At the NYU Democracy Project, William Galston publishes an essay today on reining in presidential emergency powers. Here’s an excerpt:

The most important and urgent constitutional issue of our era is the relentless growth of executive power under presidents of both parties, a process that has moved into overdrive since the beginning of President Trump’s second term. Some of this reflects the near collapse of Congress as a functioning branch of government, preventing progress on key issues such as immigration and tempting presidents to achieve by fiat what they cannot attain through legislation.  The Supreme Court’s embrace of theories such as the “unitary executive” has accelerated the expansion of presidential power.  But there is another dimension of this development that deserves more attention than it has received.

Unlike many documents of its kind, the U.S. Constitution gives the executive no explicit emergency powers.  But there are many circumstances in which only the president can move with the speed and ability to mobilize resources that the situation requires.  In response, Congress from the beginning of the republic has passed legislation delegating emergency powers to the president.  There are now more than 130 such powers, some of which have been on the books for more than two centuries.  Many are loosely drafted, inviting abuse….

There is only one solution—a genuinely bipartisan effort to reform the National Emergencies Act.  During President Trump’s first term, not a time noted for concord between the parties, such an effort received broad support across party lines.  It would have terminated every presidentially declared emergency after 30 days unless Congress voted to approve the declaration and would have prohibited the use of filibusters to stall such action.  In the fall of 2024, a similar measure was approved unanimously in the House Transportation and Infrastructure Committee, and in the Senate Homeland Security and Governmental Affairs Committee by a vote of 13 to 1.  If this measure had reached the floor, it might well have passed.

Although this initiative fell short of the finish line, Congress has shown that it can come together when threats to the stability of the constitutional order become too pressing to ignore.  After the extraordinary disruption of the electoral process in the wake of the 2020 election, Democrats and Republicans came together in 2022 to enact a sweeping reform of the Electoral Count Act, a dangerously ambiguous law enacted in response to the disputed election of 1876.  Among other improvements, the reform made it clear that the vice-president’s role in counting the votes of the Electoral College is purely ceremonial and leaves no role for the vice president to exercise independent judgment to resolve disputes. The bill passed with a comfortable majority in the House and a super-majority of 68 to 29 in the Senate.

It’s time to try again to rein in the emergency powers that constitute a cache of unexploded ordnance at the heart of our constitutional order. This will be challenging, but it’s not Mission Impossible.

In the pre-argument essay I published on the Bost v. Illinois State Board of Elections case, which was argued today, I concluded with the view that the Court would be likely to reverse the lower court and find standing for candidates to challenge election law rules prospectively. Here’s how I ended that essay:

Given the strong institutional imperatives courts face in the election context to settle the rules clearly in advance of the election, the court is likely to find Bost has standing to bring his prospective challenge. But just as important, the precise basis on which the court concludes he has standing will have significant implications for who can bring election law challenges, and when, for the future of election law litigation in the federal courts.

I did not have a chance to listen to the argument, but from the early reports, it appears that commentators believe that’s where the Court is going to end up — holding that Bost has standing. Of course, these reading of the oral argument tea leaves can be wrong.

Tonight I’ll be participating in this program at the NY Historical (formerly NY Historical Society) on political reform issues. I’ll be joined by Scott Kendall, a key figure in the enactment of Alaska’s Top-4 primary system, along with Lauren Karallunas from the Brennan Center.

The event will be livestreamed for those who register for it. Registration is available at: https://www.nyhistory.org/programs/experimenting-with-democracy-ballot-innovations-in-nyc-and-beyond?date=2025-10-08

As part of our focus this week on the Court and constitutional law, we are publishing today this essay from Jonathan Mitchell. Readers might be surprised at how much his critique of “judicial supremacy” from the right sounds very much like critiques of “judicial supremacy” from some quarters of the left, albeit for different substantive ends:

The Supreme Court of the United States has long asserted interpretive supremacy over the Constitution, and it expects and demands that the other institutions of our government treat its opinions as the final and authoritative exposition of constitutional meaning. This idea is known as “judicial supremacy.” It has enabled the Supreme Court to claim that its constitutional pronouncements bind not only the parties to a case but all government officials. And the Supreme Court tells us that its opinions interpreting the Constitution are themselves the supreme law of the land—akin to the Constitution itself—and that those opinions must be honored and regarded as constitutional law until the Court sees fit to overrule them.

