marchforth2

Eventually Donald Trump will be dead, and since his movement has never had any coherent principles except abject fealty to him, it will probably disintegrate into several feuding factions. And those of us who love America [by which, throughout this piece, I mean the United States] and democracy will be left to rebuild what he destroyed.

But just rebuilding what we had before he announced his candidacy for the Presidency in 2015 won't do: there really were ways that American society and American government failed a large fraction of the American people and fed the resentments that led them to elect Trump twice. So I'd like to discuss overarching principles and how things could be improved from what they were in 2015.

I've been thinking about this for months if not years, but was recently inspired by "Feudalism is our Future" in the Atlantic. It's probably behind a paywall, but to summarize...

The author Cullen Murphy, author of Are We Rome? The Fall of an Empire and the Fate of America, recalls years of correspondence with Ramsay McMullen, author of Corruption and the Decline of Rome. McMullen summarized the evolution of Rome in three words: "Fewer have more". He observed a steady trend of privatization of government duties: more and more aspects of "running the Empire" were sub-contracted out to private entities whose own interests often outweighed their accountability to their employer. The top levels of government might sincerely have the public interest in mind, but those orders passed through multiple layers of privatized players in a game of "Telephone", resulting in something completely different happening on the ground.

As Murphy points out, a similar privatization trend has been apparent in many developed nations, particularly the US, since about 1980. The government's "monopoly on the legitimate use of force" is being replaced by private security companies (for crime prevention) and mercenary companies like Blackrock and Wagner (for war-fighting). The government-run, publicly-accountable court system is replaced by binding arbitration agreements and professional arbitrators chosen and paid by large corporations (and not surprisingly often favoring their interests). The government's monopoly on the money supply is being replaced right now by cryptocurrencies that seem to work better for large-scale corruption and Ponzi schemes than for anything ordinary people would want to do. Things built by and for the public -- parking meters, toll roads, parks -- are sold off to private companies with "anti-compete" clauses preventing the public from building or improving anything that would serve the same purpose. In all these ways, accountability to the public interest is being replaced by accountability to the shareholders of large corporations.

Anyway, this brings us to my first principle:

1. The public sector must serve the public interest.

The motivation for "democratic" governments is to have government functions accountable to "the people", rather than to a self-selected and self-perpetuating elite, or to regulated industries that capture control of their regulators. Whenever government does something harmful to "the people" at large, the people have to have the power to remove and replace those responsible, at least at the top levels. The people will inevitably make some mistakes in exercising this power, as witness the current administration, but it's better for them to have that power, including the power to correct their own previous mistakes, than to not have it at all.

In order for the people to have the power to replace their leaders in practice, the electoral process must be rigorously insulated from political influence by those elected leaders. Obviously, we need somebody accountable to the public to make broad policy decisions about how elections are to be run, but the day-to-day mechanisms have to be carried out by professionals without political bias. And perhaps there should be a meta-rule that any law change affecting the conduct of elections doesn't take effect until after the next election.

But it's not only elections that should be professional and unbiased; one could say the same for most governmental operations. Which leads us to...


2. The public sector must work well and fairly.

Liberals and conservatives will always disagree about the proper role and scope of government, and the answers to those questions will inevitably change with every election, but whatever government does do, there's a public interest in it being done well, which means government workers (except those elected directly by the people) need to be objectively competent. Ideally, they should also be honest and unbiased, doing their jobs without favor based on personal connections, bribery, or political affiliation. Those workers need to be hired, promoted, and fired on the basis of merit, not personal loyalty or political affiliation; their loyalty must be to the law and the public interest, not to any individual or political movement. The mass of competent, knowledgeable bureaucrats who will keep doing their jobs regardless of what individual or political party happens to oversee them at the moment may be called the "deep state", and that's a good thing.


3. Meritocracy and independence from political interference must be enshrined in law, and that law must be obeyed.

Elected political leaders of a certain personality type will inevitably want to push back on these limits, firing people who disagree with them and installing people whose personal loyalty to the leader outweighs their loyalty to the law and the public. In our reality-timeline, we have legal protections for those limits: Congress has passed numerous laws saying such-and-such office is filled on nomination by the President and confirmation by the Senate, or holders of such-and-such office can only be fired for performance-related reasons, explained in writing to Congress, and with thirty days' notice. Those laws are still on the books, but President Trump has simply ignored them, firing inspectors-general and members of legally-protected governmental panels without cause or notice, and paid no price for it whatsoever. Likewise, laws specify how and why non-political government workers can be fired or laid-off, but the Trump administration has ignored these laws too, with mixed results in the courts but again no price paid. (In a game of "heads I win, tails I don't lose", it pays to play as often and as aggressively as possible.)

