anonymity is a virtue in this day and age. Here they come! http://www.youtube.com/watch?v=jRHfOi...

thebigspoon 3 years ago

Amazing how the anonymous hurl insults at the anonymous and still say nothing.

cato_the_elder 3 years ago

The "crisis" of which the author speaks is nothing other than the result of a purely political 2012 election ploy by Obama and his handlers to blame House Republicans for doing precisely what they were elected to do in 2010. Obama provided no leadership whatsoever in attempting to get the sides to compromise, a result that he never wanted in the first place. His only goal has been to keep Congress's approval ratings lower than his own, and thus run against Congress in 2012 - because that's his last hope in the middle of a continuingly stagnant economy which has only been damaged by what he has and has not done as president to reduce unemployment.

We have no "constitutional crisis," but we do have a serious presidential crisis that, short of impeachment, must be remedied by the voters in 2012.

Crazy_Larry 3 years ago

FYI: Your vote doesn't matter, i.e. electoral college, gerrymandering, dead or illegal people voting, hanging chads, and easily corruptible electronic voting machines. Both parties are tainted to the core by special interest groups of every ilk. Wall Street owns both parties. The Constitution has been under attack for the last 10 years. More to come unless the system is fundamentally changed. Glad I could help. Happy Festivus. http://www.youtube.com/watch?v=QvJSHE...

esteshawk 3 years ago

Jeez. They're called "swing states" for a reason - who wins those, win the election. And as far as leadership, can you name one other President who was able to lead healthcare legislation through Congress. Didn't think so. You might not like the Affordable Care Act, but you certainly cannot deny that it took leadership to get it approved.

jafs 3 years ago

As far as I can tell, this column is simply incorrect.

It was the legislature that set up the automatic cuts, not the president, so the rest of the column flows from a false premise.

Also, the president has pledged to veto attempts to change the automatic cuts, not come up with different deficit reduction plans.

From my understanding, if congress can come up with a plan that reduces the deficit by the specified amount, the cuts will not take place.

If I understand it correctly, he's just holding them to their word - they set up the situation in the first place - what on earth is the point of setting that up if you're then going to want to get out of it later?

Keith 3 years ago

It does you wonder what makes him such a 'distinguished' professor.

grammaddy 3 years ago

Did anyone really expect any differen?.All the Rethugs on the committee had already signed the "Norquist Pledge."

Mike Ford 3 years ago

why complain???? when a constituency of dimwits sends said dimwits to DC to do nothing....nothing happens....isn't that what you wanted.....you don't want Mr. Obama to succeed so you elect dimwits to do nothing. A staffer of Lynn Jenkins said as much as did Chris Merrill of KMBZ fame when I grilled him a month ago. When dimwits do nothing nothing happens....hello tea party people take the blame you wanted nothing done and you should rightly get the blame for nothing done... I must admit you do a good smokescreen blaming Mr. Obama for your obstinence and incompetence....

Liberty275 3 years ago

"why complain???? when a constituency of dimwits sends said dimwits to DC to do nothing....nothing happens"

Dimwits sent obama to DC and nothing is happening. He couldn't lead the way out of a paper bag, but I bet he could sell a mean used car.

Cait McKnelly 3 years ago

What makes it even more ironic is that the "automatic cuts" mentioned in the article was originally legislation passed by ...wait for it...TADA!...Republicans under Bush II.

Cait McKnelly 3 years ago

I admit I'm fully partisan but it feels lovely to see the GOP hoisted by it's own petard.

average 3 years ago

As, it should be mentioned, was the expiration of the Bush tax cuts. Didn't have the nerve to make it a permanent tax law (since it was poised to explode the deficit) even when they had the votes to do it.