The idea of judicial supremacy has been sharply criticized by legal scholars from across the ideological spectrum. And for good reason. There is nothing in the language of the Constitution that provides or even suggests that the Supreme Court’s interpretations of the Constitution are binding on non-parties to a lawsuit, or that the political branches are forbidden to depart from the Supreme Court’s pronouncements when exercising their own constitutional prerogatives. Article III of the Constitution merely empowers the Supreme Court to resolve “cases” or “controversies,” which indicates that the Court’s judgments will bind the parties to a lawsuit but in no way suggests that the opinions explaining those judgments have generative force or become the supreme law of the land whenever they interpret a constitutional provision. More importantly, the principle of popular sovereignty on which our nation was founded would favor a regime in which disputed issues of constitutional meaning are ultimately resolved by a representative and politically accountable institution such as Congress, rather than an unelected and unaccountable committee of judges….

Yet we are also witnessing a resurgence of efforts to challenge judicial supremacy—from both sides of the political aisle. In 2021, Texas enacted SB 8, which outlawed abortion after approximately six weeks of pregnancy, even though the Supreme Court had not yet overruled its opinion in Roe v. Wade that had declared abortion to be a constitutional right. Texas structured this law in a manner that made it impossible for abortion providers to bring pre-enforcement lawsuits challenging the constitutionality of the statute, so the law took effect despite its incompatibility with Roe. This was a direct challenge not only to Roe but also to the Supreme Court’s claims to interpretive supremacy over the Constitution, as Texas implemented an abortion ban that rejected Roe’s interpretation of the Constitution and prevented the federal judiciary from doing anything to stop it.

In 2024, Senator Schumer introduced the No Kings Act, which declared that the Supreme Court had erred when it awarded presidents immunity from criminal prosecution in Trump v. United States, instructed the lower federal courts to disregard the Supreme Court’s opinion in Trump, and stripped the Supreme Court of appellate jurisdiction to consider any constitutional challenges to the proposed Act. The bill was not enacted, but it shows that congressional leaders are becoming increasingly willing to use their powers over the Supreme Court’s jurisdiction to counteract opinions that they regard as poorly reasoned or misguided.

Most of the public hand-wringing over the state of American democracy has focused on the behavior of President Trump. But supporters of democratic governance should also be willing to challenge the imperious attitudes of the Supreme Court. For too long, the political branches have responded with passivity and acquiescence in response to the Court’s self-proclaimed authority to render constitutional pronouncements with universal binding effect. The success of SB 8 and the introduction of the No Kings Act may be auguring a new era in which other institutions of our government use their powers to challenge or undermine the Supreme Court’s interpretations of the Constitution. One need not agree with the constitutional interpretations embodied in SB 8 or the No Kings Act to applaud the willingness of politically accountable leaders to challenge the Supreme Court’s purported monopoly on constitutional interpretation. Those who believe in democracy should support a role for democratic institutions in interpreting our fundamental charter of government, rather than relegating them to passive receptacles of the Supreme Court’s diktats.

I’m pleased that this evening I’ll be participating with Akhil Amar, David Rabban, and my colleague Burt Neuborne on an event put on by the NY County Lawyers Association. We’ll be discussing issues of presidential powers, birthright citizenship, the First Amendment, rule of law, judicial independence and related issues.

Tomorrow, the Supreme Court will hear argument in Bost v. Illinois State Board of Elections, an important case on who has standing, and in what circumstances, to bring prospective challenges to election laws in advance of the election. I’ve published a piece in Law 360 (paywalled), with NYU student Sam Ozer-Staton, that analyzes the issues in the case. Here’s an excerpt:

The question now before the court is who, if anyone, can allege a judicially cognizable injury in prospective cases raising federal law challenges to election rules.

