Tag Archives: American systemic dysfunction

The War On Government

One of the consequences of  the low civic literacy I keep complaining about is a widespread lack of understanding of  the importance of systemic problems. Our current media environment doesn’t help.

Let me give a few examples to explain what I mean.

The media covers our  election “horse races,” but largely ignores the systemic gerrymandering that precedes individual races and pre-ordains too many of their outcomes. The result is that the “win/lose” results don’t really reflect majority voter preferences, but that is rarely the focus of discussion.

The media routinely reports the results of U.S. Senate action, but has only begun to recognize the pernicious effects of the filibuster, which has changed that chamber from one operating on majority rule to a broken system that now requires a super-majority to pass even the most trivial laws.

Americans remain largely unaware of the undemocratic effects of the Electoral College –how that outdated system has operated to install as President candidates who lost the popular vote, and how it threatens to do so again.

As America’s governance has become ever more dysfunctional, recognition of those particular systemic flaws has grown, but–as we can see from reactions to the recent stream of radical Supreme Court decisions–while there is anger at the immediate and visible results, there is little recognition of the truly horrific systemic effects of those decisions.

The overruling of Roe is just one example. As I’ve written before,  the Court achieved that result by undermining an important doctrine–a doctrine that supports a number of other important liberties. The damage done goes far, far beyond the “headline.”

Similarly, the media has largely overlooked the truly breathtaking assault on American government represented by the decision in West Virginia v. EPA.  That decision limited the extent to which Congress can delegate regulatory decisions, and–together with other, less publicized cases–amounts to a war on government’s ability to protect the “general welfare.”

As Sam Baker recently wrote in Axios, the Court is moving to restrict the authority of regulatory agencies in the executive branch.

These cases may not always feel like blockbusters in isolation, but they can constrain federal power in ways that are almost impossible to reverse, with dramatic implications that cut across multiple policy areas.

Driving the news: Just in the past few months, the court …

Prevented the CDC from enforcing an eviction moratorium due to COVID.
Prevented OSHA from enforcing a vaccine mandate in workplaces.
Prevented the EPA from carrying out some of its most aggressive proposed limits on greenhouse gasses.
Some of those issues are bigger than others, but each of those cases raised questions about overarching legal principles related to executive-branch authority.

Taken together, it’s clear which direction things are headed — the federal government is going to be able to do a lot less than it has been able to do in the past.

At least three of the radical Justices are hoping to reinstate something called the “nondelegation doctrine” — a theory that Congress cannot delegate to agencies of the executive branch any of the powers the Constitution gives to Congress.

It’s not carrying the day right now, but at least three justices seem to want to bring it back. When the court struck down OSHA’s vaccine mandate, Justice Neil Gorsuch — joined by Justices Clarence Thomas and Samuel Alito — said that even if Congress had expressly given OSHA the power to impose a vaccine mandate, that likely would have been unconstitutional.

In the 1800s, this debate was reasonable. Back then, We The People elected Congressmen (and they were CongressMEN) to make legal and regulatory decisions that were well within the competence of most lawmakers. In the 21st Century, life is considerably more complicated and a great many of those decisions require a degree of scientific, legal and/or medical expertise that we cannot reasonably expect from even our non-crazy lawmakers.

Forbidding Congress from delegating considerable authority over highly technical issues is a way of strangling the ability of government to act.

We can all point to regulatory decisions we dislike. We can argue that this or that rule exceeds the agency’s  grant of authority. But removing that authority–telling agency personnel that they cannot regulate environmental hazards, or require technical food and drug safety measures, or mandate certain responses to diseases and pandemics, etcetera, etcetera–is tantamount to telling the executive branch its authority doesn’t reach far beyond coining money and declaring war.

Focusing only on the “headline” results of these decisions–appalling as those obvious results are–blinds us to their systemic implications. This Court is coming for the underpinnings of federal governance.

Of course, if climate change destroys the planet, it may not matter…..


Among The Many Things We Need To Rethink..

Political conventions and government structures that have been in place for many years–some since America’s founding–are proving increasingly dysfunctional. I’ve addressed a number of them in this blog: the Electoral College, partisan redistricting, the filibuster and many others are widely recognized to be counterproductive to 21st Century expectations about democratic fairness and effective governance.

We can add a number of other “resistant to change” elements to the list; as one of my sons recently reminded me, thanks to population shifts, the U.S. Senate is wildly unrepresentative. For example, of the  candidates who won election to the 114th Senate, the Democrats received 20 million more votes than the Republicans. For another, by 2040,  predictions are that nine states will be home to half of the country’s population: California, Florida, Georgia, Illinois, New York, North Carolina, Ohio, Pennsylvania and Texas. The populations of those states will be represented by eighteen Senators. The remaining fifty percent will be represented by eighty-two.

Short of revolution, it is unlikely that we are going to be able to change things like the Senate’s disproportionate representation or the Electoral College–at least, not any time soon. But there are other public policies and longtime practices that are amenable to evidence-based change. One example–recently the subject of analysis by the Brennan Center— is the use of cash bail, fees and fines in the criminal justice system

The past decade has seen a troubling and well-documented increase in fees and fines imposed on defendants by criminal courts. Today, many states and localities rely on these fees and fines to fund their court systems or even basic government operations.

A wealth of evidence has already shown that this system works against the goal of rehabilitation and creates a major barrier to people reentering society after a conviction. They are often unable to pay hundreds or thousands of dollars in accumulated court debt. When debt leads to incarceration or license suspension, it becomes even harder to find a job or housing or to pay child support. There’s also little evidence that imposing onerous fees and fines improves public safety.

The study examined ten counties in the states of Texas, Florida, and New Mexico, and also looked at statewide data for those three states. The counties were chosen to ensure a variety of geographic, economic, political, and ethnic profiles, as well as in the way they collected and enforced their use of fees and fines.

Now, this first-of-its-kind analysis shows that in addition to thwarting rehabilitation and failing to improve public safety, criminal-court fees and fines also fail at efficiently raising revenue. The high costs of collection and enforcement are excluded from most assessments, meaning that actual revenues from fees and fines are far lower than what legislators expect. And because fees and fines are typically imposed without regard to a defendant’s ability to pay, jurisdictions have billions of dollars in unpaid court debt on the books that they are unlikely to ever collect. This debt hangs over the heads of defendants and grows every year.

States spend a lot of money chasing after fees that will never be paid, mostly because the people against whom they are levied don’t have the money to pay them. The researchers found that one New Mexico county spent at least $1.17 to collect every dollar of revenue it actually realized, losing money through the process.

Funds currently being expended to collect the uncollectible would be better used for efforts that can be shown to actually improve public safety.

While political scientists are trying to figure out how to rescue American democracy from permanent minority rule, we might start addressing issues like this one, which should be more manageable…