The President didn't pass the cuts. The US Congress did. With the revenue parts of the bill originating in the House, no less. He'll 'implement' them in the same way any past executive 'implement' US law. 100% totally by-the-Constitution. Zero crisis. He wields exactly the same veto pen that Reagan, Clinton, and Bush did.

mloburgio 3 years ago

this is the plan if republicans take over. The tea party takes the lead in the Republican war on the Constitution

While the House of Representatives pushes Rep. Paul Ryan’s (R-WI) plan to phase out Medicare, numerous members of Congress, a least one Supreme Court justice, and the governor of America’s second-largest state now proudly declare that most of the progress of the last century violates the Constitution. It is difficult to count how many essential laws would simply cease to exist if the Tea Party won its battle to reshape our founding document, but a short list includes:

Social Security and Medicare Medicaid, children's health insurance, and other health care programs All federal education programs All federal antipoverty programs Federal disaster relief Federal food safety inspections and other food safety programs Child labor laws, the minimum wage, overtime, and other labor protections Federal civil rights laws Indeed, as this paper explains, many state lawmakers even embrace a discredited constitutional doctrine that threatens the union itself.

http://www.dailykos.com/story/2011/09/16/1017557/-The-tea-party-takes-the-lead-in-the-Republican-war-on the Constitution?via=blog_1

jhawkinsf 3 years ago

Cut and paste this one more time and you'll start being compared to Merrill. You know what that means, don't you? The wrath of Snap.

Mixolydian 3 years ago

How embarassing for the KU School of Law. He calls this a consitutional crisis of the highest significance but then does't say anything about what constituional article or amendment that's supposedly being violated or abrogated.

This is an economic and political fiasco, not a constituional crisis.

No wonder the majority (5-2) of the Kansas Supreme Court are WU Law School grads.

hoeflich 3 years ago

Mixolydian: Perhaps you might read Charles Black, one of the greatest constitutional scholars of the twentieth century on the form and structure of constitutional government. The notion of constitutional checks and balances derives from the structure of the U.S. Constitution and is an essential part of American constitutional law. Constitutional law derives from more than the explicit articles and amendments.

Cait McKnelly 3 years ago

What it comes down to is a rant and a whine about "automatic budget balancing" legislation originally passed by the GOP when they thought they had this country by it's nether parts. If Congress cannot come to agreement, all Obama is going to do is step aside and say, "Let the chips fall where they may. You made it, you brought it, you bought it, now live with it." Hardly a "constitutional crisis".

Liberty275 3 years ago

obama is good at stepping aside when the problems get tough, isn't he?

beatrice 3 years ago

No, he isn't. Nothing has been easy during his presidency. Since day one he was faced with one of the worst economic conditions this nation has ever seen, yet he took it on. You may not care for how he did it and may even argue that his handling of the situation failed, but we certainly didn't fall into another Depression and the American auto industry didn't collapse. On the international front, he took out Osama bin Laden, was successful in ousting Ghadafi without getting any Americans killed in the process, and is moving forward on getting troups out of Iraq.

He even had time to bring to people with opposing views together over a beer, for which he was give the Nobel Peace Prize (okay, maybe on wrong on this one).

Point is, he is far from stepping aside from problems.

Ron Holzwarth 3 years ago

It is an absolute necessity that a new political party be formed, or that one of the smaller ones garner enough votes to get some new political leaders in power.

The Democrats and Republicans, in alphabetical order, have failed in their responsibilities to not only the nation, but to the world.

beatrice 3 years ago

I agree. Both parties have failed.

Can we get a fiscally conservative party that cares about people and isn't just libertarian in its views, yet doesn't include social conservativism into the mix? I'd go for that.

Crazy_Larry 3 years ago

Vigorous concurrence. Everyone needs to abandon the Republicrats and Democans. But the electoral process is corrupted. I'm open for suggestions.

"There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution." John Adams - October 2, 1780

hoeflich 3 years ago

Since you feel quite ready to criticize my competence, might I ask where I said that the President set up the "super committee" ? What I said was that the President is wrong to say that he will not permit Congress to rectify the failure, if it can. These are very different things.

Cait McKnelly 3 years ago

How is Obama "in the wrong" for not forcing Congress to do somethng and letting the law handle it? Isn't that his job as the Executive Branch? To enforce the law? He didn't create that law. Congress did. The fact that they now have to live with that isn't his fault.

hoeflich 3 years ago

It is wrong, in my opinion, because the automatic cuts will do harm both internationally and domestically to the nation and the President should prevent that, if he is able. In fact, I hope and believe that if Congress can come up with reasonable remedial legislation that avoids the automatic cuts, the President will not veto it. I have no sympathy with Congress in this, but the President ought to put the interests of the nation above a desire to punish Congress.