Bost, represented by Paul Clement, advances three arguments for standing. First and most broadly, Bost argues that candidates generally have standing to challenge the rules that govern their election because, in light of the “unique and substantial personal investment” candidates make in their own elections, they have a particularized and concrete interest in the legality of those rules.

More narrowly, Bost next argues that at a minimum, candidates should have standing to bring prospective challenges when “there is a ‘substantial risk'” that a law will diminish their electoral prospects. This includes, according to Bost, not just a risk that the candidate might
lose, but also a risk that the margin by which a candidate might win would be affected. Narrower wins might make a candidate more vulnerable to challenge in the next election or dissuade donors.

The U.S., as amicus curiae, supports standing, but on a still narrower basis: Candidates should have standing for prospective challenges only when the challenged rule poses a risk of affecting the election’s outcome.

All of these theories are specifically candidate-centered.

In contrast, Bost’s third basis for standing would also have direct implications for non-candidates who seek to bring prospective federal court challenges to election laws. This
theory is what Bost calls “classic pocketbook injury.” Because Illinois’ policy requires officials to count absentee ballots for up to 14 days after Election Day, campaigns must spend additional resources keeping operations running — maintaining a headquarters, paying staff
and deploying poll watchers.

The American Civil Liberties Union and the League of Women Voters filed an amicus brief that — while sharply disagreeing with Bost on the merits of Illinois’ policy — advances a similar diversion-of-resources theory, asserting that civic groups have standing to prospectively challenge state election laws that implicate their core activities and force them to reallocate staff and budgets.

These issues of standing implicate pragmatic issues concerning the proper timing of federal court election litigation. …

Resolving disputed election law issues in advance of the election does not just benefit voters, parties and campaigns. It also benefits the federal courts themselves. If challenges to policies, such as the legality of Illinois’ absentee ballot deadline, cannot be brought until the moment election officials begin to count those ballots, federal courts would be put in the position of deciding questions like this only when it is likely to be clear to all which candidate and party would benefit — and which would be hurt — from the court’s ruling.

Because the courts would not be acting behind a veil of ignorance, the losers from the court’s decision are more likely to believe the court acted for partisan reasons. That can undermine confidence in the integrity and impartiality of the judicial system.

In addition, the courts would be asked to disqualify ballots that voters had cast in reliance on the existing rules. In the Illinois context, for example, if courts cannot decide the legality of the state’s absentee ballot deadline until election officials begin to process and count those ballots, what would happen if the federal courts were to conclude that Illinois’ deadline violates federal law? Would the courts disqualify all absentee ballots that came in
after Election Day?

That would be unfair to the voters who had simply relied on state law and returned their ballots on time under Illinois law. Indeed, it might implicate due process considerations that apply in the election context. Lower federal courts have found that due process was violated when state courts dramatically change the interpretation of election laws after votes have been cast.

At a minimum, federal courts presumably want to avoid being put in the position of tossing out ballots that have been validly cast under existing state law at the time of the election….

If candidates, such as Bost, lack standing to challenge, in advance of the election, the legal deadline for receipt of absentee ballots, it’s not clear who would have pre-enforcement standing. Perhaps voters who believe Illinois’ deadline to be illegal could bring a vote dilution challenge on the theory that their legal votes would be diluted by votes they claim are illegal because those ballots were returned after Election Day. Whether the Supreme Court would recognize this type of vote dilution theory as a legal injury sufficient to support standing, however, is not yet clear.

To give you a sense of how party discipline works in some other democratic systems, at the party conference for the Conservatives currently taking place in the UK, the party’s leader, the Kemi Badenoch, announced that the Conservatives would commit to leaving the European Convention on Human Rights and repealing the Human Rights Act, enacted in 1997 under Tony Blair. The party believes these instruments have made it too difficult for the UK to address issues concerning asylum, immigration, deportation and the like. The decision to leave the ECHR was made in discussions among party leaders.

