Saturday, July 24, 2010
The Fourth Branch
Reading Ed Cline's latest, the more I think about it, the more I am convinced that the most serious omission in the Constitution was some kind of explicit and immediate consequences for politicians who enact and enforce legislation that violates the Constitution -- make any signatory to a legislative act suffer consequences more immediate than the remote threat of impeachment. That is, any politician who signs a bill ruled unconstitutional by the Supremes should be immediately removed from office, permanently barred from any future office, and held personally liable for damages therefrom. And members of the executive branch who enforce it should suffer the same fate.
What we have today is politicians who are utterly without fear of violating the Constitution. I'm thinking of Obama in his strong-arm tactics with business, or through his minions such as Secretary of Interior Salazar, who is flat out ignoring two court rulings stating he has no authority to stop all drilling in the Gulf. Ad infinitum. Egregious violations of the Constitution go back much further than Obama, of course.
Why do they have no fear? Because there's so little chance they will be impeached. Certainly, Obama isn't worried about this. There's just too much latitude for any politician to knowingly propose any brand of stupidity or evil they want without concern for the lives it will destroy or injure, nor the consequences to himself for proposing it. Authority is too far disconnected from responsibility.
The system I propose merely puts one aspect of removal of bad politicians on autopilot and takes it out of the hands of Congress, so that no party can do what the Dems are doing today. For any system to work with checks and balances there simply has to be palpable consequences to the unbalanced who are being checked. I emphasize the word "palpable".
Impeachment should still be a recourse for criminal and unethical behavior, but there should be a new category: behavior without regard for the Constitution. That would be a category for the third branch of government to participate in preventing -- not directly, but indirectly, by an automatic process that goes into motion the moment a legislative act is ruled unconstitutional.
(I might argue that there should be a fourth branch of government charged with only one job: ensuring that officials are indeed removed from office, to eliminate the possibility that the other three branches never engage in wink and nod behavior.)
Even for the appellate courts, a similar standard should be applied: if they render any decision that is too egregiously in conflict with the Constitution, a judge should be removed as well, though probably not automatically. What is "egregious"? I think this can only be decided by humans according to some standard. But what can be automatic is the requirement for some kind of judicial review of all lower court judges who affirmed an unconstitutional decision, according to an objective standard -- for instance, was there any precedent at all for the erroneous decision? I do think that judges require a different standard because errors will be made by lower courts. That's why we have an appellate system. But I don't judges should be free of consequences either. I'll leave further details for another time.
Some would argue this kind of automatic removal of politicians places too much power in the judicial branch, with the opportunity for corruption of judges as a means of entrenching one-party rule, since a court decision will tend to affect one party more than the other -- a single decision could even remove an entire party, such as the one that signed the recent Health Care bill. Well that might be a good thing, but a bad Supreme decision could remove the other party. Well, that might be a good thing too. But you get my drift. This could happen even if the court makes honest, albeit bad decisions.
Of course, a Supreme Court judge guilty of corruption or incompetence could be impeached for bad decisions, but that's unlikely by the legislators surviving a decision.
The potential for one-party rule is a very dangerous result. A fair criticism. Perhaps the removal from office of all signatories to a bill places too much power in the court. So let's say only the legislative sponsors of a bill should be immediately removed from office -- along with any President who signs it. And let's include a requirement that every bill must have an explicit sponsor or sponsors who are responsible for the content of it. (This would surely eliminate "bipartisan" sponsors. Hasta la Vista McCain-Feingold.)
One way to handle the objections here is simply to a create a mechanism for the legislature to seek a priori Constitutional review of a oroposed bill by the Supreme Court. If the court rules okay -- all are absolved. (This would also slow the introduction of new bills according to the schedule of the 9 Supremes, which I think is a good thing.)
Some would argue that Court decisions are often rendered years after a politician leaves office, or that legislative acts could be written to only go into effect years later, to insulate politicians from the consequences -- as was done with the Health Care bill. But this is one reason I say legislators (and executive officers responsible for enforcement) should also be subject to monetary and criminal damages. In perpetuity. For the entire contents of a bill. And members of the executive branch who enforce any unconstitutional law should remain liable, even years after it is enacted.
As I've said before, this would encourage legislators to actually read the bills they sign, and think about them. It would immediately discourage the recent phenomenon of "omnibus" bills that have everything in them but the kitchen sink. For instance, the Health Care bill. Or the new Financial "overhaul" bill. Or even a large defense appropriation.
For instance, imagine a legislator like Charlie Rangel who sponsors a bill for a new draft. Let's say this goes into effect and Charlie leaves Congress, under his own power or in leg-irons. Meanwhile, millions of people get drafted, many having their lives ruined for some period of time, suffeing lost income, death, etc.
To my unsophisticated thinking, Charlie should bear some of the consequences for that. He should pay every penny he has to compensate those whose lives he impoverished, even if it leaves him a panhandler pushing a shopping cart down the street. But he should also be cited for causing a wrongful death if he caused any wrongful death -- prison time. Say hello to Big Bubba, your new roommate.
The whole idea is to bring responsibility in line with authority. Whenever the two become disconnected, you have bad consequences. The highest authority should bear the highest responsibility.
The prospect of immediate removal would deter politicians from sponsoring bad legislation. The prospect of monetary and criminal damages in perpetuity (and without recourse to bankruptcy) would deter them from supporting any bill they deem as potentially remotely unconstitutional. The combination would deter a lot of bad people from seeking office. Whatever the shortcomings of this incomplete proposal, I think all that is a good thing.