Thursday, April 14, 2005

Responding to Doc Shlomo

In the comments to my last post, Doc Shlomo suggests that conservative Republicans' plans to limit federal court jurisdiction or even do away with courts is nothing but a power grab and that this violates the fundamental separation of powers that the Founders sought to establish. I was going to write a response in the comments section, but it got so long I'm moving it here.

I wrote a paper in law school on this topic. My harddrive crashed last year and I lost it (stupido!), but the gist of it was that there is a movement among conservatives jurists to limit not just courts but Congress' power as well. I based the paper on a series of quotes I found from Antonin Scalia. He basically said that Congress has far exceeded its constitutional powers, and the courts have only a minor role in enforcement and interpretation. I don't know if he has ever come right out and say it, but if you neuter the judicial and legislative branches who picks up the slack in governance? The executive.

Of course, the other option is that government shrinks and gives up much of its role in providing services and support to citizens. Does anybody really see that happening? Hell no! Americans would have a fucking shitfit if, suddenly, the federal government stopped doing stuff like regulating water quality, building roads, funding health care, etc. The federal government will never shrink becuase we won't let it.

So what's the conservative alternative, then? Sink vast amounts of governing power into the executive and then do everything you can short of outright murder to win that seat. The question, as I see it, is "Is that really conservative?" Of course not! What it is, ultimately, is pro-industry. Try this on for size:

The business community in American has vast wealth, and many members of that community have become exceedingly adept at rent-seeking. The easiest way to rent-seek, arguably, is through the administrative state, which can be readily manipulated through the executive power. America's corporate interests have spent years focusing on this goal. They've established "think tanks" like AEI, Heritage and Cato and given them huges sums of money to spend on research and advocacy. Sure, Cato might hew to the libertarian/small-government line (mostly), but AEI and Heritage are ALL about justifying and fighting for shifts in government focus and spending. They don't want to shrink government, they want to make it an arm of industry and, increasingly, cultural conservative interests.

Some folks might point out that Congress couldn't possibly want this to happen. Partly true, but if Congress and the President are of the same party, then there's more incentive to cooperate. If the President can generate huge sums of cash and some popular support, he can make re-election pretty easy. This suggests to me that, to a great degree, Congresspeople have ALSO mastered the art of rent-seeking. Tom DeLay might want to establish a theocratic state, but he's mostly in government for the money. Perhaps he's an extreme example. Nonetheless, I suspect that there are some in Congress who don't buy into the separation of powers arguments and would willingly cede power to the executive if it could guarantee easy passage of their personal and legislative agendas.

To summarize: Conservative Republicans seek to completely dominate government. They reject the idea of separation of powers and, instead, seek to put in place a unitary executive with few limits on his power. In doing so, they can provide for the interests of their corporate backers. There focus on cultural issues is, ultimately, secondary to these concerns.

I know, it's not especially well thought out, but perhaps I can elaborate later.