In my previous column, I laid out why I think the Founders created our system of checks and balances, and summarized the way that system provides for each of our three branches of government – legislative, executive and judicial – to check each other’s power.
Today I’ll start with one other aspect of our government which allows checks and balances to work. This is federalism, the idea that the federal government shouldn’t dominate states in all ways, such that they can’t make their own individual laws to reflect the democratically expressed will of their citizens.
The check on federalism is the Supremacy Clause in article 6 of the Constitution, which says that when it comes to a fairly short, enumerated list of federal prerogatives, federal law trumps state laws that would contradict it. For example, once the Republicans whipped the Democrats, freed their slaves, and outlawed slavery, Democrat states could no longer have state laws that allowed slavery.
When the Dems tried two of their most famous, racist work-arounds – creating the Klan, and Jim Crow laws – both of those were eventually ended thanks to our criminal laws and the federally-enforced Supremacy Clause, respectively.
SCOTUS justice Brandeis summarized the idea of federalism in 1932 when he said that states can become “little laboratories of democracy” in which local policies and legislation can be tried without impacting the rest of the nation. If those experiments prove successful, the nation can adopt them on a national level, if the people agree.
Such experiments have been going on in the states non-stop for the last century and more. Two common examples relate to crime, and to taxes and regulation.
Regarding crime, red states generally blame criminals more than society for criminals’ actions; they support the police, and they prosecute and incarcerate criminals (especially recidivists) for longer sentences. Blue states generally blame society more than criminals; they are more critical of police and more likely to defund or decrease their funding; they are much more generous to criminals, releasing them on no bail pending trial, prosecuting them less, and giving them shorter sentences and letting them out early if they are convicted.
Regarding taxes and regulation, blue states and cities – operating from their preference for more and stronger government oversight of most aspects of life – have aggressively regulated and taxed. They assiduously regulate (and from our conservative perspective, micro-manage) construction and business, and they heavily tax everything from income to sales to property.
Red states have generally done less regulation and taxing. It’s easier to build a house, and to start and run a business in a red state, and you pay a lot less – or zero – in state income tax. (All 7 states with no income tax are red; all 8 with a top tax rate of 9% or more are blue)
In Brandeis’ terms, the little laboratories have been doing their experiments, and the results are now in. In blue states, crime is generally worse, cost of living is much higher, unemployment is higher, and state services are worse. In red states, the reverse is generally true. (Exceptions come when stats from blue cities – regarding educational, social and political dysfunction, along with higher crime and poverty – are misleadingly attributed to the red states those cities are in. Devious politicians then dishonestly label blue city problems as red state problems.)
National migration patterns reflect the results of those “little laboratory” experiments: productive people are fleeing blue states like CA, IL and NY (among others) and going to red states like FL, TX and TN (among others). This kind of “voting with your feet” is an informal, yet very powerful form of checks and balances, since it gives all states incentives to treat citizens well, and disincentives for treating them poorly.
Having now sung the praises of our system, I must turn toward some problems with it. I would point to three ways in which I think the original separation of powers and checks and balances have eroded over the last 40-50 years or so.
First, the legislative branch has largely abdicated its proper powers in favor of personal benefits/enrichment of congressmen. Second, the powers of the presidency have grown toward an “imperial presidency” (a term which gained prominence in the 1960s, and got a boost from an influential 1973 Arthur Schlesinger book with that name). Third, the powers of an imperial and overweening judiciary have similarly grown.
Legislative abdication:
I think the Founders would be rolling in their graves to realize how wrong they’d been about one thing. They thought that given the ambition of mankind, each branch would jealously guard their own power by continually pushing back against the other 2 branches, which is how it worked at first. (Hence “setting ambition against ambition.”)
