James Kunstler: Forecast 2020

In this somewhat lengthy article, author James Howard Kunstler makes some predictions for 2020 — political, economic and other. Kunstler’s main works have been on peak-oil and what that means to society and also urban and suburban development issues. It may or may not be of relevance, but Kunstler is a Democrat, though he has been described as “an angry, disaffected one.” That is mentioned here only because some read his acidic commentary on the impeachment charade and think that he is conservative, Republican, or pro-Trump — of which he is none.

…These diseases of mind and culture are synergized by an aroused political ethos that says the ends justify the means, so that bad faith and knowing dishonesty become the main tools of political endeavor. Hence, a venerable institution such as The New York Times can turn from its mission of strictly pursuing news and be enlisted as the public relations service for rogue government agencies seeking to overthrow a president under false pretenses. The overall effect is of a march into a new totalitarianism, garnished with epic mendacity and malevolence. Since when in the USA was it okay for political “radicals” to team up with government surveillance jocks to persecute their political enemies?

This naturally leads to the question: what drove the American thinking class insane? I maintain that it comes from the massive anxiety generated by the long emergency we’ve entered — the free-floating fear that we’ve run out the clock on our current way of life, that the systems we depend on for our high standard of living have entered the failure zone; specifically, the fears over our energy supply, dwindling natural resources, broken resource supply lines, runaway debt, population overshoot, the collapsing middle-class, the closing of horizons and prospects for young people, the stolen autonomy of people crushed by out-of-scale organizations (government, WalMart, ConAgra), the corrosion of relations between men and women (and of family life especially), the frequent mass murders in schools, churches, and public places, the destruction of ecosystems and species, the uncertainty about climate change, and the pervasive, entropic ugliness of the suburban human habitat that drives so much social dysfunction. You get it? There’s a lot to worry about, much of it quite existential. The more strenuously we fail to confront and engage with these problems, the crazier we get…

There’s an excellent chance that the Democratic Party will be in such disarray by summertime, that it may break apart into a radical-Wokester faction and a rump “moderate” faction. That would make the election somewhat like the 1860 contest on the eve of the first Civil War. The current crop of leading candidates — Biden, Sanders, Warren, Buttigieg — all look to me like horses that ain’t gonna finish. Michael Bloomberg could end up leader of the rump moderates, propelled by his inexhaustible bank account, but I doubt his appeal to the racial minorities and the new millennial voters Democrats depend on. I’m not sure he’s left with much else.

I’m convinced that Joe Biden is in still in the contest solely to avoid investigation. He’s already obviously not wholly sound of mind, and he’s not even in the White House yet…

the attempts at impeachment have a peevish Lilliputian flavor. Keeping it up —bringing a threatened second or third bill of impeachment with extra charges — will only reinforce Mr. Trump’s anti-fragility. Second to the economic issues is the question whether the firm of Barr & Durham will manage to pin some criminal responsibility on the people who undertook the RussiaGate coup against Mr. Trump — a ghastly mis-use of government power now celebrated by Democrats, who, you might recall, used to be against police states. A series of perp walks by the likes of Brennan, Comey, Clapper, and others could finally burst the bubble of credulity that the Mueller face-plant and the damning Horowitz report failed to achieve among the True Believers of Rachel Maddow…

Attorney General Barr: Checks and Balances Are Unbalanced

The following is an excerpt from a speech given by Attorney General Barr earlier this month to the Federalist Society’s National Lawyers Convention. In the speech, Barr expands on imbalances which have developed over time which he claims have weakened the office of the President so that it cannot properly balance against the Legislative and Judicial branches. He has some insightful things to say, so stick with it. I’m not sure buy the entire argument, but there is a lot of truth in here.

The consensus for a strong, independent Executive arose from the Framers’ experience in the Revolution and under the Articles of Confederation.  They had seen that the War had almost been lost and was a bumbling enterprise because of the lack of strong Executive leadership.  Under the Articles of Confederation, they had been mortified at the inability of the United States to protect itself against foreign impositions or to be taken seriously on the international stage.  They had also seen that, after the Revolution, too many States had adopted constitutions with weak Executives overly subordinate to the Legislatures.  Where this had been the case, state governments had proven incompetent and indeed tyrannical.

