Unitary Executives, Imperial Presidents, National Emergencies and Partisan Realignment

 When it comes to executive overreach, Trump is standing on the shoulders of giants. 

In light of President Trump's dubious declaration of a "National Emergency" to tap more of the Treasury than Congress will authorize, it's worth noting how far we have drifted from the Framer's intent for presidential power, congressional power of the purse, and the separation of powers in general.

As Gene Healy of the Cato Institute and author of The Cult of the Presidency noted:

"[The President's] constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers."

Oh wait. My bad. That quote was from Cato's 2006 White Paper "Power Surge: The Constitutional Record of George W. Bush." It was an essay I referenced when, as a blogging toddler in 2006, I was alarmed at the ever expanding Unitary Executive claims made by the Bush/Cheney administration.

Later, in 2008, I was gratified to see candidate Barack Obama run on a promise of reversing the executive overreach in the GWB administration and returning the United States to core constitutional principles:

"I taught constitutional law for ten years. I take the constitution very seriously. The biggest problem that we're facing right now has to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all, and that's what I intend to reverse when I'm president of the United States of America." - Sen  Barack Obama - Townhall in Lancaster, PA, March 31, 2008

But I digress. Lets return to what the ACLU has to say about our President's overreach:

"... there is a very real danger that the administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during previous administrations. There is a real danger, in other words, that the administration will preside over the creation of a "new normal."

Oh wait. My bad. That paraphrased quote was from the 2010 ACLU Report "Establishing a New Normal" documenting the Obama administration extending, expanding and institutionalizing the executive branch overreach of the Bush/Cheney administration. The ACLU fears were borne out with later revelations of the Obama administration's widespread warrantless surveillance, continuing indefinite detentions, Presidential ordered drone kills, and of course Obama's infamous "phone and pen" executive orders on climate, immigration policy and the ever expanding regulations by presidential fiat.

The Cult of the Presidency
Abdication of congressional authority to the executive branch did not start with the last three administrations. It's part and parcel of a long term trend that has waxed and waned (mostly waxed) since the founding of the republic. It was Franklin Roosevelt that put the notion of POTUS as Cult Leader into high gear. Every president since has stood on the shoulders of previous executive power abusing giants. At least when FDR issued presidential edicts based on a National Emergency, there really was a national emergency (Great Depression, WWII). We also learned from FDR that even if there is a real national emergency, presidential orders can be misguided, racist,  immoral, unconstitutional and contradict American values.

State Of The Union - The Musical! "Shall We Dance!" Edition

Welcome to the Dividist's annual coverage of the Presidential Address to Congress - aka State of the Union - The Musical!

In 2007, as a blogging toddler, the Dividist despaired at finding a unique approach to writing about the SOTU when so many other bloggers would be traversing the same ground. The answer came from Bob Woodward. In an on-line Washington Post forum the Dividist asked whether the SOTU had any real relevance. Woodward responded by saying it was "mostly theater."

Genius. That was the answer. What better way to frame SOTU social media reactions than within the lyrics of a Broadway show tune?

The game is to start with a Broadway song and then find blog posts, news stories, tweets, essays and commentary that can be vaguely referenced in the song and link them to the lyrics. It keeps the Dividist awake and blogging throughout the speech without distracting too much from the mandatory drinking games.

The program so far...

Happy Divided Government New Year!

As noted by a recent twitter acquaintance, January 2nd is Divided Government Eve, and January 3rd is the real date to celebrate the political new year.

This is the eve that really matters. A return to divided government will lead to improved governance.

— 🌳❄️🌳Chris Resister🌳❄️🌳 (@ChrisResister) January 2, 2019

And the Dividist is celebrating. After another disastrous short 2 year stint of unified one party rule, today Nancy Pelosi and the Democrats take majority control of the House of Representatives and restore divided government to Washington D.C.

Since the election, the punditocracy has been weighing in on what we can expect from divided government over the next few days, weeks, months, and years. Unsurprisingly, the Dividist has some thoughts on the subject, but we'll leave those for future posts. This Divided Government New Year is a time for celebration and prognostication.

Just Vote Dividist - 2018 Closing Argument Edition

Welcome to the seventh election eve "Just Vote Dividist" post. This blog was started in 2006 to advocate a divided government voting heuristic. Every election cycle since we've posted a closing argument how and why to vote for divided government.  

