I was going to write about the choices facing the Democrats today, but the news from the Supreme Court overwhelms that. So to be brief: The realistic options for the Democrats are sticking with Joe Biden or nominating Kamala Harris, and if Biden isn’t up to it doing the job — something we just don’t really know — then he should resign, and endorse the new President Harris for the nomination.
As far as the Court is concerned, what we’re seeing is a massive disruption of the Constitutional system of government. Jamelle Bouie got it exactly right:
[R]oberts essentially ignores the purpose of separation of powers, which was not to create entirely separate spheres of action but to prevent the emergence of unchecked authority. instead, he says, separation of powers *demands* unchecked authority.
And as presidency scholar Andrew Rudalevige points out, James Madison himself made that argument.
Some of the commentary over the weekend talked about the case ending “Chevron deference” and other recent Court actions as reducing the power of executive branch agencies. That’s the wrong way to think about it.
What’s actually happening here dramatically limiting the ability of Congress to govern. It’s Congress, along with the presidency, that sets up these agencies, funds them, gives them tasks, and oversees them. It’s Congress in particular that has used administrative agencies to carry out goals that are too complex for the legislature to micromanage, or really to directly manage at all. Yes, some of this is Congress’s own fault, as they’ve reduced their own capacity. But delegation to executive branch agencies is a perfectly sensible solution to a complicated and constantly changing world, should Congress want to do that. The Court increasingly won’t let them.
And now we add to this a literal get-out-of-jail-free card for the president.
To be clear: What the Court is doing is reducing the role of Congress. And Congress is the best hope the people have to influence what the government does. At the same time, by aggrandizing the president, the Court is at least in part transforming the presidency from just another portion of the government designed to represent the people into a sovereign above the law. Roberts and his allies are not going after administrative agencies. They’re going after representative democracy — the ability of the people to do collective self-government.
The Court is attempting to turn a system of separated institutions sharing powers into one in which the courts decide what the federal government does…while the president and the presidency can do whatever they want. That’s an inversion of what the Framers were trying to do in Philadelphia. It’s contrary to the way the nation has actually run for over two centuries. It’s foreign to the whole notion of a republic.
It’s also likely a mess in practice.
So where does it go from here?
It’s possible that we’ll muddle through, harming liberal policy goals to be sure but with relatively little damage to the structure of the government. The system created in 1787 and enhanced and lived all these years has very deep roots, and it may prove to be more resilient than some fear and others hope. Political action will matter, and it could be that defenders of the Constitution have better days.
It’s also very possible that we’re in for a period of chaos, with any kind of equilibrium very difficult to find as various institutions and interests fight out what the new system of government will be. I’m no expert in many of the specifics the Roberts Court has ruled on over the last few years, but one word I keep seeing over and over again by those who are experts in the various subject matters is “unworkable.”
And, yes, there is another real possibility: Tyranny. It’s clear that Donald Trump intends to govern as an authoritarian if he wins another term, and far too many Republicans, including those on the federal bench, seem just fine with that. That the US system of government was mostly resilient so far is no guarantee it will continue to be so.
Which is it? All I can say is: Political action will matter.