The point I want to flag is that the party has made this policy decision a part of the party manifesto, or party platform. Moreover, Badenoch has announced that the party will only permit candidates to run under its label if they support this commitment. People who oppose this commitment can remain party members, but they can’t run as a Conservative. Because the UK, like many democracies, does not have primary elections, the party’s leaders choose their nominees. Thus, the party can enforce its new commitment to leave the ECHR by controlling who runs under the party label in general elections. This is a powerful tool for party discipline that does not exist in the US (there are a few exceptional cases in which parties have legally succeeded in keeping candidates off the primary ballot for being too antithetical to the party’s policies, but these are exceptional cases in the US context).

With the start of the Supreme Court Term, the NYU Democracy Project is publishing several essays this week on the Court. The first of these, Enshrine Nine, comes from Ed Whelan, who argues for a constitutional amendment fixing the Court’s size at 9:

In our intensely polarized politics, each side expects the other side to escalate the conflict, and each therefore has an excuse to escalate first. It’s good to find a sensible opportunity to de-escalate.

Progressives who are upset by the conservative transformation of the Supreme Court are understandably tempted to press the next Democratic president and the next Democratic Congress to “pack the Court”—to add new seats in order to enable the president to establish a liberal majority on the Court. But such an effort, if it were to succeed in the very short term, would have severe long-term consequences: It would undermine the legitimacy of an institution essential to the rule of law. It would initiate a series of expansions that would destroy the capacity of the Court to operate as a deliberative judicial body. And, because it couldn’t happen without eviscerating the Senate’s filibuster, it would empower transient majorities in Congress to whipsaw the country between sweeping conservative and liberal agendas.

Now is the time to eliminate the temptation. Progressives should join with conservatives in adopting a constitutional amendment that would enshrine the number of Supreme Court justices at nine….

Even though Court-packing is deeply unpopular, a Democratic president who is blessed with Democratic majorities in the House and in the Senate would have difficulty resisting the temptation to resort to it. The same might soon be true for a Republican president with Republican majorities in Congress. Although talk of Court-packing has so far been almost entirely on the Left, it’s easy to see how a Republican president, whether frustrated by defeats in the Supreme Court or eager to perpetuate a conservative majority for years to come, might want to name several new justices to the Court….

The adoption of Court-packing legislation would also almost certainly require the abolition of the Senate filibuster—its rule requiring 60 votes for cloture on legislation. The Senate filibuster operates to ensure that transformative legislation has a very broad base of support. If it is abolished, we could face a new era of destabilizing swings from one end of the political spectrum to the other.

Progressives and conservatives can join together now to avert these dangers by supporting a constitutional amendment that states that there shall be nine seats on the Supreme Court.

Here is an excerpt from my essay this week in NYU’s Democracy Project series of essays on challenges facing democracy today, both here and elsewhere:

Writing from Mussolini’s prison in 1930, the Italian political theorist Antonio Gramsci observed of democracies in his era: “The crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear.”  In our era, something about the old forms of democracy also seems to be dying.

The last decade and a half have witnessed pervasive dissatisfaction with democratic governments throughout the West.  As a result, governments have become more fragile and unstable.  In the last two years alone, the governments of Europe’s dominant powers, Germany and France, have collapsed, as did those in Portugal, the Netherlands, and Canada.  The U.K. has been forced to hold three snap elections in the last seven years.  No matter which parties are in power, citizens are dissatisfied.

Politics is exceptionally turbulent.  Since 2000 in the U.S., every election but two has changed which party controls either the House, the Senate, or the White House.  That rate of churning is unprecedented.

All this reflects a new era I call one of “political fragmentation.”  Political fragmentation means the myriad ways in which practical political power is now dispersed among many different actors and centers of power, including a proliferation of insurgent political parties in Europe, more extreme political factions in the U.S., an explosion of organized outside groups, or the new-found power of even unorganized groups and a host of individual influencers.  This fragmentation of politics, which media fragmentation accelerates, makes it increasingly difficult to marshal sufficient political power and legitimate authority to address democratic citizens’ major concerns effectively….