Cait McKnelly 3 years ago

Which begs the question,if this legislation is so "harmful" why was it passed in the first place? Can't Congress itself rescind it since they passed it? I'm sorry, Mr. Hoeflich, but this crisis was created by Congress in the first place. It was an abuse of power by an entire body staged for partisan ends. The fact that it's now coming back to bite them in the fanny isn't anyone's fault but their own. It isn't Obama's job to "rescue" Congress. There is a clear separation of powers in the Constitution. Even if Obama were to veto it, Congress has every power to override that veto. This country elected that body and if they can't do their job then ultimately,the eletorate is the one at fault and needs to live with it.

Orwell 3 years ago

With respect, Professor Hoeflich, I believe you've drastically overstated the president's position. He's made it clear only that he will not permit Republicans to rescind the agreed Defense spending cuts while leaving in place the corresponding agreed cuts in domestic programs. Rather than preclude any alternate deficit reduction action, he has precluded the sort of unilateral action advocated by the right wing that would burden the middle class and seniors. He has encouraged compromise on a balanced alternative to the cuts approved by both parties. The crisis, if one exists, is attributable solely to the partisan Republican strategy of refusing to participate in any approach acceptable to the president, even if the country suffers. The Republican extremists' abdication of duty to country in favor of servility to the rich is a perversion of our system of checks and balances.

somedude20 3 years ago

There should be a mandate that if Congress can not work together and show that time after time they are not doing the jobs that they are being paid for that they will be relieved of their duties, unable to run again and a special election will be held to fill the seats. If I or any of my co-workers acted or preformed our job duties they way these jagaloons have, we would be let go. R's and D's should both be fired if they do not preform their job duties. Remember, these people wanted their jobs so badly that they spent loads of cash and ran for office, this aint like the draft

tolawdjk 3 years ago

"It is time for responsible Americans to take back control of the government. It is no longer acceptable to leave the fate of our nation to the special interests who elect officials incapable or unwilling to govern. There are elections coming up within the next 12 months. Perhaps, it is time to wipe the slates clean and start fresh. If Congress and the president cannot govern, then they should be tossed out of office and replaced by those who can."

Nice to see the old bumper stickers trotted out and the old rallying cries raised. golf clap Every election the same drivel comes up.

Responsible Americans can't take back control because responsible Americans are being responsible. Trying to hold and or find a job, raise a family, work in their community. And by running for political office, you become a politician and therefore immediately the "enemy". I can't think of any truely responsible American I know that would subject themselves and thier families to the light cast on those that run for office. Responsible Americans don't do that to those they love.

In this day and age the only way to have the money it takes to become elected is to be bought and paid for by someone else or have the scratch yourself and be labeled and elitiest that is out of touch with normal responsible Americans. Mr. Smith has never and never will go to Washington under the old or current paying to be playing system.

No, politicians are politicians because they either A) want something themselves, or B) need to get something that someone else wants. Usually both.

Huntsman seems like a perfect example. Seems like a very Responsible American to me. He's resume would seem to indicated that he has the skill set to be qualified for the office. However he isn't actively telling people what he can "get" them and therefore won't be the nominee. He's not "political" enough.

jayhawklawrence 3 years ago

I came to the same conclusion that Mike did quite awhile ago and I assume many Americans have also decided that we need a complete house cleaning.

It is unfortunate but not surprising that we have so many brainwashed Americans locked into a right or left wing point of view whereas most Americans are historically neither. Americans are practical and independent by nature and by our history. That is one of the reasons why we excelled in the ability to design and create new and better products and became the worlds leading manufacturer. Many of our greatest entrepreneurs never graduated from any University and oftentimes were born and rasied on the "wrong side of the tracks".

Unfortunately, the slow auction and liquidation of our industrial base over the last 40 years and the monopolization of our resources and supply chains by fewer and more powerful corporations has finally reached a critical mass where the country, without major restructuring, can no longer support its own citizens. Therefore, we find ourselves in a rediculous tug of war between two impotent political parties, neither one of which has a clue.

We are going to have to do things differently if we want to revive our country. We are going to have to raise taxes and close loop holes sometimes. We are going to have to take care of our poor and elderly and our sick. We are going to have to be able to think and make good decisions. We cannot simply committ to a bunch of ideological or theological horse crap like we are today and solve anything.

The biggest problem today is the money and the lies that are dominating our politics and the stupidity of the American people who continue to follow these people and vote for them.

Lack of information and an abundance of misinformation is hurting our country. I agree absolutely that we need to punish our politicans by voting them OUT of office.