In this post you'll find our recommendations for the 2018 midterms. It doesn't take a lot of analysis. President Donald Trump in only half way through his term. Dividing this government requires Democrats winning the majority in either one or both legislative branches. The 2018 Divided Government vote is for a straight Democratic ticket.

In previous election eve editions we've painstakingly summarized and recycled our previous votes and general arguments for divided government. We'll include that in an addendum at the bottom of this post, and get right to the meat of why and how you should vote for divided government.

First an elementary civics lesson that far too many Americans fail to fully appreciate.

The President of the United States is not the government of the United States. 

The President of the United States is not even necessarily the leader of the government of the United States. The executive is one of three co-equal branches of government. The actual government of the United States is led by the Speaker of the House and Senate Majority Leader representing their respective democratic institutions in concert with the President of the United States. The personalities, interpersonal relationships, communication skills, ideological motivation, partisan loyalties, personal ambitions, institutional obligations and dynamic interactions between those three leaders determine the domestic policy and international posture that governs the United States.

Co-Equal Means Co-Equal

The President is not the leader of the government but is the leader of a political party. In a unified one party government, the President may function as the leader of of the United States government if the president's party in Congress put partisan discipline and loyalty above their constitutional responsibilities. When we have a divided government, leadership of the United States government is just as likely to reside in the Congress as it is in the Executive branch.

Did I Mention The POTUS Is Not The Government Of The United States?

This is not to minimize the role of the President. The President is the putative "Leader of the Free World" and "Commander in Chief" of the most powerful military in the history of the world. The "Unitary Executive" has extraordinary, almost monarchical latitude over United States foreign policy. However, United States domestic policy is forged primarily in the House of Representatives, by design.

In Divided Government - The Speaker of the House Calls the Domestic Shots

The "People's House" - the most democratic of our government branches, is where the Framer's intended and expected domestic policy to be created and shaped. This is why the House is the first branch codified in the first article of the Constitution. This is why the Speaker of the House is second only to the Vice President in succession to the Presidency. The Senate - representing the semi-sovereign state governments - was intended by the framers to be a moderating influence over both the majoritarian domestic policies of the House and the foreign polices of the President.

A Co-equal Triumvirate Governs The United States.

This structure is unique. This structure is exactly what the framers intended. This structure is what makes our system exceptional. The point is this - given that this power sharing triad is the essence of our elected government, perhaps we - as voters - should focus less on the singular office of the President and  more on the combination of leaders that will run our government.

With that in mind, we are pleased to present the three actual, realistic 2019 - 2020 United States Government choices you will be voting for Tuesday November 6. To simplify, we've eliminate the inprobable Democratic Senate, Republican House possibility. If there is a big enough Blue Wave to overcome the monumental Democratic map disadvantage in the Senate, the House will have to fall with it. One of the following three options will be elected on Tuesday to govern the United States for the next two years. Stack ranked by Dividist preference from worst to best.

Quantifying "A decisive quantum of voters in the middle.."

This happens periodically. The Dividist has been beating the divided government horse on this blog for a dozen years. We think we know all the arguments for and against. Then someone comes along and with a pithy turn of phrase crystallizes in a few words what the Dividist has spilled gallons of ink (megabits of pixels?) trying to explain.

Jay Cost challenges the PoliSci "alignment" theory of American politics in his National Review article"In Praise of Divided Government":

"I would posit another framework to understand politics over the past 40 years, one in which the two parties are basically evenly matched, strong ideologues dominate the bases of both sides, and a decisive quantum of voters in the middle is up for grabs. This process has yielded a general pattern that seems to repeat: One party surges to control the government, but this is short-lived; the opposition quickly gains a foothold; and divided government persists until the opposition finally takes total control, repeating the cycle."

Love that phrase "... a decisive quantum of voters in the middle". Succinct and to the point. This is how the Dividist tried to explain the same concept in one of his first posts in 2006 [Edited to provide some semblance of clarity]:

"Think of it this way. An election is a scale. Pile the large mass of partisan Democrats on one side and the large mass of partisan Republicans on the other, roughly balancing the collective polarized "Partisan Dead Weight" (PDW) that can be relied on to always gets on one side or the other. Then there are some smaller, more mobile weights, that call themselves Independents... an "invisible hand" that votes for divided government ...  [INSERT MANY HUNDREDS OF WORDS] ...  What if this "invisible hand' that prefers divided government becomes visible? What if the "collective unconscious" that prefers divided government, starts making that decision consciously? It could change elections in the same way 3rd parties do, by siphoning partisan support but without the spoiler effect. The beauty of this idea is that this party needs no candidates, no leaders, no platform, no conventions, really none of the trappings of a political party. Dividists are voting by objective, not by platform and not out of party loyalty."

