Archive for January, 2018

DACA and the Courts

Two days ago, a 9th Circuit federal judge in San Francisco blocked the Trump Administration’s reversal of Obama’s DACA, the program under which illegal aliens brought here as children could register, in return for a suspension of enforcement of immigration law.  He did so with a decision that, as Josh Blackman puts it, reads like bad punditry, bereft of any legal reasoning or precedent.

On the Twitters, the pseudonymous “Thomas H Crown” explains in an 800-word thread what got us here, why this sort of ruling both stems from and feeds a deeper civic rot.

So a judge begins with the proposition that an executive order is lawfully entered; executive orders by definition lie entirely in the discretion of the Executive and may be withdrawn or advanced at his sole discretion; and concluded withdrawing it may be illegal.

The problem with our system of government right now is diffuse responsibility and a categorical unwillingness by the legitimately-enumerated-and-responsible actors to retake their power and responsibility.

The judiciary has absolutely no power to order the Executive to retain a program the Executive created ex nihilo and contrary to the express terms of a lawfully-enacted, Constitutional statute.

The Executive should be aggrieved because its power is being summarily denied by a Branch with no rule/law-making power of its own; its power is (theoretically) limited to derivative lawmaking based on other Branches’ acts.

The Legislature should be absolutely losing its poop because (1) its power was wrongfully grabbed by the Executive at the start and (2) now that the Executive is backing down, the Judiciary is grabbing the mantle in its place.

Elementary civics teaches that the Constitution creates checks and balances, i.e., no one branch can become more powerful than any other because each has a power to negate the one taking its authority; and two beat one.

Elementary civics also teaches that Congress has the power, under extraordinary circumstances, to rip the other branches to shreds, by impeachment and by defunding their day-to-day operations (but not Article III’s salaries).

But this arrangement is a dead letter.

Instead, here, roughly, is our system.

Congress passes laws sometimes and sometimes not, and passes budgets sometimes and sometimes not, but never actually exercises the power of the purse over anything.

Impeachment, because of its uneven execution on the Executive, is considered a nuclear device, and even in the face of clear lawbreaking and arrogation of power is at best a toss of slightly-loaded dice.

The bulk of lawmaking is actually done by the Executive, by a facially unconstitutional delegation of authority of that power by Congress almost a century ago that most people now take for granted.

When the Executive makes laws/novel interpretations completely outside the text/creates whole new programs, Congress races to fundraise off it. Sometimes, it asks the third branch to say the second is naughty.

The judiciary makes new Constitutional amendments, something it’s really not qualified to do (lawyers know our own), occasionally orders the Executive to change its interpretation of a law to what the judiciary wants, and now runs illegal Executive programs.

Instead of ordering up a round of impeachments or at least informing the judiciary that its electric, gas, water, rent, etc., bills won’t be paid any more, Congress races to fundraise.

Instead of telling the judiciary it can enforce its own damned laws (BUT THE MARSHAL OF THE SUPREME COURT) if it wants to be the Executive, the Executive asks the judiciary to please reconsider. Please.

So instead of Article I — the first and most expansive — being primus inter pares, which is necessary for effective small-r republican governance, or Article II, which is at least elected, the system is totally inverted and no one changes it.

The system is now designed to funnel power to the only unelected — and therefore least-inclined to republican responsibility — branch, then the second-least responsible, and leave the most electorally-responsible one the one with the least power.

In times of economic downturn or uncertainty, direct stimulus to the humans does not lead to increased spending. They instead disproportionately use it to pay down debt or accrue savings (same thing).

This is because the humans are surprisingly cannier than the people they elect to govern them.

The effects are fairly straightforward: Increased voter apathy, lower turnout for elections in which only Congress is in play, and increased energy and commitment to the outcome of the only elected branch where real decisions are made.

In other words, the humans can tell that there’s no point in caring too too much about Congress, as it’s an ATM with occasional fits of lawmaking, and a great deal of reason to care about the Executive, the source (more or less) of judges and only meaningful elected office.

It’s an unpleasant feedback loop, as this only encourages the same mess that caused that behavior in the first place.

Worse, the incentives the Founders identified in the elected officials were way and totally wrong. In Congress, they don’t care about power, they care about prestige, the appearance of power, and wealth.

They have no incentive to check the Executive or Judiciary because if what they do doesn’t make vox populi roar with approval, their incentives could be endangered.

The people care that they feel like they have a responsive system, regardless of the accuracy of this feeling, and have a king/champion and wise philosopher bench to guide them.

If you care about republican governance, this is a truly hideous state of affairs.

Most people don’t.

People have been fixated on the dangers of getting used to Trump’s unusual behavior for a president. Getting used to this kind of “because I said so” jurisprudence strikes me as just as dangerous.  Hamilton wrote that the judiciary would be the weakest branch, and that judges would be afraid of getting so far out of line for fear of being impeached.  This is the kind of ruling that begins to make impeachment look plausible.

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PERA Forum

On December 20th of last year, the South Metro Denver Chamber of Commerce hosted a forum on the future of Colorado’s deeply troubled public pensions, the Public Employees Retirement Association, or PERA.

PERA’s been in trouble for a while, but it only noticed how much trouble it was in late in 2016 when it adopted new mortality tables an a slightly less unrealistic estimate of its long-term rate of return.  Since then, it’s been frantically trying to salvage the current defined benefit plan.  PERA has a legislative proposal to tighten up COLAs, slightly increase the retirement age, increase contributions, and tighten up some loopholes in the benefit calculation formula.  Governor Hickenlooper has released a plan of his own, similar to PERA’s with a few tweaks.

Independence Institute and I think the long-term solution needs to be more sweeping – a cutoff of the traditional pension plan for new members, and even providing the option for existing members to transfer into a new, 401(k)-style defined contribution plan.  This won’t get rid of the massive, $80 billion unfunded liability, but it will keep it from getting any worse, and it will take the investment risk off the shoulders of the rest of the state and put it where it belongs, on the shoulders of the employees themselves.

The panel featured PERA’s interim Executive Direction Ron Baker, Amy Slothower representing the pro-reform Secure Futures Colorado, and Lynnea Hansen of the pro-PERA Secure PERA lobbying group, and me.  It was moderated by State Senator Jack Tate (R-Arapahoe).

Here’s the audio from the event:

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As you can see, things got most heated around the discussion of the composition and responsibilities of PERA’s Board of Trustees.  Ron claimed the PERA’s Board was responsible for managing the money and administering the plan.  That’s true, but as I point out, it’s far too modest.  PERA’s Board also lobbies the legislature, posing as a disinterested unbiased source of information, but in fact opposing almost all interim reform proposals, including some that are now part of its proposed slate of reforms.

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