Cait McKnelly 3 years ago

Of course this isn't easy to do when you have what's going on in WI. The effort to recall Scott Walker is well underway. So far a Facebook page was created encouraging people to collect petition signatures and then burn or otherwise destroy them and now there is a webpage, falsely saying that it's from one of the recall organizations, telling people they have collected enough signatures and don't need anymore. This type of election fraud is heinous and a felony. But meanwhile, back in Kansas, Kris Khobach is laying awake nights scared to death that some illegal Mexican just might...MIGHT...vote.

ReasonAboveAll 3 years ago

Professor [because I've taken your classes],

As a person trained in Constitutional Law and analysis, I disagree with your fundamental premise and the headline. Your argument is that Congress' choice to legislate or not legislate on economic matters, and the President's choice to veto certain legislation, is an unconstitutional abrogation of the checks and balances system. However, take a step back and each of these actions is independently an exercise of each branch's constitutional power under that same checks and balances system.

Does the stalemate threaten the economic vitality of our country? Yes. Is a veto and use of valid delegated congressional authority by the President unconstitutional? Not even remotely. Let's call a spade a spade here and say this is political posturing which threatens our well-being, but the founding fathers did not envision a system where the President refused to veto and Congress always passed the necessary legislation, or there would not even be a checks and balances system.

To the other comment perusers, please don't paint all KU Law grads with the same brush. Not all of us drink the Kool-Aid, so to speak.

hoeflich 3 years ago

I respect your position, but I disagree. Congress is constitutionally responsible for the budget process. That responsibility is key to the proper operation of checks and balances, indeed, to the proper operation of government as a whole. When a branch of government refuses to perform its duty, that, in my opinion, is a constitutional problem. As to the President's use of his veto, I did not say that it was unconstitutional. However, when a President takes a position that he will veto all budgetary legislation [and I think that this is posturing, by the way] that does present a constitutional problem in that it fundamentally alters the way the government can operate. I continue to believe that the Founders did not envision a situation where one branch of government would refuse to exercise its responsibilities. The question has been asked before and others have written about it. I'm far from alone in my opinion. You might, in your spare time, have a look at the writings of Charles Black. As far as headlines go, I have nothing to do with them. Headlines are written by somebody else and I never see them until they are printed. On the other hand, I'm glad that you are interested in constitutional law. I hope that you continue to study the subject.

jafs 3 years ago

Yes.

And, they decided that if they couldn't reach an agreement, then these cuts would automatically take place.

I'm not aware of any such pledge by the president, to veto all budgetary legislation - in fact, I think if the congress does in fact come up with cuts at the required level, the automatic ones will not occur.

Having set up this situation, why do you think that congress should be able to squirm out of the consequences they themselves set up?

thebigspoon 3 years ago

Not refuting that he has said it, but I have somehow missed the President's saying he will veto these attempts at debt management. "Presumably" is an awfully liquid base upon which to build such a "draconian" argument, and I would appreciate your telling us just what was said that leads you to believe the President is doing, or plans on doing, anything unconstitutional. As a law professor, I presume you are aware of rules of evidence, and will quickly be able to cite the offending words.

jafs 3 years ago

I don't think he said it.

My understanding is that he said he would veto attempts to avoid the automatic cuts by simply changing them.

If Congress comes up with deficit reduction at the specified level before they are scheduled to take place, I imagine the president will not veto that.

The whole thing is absurd - if they didn't want the automatic cuts to take place, they shouldn't have set them up as consequences for the committee's failure.

voevoda 3 years ago

While the US may be facing a crisis, it's not a Constitutional crisis. Instead, it's an example of the separation of powers working all too well. The authors of the Constitution were more concerned about tyranny than the inability of government to function effectively. So they made it possible for Congress to fail to carry through with its budgetary responsibilities, and they made it possible for the President to refuse to sign bills into law. It might be a bad move for the President to veto a bill that bypasses the automatic cuts Congress previously passed, but it wouldn't be an unconstitutional act. And of course, Congress could invoke its Constitutional right to override the presidential veto, if it managed to pull together the requisite votes. If Congress wouldn't be able to garner sufficient votes to override the veto, that, too, would illustrate the functioning of the Constitutional system as it was designed. In the past, the government has often availed itself of informal networks to build compromises. That is what has failed now. In terms of a Constitutional crisis, there is more reason to be concerned about the authorization of the use of military force and military law within the United States against American citizens, thus undermining the basic right of habeus corpus. That's in legislation pending right now.

