If you’re looking for a Grand Unified Theory for our current political dysfunction, watch Sen. Ben Sasse’s (R-Neb.) unexpected opening statement to this week’s confirmation hearing for Brett Kavanaugh. The consequences of that dysfunction will be felt and seen with unusual clarity this fall in Eugene.
Sasse brings fresh eyes to his work in Congress. He was elected in 2014, after being a college professor in Texas and the president of Midland University. Using his allotted fifteen minutes to give an entry-level seminar on Constitutional Law, he offered “Schoolhouse Rock Civics.” Sasse made four brief points:
1. “The legislative branch of government is supposed to be the center of our politics.” It was designed to be messy and loud and public — and sometimes even rowdy. Citizens who don’t like what they see have the power to remove their Congresspeople at the next election.
2. Congress has not engaged in the fierce debates that accurately represent the diversity of views held by American citizens. Deals are sometimes made in private, but more often Congress “self-neuters” — delegating its power to the Executive Branch. Unelected administrators define terms and work out details in broadly written laws.
3. As a result, “the people yearn for a place where the politics can actually be done.” Because the nitty gritty debates are not being done in Congress, the courts have become a “substitute political battleground.”
4. “We badly need to restore the proper duties and the balance of power from our constitutional system.” The daily protests in front of the Supreme Court should be happening in front of Congress instead, because those are the members of government the citizens can most easily persuade or replace.
It’s not hard to see how and why this trend has occurred. Where our legislators will find the courage and stamina to reverse it is much less clear.
Senators and Representatives who only make speeches and name post offices will not attract ire. Members of Congress would rather keep their jobs than do their jobs.
In our checks-and-balance system, the checks maintain balance. Each branch keeps other branches from taking too much power. But what we’re seeing now is different. When one branch collapses, the other branches lean in and step up to maintain balance.
The Executive Branch writes administrative rules that function as laws. The Judicial Branch reviews those rules and overturns them when they have been improperly written or interpreted. The Legislative Branch mostly sits on its dubiously clean hands, naming post offices and winning reelections.
Citizens feel disconnected from solutions, so they seek remedies in the courts. This will soon be unavoidable on the streets of Eugene.
On Tuesday, the U.S. 9th Circuit Court of Appeals unanimously ruled against cities in western states that prosecute homeless people for sleeping on public property when they have no access to shelter. The federal court ruled that violates the Constitution’s ban on cruel and unusual punishment.
Boise, Idaho barred the homeless from staying overnight on public property, even though there were no shelters available because of capacity, curfew, or religious restrictions. “The 8th Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter,” Judge Marsha Berzon wrote for the court.
Local legislatures in western states will now be forced to raise taxes or shift priorities to fund shelters. That won’t be easy and it certainly won’t be popular. But that’s what Sasse meant when he referred to restoring “the proper duties.” Legislating solutions is hard work — or should be.
And then there’s what could be seen as the Mother of All Lawsuits, getting underway October 29 in Eugene. Our Children’s Trust is suing the federal government for failing to provide plaintiffs — most of whom are children — with the clean air and water that will sustain them into old age.
It’s a novel use of the courts, but it may be the best and only way to force legislators to do the messy, political work that’s necessary. Until they do, we’ll have unaccountable administrators, undeclared wars, and judges acting as super-legislators.
Don Kahle (email@example.com) writes a column each Friday for The Register-Guard and blogs at www.dksez.com.