From these practical experiences, the Framers had come to appreciate that, to be successful, Republican government required the capacity to act with energy, consistency and decisiveness.  They had come to agree that those attributes could best be provided by making the Executive power independent of the divided counsels of the Legislative branch and vesting the Executive power in the hands of a solitary individual, regularly elected for a limited term by the Nation as a whole. As Jefferson put it, ‘[F]or the prompt, clear, and consistent action so necessary in an Executive, unity of person is necessary….”

While there may have been some differences among the Framers as to the precise scope of Executive power in particular areas, there was general agreement about its nature.  Just as the great separation-of-powers theorists– Polybius, Montesquieu, Locke – had, the Framers thought of Executive power as a distinct specie of power.  To be sure, Executive power includes the responsibility for carrying into effect the laws passed by the Legislature – that is, applying the general rules to a particular situation.  But the Framers understood that Executive power meant more than this.

It also entailed the power to handle essential sovereign functions – such as the conduct of foreign relations and the prosecution of war – which by their very nature cannot be directed by a pre-existing legal regime but rather demand speed, secrecy, unity of purpose, and prudent judgment to meet contingent circumstances.  They agreed that – due to the very nature of the activities involved, and the kind of decision-making they require – the Constitution generally vested authority over these spheres in the Executive.  For example, Jefferson, our first Secretary of State, described the conduct of foreign relations as “Executive altogether,” subject only to the explicit exceptions defined in the Constitution, such as the Senate’s power to ratify Treaties.

A related, and third aspect of Executive power is the power to address exigent circumstances that demand quick action to protect the well-being of the Nation but on which the law is either silent or inadequate – such as dealing with a plague or natural disaster.  This residual power to meet contingency is essentially the federative power discussed by Locke in his Second Treatise.

And, finally, there are the Executive’s powers of internal management.  These are the powers necessary for the President to superintend and control the Executive function, including the powers necessary to protect the independence of the Executive branch and the confidentiality of its internal deliberations.  Some of these powers are express in the Constitution, such as the Appointment power, and others are implicit, such as the Removal power.

One of the more amusing aspects of modern progressive polemic is their breathless attacks on the “unitary executive theory.”  They portray this as some new-fangled “theory” to justify Executive power of sweeping scope. In reality, the idea of the unitary executive does not go so much to the breadth of Presidential power.  Rather, the idea is that, whatever the Executive powers may be, they must be exercised under the President’s supervision.  This is not “new,” and it is not a “theory.”  It is a description of what the Framers unquestionably did in Article II of the Constitution.

After you decide to establish an Executive function independent of the Legislature, naturally the next question is, who will perform that function?  The Framers had two potential models. They could insinuate “checks and balances” into the Executive branch itself by conferring Executive power on multiple individuals (a council) thus dividing the power.  Alternatively, they could vest Executive power in a solitary individual.  The Framers quite explicitly chose the latter model because they believed that vesting Executive authority in one person would imbue the Presidency with precisely the attributes necessary for energetic government.  Even Jefferson – usually seen as less of a hawk than Hamilton on Executive power – was insistent that Executive power be placed in “single hands,” and he cited the America’s unitary Executive as a signal feature that distinguished America’s success from France’s failed republican experiment…

I am concerned that the deck has become stacked against the Executive.  Since the mid-60s, there has been a steady grinding down of the Executive branch’s authority, that accelerated after Watergate.  More and more, the President’s ability to act in areas in which he has discretion has become smothered by the encroachments of the other branches.

When these disputes arise, I think there are two aspects of contemporary thought that tend to operate to the disadvantage of the Executive.

The first is the notion that politics in a free republic is all about the Legislative and Judicial branches protecting liberty by imposing restrictions on the Executive.  The premise is that the greatest danger of government becoming oppressive arises from the prospect of Executive excess.  So, there is a knee-jerk tendency to see the Legislative and Judicial branches as the good guys protecting society from a rapacious would-be autocrat.

This prejudice is wrong-headed and atavistic.  It comes out of the early English Whig view of politics and English constitutional experience, where political evolution was precisely that.  You started out with a King who holds all the cards; he holds all the power, including Legislative and Judicial.  Political evolution involved a process by which the Legislative power gradually, over hundreds of years, reigned in the King, and extracted and established its own powers, as well as those of the Judiciary.  A watershed in this evolution was, of course, the Glorious Revolution in 1689…

The second contemporary way of thinking that operates against the Executive is a notion that the Constitution does not sharply allocate powers among the three branches, but rather that the branches, especially the political branches, “share” powers.  The idea at work here is that, because two branches both have a role to play in a particular area, we should see them as sharing power in that area and, it is not such a big deal if one branch expands its role within that sphere at the expense of the other.