The Trump administration's position on such laws is that they're inherently un-Constitutional, a case of Congress interfering in the conduct of the Executive branch. Which is nonsense: a law isn't passed by Congress alone, so a law doesn't belong to Congress alone. Congress wrote those laws, they were signed by a President, and they've been interpreted and applied by the Courts; all three branches have already had their say, and those laws are now the law of the land.

The administration argument amounts to saying "laws don't apply to the executive branch". We obviously can't have that. So


4. The Executive branch, including the President itself, must obey the law.

This should be a no-brainer, since the Executive's main job under the Constitution is to carry out the law, and the public can't trust you to carry it out if you don't bother to obey it yourself. The 2024 SCOTUS decision that Presidents are immune from criminal prosecution for (as I read it) anything they do using Presidential powers will go down in history with Dred Scott, Plessy v. Ferguson, and Korematsu as the worst decisions in Supreme Court history. I wrote about this extensively when it happened, and I sha'n't repeat that here.

The problem, of course, is that if the President or a close ally breaks the law, somebody has to investigate and enforce it, and the President oversees all the investigators and enforcers. Under the Constitution as currently written, Congress has impeachment power, and can theoretically "enforce" such a law by at least removing a President or other political appointee from office, after which (assuming U.S. v. Trump 2024 is reversed, either by SCOTUS or by Constitutional amendment) the person can be charged and tried through ordinary criminal-justice procedures. Unfortunately, Congress doesn't have a strong investigative arm; that expertise is mostly in the Justice Department. Which is why we have Special Counsels, to enable somebody to investigate politically-tinged cases with at least some insulation from political influence. We need to formalize that process, either re-passing some kind of Independent Counsel law or building a corresponding investigative arm under Congress's direct control.

One kind of law that Presidents frequently want to violate is appropriations bills, specifying for what purposes taxpayer dollars are to be spent. President Nixon decided unilaterally not to spend money on programs that Congress had said it had to be spent on, and Congress responded with the "Impoundment Control Act", saying explicitly that a President couldn't do that. President Trump in his first term unilaterally reallocated billions of dollars from military readiness to building a border wall that Congress had repeatedly refused to fund. In the first few months of his second term, he's gone much farther, shutting down not only individual programs but entire taxpayer-funded agencies without even consulting Congress. And Congress hasn't officially said a word, because the majority in both houses is of the President's own party, and they're all terrified of crossing him in the slightest way. Appropriations bills, like other laws, must be obeyed, with an enforcement mechanism and penalties for violating them.. If you don't like a particular program, negotiate to defund it in next year's budget; this year's budget has the force of law, so don't break it.

The First Amendment starts "Congress shall make no law respecting..." and then lists a bunch of things Congress can't make laws about. It doesn't say "The President shall make no law respecting...", because that goes without saying: in the original intent of the Constitution, the Executive Branch doesn't make laws at all, it only carries them out. If Congress didn't make a law about something, the Executive Branch has no authority to enforce it. But in practice, any Executive Branch function necessarily involves a lot of decisions and rules about subtle details that politicians, by and large, don't even understand. Government functions better when those decisions and rules are made by subject experts... but they still have to be accountable to the public.


5. Congress needs to set broad policy priorities, making clear exactly what authority it's delegating to the subject experts, and retaining the power to overrule them.

There have been a lot of court cases in recent decades about whether or not an executive agency had the authority to make a particular rule. The principle of "Chevron deference" has allowed a lot of sensible environment and worker-safety rules to be enacted without specific authorization from Congress, which is why right-wingers have been trying for years to persuade the Supreme Court to reverse the Chevron ruling... but they have a legitimate point that all rule-making authority ultimately comes from the Legislative branch, and if that branch wants subject-area experts in the executive branch to do part of the work, it needs to explicitly authorize them to do so.

(Alternatively, Congress could hire a bunch of subject-area experts directly before writing a law, but this has problems too. A law that tries to specify all the potentially necessary rules will be much longer and more detailed than existing laws, and will still inevitably miss some unforeseen situations about which the executive-branch employees who have to actually apply these rules will still have to make decisions on a shorter deadline than that needed to amend a law.)

This will inevitably mean some sensible, rational policies getting overruled for political reasons. I don't think we can avoid that and retain public accountability. Likewise, Congress will sometimes pass carve-outs such as "The XYZ agency shall have authority to make rules to implement this Act, except that no such rule shall affect left-handed fnord-wranglers in states whose names end with the letter A." Again, I don't think we can avoid this, but only publicly embarrass members of Congress who demand such carve-outs.

It's late; I'll publish what I've got so far and add onto it later. Comments welcome.