George Lippencott 3 years ago

We want compromise. What is compromise? The democrats to include the head of their party – Mr. Obama - voted a trillion dollar increase in domestic spending with hardly a Republican vote. Now they demand a compromise that would lock in most of those increases and fund them with tax increases (not just on the rich as that proposed tax on the rich would not cover the increase).
The argument is that the “Bush Tax cuts” caused that deficit. It should also be noted that tracing back that tax system to the seventies reveals many Democratic votes for tax cuts along the way – it is not just Mr. Bush’s. I remind those on here that creating a system where nearly half the population pays no federal income taxes was part of that deal – that action also drove the deficit. From what point do we compromise. Reagan’s tax cuts? Reagan and Bush I spending cuts? Clinton’s tax increases? Clinton’s spending cuts? Bush’s tax cuts? Obama’s spending increases? Obama’s tax cuts? We cannot even agree on where the baseline may be let along compromise about it. We are spending way too much – our debt is 100% of GDP vice about 70% desirable. The various governments take between 20% and 25% of GDP in a preforming economy – mostly from THE 50 % of tax payers above the average income level- and not from the really rich. We spend between 800 billion and 1.2 Trillion on the social safety net at all levels. We have unfunded public pension liabilities in the trillions of dollars. We have made unfunded promises to almost 100 million of us concerning medical care and old age financial security – in most cases pre-paid by those expecting a return – and there is no money left. Exactly where is the compromise. If the Republicans want 20% of GDP and the Democrats want 25% of GDP is the split at 22.5%. Should state and local funding not be considered in those percentages? Should payroll taxes not also be included given that we have spent all of the trust fund money so that most future funding (absent change) will be from general revenue? Do those percentages include meeting already established obligations or are they now considered as perishable as newly minted promises? Lastly how much is enough? For some citizens (not rich) the total government take approaches 50%. For others it is zero. Are those good numbers? Who should bear the burden and how much should they contribute. If we can agree on that then maybe we can move on to how to spend the revenue that amount yields. Unless the two yelping groups can address substance rather than blarney we will make no progress.

beatrice 3 years ago

Good post with lots of valid points. You should blog it and maybe get some discussion going.

To answer the initial question: How about recognize that it will take both cuts and taxes to confront both the deficit and the debt. That seems like a reasonable place to begin a compromise.

George Lippencott 3 years ago

of course I agree with that Bea but from which baseline. Do we accept the trillion dollar plus up by the Dems and negotiate from there or do we negotiate from the budget they got from Bush or one of the other points I suggested.

Compromise is wonderful but it is not compromise when one party demands a bunch of your property and then agrees to compromise by taking less.

57chevy 3 years ago

Interesting premise and you seem to have a a lot more education in this field than I do (though you chose academia over application of your skills in the real world which worries me a bit).So lets try a less-academic opinion. I believe the problem lies neither with the executive nor legislative branches of government but with the judicial branch. Here is why. Congress is clearly populated by what seem to be spoiled, drug-crazed children (ie, Polosi or Behnert to name two, but I defy anyone to find more than 10-12 mature/sane members out of 635). Yet, over 90% get re-elected year after year. The approval rating for the current members is less than 10% but 90% get re-elected. How can this happen? One word-Gerrymandering. It is pure insanity to let the idiots in congress determine what there districts look like. They get more twisted and bizaare in shape with each election and serve only to get the fool that drew them re-elected. Lets get the supremes to force congressional voting districts to be done in a sane manner, say on a county-by-county basis. Just that change would replace dozens of entrenched children with new congressmen and more elections would be in doubt. If you fix congress, the president will either play well with the new rational legislature or be a one-and-done politician. No offense, but when sanity seems to completey absent from a situation, you can usually blame a lawyer.

ReasonAboveAll 3 years ago

  1. Let's avoid ad hominem attacks and stick to the point at hand. For the record, the author was very successful in private practice in prominent firms. There would also not be anything wrong with a career in academia.

  2. The problem with elections on off years is most likely turnout, not gerrymandering. Also, redistricting doesn't happen with each election, but with each census.

