Executive Action and the Living Constitution

Good day class,
So, more about emails, and contacts with Russians, and now, a story that during the campaign, the Obama Administration used the FISA Court to wiretap Trump Tower, ostensibly to look for and uncover illegal contacts that Trump officials or the candidate himself might be having with foreign (read Russia) officials.  CAVEAT: We do not know if any of this is true.

What I do want to discuss is the connection between the expansion of executive action, and the power of the executive branch, and the theory and value of a living constitution.

Those two may seem unrelated, and one can make the argument that they are very different uses of power by distinct branches.  Executive power, the use of the Administrative agencies to implement the law Congress passes is essential to modern government.  We cannot expect, for example, Congress to draft regulations to implement a change in the tax code.  In passing the law, Congress gives to the Executive Branch and the agencies, with their tens of thousands of employees, the power and duty to write regulations which must pass through hearing and comment periods, to put into effect the mechanics of implementation.  This is a well-accepted and constitutionally permissible use of executive power. You may not like the power of the bureaucracy, but no modern government can operate efficiently without it.

What binds the bureaucracy is that the regulations it writes and administers must be done, and only be done, to effectuate the general power and specific authority Congress has directed it to use to put into effect the  broad goals and specific objectives iterated in the law passed by Congress.

Jump to the vision of a living Constitution-- the principle best espoused today by Justice Breyer, that the Constitution was never intended to be a document frozen in time. That it is the duty of each generation to understand the contemporary values of the polity, and to take into account all of the changes that have occurred, and to mold the values of the Constitution to meet those changes.  The justices are bound by the words of the document, but are not prevented from adopting positions that appear (literally) no where in the document, because the document itself anticipates, authorizes and authenticates this evolution.

Now, what is the connection?

On their face, both the use of executive power and the ability of the Court to write decisions not hidebound by the moral and political strictures of 1789 seem to be sensible approaches to the problems of modern America.

But what if the balance between the branches (separation of powers) or the balance between the people and their government (popular sovereignty) gets out of whack? What happens if one of, or all of, the three branches get lazy?
Let me take two examples, and let's start with "A."

ACA: the passage of the health insurance overhaul and its initial five years of implementation are a perfect example of the sharp dissonance between legislative action and administrative implementation. (I am not talking about  the website- that was simply an example of the failure of government and people). What I am talking about is how the health care law was rewritten numerous times without a single congressional vote.  Recall, if you will, the myriad of exemptions, the granting of waivers, the reallocation of tax funds, the expenditure of public funds to prop up failing coops and failing insurance companies, all done ostensibly to "make the law work."  None of these were authorized by Congress, except, if you take the language of the law.  Congress, incapable of reaching consensus, chose to give the executive branch broad authority to write regulations to address issues that came up.  Genius, you might say.

Ok, where does that authority stop? Could the administrators write regulations to grant exemptions to every third American who lost their doctor, or lost their plan, kind of like a National Health Lottery, where, if dissatisfied, you could draw your plan out of a hat and see if you won?  What about those poor insurance companies who took the chance on the plan but ended up with a whole bunch of sick insureds that cost them too much profit? Can't we all just give a lot? Congress wanted this to succeed, and we all know how little Congress gets done, so, c'mon, can the administrative branch fix the law and make all those poor Congressmen and Congresswomen feel good about themselves?  Imagine how the collective psyche of that body would suffer without our help.

The problem, of course, is that Congress may or may not have wanted those administrative actions;  it may or may not have debated those issues; it  may or may not think them appropriate to the overall objectives of the legislation.  The law wasnt passed not to fail, it was passed to address the problem of the uninsured and the rising costs of health care.  (Guaranteeing the financial success of insurance companies hardly promotes the cost controls of the local hospitals fees for inpatient ibuprofen.)

Congress, having washed its hands of the law, (or half of Congress in this case), now abdicates its fundamental duty: once passing the law to address a problem, Congress has a duty to oversee its implementation to insure that  the law is working as expected.  It is not a permissive activity; Congress must do this.

Jump to the principle of a living constitution. The broad concepts are the same, though the players are different. The founders gave us broad principles, but left much of the canvas blank.  They expected that the central player in that drama, the story of the changing Constitution, would stay engaged. But that player has, like Congress, taken its work as being done in 1789, with ratification, and has decided to let the other players take control.  The President considers his responsibility for those central constitutional questions complete with his (I will add the pronoun her when Americans elect a woman) vetting and nomination of a justice. The Congress considers its work as done with the confirmation of each justice.

And off we go. We often hear the lament of the disabused. Wow, did Justice Warren turn out to be not what we thought.  Can you figure out Justice Kennedy?
Listen carefully to what they are lamenting: this justice didn't vote the way  I would have. He or she didn't express in that decision my political or moral or economic views He doesn't represent me.

No kidding.
The concept of a living constitution promotes the view that the Court should and does act as a representative branch of government; that the Court is but one more body to validate our individual views. (I don't say collective, because much of what the Court has done is to protect the minority views- which, is to say the least, a vision of living constitutionalism that defies the concept of popular representation.)

But the player most important to the entire process has "gone fishing." Off for the weekend, or decade, or century.  The people themselves, who were central to the entire conception of judicial review, have decided to take a break from their role in preserving the institution of judicial review and judicial supremacy, and in that, have delegated their responsibility to .... to.... to whoever wants it.  And over the law century, it has increasingly become the Court itself that has taken it on.

The living Constitution is much like the double-edged sword. It cuts both ways. It has taken on the mantel of progress; Justice Breyer proudly demonstrates that the value of a constitution that evolves distinctly through the views of 5 votes, of which is is one, means that it can move forward, into progressive modernity and make the lives of Americans better.

Martin Luther King, Jr said, and believed, that "The moral arc of the law is long, but it bends toward justice." But when we, the people themselves, allow another body to define what  justice is, we should be aware how precarious the permanence of principle.

Second letter A: abortion.  If the evolving constitution fundamentally reflects the movement toward what most of the people want, if it is bound not by the old, staid, stale word of the founders, but instead by the movement of the polity toward the values and views of the age-- if that is true, then when the opinion polls take a turn, on such issues as, oh, abortion, is it not perfectly appropriate, nah, even required under the principle of an evolving constitution, that a court toss out precedent and move the law into the modern day?

Many current opinion polls show that the majority of Americans oppose abortion.

How's that for evolving public standards of decency? What is Justice Breyer going to say when the arc of the law bends back again, as it has done over and over, not like piece of steel, but instead like smoke trail of a bottle rocket. When it bends back again to a very different position? Will the living constitutionalists be on their feet arguing for precedent, or keeping to tradition (as in 1973 Roe v Wade tradition). What binds the Court is the value of change, and change founded on the value of change may not be to your liking.

I hope I have made the connection, but as the hearings for the newly nominated justice begin, watch the language of the two sides.  The originalists will be slying positioning the nominee to accept the emerging majority opinions (probably if they are bold enough, using Justice Breyer's own words) and the living constitutionalists will be advocating for stasis and permanence and precedent (using the words of Justice Scalia-- they won't use Justice Thomas's words I'll wager, but they could) to box the nominee in.
And they will all fail, because the only thing that boxes the Court in, in any real way, is the power of the people themselves to define the values of the world they live in, and wish their laws to be constrained by.

Our system works best, when it works at all, when all the players are on the stage, acting their parts, and not off in the audience, or more likely, at intermission early getting a beer.

Go get 'em tigers.

Kurt