But it turns out that in recent years, most of our congressmen/women have deteriorated into self-serving cowards, without the spine to fight and take principled stances that might cost them personally. We used to have a bunch of individual budget bills every year, and every congress-weasel would have to vote on all of them, and each vote would piss off somebody. (Vote for a farm bill that farmers think disfavors their interests, and you’ll have some angry Midwesterners on your hands!) That necessarily involved checks and balances: auto-makers and heavy manufacturers would be vying with farmers and white collar business for support/perks/non-interference; east coast states would be trying to get a piece of the pie for their people and industries, as Midwesterners and west coasters would for theirs.
But since congress is now full of people who don’t care about anything but getting re-elected, and getting Imhotep Pelosi-level rich on insider stock trading (!) they avoid taking any tough stances.
Instead, we’ve now devolved to the point where each year there is one huge, bloated, omnibus bill which hits the House and Senate floor a day or so before the whole thing has to be passed, or the entire government closes down. There’s not even enough time to read it, let alone debate any part of it – which gives every puss in congress the chance to sneak in billions of dollars of pork and dirty deals, knowing that the people likely won’t ever find out about most of them.
And if they do – if some whistle-blower reveals some of the sleazy, sweetheart deals that were in the omnibus bill – the congress weasels have given themselves perfect cover: “What was I supposed to do? We didn’t get the bill until it had to be passed or the government collapsed. If I’d known everything that was in it, I’d have fought it, but I didn’t, and I had no choice. It’s a rotten system, and needs to be changed!”
Annnnnddddd…it’s never changed. Because it serves the interests of the self-interested politicians.
The legislature has also largely abdicated its power by giving it over to bureaucratic agencies, who are supposed to limit themselves to enforcing the laws that the congress passes. But the congress often passes laws with ambiguous and/or platitudinous instructions. One example involved the Clean Water Act, which tightened restrictions on polluting waterways, and empowered the EPA to enforce that requirement. Because who could oppose clean water and unpolluted waterways?
What happened next could have been predicted by people who understand humans, and the natural tendency to behave in ways that increase your power and job security. Agencies who regulate lightly require less employees and budget, and are less powerful. So before you could say “power corrupts,” the EPA had decided that “waterways” means every mud puddle in the country.
I exaggerate. A little.
But quickly enough, examples such as this popped up: you own a little piece of land in an area with patterns of seasonal rains; it might have a small dry pond on it for most of the year, which then becomes filled with water only during the rainy season. An activist bureaucrat could then declare that such occasional water constituted a “waterway,” and thus a protected “wetland,” and claim the right to regulate the landowner into bankruptcy by forcing him to pay for onerous government inspections and “mitigation” strategies.
I’m not claiming that regulations are always or even often wrong. But the end result should not be that unelected bureaucrats can unilaterally and functionally “write” a law, with no recourse for the people who are harmed by their self-created interpretations. That would open the door to extreme, undemocratic abuse on the part of unelected bureaucrats. And that’s what was often happening.
In the 1984 Chevron vs. Natural Resources Defense Council, SCOTUS first created the principle of “Chevron deference,” which meant that a government agency’s interpretation of a law should be given deference, rather than being overseen (and checked) by the judiciary. Fortunately, in 2024, SCOTUS corrected that mistake, overruling Chevron, and curtailing Chevron deference.
That was not a perfect solution, because it took power away from unelected bureaucrats, only to give it to unelected judges. No longer could an activist EPA functionary declare your mud puddle the equivalent of the Mighty Mississippi… but an activist judge could! However, at least that judge’s decision could be checked and reversed by a higher court.
Obviously, the best solution would be for congress to start writing fewer and clearer laws, so that these kinds of power-grabs by unelected officials would be much less common. But to paraphrase an old saying, wish for congressional courage and competence in one hand, and defecate in the other, and see which one fills up first.
I think Learned Hand said that. Or maybe it was Maimonides.
To summarize, the legislative branch – between shrinking from their duties to actually write and pass legislation, and deferring to federal agencies to in effect write the laws that congress only hints at in gutlessly ambiguous bills – has abdicated its mission, and its ability to check the other branches.
In Part 3, I’ll discuss the problems with the other two branches: the imperial presidency, and the imperial judiciary.
Hamas (and Trantifa) delenda est!
Martin Simpson 