Alienated from traditional political elites and parties, voters in the proportional-representation systems of Europe have turned to new, more extreme parties on the left and right, including anti-system parties.  The new-right parties have particularly exploded.  Marine Le Pen’s National Rally Party became France’s leading party after its recent 2024 election. Giorgia Meloni’s Brothers of Italy is Italy’s leading party; she is now Prime Minister.  The Alternative for Germany (AfD) became the second largest party in Germany’s most recent election.  Geert Wilders’ Party for Freedom is the largest in the Netherlands.  The Sweden Democrats are that country’s second largest party; in Portugal, the Chega Party, formed in 2019, is now the second largest.  Despite country-level nuances, many of these new-right parties endorse more restrictive immigration policies and traditional cultural values, while being economically populist and supportive of the welfare state.  As this chart shows, across 27 European countries, these parties in the aggregate now capture similar vote shares as the traditional center-left and center-right parties and coalitions:

Those who imagine older voters resistant to change drive support for these parties will be surprised.  Young voters, alienated and dissatisfied, support these new-right parties at high rates.  Among younger voters in most of these countries, these parties are either the most popular or the second most, with more extreme parties of the left the most popular….

These patterns also reflect the decline of the traditional left, as working-class voters across the West – a much larger share of the electorate than many realize – view the parties of the left as having abandoned their interests on economic and, even more so, cultural issues.  Across Europe, the average support for right-wing parties is 13 points higher than for left-wing parties, the largest gap since at least 1990.   This new landscape, fertilized by the communications revolution, makes politics more fragmented and turbulent, as parties struggle to figure out how to appeal to their radically reconfigured bases of support.

Similar forces have been re-shaping U.S. democracy, though they take different form in our two-party system.  The combined approval of the two parties in recent years is among the lowest ever recorded.  Disdain for traditional political elites is reflected in the appeal of outsiders:  Donald Trump, Bernie Sanders, Zohran Mamdani.  Donald Trump has absorbed into the Republican Party many of the policies of Europe’s new-right parties.  Democrats, particularly younger voters, have been turning to self-characterized socialists at the far pole of the party.  Reflecting the same realignment as in Europe, Donald Trump’s 2024 coalition in income and educational terms stunningly resembles Bill Clinton’s from the 1990s:

For better or worse, the U.S. two-party system, during unified government, makes it easier to overcome fragmentation than in Europe.  Whether Republicans in Congress this time can overcome the internal conflicts that limited their legislative achievements in Trump I, other than tax cuts, is too early to assess.  Executive action has dominated governance thus far, and even internally fractious parties typically approve their President’s nominees.  But a united Republican Congress did manage to pass the massive “Big Beautiful Bill.”  Whether Republicans will be united enough to pass further major legislation before the midterms remains to be seen.       

Perhaps the political fragmentation we see through much of democratic politics today is a “morbid symptom” of transition to a new form of democratic politics.  Much turns on whether it is temporary and contingent or more enduring.  Political fragmentation reflects continual democratic dissatisfaction, but perversely, also makes it that much harder for governments to respond effectively to citizens’ demands.  And when democracies are unable to do so, alienation and anger can give way to worse (or perhaps already has), including yearnings for strongman leaders who promise they alone can deliver. 

Next, here is an excerpt from Bob Bauer’s essay in the NYU Democracy Project’s series of 100 essays in 100 days:

…I entirely agree with critics who are very troubled by aspects of this [presidential immunity] opinion, including its holding that a president’s official actions may not even be introduced into evidence in a trial for alleged misconduct for which he cannot claim immunity. (For that matter, I have strongly disagreed with the executive branch opinions that have held that presidents enjoy full immunity while in office.) But it was not at all surprising that the Court held that, as a doctrinal matter, former presidents enjoyed a significant measure of immunity. The (unfortunate) logic across administrations supporting full immunity for incumbents would necessarily apply in some ways to prosecutions initiated after their terms ended. And it bears noting that, while contesting Trump’s claims of absolute immunity for a former president’s official acts, the Biden Administration endorsed the proposition that the criminal laws could not be applied to “core” presidential functions. Setting aside its immediate and rightly controversial impact on the Jan. 6 Trump prosecution, the constitutional question before the Court was complex and, in key respects, its future application in immunizing wrongful presidential conduct remains uncertain.

