Friends, history will not look kindly on the politics and politicians of the past two and a half decades.
We are all aware that the Founding Fathers contemplated a tripartite federal government consisting of a legislative branch, an executive branch, and a judicial branch. Each branch was intended to operate as a check and balance upon the other two. But what happens when the checks and balances fail to work? The simple answer is that you get the governmental chaos that we behold today. The executive branch has decided that it/he has no interest in working with Congress but rather, in obvious violation of the Constitution (which it/he took an oath to uphold), it/he has become an executive branch unto itself—implementing legislative actions by executive fiat which are clearly within Congress’s purview. Take, for example, unilateral, substantive modifications to the Affordable Care Act and the attempted implementation of a sweeping alteration of the country’s immigration laws. With some justification, Obama has urged that, since Congress won’t act, it is incumbent on him to do so. Obama’s assertion neglects to point out that the Constitution does not obligate Congress to acquiesce in every little governmental reordering that Obama can conceive.
That said, it is also fair to say that Congress has been completely derelict in its “checks and balances” obligations. Congress has largely abandoned or squandered its Constitutional function in a myriad of ways. Congress has done nothing, or has simply caved to the President’s programs, or looked to the Supreme Court to do Congress’s job. In one sense, Congress’s inactivity is largely overshadowed by virtue of the fact that it has long since abdicated its tripartite responsibility by allowing the executive branch to create and expand vast federal agencies which now control the country. We are essentially governed by hoards of unelected bureaucrats whose sole objective is to do something so that it looks like they are doing something. We realize that the current Congress cannot be blamed entirely for the creation of these vast, and largely ineffectual or unnecessary, agencies. However, Congress does have the “power of the purse,” which is to say the Constitutional authority (and obligation) to defund useless or ineffective governmental programs or bureaucracies. And, frankly, we cannot think of a single instance of Congress doing its duty in that regard in the last 25 years.
What’s really dumbfounding is that all of the machinations of the executive branch and the legislative branch have resulted only in the creation of laws or policies that are vehemently opposed by a significant majority of the American public. The Executive Branch and the Congress are well aware of this result, but seeming do not care. One very solid clue that the federal government is dysfunctional is when it consistently, diametrically opposed the unambiguous preferences of the folks that elected them. Time and again the voters inject new faces into the legislative process, and every time and again the legislature simply ignores the will of the people. Nancy Pelosi, Harry Reid, Mitch McConnell, and Barack Obama all make Marie Antoinette look like a piker when it comes to honoring the will of the people.
But wait, you say. What about that that third branch of the federal government—the Judicial Branch? Can’t the federal judiciary, with the Supreme Court at its pinnacle, do something to restore the checks and balances envisioned by the Founding Fathers? Ah, but that, unfortunately, is where the final nails in the coffin come into play. Faced with the executive over-reach of the Obama administration and the failure of Congress to carry out its Constitutional duties, the Supreme Court has apparently decided to abandon its balancing function, to abandon even its judicial function, and has decided to throw its hat into the legislative ring. Faced with opportunities to constitutionally reign in the out-of-control Obama administration or to nudge Congress to assume its Constitutional duties, the Supreme Court has chosen to add to the D.C. dysfunction by making its own laws.
In two decisions handed down in rapid succession this year, the Supreme Court has made it abundantly clear that the government is not only dysfunctional, but is also potentially irredeemably so. The three braches of government are all politics, no policy, and certainly with no abiding interested to the Constitution, the separation of powers, or the welfare of the American people. In the King v. Burwell case, the Supreme Court managed to rescue Obamacare—even though it had to set legal precedent back 100 years to do so. By now, everyone knows that the Court desperately salvaged the unconstitutional legislation that is Obamacare by concluding that, when Congress determined that federal subsidies could be paid the recipients only through “exchanges established by the states,” what Congress really meant to say was “exchanges established by the states or the federal government.” The first rule of legal construction is, and has been forever, that in interpreting legislation or contracts, words “shall be given their plain meaning.” Even nine first-year law students could have gotten this one right. When Congress approved the phrase “established by the states,” it truly meant “established by the states.” Now, in addition to the government being dysfunctional, we can no longer rely on the notion the government even means what it says. In the Obergefell v. Hodges, the Court managed to pull a new Constitutional right out of thin air. The concept of same sex marriage may be compelling, but there is no conceivable basis for the Court to determine that it is a Constitutional right. One can hardy wait to see what the Constitutional right the Supreme Court dreams up next. Regardless, it would seem that the King and Obergefell decisions represent the final nails in the coffin of balanced and rational government.
One can hope that the damage caused or ignored over the past 25 years can be repaired. But it is far from certain that that is the case.