This mushy thinking obscures what it means to say that powers are shared under the Constitution.  Constitution generally assigns broad powers to each of the branches in defined areas.  Thus, the Legislative power granted in the Constitution is granted to the Congress.  At the same time, the Constitution gives the Executive a specific power in the Legislative realm – the veto power. Thus, the Executive “shares” Legislative power only to the extent of the specific grant of veto power.  The Executive does not get to interfere with the broader Legislative power assigned to the Congress.

In recent years, both the Legislative and Judicial branches have been responsible for encroaching on the Presidency’s constitutional authority.  Let me first say something about the Legislature

A prime example of this is the Senate’s unprecedented abuse of the advice-and-consent process.  The Senate is free to exercise that power to reject unqualified nominees, but that power was never intended to allow the Senate to systematically oppose and draw out the approval process for every appointee so as to prevent the President from building a functional government.

Yet that is precisely what the Senate minority has done from his very first days in office.  As of September of this year, the Senate had been forced to invoke cloture on 236 Trump nominees — each of those representing its own massive consumption of legislative time meant only to delay an inevitable confirmation.   How many times was cloture invoked on nominees during President Obama’s first term?  17 times.  The Second President Bush’s first term?  Four times.  It is reasonable to wonder whether a future President will actually be able to form a functioning administration if his or her party does not hold the Senate.

Congress has in recent years also largely abdicated its core function of legislating on the most pressing issues facing the national government.  They either decline to legislate on major questions or, if they do, punt the most difficult and critical issues by making broad delegations to a modern administrative state that they increasingly seek to insulate from Presidential control.  This phenomenon first arose in the wake of the Great Depression, as Congress created a number of so-called “independent agencies” and housed them, at least nominally, in the Executive Branch.  More recently, the Dodd-Frank Act’s creation of the Consumer Financial Protection Branch, a single-headed independent agency that functions like a junior varsity President for economic regulation, is just one of many examples.

Of course, Congress’s effective withdrawal from the business of legislating leaves it with a lot of time for other pursuits.  And the pursuit of choice, particularly for the opposition party, has been to drown the Executive Branch with “oversight” demands for testimony and documents.  I do not deny that Congress has some implied authority to conduct oversight as an incident to its Legislative Power.  But the sheer volume of what we see today – the pursuit of scores of parallel “investigations” through an avalanche of subpoenas – is plainly designed to incapacitate the Executive Branch, and indeed is touted as such. ..

Click here to read the entire speech at the Dept. of Justice website.

Related:

Intellectual Takeout: The Deep State – The Headless Fourth Branch of Government

President Declares Intent to Sign a National Emergency Over Border

From Reuters

“I’m going to be signing a national emergency,” Trump said from the Rose Garden of the White House.

“We have an invasion of drugs, invasion of gangs, invasion of people, and it’s unacceptable,” he said.

The president said he would sign the authorizing paperwork later in the day in the Oval Office…

Nancy Pelosi, the Democratic Speaker of the House of Representatives, and Chuck Schumer, the Senate’s top Democrat, swiftly responded to Trump’s declaration.

“The president’s actions clearly violate the Congress’s exclusive power of the purse, which our Founders enshrined in the Constitution,” they said in a statement. “The Congress will defend our constitutional authorities in the Congress, in the courts, and in the public, using every remedy available.”

The president acknowledged that his order would face a lengthy legal challenge. “We’ll win in the Supreme Court,” Trump said…

Speaker Pelosi had previously threatened that the next Democrat President could declare gun violence a national emergency while Rep. Cleaver of Missouri said that such a President could declare climate change or income inequality as national emergencies.

“A Democratic president can declare emergencies, as well,” Pelosi told reporters in the Capitol. “So the precedent that the president is setting here is something that should be met with great unease and dismay by the Republicans.”

…”Let’s talk about today: The one-year anniversary of another manifestation of the epidemic of gun violence in America,” Pelosi said. “That’s a national emergency. Why don’t you declare that emergency, Mr. President? I wish you would.

“But a Democratic president can do that.”