I do not see this decision, or others in which the administration prevailed during the most recent Term, as predictive of what the Court will do when finally ruling on the constitutionality of the birthright citizenship executive order, or the authority Trump claims for deportations under the Alien Enemies Act (AEA). The Court has insisted on due process and adequate notice in the case of the deportation of Venezuelans alleged to be cartel members. It has barred the removal from the country of a class of detainees under the AEA while appellate review is pending, after halting deportations in that case a month earlier in the early hours of the morning, and upheld a lower court order that the government “facilitate” the return of a deportee the administration had conceded was mistakenly removed from the country. On these issues (if not on others), the Court signaled that it will pay attention to what the administration does as well as what it claims it is doing. It is not so far clear that it will go as far as Trump and his radical constitutional theorists would want in advancing control of independent administrative agencies. The Court has already flinched in a preliminary order at extending broad presidential removal authority as far as the Federal Reserve. Related concerns may give the Court pause before it provides presidents with full control over agencies with politically charged missions, such as the Federal Election Commission (campaign finance) and the Election Assistance Commission (election administration), that Congress structured to ensure – for obvious reasons – that no one political party could direct their operations.

Again, time will have to pass, and perhaps a lot of time, before this argument about the Court can be settled one way or the other. And the signs are not by any means all positive.There is also this decisive and perhaps obvious consideration favoring ongoing progressive engagement with the Court. …

The defense against presidential supremacism and the progressive concern with the substantive direction of the constitutional law are not severable. Executives empowered to rule by executive order and emergency decree can – and indeed strive to – enact their constitutional agendas without having to worry as much about the courts. We have seen in a world of “separation of parties, not powers” that Congress may not impose much in the way of constraints. In this sense, when thinking about resort to the courts, progressives are not choosing between constitutional issues of presidential power and all others. Their substantive constitutional commitments hinge on a successful defense against presidential supremacy in moving policies that they abhor. That is, unless there is any thought that Democrats would want to take this model of supreme executive power on as their own, when their next turn in the Oval Office comes about. Perish that thought.

As for the argument that progressives should expect less from the courts and more from strategies of political action directed toward winning elections and shaping public opinion: well, yes, and not just as an answer to disappointments with this Court, but at all times.

Among other essays we published this week at NYU’s Democracy Project, we published three essays from the three of us who founded and direct the Project — Bob Bauer, Sam Issacharoff, and me. I’ll blog about each piece separately, starting with this excerpt from Sam’s piece:

Democracy requires a long-time horizon.  The winners of today must internalize that they might be voted out tomorrow, and the losers must believe the future might be rosier.  The presidential election of 1800 was the first time that a head of state had been removed through the popular franchise.  That engendered a norm of reciprocity that should prevail across the democratic world. Samuel Huntington famously declared that democracy is demonstrated by the two-turnover test: two successful rotations in office between rival political parties….

That period of party-driven politics now seems to be over.  Trade unions have dried up, church attendance is down, and local business associations are a weak countermeasure to the dominant power of a few large corporations.  In the U.S., the parties are swapping their historic bases as Republicans increasingly draw the more vulnerable sectors of the society and Democrats the wealthier and more educated.  The formal parties themselves have yielded power to charismatic individuals and well-heeled outside political players.  

As a result, how democracy works is being fundamentally altered.  In the U.S., Congress a half century ago would pass 300-400 pieces of legislation a year.  Now that number is in the 20-30 range, less than 10 percent as much.  Democracy is being defined increasingly as the election of a head of government who in turn rules by decree. …

Modern democracies are characterized by dominant executives and weak legislatures.  In the American context, Justice Robert Jackson characterized legislative inaction as auguring a period of constitutional “twilight” with corresponding pressures on the courts to counteract executive aggrandizement without legislative guidance.  And not just in the U.S., recently we have seen the muscular Miller decisions of the UK Supreme Court curbing the prorogation of Parliament.  