  3. The Supreme Court has repeatedly addressed the issue of gerrymandering (See Shaw v. Reno, Miller v. Johnson, and Gingles).

  4. Your "sane manner" standard sounds good, but is totally unworkable in practical effect. Is it sane to split on a river? A main highway? A county? I think that your county plan would face pretty stiff opposition by many minority rights advocates (take Wyandotte county out of Kansas City and you have a very different racial makeup, for example).

  5. You may want to re-read the Voting Rights Act.

57chevy 3 years ago

Have you seen maps of what passess for congresional districts? Again, you clearly are far more educated in this field than I am, but knowlege and wisdom are easily separated. Hopefully, I lack expert knowlege but can impart a bit of the latter. First, each census or each election, who cares? its still should offend the sensibilities of anyone that believes in Jeffersonian democracy that anyone would be allowed to alter the playing field to effect an election. Second, I am fine with low turnout. You can't make people vote in a free society. That just makes my vote matter more. This may reflect a more systemic problem with our country's civics and educations, but is not germain to the current discussion. Fourth (before third, I know) I am fine with angering minority rights advocates as well as conservatives or anyone else who uses district allocation to influence elections. In my humble (and granted not legally educated) opinion, the only workable system for voting districts should be as highly regulated to avoid bias as it now is to impart it. Usually, one of the surest signs of a good idea is angering zealots on every side of an issue. Third, addressing a problem and solving a problem are not the same. I am not a lawyer so hair-splitting and moral relativism do not come naturally to me. I appreciate the need for soemone to fight these lilliputian battles, but it falls on the common man, specifically NOT the experts to decide on the rationality of an expert opinion in a democracy. Regardless of any legal opinons, again only in my opinion, Gerrymandering is alive and well and is a large contributor to the current dysfunction of government. Finally, I will re-read the voting rights act, if you re-read the constitution. We could both also agree to support and abide by both documents. I like mine better. One man. One vote.

beatrice 3 years ago

Yes, because ads are far more important than actual substance.

brains!!!!!!!

Jimo 3 years ago

"Even more frightening from a constitutional standpoint are the president’s remarks that, now that the supercommittee has failed, he will not permit Congress to fashion an alternative deficit reduction plan. Presumably, by these statements the president means that he will veto any budget legislation passed in an attempt to prevent the automatic cuts now mandated."

O - M - G.

How a Professor of Law can take a statement that explicitly says that the President insists that Congress implement the additional $1.2T mandatory cuts or come up with a compromise balanced plan to effect the same additional $1.2T in budget reduction in other ways to soften the pain on the military and entitlements, and then replace this with a false, truncated statement where the President merely insists on the existing automatic cuts?

Professor, perhaps you should bother to check your facts before making such radical, sweeping statements. The only thing the President has threatened to veto is an attempt to scuttle the existing automatic cuts without replacing them with an alternative balanced plan that also achieves the same amount of deficit reduction. That is--precisely--encouraging "Congress to fashion an alternative deficit reduction plan."

Here's video. Start at 3:53. "The only way these spending cuts will not take place ...." http://youtu.be/EgTu0PliTxI

President Obama: ‘I encourage Congress to fashion an alternative deficit reduction plan.’ Professor: ‘Why won’t the president permit Congress to fashion an alternative deficit reduction plan?’”

"In fact, I hope and believe that if Congress can come up with reasonable remedial legislation that avoids the automatic cuts, the President will not veto it."

Well, considering he just said that he would agree to reasonable remedial legislation that avoids the automatic cuts, I'd say the odds that "the President will not veto it" are quite high. 100%, in fact.

Readers: 70 comments into this piece and not one person managed to question how the most milktoast President in a generation could seriously not be threatening total intransigence merely to effect 'punishment on the Congress'? Really? A President who begins every negotiation by preemptively caving and the Professor's characterization of the same fellow as a rigid, uncompromising tyrant who rather see the nation burn rather than cooperate with Congress doesn't trigger the slightest suspicion that something is amiss? I can't wait for reader reaction to the story that Barney Frank and Ann Coulter have a love child named Squeegee.

And LJW, I realize this piece falls under "opinion" and by your standards that translates to 'avoid fact-checking' but really....you've reached the level of HarperCollins in publishing Palin's "Going Rogue". That is, statements offered as fact that can be shown as objectively false with all of 2 minutes of effort using YouTube.

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