Good policy, bad precedent

      6 Comments on Good policy, bad precedent

I see that, after the Legislature failed to pass an extension on the eviction moratorium, and after Our Only President indicated (correctly) that he had no legal authority to extend it without Legislative action, he has extended it anyway. This is not good news.

Laws should be made in the legislature, not the executive. From a structural point of view it’s extremely troubling for the President to institute even good policy without the legislature.

The real problem is that legislators who know that they will not have to answer to constituents either for a vote on the policy (yea or nay) or for the consequences of the policy working or failing may let the President legislate. This happened with foreign affairs over my lifetime—the real problem with the War Powers Act was that legislators didn’t want to be responsible either for military actions or for the lack of them, and so just let the President do whatever seemed right to the people in the Executive. For decades. If Republican legislators think that homes should stand empty and people should sleep in their cars or on the streets, then they should have to be re-elected on the consequences of that. If people are willing to keep voting for those legislators because they want those policies, that’s the policy we should get. There is nobody to save ourselves from ourselves but us—Joe Biden, bless him, isn’t king.

Let me be clear: this is, on the whole, a good policy. On the whole, it’s probably better that the Administration implement it today and save a bunch of people from being evicted than not. But it’s also true that they honestly have no authority to do it, and ‘it’s a good policy’ does not give them the authority. There are lots of good policies that can’t pass the Congress, mostly because enough people disagree about the policy being good, as evidenced by their representatives’ votes (and their votes for those representatives). The ‘crisis’ that has been more than a year in coming and shows no sign of ending soon is clearly an excuse, not an emergency.

Tolerabimus quod tolerare debemus,
-Vardibidian.

6 thoughts on “Good policy, bad precedent

    1. Vardibidian Post author

      No, from what I’m seeing, there’s a good deal of real concern in the mainstream left and center-left, not so much about this individual policy but about the institutional weakness of the Legislature. Some libertarians may not want a stronger Legislature, but in practice a weak Legislature means a strong Executive.

      Thanks,
      -V.

      Reply
  1. Dan P

    I am considering breaking all of my self-imposed social media behavior rules to post this on Facebook. The expansion of the power of the executive over my lifetime is terrifying, as is the eagerness with which both parties embrace it, like two poker players doubling down, over and over, in the belief that between their hand and their sidearm the pot is already theirs. I want to be on record as always against it, even when it’s my “side” in the hot seat.

    Reply
    1. Vardibidian Post author

      I think really that’s it, that I want to be on record. Not even on record as against it, just on record as regretting the necessity of it. The expansion of the executive hasn’t consistently been Presidents winning tug-of-war with zealous but overmatched Legislatures, but has mostly been lackadaisical Legislatures dumping power on Presidents, who have accepted it more or less avidly.

      Thanks,
      -V.

      Reply
  2. Chris Cobb

    Well, I’m not happy to see it happen like this, but since it’s (a) good policy and (b) popular policy and (c) an emergency in practice if not in principle and (d) has not been implemented by the duly established legislative process only because our elected legislature’s actions do not represent the will of the people due to filibuster-Senate overrepresentation of small states-gerrymandering-voter suppression-power of money to generate propaganda, I think Biden has done the right thing under the circumstances.

    The system is breaking in the United States, leading us toward revolutionary conditions. There are three likely outcomes to this crisis: (1) Democracy in everything but form is replaced by fascist oligarchy, (2) A “soft” political revolution pushes through significant systemic changes to secure more authentic majority rule, or (3) a mix of hot and cold civil war leads to the break-up of the United States as a political entity. Under these circumstances, I think that having to explain why Biden had to stretch the power of the executive to implement a widely popular policy that helps people and protects the economy because Congress is too broken to act as it should and needs fixing is a much better conversation to be having than explaining why tens of millions of people are now homeless in the middle of a pandemic and the rental market has been thrown into turmoil because “we” need to elect different people to Congress. Letting the system produce a hard failure in order to demonstrate the failure of the system pushes the nation toward outcomes (1) or (3) above. Demonstrating the failure of the system by creating the soft failure of enacting good policy without due legal process while pointing out that what we really need to do to avoid putting the President in a position where he has to be democratic (that is, doing what the people want for the good of the people) by circumventing the duly elected legislature helps to keep open the path toward outcome (2).

    In sum, I am sorry that Biden had to address the problem in the way that he did, but I think under the circumstances, he did the right thing. We have a lot to do to save the nation from fascist oligarchy (note that I don’t define the problem a bit differently than “saving ourselves from ourselves.” That makes this situation sound like a tragedy of human nature, when it is in fact a tragedy of structural inequality being curated behind a facade of democratic equality). The more weakened we are by homelessness, economic malaise, pandemic disease, structural racism, and the consequences of climate change, the harder it will be to do the necessary political work.

    The way I’d suggest we talk about this problem, then, is to explain that the problem is not the expansion of executive power. It is the undemocratic construction of the legislature (and the courts) that prevents popular and important policies from being implemented through the rule of law. The failure of the legislature to act–because its lawmaking does not represent the will of the majority (if it did, it would act)–creates otherwise avoidable emergencies that can be met only by expanded use of the (otherwise reasonable) emergency powers vested in the executive.

    Reply
    1. Vardibidian Post author

      Yes, it is at the moment both a structural problem (disproportionate influence of rural states, combined with the disproportionate influence of rural areas within those states, combined with a structure that was always intended to give those rural states and areas a veto over the more populous urban areas (which was a reasonable compromise in the late eighteenth century when the alternative was disaster, but hasn’t really improved over time)) and a political problem (mostly that the Other Party is a dysfunctional disaster whose angry nativist faction has pretty much wiped out the Conservative faction and is mostly defined by its opposition to any sort of governing) and could in theory be addressed by structural reform and a political shift. On the other hand, a lot of this sort of thing has been happening for fifty years, on and off, in varying degrees in varying departments, so I have to look at it in a bigger context than the moment.
      This is pretty much what I’m hocking about—the problem isn’t Our Only President using this as a power grab. He has been very reasonable about extending executive power, under the circumstances. The problem is a legislature that prefers the executive grabbing its power, and a populace that does not punish them for that, and as far as I can tell, largely prefers an all-powerful Executive. Or, rather, prefers a Legislature that either yields its power and influence to the President (if the President is of the right Party) or simply opposes everything the President does (if the President is of the wrong Party).
      It isn’t symmetrical—as far as I can tell my Party is still at least mildly interested in legislation, if it doesn’t draw too much attention—and I think it’s worth putting in effort to keep it from being symmetrical, in part by drawing attention to the structural and political problems, and in part by drawing attention to the broader concern.
      Thanks,
      -V.

      Reply

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