The Dividist got to the point eventually, and subsequently managed to be a bit less wordy in his "About The Dividist" explainer:

"On this blog we advocate a specific voting heuristic that can be implemented by a relatively small percentage of the electorate, perhaps as little as 5%. The target readership are voters who are willing to cast their ballot based on a rational evidence-based voting strategy that will result in better federal government. 

The strategy requires that the voter be capable of casting their vote without consideration of party loyalty or political ideology. The voter must even be willing and able to vote for candidates they dislike, based on accomplishing a greater goal of more fiscal responsibility, stronger oversight, less spending, more deliberately considered, carefully crafted legislation and better overall governance. In short, the voters must be willing to vote for divided government. This blog is for those potential voters."

To be fair, the Dividst was and is describing an aspirational goal, while Mr. Cost is positing a historical political hypothesis. The important question for both of us is whether a small sliver of the electorate who are truly independent (i.e. not self-described "Independents" who actually vote one party as reliably as partisans) are, or could be, a swing vote that determines elections when using divided government as an organizing principle.
Does this "decisive quantum of voters" exist? How big is it? Can we quantify the dividist "quantum" vote? And what does it mean for the 2018 midterms?

Investors Love Divided Government - The "Will a Dem House Crater the Market?" Edition - [SPOILER ALERT: No]

  Graphics from Oppenheimer Funds 

President Trump Makes a Market Prediction

On Tuesday, November 6,  voters will decide whether to buy a slightly dented, partially corroded and corrupted two year-old One Party Rule Republican Government or a shiny new Divided Government. Our Used Car Salesman In Chief is turning up the pressure for one last hard sell to close the midterm deal:

Best Jobs Numbers in the history of our great Country! Many other things likewise. So why wouldn’t we win the Midterms? Dems can never do even nearly as well! Think of what will happen to your now beautiful 401-k’s!

— Donald J. Trump (@realDonaldTrump) October 21, 2018

But Wait! There's More!

At stake in this Election is whether we continue the extraordinary prosperity we have achieved - or whether we let the Radical Democrat Mob take a giant wrecking ball to our Country and our Economy! #JobsNotMobs pic.twitter.com/POhRivI1BZ

— Donald J. Trump (@realDonaldTrump) October 23, 2018

Not a surprising pitch given that President Trump has taken credit for every upward tick in the stock market since he was elected. It is a bit surprising that he has the time to single-handedly drive the stock market higher while the Colossus of Trump simultaneously stands astride the southern border to protect us from an invading caravan of middle-east terrorists, migrant Democratic voters, women, kids, and babies in strollers. But I digress.

Focus Dividist! Focus! This post is about how the stock market is affected by the party in power, and the 2018 midterms...

Hello. My name is #TDS Dividist. I have Trump Derangement Syndrome.

Yes, I have TDS (Trump Derangement Syndrome).  If you are not familiar with the symptoms,  CNN, Wikipedia, and Urban Dictionary have all diagnosed the affliction. I had TDS before #TDS was cool and well before the President of the United States discovered the term.

One advantage of being a blogger, is that I can easily track the progression of the disease in my blog posts. My symptoms date back to 2015 and have a distinct Kubler-Ross flavor, including -  Denial, Anger, Bargaining, Depression, and even grudging Acceptance. How can one not have TDS with an unfettered President exhibiting such profound authoritarian tendencies and seeking to push the envelope of executive power in direct contradiction to the word and intent of our Constitution?

Third Parties always fail. But it's different this time.

Edited from a post originally published on Uniters.Org 

It's Third Party Season! Elections are looming and we are entering that magical time of year when:  Frustrated moderates heap blame on polarizing partisans; Angry progressives afflicted with parliament envy demand proportional representation; Delusional indies triumphantly promote illusory polls; Bemused libertarians proudly cling to their irrelevant 3% voting block and; Process oriented Centrists work diligently to rearrange the voting scheme deck chairs on our electoral Titanic.

