The U.S. Supreme Court Clipping Judicial Overreach

The separation of powers that characterizes governments in the United States assumes that each branch will act to further its own interests, given the salience of self-interest (and self-preservation) in human nature. It is assumed that the checks and balances between legislative, judicial, and executive branches will keep any one branch from dominating the other two, and, moreover, the government itself from becoming tyrannical at the expense of the liberty of the citizenry. It is not assumed or relied upon that a branch will prune itself without external pressure from one of the other branches. Yet the U.S. Supreme Court may have done so in ruling on June 27, 2025 to limit “the ability of lower-court judges to block executive branch policies nationwide.”[1] I contend that any real wing-clipping by 6 of the 9 justices is illusory rather than indicative of the federal judiciary unilaterally restricting itself.

“With their decision, the justices appeared to upend the ability of single federal judges to freeze policies across the country,” according to The New York Times.[2] The appearance is belied by the fact that the ruling would not go into effect for 30 days and “the justices laid out a potential path for challengers, saying that district court judges could consider whether to take up class-action suits seeking to bar enforcement of the executive order on a statewide, regional or even national basis.”[3] The latter basis would essentially enable a district-court federal judge to block an executive order from going into effect anywhere in the United States.  Groups that had challenged the executive order at issue—invalidating birth-right citizenship for children of illegal immigrants—quickly filed class-action suits in Maryland and New Hampshire, with others expected in the following week—well within the 30 days. As for the validity of the executive order itself, the court would decide that in a case scheduled in the court’s next term.

It is interesting that the justices “split along ideological lines” on a matter of judicial process rather than on the substance of the executive order.[4] Perhaps political ideology has more of an imprint on judicial rulings by the U.S. Supreme Court than most people realize. After all, Justice Sandra Day O’Conner wrote the majority opinion for Bush v. Gore (2000) before oral arguments were heard. Might it be that the conservative justices on the bench wanted President Trump to see a win for him even though the national judicial block of his executive order would likely continue uninterrupted? That president had been very critical of Justice Amy Barrett for another ruling, and she wrote the majority opinion on the case on whether district federal judges could block an executive order nationally. Indeed, the president declared himself the winner from the ruling even though the six conservative justices left open a way for district court judges to be able to continue wielding nationwide injunctions to block the president’s policies issued as executive orders.

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1. Abbie Vansickle, “Justices Put Limit on Judges’ Power, In Win for Trump,” The New York Times, June 28, 2025.
2. Ibid., italics added.
3. Ibid.
4. Ibid.

The U.S. Supreme Court Reining in Regulatory Agencies: Implications for the Imperial Presidency

In Loper Bright Enterprises v. Raimondo handed down by the U.S. Supreme Court on June 28, 2024, a majority of the justices overruled Chevron v. Natural Resources Defense Council, which had been the precedent giving regulatory agencies considerable discretion in coming up with specific regulations, given the penchant of the Congress to write vague laws. In the overturning case, a group of fishermen had objected to having to pay for government observers to board the fishing boats to monitor the fishing. On the merits, it does seem unfair for regulatory agencies to charge the regulated to be regulated. In overturning Chevron, however, Loper has much broader implications, chief among them being in terms of separation of powers—specifically in reining in the expanding power of the executive branch, here at the expense of the judiciary.   

Chevron had “required courts to give deference to federal agencies when creating regulations based on an ambiguous law.”[1] Loper could stimulate thought on whether Congress must necessarily promulgate law using vague language. Certainly Congress is capable of being quite specific when writing in loop-holes, or “carve outs,” for particular companies or industries in exchange for political campaign contributions. Moreover, from hearings, Congressional committee staff are surely capable of narrowing the discretionary area in which regulators can exercise considerable power that is essentially that of law-making. So one effect of Loper could be a shift of power from the executive to the legislative branch.

The decision also stood to “shift the balance of power between the executive and judicial branches.”[2] Although CNN goes on to claim that the decision “hands an important victory to conservatives who have sought for years to rein in the regulatory authority of the ‘administrative state’,” strengthening the role of the judiciary to look at administrative rulings is not in itself pro-business, as a judge could come down on an agency as being too lenient to an industry. The notion of regulatory capture, wherein whether from relying on data from a regulated industry or in exchange for lucrative future jobs in the industry for regulators, especially given government salary levels, means that giving courts more of a role in being able to evaluate and overrule agency rule-making and decisions could be a needed check against compromised regulators. At the same time, it is true that because the Supreme Court is the head of the judicial branch of the federal government, a decision that shifts power from one or two of the other branches to the judiciary puts the Court in an institutional conflict of interest (and the justices in personal conflicts of interest as their power would likely increase). Perhaps Congress should have been the branch to decide on the role of the judiciary with respect to the agencies in the executive branch.

Shifting power from the executive branch to the two other branches, especially the judiciary in this case, can also be viewed as a mild correction to the steadily increasing power of the U.S. presidency. In The Imperial Presidency, Arthur Schlesinger traces the increasing power that has come at the expense of the other two branches. The claim of such a correction may be problematic, as reining in regulatory agencies is not the same as reining in a president’s power, such as in exercising the bully pulpit in being able to speak directly to the American people directly as well as through a president’s surrogates. Also, a president as commander in chief and in promulgating foreign policy is unaffected.

It can even be argued that as presidents have typically been oriented to proposing broad policies for Congress to enact through law, that a president’s attention has been minimal in running the administrative agencies—essentially in supervising the cabinet secretaries in their administrative roles at their respective agencies. Such overseeing geared to specific regulations is, I submit, a function that presidents should attend to even more than proposing policies for Congress to enact. In other words, presidents should resist the sensationalistic allure of forming and publicly and privately “selling” policies or ideas for new programs to the extent that the time and effort of a president is monopolized thereby such that functioning as head of the executive branch, which implements law, is slighted. It could even be argued that the latter function should be primary. Were it in fact primary, then Loper would indeed be capable of redressing the historical trend of the imperial presidency to some extent because taking an active role at the regulatory stage would be a significant part of the actual power exercised by presidents. As of 2024 at least, Loper did not really touch the problem of the imperial presidency increasingly compromising the balance of power between the three branches of the U.S.’s federal government.

If democracy is ever at risk in the U.S., it would likely succumb to the hubris of an imperial president rather than to lawmakers in Congress writing laws with more specificity or judges overruling regulatory rulings. According to General Haig, President Nixon considered sending military forces to the Capitol to stave off impeachment during Watergate. Decades later, in December, 2023, protestors of the Congressional counting of the presidential votes of the states’ electoral colleges headed over to the Capitol from President Trump’s rally at the White House and successfully delayed the counting. On the very same day as its Loper decision, the U.S. Supreme Court handed down a ruling on another case—a decision that “limited the power of prosecutors to pursue obstruction charges” against the January 6^th protesters at the Capitol.[3] To the extent that that ruling could enhance the imperial presidency itself, June 28, 2024 at the Court may actually have been a net-gain for the presidency.

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1. John Fritze, “Supreme Court Overturns 1984 Chevron Precedent, Curbing Power of Federal Government,” CNN.com, June 28, 2024 (accessed June 29, 2024).
2. Ibid.
3. John Fritze et al, “Takeaways from the Supreme Court’s Decision on January 6 Charges and What It Means for Donald Trump,” CNN.com, June 28, 2024 (accessed June 29, 2024).

The Israeli Supreme Court’s Conflict of Interest as Unreasonable

Ironically, in making the ruling on New Year’s Day of 2024 striking down Prime Minister Netanyahu’s amendment to the country’s basic law that would have removed the judiciary’s authority of judicial review of laws based on their reasonableness, Israel’s Supreme Court too unreasonably exploited a conflict of interest. Basic Law, which is essentially constitutional law, includes the basic architecture of a government, such as how the executive, legislative, and judicial functions are related. Self-interest being a salient feature of human nature, we can assume that the governmental functionaries in each of those functions naturally seek to expand their respective jurisdictions relative to those of the other two. I contend that to give one or two of those areas the last word in altering the division of authority involves a conflict of interest. This applies to a constitutional court. Therefore, even though democracy is served by a judicial decision striking down an attempt by the executive and/or legislature to eviscerate the authority of the judiciary to act as a check, giving the latter the last word is fraught with entanglements. 

By eight to seven justices, the court ruled “that a government amendment to the so-called reasonableness law should not stand. The bill had stripped the Supreme Court of the power to declare government decisions unreasonable.”[1] That very officials who make government decisions in the Knesset passed the basic law can be seen as problematic. It was essentially a power-grab by the executive/legislative domains at the expense of the judiciary. Although the court “rejected the amendment because it would deal a ‘severe and unprecedented blow to the core characteristics of the State of Israel as a democratic state,’”[2] the naked power-grab could itself be viewed as unreasonable, even taking for granted the element of power-aggrandizing in governing. The court could also have ruled on the basis of there being an institutional and personal conflict of interest, but the court itself could be charged with the same offense in deciding the matter. It is just this conflict of interest that flew below the media’s radar (and got me to writing).

Even though the ruling did not expand the court’s authority, the decision arrested a decrease, and was thus in the personal and institutional interest of the judiciary in terms of power. Just as the majority in the Knesset had acted in its interests, the majority on the court did as well. The matter was thus a power struggle, and thus giving one side the final, definitive say is unfair. The ruling cites the importance of judicial review of laws passed by the Knesset as being in the broader interest of democracy in Israel, but the relatively narrow personal and institutional interests of the justices and their court could be expected to be exploited, and this may be the real reason for the ruling. To be sure, an independent judiciary is indispensable for the executive and legislative functionaries to be held accountable. Although they could argue that the voters could perform that function at election-time, elections do not include sending corrupt officials to jail, and the sitting Prime Minister was charged with corruption judicially at the time that he was steering the bill to passage (which counts as a personal conflict of interest). Even if the court’s democracy argument is solid, the personal and institutional conflicts of interest in the justices resisting a restriction on the purview of their judicial authority are inherently unethical and thus should be obviated if possible. 

The inherency is explained by just how inherent the self-interest to exploit a conflict of interest, whether personal or institutional, is in human nature.[3] Without doubt a conflict of interest that actually has been exploited is unethical because a private or relatively narrow benefit is put before a public or relatively broad benefit or duty.  

In judicial language, strict scrutiny should therefore be applied to unilateral decisions by legislative, executive, or judicial functionaries or “branches,” of government that self-aggrandize authority at the expense of one or two of the other “branches.” I recommend that such conflicts of interest be obviated by putting such matters to the electorate. So this is not merely a rubber-stamp of the majority parties, a 2/3 majority should be required to change Basic Law. Otherwise, we are left with the unsavory alternative of having the contending governmental interests play out their internecine power-struggles on the constitutional stage with one such interest having to have the final word, which is unfair to the other interests. In a democracy, after all, popular sovereignty is more fundamental than governmental sovereignty.

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1. Rob Picheta, Amir Tal, and Lauren Izso, “Israel’s Top Court Strikes Down Key Part of Judicial Overhaul, Reigniting Divisions as War Rages,” CNN.com, January 2, 2024.
2.  Ibid.

3. Skip Worden, Institutional Conflicts of Interest, available on Amazon.

The Colorado Supreme Court Bars Insurrectionist Trump: Who Should Ultimately Decide?

On December 19, 2023, Colorado’s Supreme Court ruled that Don Trump, a former U.S. president, had engaged in insurrectionist activity as a matter of fact, and furthermore, as a matter of law, the U.S. Constitution bars him from holding any office, including the presidency. With an appeal to the U.S. Supreme Court a certainty, realized even by the Colorado justices, and some notable (and very visible) Republicans arguing that the American people should have the final say on whether Trump will be president again beginning in 2025, the question of who should have the final say—the judiciary or the people—was pressing, and indeed, very important. I contend that the determination of fact should have been made by a jury in a criminal proceeding, and that even absent that, the ultimate decision should still be made prior to, and thus not during, the election, for the question is whether Trump can be listed as a candidate for the office. Ultimately, the tension lies between the value of a politics-free judiciary and democratic (majority) rule.

Section 3 of the 14^th Amendment to the U.S. Constitution “prohibits anyone who swore an oath to support the Constitution and then ‘engaged in insurrection’ against it from holding office.”[1] The Colorado Supreme Court reversed the decision of a trial judge with the simple logic that the section doesn’t explicitly mention the U.S. Presidency because it is so obviously an office. That it is so because, as the majority of Colorado’s high court’s justices wrote, the presidency serves “we the people” seems more like rhetoric than logic; the majority opinion could have left it at the rather obvious point that the presidency itself is not mentioned in section 3 because that section refers to all offices, federal and state, as being subject to the prohibition. Indeed, in political discourse, “the office of the president” is often mentioned, so the point hardly seems necessary to be made, but for the strange reasoning of the trail judge who had sought explicit mention of the presidency as if it were not included in “any office, civil or military, under the United States, or under any State.”[2] That both appointed and elected offices are included is also indisputable on the face of it, and that the section expressly names senator and representative in Congress does mean that the presidency too must be named, for the distinction here is between the legislative and the two other branches (a justice is also an office). In fine, the presidency of the United States is indeed a governmental office.

Colorado’s high court was on shakier ground, and this is noted in the dissent in the 4-3 opinion, in accepting the district judge’s determination of fact that President Trump had “engaged in an insurrection.”[3] Insurrectionist activity was at the time a federal crime in the U.S., and yet Donald Trump had not even been charged with the crime, much less convicted by a jury. Rather, a district judge had made the finding of fact, such that not even any criminal sentencing could be done. At Yale more than a month before Colorado’s high-court ruling, I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, whether someone would first have to be charged and convicted of insurrectionist activity. “No,” he said flatly, without feeling the need to elaborate.[4] I thought I had asked a stupid question until I read in Colorado’s decision that the dissent makes the same point. Presumably someone should be found guilty of the crime before being barred from holding any public office because of said crime. Therefore, I submit that Colorado’s majority opinion erred in accepting the district judge’s determination of fact in lieu of any criminal prosecution and conviction as a sufficient basis apply the 14^th Amendment to Donald Trump.

Given the weaknesses in the judicial rulings of both the lower and higher court in Colorado, it is a good thing that the U.S. system of government is federal because the U.S. Supreme Court could make corrections. By implication, perhaps a plurality of state supreme courts should be able to overrule a decision of the U.S. Supreme Court. Checks and balances should apply to the judiciary too. Relatedly, the lack of check and balance concerning some of the unethical gifts taken by Justice Thomas of the U.S. Supreme Court from a Republican activist could diminish the legitimacy of the U.S. court in being the final decider on the questions of Donald Trump being an insurrectionist and, furthermore, being barred from holding any office. 

After the decision of the Colorado Supreme Court was made public, some of the Republican candidates for president publicly asserted that the American people should decide through the presidential election whether Trump should be president. A number of serious problems attend to this proposal.

Firstly, it is highly unrealistic, to say the least, that every voter would vote on the basis of the question of whether the U.S. Constitution forbids Trump from holding office. Even if Trump were to lose the election, it could not be inferred that the American people had decided that Trump was barred and thus could not hold any office.

Secondly, such a position incurs the worries noted by James Madison in his Notes on the constitutional convention that excess democracy, such as by having a de facto democratic judiciary (i.e., decided by votes of the people rather than rulings by justices), brings with it insufficient check on the passions of the people. A judiciary is one such check, and judicial review renders that branch a check also on the two other branches of government. In short, leaving the final word in interpreting the constitution to “we the people” leaves us without the ability to protect us from ourselves. For example, the rights of the minority would have no protection against the tyranny of the majority—democracy of course being by majority rule. Not the least of considerations, politics would also inevitably be involved.

Even in the U.S. Supreme Court, politics have likely been more of a force than the public realizes. Justice Sandra Day O’Conner, whose funeral took place just days from Colorado’s high-court ruling, had written the majority opinion for Bush v. Gore (2000) even before oral arguments were heard. She had been active in the Republican Party when she was an Arizona legislator, and her majority opinion sided with Bush. Objections to her partisanship imply a belief that the judiciary should be neutral politically.

Handing over the court’s functions to “we the people” would only add politics to constitutional interpretation. Voters in favor of Trump personally, or his policies, would likely find that he did not engage in an insurrection, and thus that the Constitution does not bar him from holding any office. President Biden’s supporters would be inclined to view Trump’s speech on January 6, 2020 as fomenting an insurrection. Who then should decide? This is the rationale for having a judiciary, especially where criminality is to be decided. Just as politics should not be criminalized, so too criminal proceedings should not be politicized.

I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, why the federal prosecutor had not included insurrection among the criminal charges against Donald Trump. “It’s messy,” the judge replied. He meant that it is difficult to get a conviction. If so, then the fact that the district judge in Colorado so easily found that Trump had indeed been engaged in insurrectionist activity by urging his supporters to disrupt the counting of the electors’ votes for president warrants strict scrutiny. In other words, if the charge is “messy,” then shouldn’t a jury hear the case and be made to deliberate? Then, of a jury were to convict the former president, then appellate courts, including ultimately the U.S. Supreme Court, would be oriented exclusively to deciding the questions of law concerning section 3 of the 14^th Amendment.

Separating the criminal proceedings from the work of the U.S. Supreme Court would buffer the impact of politics inside that court unless its justices would disregard a jury verdict. Such a rationale would have to be strong in its reasoning, least it appear to be part of a political effort to decide the 2024 presidential election by judicial fiat, as in 2000. Such an effort would effectively prioritize a decision by the electorate. Absent such judicial corruption, deciding whether section 3 of the 14^th Amendment applies to Don Trump by an election incorrectly treats the United States as a direct democracy rather than a republic in which democracy is a part of the system of the system of government. Especially when democracy itself is in dispute, a judiciary free from politics is so very valuable. Boasberg’s dismissiveness of my two questions at Yale in early November, 2023 left me wondering about the neutrality of the federal judiciary. At the very least, what he took for granted is hardly settled law.

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1. Nicholas Riccardi, “The Constitution’s Insurrection Clause Threatens Trump’s Campaign. Here Is How That Is Playing Out,” APNews.com, December 20, 2023.
2. The U.S. Constitution, Section  of the 14^th Amendment.
3. Kinsey Crowley, “What Is the 14^th Amendment? Why Colorado Disqualified Trump and Removed Him from Ballot,” USA Today, December 20, 2023.
4. Not even the report of the judge’s talk in The Yale Daily News includes any mention of the judge’s answer to my question. Presumably the student-reporter did not think the reply could be controversial.

U.S. Anti-Trust Law: Applicable to Amazon?

In September, 2023, the Federal Trade Commission and seventeen states sued Amazon on ant-trust grounds for restraining trade and excessively raising prices on third-party sellers and consumers. Three months later, a leaked internal memo revealed Amazon’s anti-labor strategies of buying off local politicians and gaining reputational capital through well-publicized charitable work. Such work, as an anti-union strategy, demonstrates that the very expression, corporate social responsibility, is an oxymoron, or at the very least a misnomer (i.e., misnamed); a more accurate, and thus revealing, label would be corporate marketing. One effect of the “responsibility” connotation is that companies such as Amazon with mammoth market power could effectively hide strategic efforts in restraint of trade, and thus curtailing competition. Combined with feckless anti-trust prosecution, the result is an American economy that has not lived up to Adam Smith’s theory wherein competition via the price mechanism is necessary for individual self-interests to have beneficial unintended consequences systemically and thus in terms of the public good.

The civil case accused Amazon “of engaging in anti-competitive practices through measures that deter sellers from offering lower prices for products on non-Amazon sites.”[1] Amazon was being accused of deprioritizing listings of products sold at lower prices on non-Amazon sites, forcing merchants to raise their prices on Amazon’s platform and other sites “in order to keep their products competitive on Amazon.”[2] The customers suffer as relevant results of searches are replaced by paid advertisements that favor Amazon’s own brands. Also, the company was charging third-party sellers nearly half of their total revenue as fees for using Amazon’s platform, the result being higher prices for the consumers. The company was also compelling the sellers to use the company’s logistics service in order to qualify for Amazon Prime. With nearly 40 percent of the e-commerce market, Amazon was allegedly flexing its muscle at the expense of competition.

Yet the chairperson of the Federal Trade Commission, Lina Khan, was not asking the court to break up the mammoth company, preferring instead to limit herself to “liability.”[3] I contend that such an avenue falls short as a vehicle for instituting a competitive market. Firstly, a company with market power of nearly half of the e-commerce market can be expected to use its muscle in restraint of trade even while paying out liability claims because the oligopolistic excess-profits (akin to “monopoly rents”) more than compensate for the (tax deductible) expenses. Secondly, I submit that it is utterly unrealistic to suppose that a company with such overwhelming market power will not use it merely because of external disincentives such as civil fines. The use of “sticks” and even “carrots” to get such a company to not act as a profit-maximizer comes up short because such “motivating” tools are tertiary; they do not shake the fundamentals, whereby a non-competitive market is restructured to be competitive and thus composed of price-takers rather than a price-setter.

It is worth expanding on the tactics that an oligopolistic company can use to protect itself from extraneous attempts to fundamentally change the market. We get a glimpse of Amazon’s “play book” from an eight-page memo that reveals how one of America’s largest companies “executes on its public relations objectives and attempts to curtail reputational harm stemming from criticisms of its business. It also illustrates how Amazon [sought] to methodically court local politicians and community groups in order to push its interest in a region where [the company] could be hampered by local moratoriums on warehouse development, and [where the company was] facing resistance from environmental and labor activists.”[4] Knowing the company’s tactics in Southern California can give us an insight into how the company’s management blunts federal legislative action that could break up Amazon itself in order to create a competitive playing field in e-commerce.

In a nutshell, Amazon’s strategy was to create the illusion of on-going charity work and to pay off elected government officials to, among other goals, resist unionization of the company’s workforce and restrictions on where the company can build. Specifically, the management “’cultivated’ Michael Vargas, the mayor of the town of Perris, through pandemic-related donations” ostensibly to “support the region,” but actually to buy off his support for new warehouse construction.[5] This is proof that companies use money even aside from political campaign “donations” to get elected representatives to affect public policy favorably to the companies themselves. If this is so locally, we can be assured that companies as large as Amazon wouldn’t withhold the tactic from being used to buy federal lawmakers, whose power could include breaking up the company.

In regard to Amazon’s corporate “social responsibility” programs, the leaked document includes plans to have employees drop off food to the Los Angeles Food Bank “in big media moments that are broadcasted/posted.” The illusion of ongoing charitable work would of course work to the company’s advantage in public relations. As the “memo suggested curating similar moments during a back-to-school donation event and a [Christmas] toy drive, where drop offs occur and Amazon executives, as well as groups who receive grants from the company, ‘speak about Amazon’s impact” to the media present, even as the company planned on cutting off groups that “did not result in measurable positive impact,” charity was clearly viewed by Amazon’s managers as a promotional tactic.[6] The false societal image of a benevolent oligopolistic company could be expected to shield governmental efforts to break up the company and perpetuate the erroneous assumption that civil liabilities (i.e., verdicts against the company) are enough to safeguard consumers because the company’s management is benevolent.

In conclusion, the Federal Trade Commission shirked its governmental mandate to enforce the Sherman Antitrust law from the onset of the litigation, thus hampering the ability of the judiciary to order an effective remedy. In a large industry in which one company has 40 percent market share, and that company actively buys government officials and strategically uses public relations, the danger is not just to competitive markets, but also to American representative democracy and the rule of law itself. It is, I submit, no accident that the chairwoman of the FTC did not include breaking up Amazon as a remedy. We need only look at the company's strategially placed political contributions to surmise which elected officials might have put political pressure on the FTC. The company’s memo reveals that Amazon uses its extraordinary wealth to bend public policy away from the public good, like a black hole in space bends even space itself, to protect the company's viability by donating directly or indirectly to elected officials. I submit that plutocracy, rather than mob rule, is the greatest threat to American democracy.  At the very least, private wealth knows how to protect itself politically, and even how to cover its tracks under the patina of corporate social responsibility.

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1. Haleluya Hadero, “Amazon Sued by FTC and 17 States over Allegations It Inflates Online Prices and Overcharges Sellers,” APNews.com, September 26, 2023 (accessed December 7, 2023).
2. Ibid.
3. Ibid.
4. Haleluya Hadero, “Amazon’s Internal Plans to Advance Its Interests in California Are Laid Bare in Leaked Memo,” APNews.com, December 7, 2023.
5. Ibid.
6. Ibid, for the quoted material, which is both from the article and the memo itself.

On the Role of Partisan Political Ideology in the U.S. Supreme Court

Observing a pattern of sustained ideological proclivities in the decisions of justices of the U.S. Supreme Court, The New York Times editorialized in 2011 that the “court cannot maintain its legitimacy as guardian of the rule of law when justices behave like politicians.”[1] One could just as easily say behave like human beings, for juridical interpretation itself contains ample space for an interpreter’s ideology to have a role, especially given human nature that is apt to exploit such leeway. In other words, ideology may be part and parcel of the essential function of a constitutional court, given the nature of juridical interpretation. 
Rather than being a technical application sans discretion of a constitution to a matter of law, constitutional interpretation may be one of many ways of pushing for one’s view of the optimal government and society. Accordingly, the arrangement wherein a constitutional court is the final decider of the constitutionality of law, short of a constitutional amendment, may be criticized because it enables the ideologies of a few unelected jurispruds to rule, in effect, or have the last word.

The editorial in The New York Times displays a tendency to skirt the basis of the problem. For example, the editorial castigates justices who have attended political events in violation of the ethics code that applies to the rest of the federal judiciary. Such conduct compromises the appearance of being impartial and independent. This appearance in turn is based on the presupposition that the judiciary is not a political branch. Justice Ginsburg, for example, makes this assumption explicit in pointing to its tenuousness: “What I care most about I think most of my colleagues do, too, is that we want this institution to maintain the position that it has had in this system, where it is not considered a political branch of government.”[2] 

I contend that not considering the U.S. Supreme Court as involving political ideology is to ignore the space for ideology allowed in constitutional interpretation. No human being is impartial internally concerning matters of government and society. Beyond the reach of ethics codes, the space allowed by interpretation is naturally to be filled not only by “pure reason,” but also by ideology informed by one’s values and beliefs concerning the good society and ideal governance.

In the Court’s 2010-2011 term, for instance, ten of the sixteen 5-4 decisions were split along the familiar ideological grounds. The conservative majority showed “contempt for laws that provide some balance to the unlimited amounts of money flooding the political system,” “made it much harder for private lawsuits to succeed against mutual fund malefactors, even when they have admitted to lying and cheating,” made it more difficult for citizens to hold prosecutors accountable, and struck at consumer (ATT) and labor (Wal-Mart) rights.[3] The similarity between this judicial conservative majority and the political right makes these rulings particularly suspect. Were the Court’s “conservative” majority conservative in a distinctly judicial sense distinct from the planks of political conservatives, the role of the judicial ideology would not be as harmful or baleful to the republic. The fear, in other words, is that politically partisan agendas operate through judicial decisions of the Court via the discretion involved in judicial interpretation. Conservatives had a sense of this from the Warren Court just as liberals suspect the influence of politically conservative ideology in the Rehnquist and Roberts Courts. Neither conservatives nor liberals go far enough, however, in recognizing that constitutional interpretation itself allows for ideology.

The Times points to the superficial distinction that informs the design of the U.S. Supreme Court. “The framers of the Constitution envisioned law as having authority apart from politics. They gave justices life tenure so they would be free to upset the powerful and have no need to cultivate political support.”[4] However, the source of the political ideology is less due to political support and more a function of a justice’s own ideology. This is why an ethics code ought not be relied upon to eviscerate the interlarding of partisan politics in the Court. The justices are human, all too human, just like the rest of us. Perhaps we ought not assume otherwise.

The editorial touches on the inevitability of partisan ideology in the Court in the following passage: “Constitutional law is political because it results from choices rooted in fundamental social concepts like liberty and property. When the court deals with social policy decisions, the law it shapes is inescapably political — which is why decisions split along ideological lines are so easily dismissed as partisan.”[5] Being “dismissed” as partisan might be too loose; the decisions cannot but contain a partisan element, given human nature and the space in interpretation.

Rather than expecting the justices not to be human or assuming that an ethics code would do the trick, we could admit to the inevitability of political ideology in judicial interpretation. If the ideologies of five to nine citizens who serve on the U.S. Supreme Court ought not be definitive, judicial review ought not be the final decider short of constitutional amendment. A supermajority in the U.S. House and U.S. Senate, or a supermajority of the state legislatures, could be given the authority to overturn a decision of the U.S. Supreme Court. I would suggest that both Congress and the state governments could act thus to have the final say short of undergoing the constitutional amendment process. All branches of all governments in the United States are duty-bound, after all, to consider the constitutionality of their respective laws. Constitutional interpretation is an exercise not devoid of political ideology, as one’s values and beliefs cannot but come into play.

1. The New York Times, “Ethics, Politics and the Law,” Editorial, July 1, 2011, p. A22.

2. Joan Biskupic, “Justice Ginsburg Wields Greater Sway on High Court,” USA Today, July 1-4, 2011, p. A1.
3. The New York Times, “Ethics, Politics and the Law,”
4. Ibid.
5. Ibid.

On the Political Power of Capitalism in American Society

In his confidential memorandum, “Attack on American Free Enterprise System,” Lewis Powell, later to be a justice on the U.S. Supreme Court, wrote in 1971 that the “leftists” were launching a frontal assault on the “free enterprise system,” “capitalism,” or the “profit system.” Powell saw this as an attack on, rather than a defending of the “American political system of democracy under the rule of law.” That the corporate profit-interest might be a threat to “one person, one vote” apparently did not occur to the future Justice. Rather, what is good for GM he presumed must be good for American democracy. Moreover, both, he presumed, are consistent with, or perhaps even foundational for American values.

Powell goes on to write, “A visiting professor from England at Rockford College gave a series of lectures entitled ‘The Ideological War Against Western Society,’ in which he documents the extent to which members of the intellectual community are waging ideological warfare against the enterprise system and the values of western society.” Powell notes in his report that almost half of the students on twelve representative college campuses favored socialization of basic U.S. industries. He cites Stewart Alsop, who had written that “Yale, like every other major college, is graduating scores of bright young men who are practitioners of ‘the politics of despair.’ These young men despise the American political and economic system.” It is strange, therefore, that, forty years later, the American political and economic system would be so well-undisturbed—having been so un-molested by the minions of educated young voters who had gone on to become leaders in that system. Yale, after all, contains in its mission the intent to educate the future leaders of America (and perhaps the world as well). There must have been a giant collective change-of-mind among the myriads of socialists before the Reagan landslide of 1980.

Powell goes on to suggest that business managers (including executives) “have not been trained or equipped to conduct guerrilla warfare with those who propagandize against the [business] system. . . . The traditional role of business executives has been to manage, to produce, to sell, to create jobs, to make profits, to improve the standard of living, to be community leaders, to serve on charitable and educational boards, and generally to be good citizens.” The practitioners here are the citizens; Powell is not pointing to what would come to be called “corporate citizenship,” a marketing slogan designed to get customers to feel better about buying more widgets. Nor is Powell pointing to the related notion of “corporate social responsibility,” which was invented by businessmen (rather than by “socialists” adding to corporate obligations) in the late 1950s.

Absent from Powell’s description of the businessman is the role of corporations even in 1971 in lobbying Congress for favorable legislation and/or regulation that would translate into higher profits. Powell would be hard-pressed to account for the role of the banking lobby in getting the U.S. Senate to vote down Senator Durbin’s amendment that would have given bankruptcy judges the authority to modify mortgages in foreclosure. This is how the “free enterprise system” has fought back “attacks” from “socialists.” After the Citizens United decision of the U.S. Supreme Court (2010), corporate money in unlimited amounts could go toward political advertising—including for or against a candidate—anonymously through “social welfare” non-profits. This is how corporate America has gone after its “attackers.”

Generally speaking, corporate American knows very well how to shut down its opposition in the halls of Congress. Powell’s memo pushes beyond the need for “public relations” and “governmental affairs” to urge a “scale of financing available only through joint effort” and related “political power” through the U.S. Chamber of Commerce. Business must learn the lesson “that political power is necessary…it must be used aggressively and with determination.” The corporation—created by the government—must, one might say—become the government, necessarily from within—through the system—rather than via revolution.

This sally into the political arena includes funding a highly competent staff of lawyers at the U.S. Chamber to argue before the courts in line with corporate interests. In the 2011 term, the Chamber’s ensuing legal defense department batted 100% on U.S. Supreme Court decisions. Powell could well have added that business’s lobbying and campaign dollars could be directed to not only defeating threatening legislation and regulations, but also influencing the nomination and confirmation of justices to federal (and state) courts. The astonishingly high success rate was therefore no accident.

In short, the threat to American democracy and even to the American principle of market competition may come not from “socialists” in academia and the media, but rather from the supposition that political power oriented to the corporate good rather than the public good is itself a good. That is to say, Powell’s memo may have the story turned around. His antagonists may have been oriented to saving the American system, whereas his proponents would actually subvert it in line with their narrow self-interest.

Source:

Lewis Powell, “Attack on American Free Enterprise System.” Memorandum, 1971. See pdf download at page-bottom of: http://billmoyers.com/content/the-powell-memo-a-call-to-arms-for-corporations/2/

Can an American Member-State Exit the Union?

A war was fought over it. In early 2013, the White House made it explicit in replying to a petition. Yet still there was a sense among at least some Texans that something was amiss. Following U.S. President Obama’s re-election in 2012, citizens of Texas, Louisiana, Alabama, and five other member-states in the U.S. signed petitions for the White House to allow their respective states to secede from the Union. At the time, few people other than the secessionists themselves took the petitions seriously. Yet the underlying contending principles deserve more serious reflection even if no "exit" is anticipated. Most importantly, the matter concerns how and whether the rights of member-states (and majorities of the people, therein) are to be circumscribed in a federal union that leaves said republics semi-sovereign and with residual sovereignty.

In his reply to the petitions, Jon Carson, director of the White House Office of Public Engagement at the time, argued that the American Founders did not provide a right for states to “walk away” from the Union because it is perpetual. He cited Texas v. White, a U.S. Supreme Court case in 1869 that ruled that individual states do not have a right to secede. The republics constituting the polities within the Union have residual sovereignty yet not the most basic authority, or right, to secede. As a republic is a polity whose political system is that of representative democracy, the right denied would be that of the majority of the people. Hence, Texas v. White can be interpreted as infringing on democratic principles. 

For his part, the communications director for the Texas Nationalist Movement, Jeff Sadighi, pointed to the section of the Texas constitution that asserts Texans have the right “to alter, reform or abolish their government in such a manner as they may think expedient.”[1] To alter or reform the government of Texas refers to the governmental system there presumably by constitutional amendment. Although it is possible that an amendment could allow for a "Texit" from the U.S., typically amendments pertain to a government itself as a political system rather than to relationships with other political entities, even if governmental sovereignty is split. To abolish a standing government is to do just that. Since to avoid a brutish state-of-nature some governance is required, presumably the constitution also gives a right to create a new government. The question here is whether such a government would be bound to the U.S. even if secessionability were part of a new government of Texas.

For an answer, we must locate the term "perpetual union" at the federal level, for the Texas v. White decision relies on the federal insistence that the Union is perpetual--meaning that it cannot be abolished and that member-states cannot secede, or "exit" as per twenty-first century parlance. In 1777, The Articles of Confederation and Perpetual Union were proposed to the 13 sovereign member-states. Ratification concluded in 1781. The treat did not establish a federal government; there was only the Continental Congress wherein delegates from the republics met. Article XIII states that "the Union shall be perpetual." In Texas v. White, the U.S. Supreme Court took this to mean that a member-state could not leave the union. I submit that this inference is fallacious. For the Union itself to be perpetual does not require that no member-state leave the Union; it would not be abolished were a state to "exit." Even had the member-states in the Confederate States of America had succeeded in exiting in the 1860s, the U.S.A. could have continued to exist, minus those states. In short, perpetual does not imply that something remains as it is; rather, perpetual means that the thing itself cannot be abolished.

The most blatant error in Texas v. White is that the Court assumed that The Articles of Confederation were still valid. In 1789, that treaty was replaced by the U.S. Constitution, and no reference to perpetual is in that ongoing document! 

In contrast, the argument against the Texas v. White decision rests on constitutional language. In particular, the 10^th Amendment explicitly refers to the residual (i.e., unspecified, and thus unlimited) powers being held by the states and the people, rather than to the federal government, which includes the U.S. Supreme Court, the Congress, and the U.S .President. The "people" refers both to roles as citizens of the respective states and U.S. citizens. The former implies that the majority of a state's electorate have just as much residual sovereignty as does a majority of the U.S. electorate; the notion of popular sovereignty as the ground of a representative democracy gives a majority foundational authority. So it makes sense that residual sovereignty ultimately belongs to majorities of electorates. In federalism, each citizen is one of two polities--her member-state and her federal government. That the amendment assigns residual sovereignty to the states along with the people implies that the latter have residual sovereignty especially in so far as a person is a citizen of a state. Moreover, the residual sovereignty of a member-state and the people more than outweigh the limited, or enumerated, authority of the U.S. Government, and especially the historical treaty that since 1789 has not been in effect.

The U.S. Supreme Court, a branch of the federal government, reached its Texas v. White decision in spite of the fact that it is so obviously without an ongoing constitutional basis; the Court went instead merely on the stretched assumption that what had been stated in the Articles is somehow to be implied in the U.S. Constitution, which replaced the Articles. The explanation may lie in the Court being caught in an institutional conflict of interest. In short, the head of a branch (or arm, as per The New York Times' terminology on the E.U., which in turn seeks to distinguish itself from the U.S. in part by having arms rather than branches) has an institutional interest in protecting the government or level of government that has the branch or arm over being a level (i.e., unbiased, and thus fair) adjudicator of constitutional conflicts between a member-state (or even the member-states) and the government in which the Court is a part. Americans, and even the world, miss this conflict of interest whose support is in the U.S. Constitution.

It may be that the E.U.'s constitutional language allowing states to secede reflects a more balanced federal system with respect to the states and the Union. In fact, the E.U.'s Supreme Court, the ECJ, has cleverly evaded the conflict of interest that plagues its counterpart in the U.S. by having a given state nominate a state jurist to be confirmed by all of the states. With such a state-based process, the inherent bias of the European Court of Justice toward the E.U. level is institutionally (here, in terms of process) countered such that the state and federal levels have weight. That the U.S. has not learned this point from looking at the ECJ is troubling, as this implies that the U.S. Constitution may not be flexible enough even to be improved.

For more on such conflicts of interest, see Institutional Conflicts of Interest, available at Amazon. For more comparisons of the E.U. and U.S., see Essays on Two Federal Empires, also available at Amazon.

1. Manny Fernandez, “White House Rejects Petitions to Secede, but Texans Fight On,” The New York Times, January 16, 2013.

The American Media Went “Nuclear” on the U.S. Senate's Filibuster: A Case of Hyperactive Marketing?

Is ending the filibuster on appointments to executive-branch offices as well as judicial appointments below the U.S. Supreme Court really “the nuclear option”? Is this expression simply rhetoric gone horribly over the top? Journalists would undoubtedly demur, at least publically, yet without feeling an ounce of shame.
On November 22, 2013, a leading story on the front page of USA Today immediately snagged my fleeting attention with the headline, “’Nuclear’ volleys across aisle signal a Cold War in Congress.”[1] The 52-48 vote in the U.S. Senate on the previous day was neither a “nuclear volley” nor the beginning of a “cold war.” Rather, the reform was yet another legislative device having to do with reducing the gridlock within the chamber and perhaps for a party to gain more control therein. The political tussles between the two major parties had already been going on, so the latest reform could not have been the start of a war, cold or hot.
To be sure, editors look for headlines to be attention-grabbers, and thus sensationalistic—yet even if the claim is false or even misleading? Signaling a cold war flies in the face of the prior existence of such a “war,” as during the U.S. Government’s partial shutdown when raising the government’s debt-ceiling was in jeopardy. Moreover, the reporter continues the sensationalism within the article.
For example, the reporter invokes “the superpower theory of Mutually Assured Destruction—that is, if you use the most powerful weapon against your enemy, your enemy will use it against you—neither side had ever deployed it.”[2] Does not this “theory” apply more to shutting down the government or refusing to raise the debt-limit? The fact that Americans waked up on November 22^nd with a functional federal government belies the journalist’s application of the theory to whether the U.S. Senate would confirm more appellate and district judges. Nevertheless, the reporter “reports” that “Democrats voted for detonation.”[3]  I didn’t hear any sort of blast, or for that matter, see any damage the next day.
As for any realistic (i.e., still incremental rather than radical) consequences, the reporter provides merely a quote at the end of the article. Sen. Chuck Grassley (R-IA) said, “The silver lining is that there will come a day when the roles are reversed. When that happens, our side will likely nominate and confirm lower court and Supreme Court nominees with 51 votes.”[4] As if as an afterthought, the reporter tacked on this quote, which says basically that the Senate would continue to delimit the filibuster’s domain. Crucially, incrementalism is not radicalism. Hence, the war rhetoric is misleading at best, and it displaces reportage on the real significance of the vote.

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1. Susan Page, ““’Nuclear’ volleys across aisle signal a Cold War in Congress,” USA Today, November 22, 2013.

2. Ibid.

3. Ibid.

4. Ibid., emphasis added.

Does a Supermajority Undercut Constitutionalism?

How “extreme” can a legislative supermajority get in its legislation? Can constitutional safeguards act as a check where a legislative supermajority can enact amendments at will? A judiciary protecting the rights of individuals as well as a people against over-reaches by a government is limited by constitutional provisions presumably set in stone yet actually in erasable parchment. Complicating an answer, the term extreme may be applied to a piece of legislation by one person and refused by another. I come from a medium-sized city in the Midwest, where extreme has been thought to apply to commuting to work by bicycle. Where a pathological fear of change grips a town, you don’t have to go far to find someone proscribing something or other as too extreme At the level of the U.S. governmental institutions, one political party might deem universal health insurance through extant private insurance companies as extreme—tantamount to demonic European socialism—while another party might view continuing to use private insurance companies as merely reformist rather than extreme. A supermajority can take advantage of such a difference in descriptive judgments to argue that a significant constitutional change is actually a minor change and thus not worth worrying about. 

It follows that it is extremely difficult to determine whether a supermajority has gone too far in legislating its will through a government. Concluding the resultant legislation is too extreme, given the legitimacy that comes with the democratic process, is subject to critique and repudiation. What limits exist on a supermajority’s legislative prerogative? What limits should exist? Should any exist?

In the E.U., states have certain planks in their basic law that cannot be changed by amendment. This represents a limit on what a supermajority can do. The American states have no such permanent basic law; any part of a constitution can be changed through amendment. Of course, both the E.U. and U.S. contain limitations on what can be in a state constitution. For instance, an E.U. state cannot add a plank to its constitution nullifying all E.U. laws while remaining a member of the union. South Carolina tried such a move in 1830 only to be rebuffed by Andrew Jackson in the White House. So being in a political union can act as a limit on a supermajority in a state legislature. In the E.U., states have certain planks in their basic law that cannot be changed by amendment. This represents a limit on what a supermajority can do. The American states have no such permanent basic law; any part of a constitution can be changed through amendment. Of course, both the E.U. and U.S. contain limitations on what can be in a state constitution. For instance, an E.U. state cannot add a plank to its constitution nullifying all E.U. laws while remaining a member of the union. South Carolina tried such a move in 1830 only to be rebuffed by Andrew Jackson in the White House. So being in a political union can act as a limit on a supermajority in a state legislature.

Additionally, having to satisfy other parties in the governing coalition in a parliament can act as a constraint on any one party getting too extreme. Furthermore, having a bicameral (i.e., two chamber) legislature can permit divided government. Two-party systems tend to rely on this constraint. When a supermajority controls both chambers and the executive’s veto pen, the courts become the final constraint other than possibly the next election. In the American context after the 2010 election, Republicans had a supermajority controlling the legislatures and chief executives in several of the republics. The question of limits moved to the fore.

For example, the Republican Party enjoyed a supermajority of 124 to 41 in the Kansas legislature—plus control of the executive branch. Rather than contending coalitions checking each other within the party, a conservative bloc guaranteed a united supermajority. As a result, a series of anti-abortion bills were quickly made law. Enter the federal court in the summer of 2011. The judges imposed injunctions preventing two of the new laws from taking effect pending the outcome of suits against them. The New York Times observes that “in a year in which expanded Republican majorities in many states have been able to operate without the usual obstacles presented by divided government—threat of veto from a governor, split chambers or even minority opposition large enough to force compromise—these court challenges amount to the first real efforts to slow the crush of conservative legislation.” The paper goes on to note that such efforts are no guarantee that the crush would necessarily be lessened.

In Wisconsin, the republican legislative and executive branches pushed through limits on collective bargaining of government employees, including teachers. The Wisconsin Supreme Court subsequently affirmed the legitimacy of the law. One might say that the Republican Party had an insurmountable majority in all three branches of government. Where this is the case, one might wonder how—in James Madison’s language—the minority can be protected from the tyranny of a majority. The judiciary has the role of protecting individual rights against a government, but that branch can effectively be controlled by the same party that holds the supermajority. Also, were the judiciary is at the union level, the effect can be one of political consolidation, which creates pressures particularly when the union is on the empire scale (e.g., U.S. and E.U.). This must be weighed against the power of local elites in the judiciaries of the states. The abortion cases in Kansas demonstrate how the rights of individuals can hang in the balance (i.e., not just of minority political parties).

Lest divided government be lauded as the answer, however, one might recall that gridlock can bring inaction more than compromise when different parties control the legislative chambers (and/or executive branch). An intractable problem, such as having over $14 trillion in government debt (the U.S.), may require significant governmental action that can be stymied by stubborn gridlock. The cost of partisanship was evident in July 2011 as Congress’s “handling” of the debt-ceiling resulted in a AA rating from AAA by Standard & Poors and a public approval rating of only about 20 percent.

Moreover, a patchwork of laws, each based on particular compromises made by the contending parties, may enervate the economic or political system itself. So rather than preventing one party from being able to enact its program by relying on divided government, Americans might want to consider structural limitations that are not triggered before any legislation is passed. Making the judiciary less partisan by how judges are selected might be a step in this direction. Also, making it easier for more than two political parties to be represented in a two-party-system legislature might temper the impact of any one party’s ideology from carrying the system too far—too extreme—in one direction. Such constraints are better than the alternative of gridlock paralysis, particularly at the state level—given the extent of political consolidation in the U.S.

Divided government can be less relied on at the state level that at the federal level. This differential alone would structurally “push” more domestic government back closer to the people and accommodate the innate cultural differences that exist across a continent and beyond. Oklahoma is not Vermont (even if most Europeans tend to mesh them vaguely as “American”). Systemic thinking, such as is evinced in allowing—by structural design—for divided government more in Washington than in Austin, is urgently needed in America. Even so, Americans are more oriented to going from issue to issue—even while observing that the system is somehow fundamentally broken—than looking at the system itself and proffering and voting on systemic proposals apart from any particular partisan issue.

Source:

A.G. Sulzberger, “Courts Put the Brakes on Agenda of G.O.P.”, New York Times, September 6, 2011. 

Rule of Law in the E.U.: Implications for the Federal System

For a federal system to be viable over the long term, a core of basic values must be shared even though one of the main functions of federalism as a system of government is the ability to accommodate diversity from state to state. In the case of the E.U. and the U.S., the rule of law, democracy, and separation of powers as concerns the independence of judiciaries at the state and federal levels are non-negotiable; hence as these are compromised or thwarted outright, the viability of E Pluribus Unum can be expected to unravel. As 2017 came to an end, the E.U. found itself largely impotent as some of the eastern states violated the basic principles of rule of law and an independent judiciary with impunity. If the impunity was indeed real, the federal system itself was in desperate need of repair.

The expansion of the U.S. westward during the nineteenth century brought the rule of law to the “wild west.” Similarly, the expansion of the E.U. eastward in the early decades of the twenty-first century was meant in part to instill  the rule of law after decades of corruption under communism.  Yet in the state of Poland late in 2017, the state government fired more than a third of the judges on the state’s highest court. That government even ignored the ruling of the state’s constitutional tribunal, “prompting the European Commission to trigger a sanctions procedure that could strip Poland of its voting rights in the union.”[1] Making the weakness of the E.U.’s lopsided (i.e., state dominated) federal system transparent, the governor of the state of Hungary declared he would veto any such stripping. The conflict of interest is obvious, given Viktor Orban’s “increasing authoritarianism” in Hungary.[2] In particular, his Fidesz party had forced judges into early retirement and exerted control over the media, central bank, and data protection in the state after winning a supermajority in the state legislature in 2010. That the federal procedure for punishing the state government of Poland could be subject to a veto from another wayward state government points to weakness at the federal level. Specifically, not enough governmental sovereignty had been shifted from the states to the Union.

The compromised independence of state judiciaries cut into the core values of separation of power and of law, which are essential in any viable republic (i.e., representative democracy); for a democratic majority can oppress minorities and individuals and thus deprive them of essential liberties that in turn underpin a democracy. Although the state of Bulgaria, which began its six-month E.U. “presidency” in January, 2018, had made some progress against corruption, that state and Romania were said by the Commission to have not made enough progress to end a decade of special monitoring. To be sure, Malta too had issues with the rule of law. The same could be said of the Sicily region of the state of Italy, where the mafia was still vibrant, so the western states were not immune. Even so, an E.U. official said that people in the west felt betrayed by their fellow citizens in the east.

A house divided cannot long stand, it is said, yet institutions have an incredible amount of undeserved inertia. Even so, the gravity of the problem facing the E.U., which I contend is enough to warrant an additional shift of governmental sovereignty to the federal level with respect especially to the ability of the “feds” to come down on wayward states, is evident from E.U. Vice President Frans Timmermans’ statement that undermining the rule of law “is putting at jeopardy the very core of what holds us together.”[3] Perhaps the E.U. should have held off the accessions of the formerly Communist states or taken a greater role in ongoing monitoring in them, but the fundamental values of a political culture are slow and even resistant to change. The federal level of the E.U. needed more power with which to stave off inertia or back-sliding in the problematic eastern states. A federal FBI and adequate federal laws to go after individual wrongdoers in the state governments could have made a dent in the problem, in that E.U. citizens living in the east could have seen that participating in corruption does not pay even if it still does locally. The ECJ could have been empowered to take on a larger role with respect to the state governments and even their respective individual officeholders. Criminal law is not among my areas of expertise, however, whereas I can state decisively that the inability of a federal level to enforce basic principles against opposition in a few states points to a serious weakness in the federal system itself with respect to the relation of the federal and state levels in terms of authority. A viable federal system enables both the federal and state levels to act as checks against the other, and this requires something approaching a balance of power between the two levels. In the case of the E.U., as in the early U.S., the problem has been the insufficiency of power at the federal level.  

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[1] Valentina Pop and Daniel Michaels, “EU Confronts Deep Divisions Over Legal Standards,”The Wall Street Journal, January 19, 2018.

[2] Ibid.

[3] Ibid.