Clearly we are entering a new period of democratic politics with stronger executives and weaker political parties and other intermediary civic organizations.  The challenge of the day is to preserve the fundamentals of democratic competition in an uncertain institutional environment.  For the time being, courts are an indispensable stopgap.  But that is only for now, and only temporary.

Over at Balkinization, David Super, a congressional process expert, has these comments about why preservation of the filibuster is, in his view, in the best interests of both parties. Thus, Super suggests Republicans are unlikely to end the filibuster to pass the continuing resolution that would re-open the government:

…For each party, the narrow question is whether protecting the public policies they have is more valuable than any gains they could hope to force through in a purely majoritarian system.  The Trump Administration is providing a compelling lesson for the complacent about the enormous power of destruction.        Defending civil rights and environmental laws remaining from more enlightened eras surely is more valuable than whatever Democrats might accomplish next time they have “trifecta” control of the federal government – especially if that could be destroyed before it has even taken full effect as soon as power swings back to Republicans.  This is especially true because the disappearance of the filibuster likely would expose more Democratic Members’ reservations about some measures activists support:  the potential benefits of pure majoritarianism for the progressive agenda likely are far less than progressives believe because they have failed to sell large parts of that agenda within the progressive coalition.  (Bullying skeptics into silence is not at all the same thing as persuading them to cast difficult votes.) …

Republican revolutionaries may prefer to maximize their destruction of progressive policies even at the expense of Democrats enacting more of the same the next time they hold a trifecta.  But many Republicans have close ties to businesses, which often prize policy stability to enable planning more than maximizing particular policies that they favor.  And on a human level, Republican senators get emotionally invested in projects back home that could be imperiled if Democrats take power with the same kind of scorched earth mentality that the Trump Administration has.  Finally, the many Republicans privately alarmed by the Administration’s wild policy gyrations, and fearful of being blamed for an economic catastrophe, may not be eager to surrender their one plausible avenue for making Democrats share responsibility. …

The filibuster – forcing negotiations even among ideological opposites – is one of the last vestiges of reason in a political system driven overwhelmingly by maximalism on both sides.  And with each political party having lost half of the past two, four, six, eight, and ten presidential elections – with no candidate securing even 54% of the popular vote – each has much to fear from unrestrained maximalism when the other one squeaks into office. 

     Progressives would be foolish to regard the filibuster as sacrosanct:  Democrats’ attempt to eliminate it in 2022 gave Republicans reason to doubt that their forbearance now will be reciprocated later.  Thus, Democrats will eventually have to accept a compromise continuing resolution falling far short of what the baying maximalists of social media – and their bot allies – would find acceptable.  Numerous Republican senators are maintaining strategic ambiguity on the filibuster. 

     But unless Democrats push Republicans to the wall, the filibuster – and with it some measure of leverage in the minority – stands a good chance of enduring.  Senator Thune has eroded the filibuster in two relatively small ways – broadening exceptions to the Byrd Rule’s limit on extraneous material in filibuster-immune reconciliation bills and allowing nominations to be voted on as a group – but his party’s willingness to go along with those tweaks by no means signals receptivity to a direct attack on the filibuster.

At the Democracy Project today, we’re running a special feature essay from Caleb Nelson, the Spies Distinguished Professor of Law at the University of Virginia School of Law and former law clerk to Justice Clarence Thomas. Caleb is a major originalist scholar and is frequently cited at the Supreme Court.

In his extensive special feature essay, Caleb goes carefully through the arguments for the unitary executive branch and explains why, on originalist grounds, he ultimately rejects them. Here’s a brief excerpt, read the whole piece for more:

…To be sure, the authority to direct or remove administrative officers (and even civil-service employees) might sometimes be helpful to a President who is trying in good faith to “take Care that the Laws be faithfully executed.”  But this authority carries obvious dangers too.  As Professor William Van Alstyne pointed out many years ago, the Necessary and Proper Clause generally allows Congress to weigh the costs and benefits of giving the President powers and protections that the Constitution does not itself specify but that might help the President carry out his assigned tasks.  Usually, then, the fact that such a power could be helpful to the President means only that Congress could confer it on him, not that the Constitution itself does so.  In my view, if Congress reasonably decides that the President should be able to remove some duly appointed officers only for certain causes and through certain processes, the President could discharge his obligations under the Take Care Clause by going through those processes when warranted.  Indeed, I am open to the possibility that the President need not be empowered to remove certain officers at all; if the President believes that they are not faithfully executing the law, the President could alert Congress and recommend their impeachment.  In any event, the Take Care Clause does not imply that the President must be able to fire all executive officials at will, any more than it guarantees the President the ability to imprison officials who do not do what the President says….

Admittedly, the rhetoric and even the analysis of Humphrey’s Executor conflict with current ideas about the taxonomy of powers that the Constitution recognizes.  Under current doctrine, the federal government’s legislative powers can be exercised only by Congress (acting through the process of bicameralism and presentment), and what Article III calls “[t]he judicial Power of the United States” can be exercised only by true federal courts (staffed by judges who enjoy life tenure).  For purposes of constitutional taxonomy, that leaves the “executive” category for everything else.  Thus, the modern Supreme Court has said that even when agency actions resemble legislating or judging, “they are exercises of—indeed, under our constitutional structure they must be exercises of—the ‘executive Power.’”

I share that understanding of the taxonomy, but it raises the stakes of the Court’s flirtation with strong versions of the unitary-executive theory.  If most of what the federal government currently does on a daily basis is “executive,” and if the President must have full control over each and every exercise of “executive” power by the federal government (including an unlimitable ability to remove all or almost all executive officers for reasons good or bad), then the President has an enormous amount of power—more power, I think, than any sensible person should want anyone to have, and more power than any member of the founding generation could have anticipated.

I am an originalist, and if the original meaning of the Constitution compelled this outcome, I would be inclined to agree that the Supreme Court should respect it until the Constitution is amended through the proper processes.  But both the text and the history of Article II are far more equivocal than the current Court has been suggesting.  In the face of such ambiguities, I hope that the Justices will not act as if their hands are tied and they cannot consider any consequences of the interpretations that they choose.

This week’s essays include the following:

Today, with an international perspective, from Cora Chan on Liberal Enclaves inside repressive regimes. Cora is a professor of law at the University of Hong Kong. Ned blogged about this essay earlier today.

 ” if the center is much more powerful than the enclave, the latter’s liberal status can deteriorate rapidly once the former moves toward repression. Institutional behavior can change overnight; civil society can be forced into silence in months. But amidst it all, and this is my final point, there are remnants from the previous liberal era—traditions, legal doctrines, and habits of heart and mind—that serve to keep spaces that are not politically sensitive relatively free.”

Yesterday, Eboo Patel wrote on what we can learn from civil society about how to make institutions work. Eboo is the Founder and President of Interfaith America, the nation’s leading interfaith organization, and has been recognized as “one of America’s best leaders” by U.S. News and World Report. From his essay, The Bear, Tocqueville, and Institutions That Work:

“Tocqueville saw America’s strength in how people of different backgrounds learned to cooperate for a purpose larger than themselves. That’s exactly what we see in The Bear, FX’s critically acclaimed show about a scrappy Chicago restaurant.”

“Our democracy will not be renewed by the arsonists. It will be renewed by the architects—people who, like the crew at The Bear, devote themselves to institutions that endure and call us beyond ourselves into something larger, richer, and shared.”

From the business community, Mark Cuban wrote with an optimistic take on democracy and the technology revolution:

“…If you believe, like I do, that GenAI will create a new Generation AI and light tens of millions of sparks in kids that can shine a light on our country, from the bottom up, instead of the top down, you know that the best is yet to come. 

This path will be messy and imperfect, but also alive. There has never been a time when democracy has been more “by the people, for the people” than today—and it will only become more so in the future. Our democracy isn’t collapsing. It’s working just as it should—just as it always has.” 

Posts earlier this week engaged with Sam Moyn’s views on how to counter the rise of what he calls gerontocracy and Randy Barnett’s challenge concerning how people from diverse viewpoints understand “democracy” itself.

The NYU Democracy Project can be found here.