And all gaze longingly up into the blue sky, desperately searching for a 3rd Party Superhero to leap the two party duopoly in a single bound and rescue us from our own government. With the 2018 mid-terms and 2020 presidential elections far enough in the future that candidates are not yet locked in, Thrid Party hopes spring eternal in the centrist breast. A hope that there just might be a viable alternative to the usual Republican and Democratic choices they find so disheartening. A hope that it might be different this time.

And you know what? It just might be ...

Thesis: In the United States, third parties always fail. But, on rare occasions in our history, with the right conditions, a New Party can successfully gut, destroy and replace one of the two major parties. This could be that time.

For your consideration -  Two steps to make a New Party into a Major Party:

State Of The Union - The Musical! "The Producers" Edition

Welcome to the Dividist's annual coverage of the Presidential Address to Congress - aka State of the Union - The Musical!

In 2007, as a blogging toddler, the Dividist despaired at finding a unique approach to writing about the SOTU when so many other bloggers would be traversing the same ground. The answer came from Bob Woodward. In an on-line Washington Post forum the Dividist asked whether the SOTU had any real relevance. Woodward responded by saying it was "mostly theater." Genius. That was the answer. What better way to frame the SOTU social media reactions than within the lyrics of a Broadway show tune?

The game is to start with a Broadway song then find blog posts, news stories, tweets, essays and commentary that can be vaguely referenced in the song and link them to the lyrics. It keeps the Dividist awake and blogging throughout the speech without distracting too much from the mandatory drinking games.

The program so far...

Divided Government Detritus and Flotsam - The "Keep Separation of Powers Separate" Edition

Periodically, the Dividist enjoys strolling down a metaphorical beach to take note of the divided government detritus that has washed ashore and cluttered his little island of rationality in the great big blogospheric ocean.

With the midterm elections looming large, the prospect of a blue tsunami on the horizon sweeping Democrats into a House of Representatives majority have Democrats giddy and Republicans worried (except for the #NeverTrumpers who are just fine with divided government this cycle.)

Time to go beachcombing and look for any shiny bits of divided government flotsam we may have previously overlooked. Submitted here for your reading enjoyment...

---

Jonathan Haidt explains the impact of tribalism on the Framer's intent. 

While participating in a twitteratti discussion on the impact of tribalism on our body politic (along with a generous helping of Trump bashing), the Dividist stumbled across a lecture by Jonathan Haidt entitled "The Age of Outrage." Haidt fuses issues of tribalism, identity politics, polarization, intersectionality, illiberal "liberals", the Social Justice Snowflakes so evident on college campus, and - most interesting to the Dividist - the relevance of the Framer's intent to all of the above. In particular this beautiful, almost poetic, description of what the Framer's were trying to create and why:

"Here is the fine-tuned liberal democracy hypothesis: as tribal primates, human beings are unsuited for life in large, diverse secular democracies, unless you get certain settings finely adjusted to make possible the development of stable political life. This seems to be what the Founding Fathers believed. Jefferson, Madison, and the rest of those eighteenth-century deists clearly did think that designing a constitution was like designing a giant clock, a clock that might run forever if they chose the right springs and gears. 

Thankfully, our Founders were good psychologists. They knew that we are not angels; they knew that we are tribal creatures. As Madison wrote in Federalist 10: “the latent causes of faction are thus sown in the nature of man.” Our Founders were also good historians; they were well aware of Plato’s belief that democracy is the second worst form of government because it inevitably decays into tyranny. Madison wrote in Federalist 10 about pure or direct democracies, which he said are quickly consumed by the passions of the majority: “such democracies have ever been spectacles of turbulence and contention . . . and have in general been as short in their lives as they have been violent in their deaths.” 

So what did the Founders do? They built in safeguards against runaway factionalism, such as the division of powers among the three branches, and an elaborate series of checks and balances. But they also knew that they had to train future generations of clock mechanics. They were creating a new kind of republic, which would demand far more maturity from its citizens than was needed in nations ruled by a king or other Leviathan.. 

So, how are we doing, as the inheritors of the clock? Are we maintaining it well? If Madison visited Washington, D.C. today, he’d find that our government is divided into two all-consuming factions, which cut right down the middle of each of the three branches, uniting the three red half-branches against the three blue half-branches, with no branch serving the original function as he had envisioned."

It's a great lecture, you should read it in its entirety or watch it here: