America is being ruled by Executive Order and Judicial Decree

Recently, I had a discussion with a colleague about the American landscape. In this I do not mean the “purple mountain’s majesty” and “amber waves of grain.” Rather, the political and policy environment and the current deep divisions in our country. More precisely, how do we rebuild consensus and reimbue the notion of compromise.

Our current problems are not just political. Because we are such a large diverse entity, significant differences occur simply because of geography and topography. It is driven by historical, cultural and ethnic evolution. This is exacerbated by technology, economics and education. However, we are becoming more separate than diverse.

The original glue to this amalgamation was a common belief about what it meant to be American. However, the truth of the matter is that we likely never really had a monolithic vision.

As what there was of a national consensus has eroded, the country has become more distinct and isolated. This becomes our own destructive self-fulfilling prophecy. We disagree, so we become more strident in support of our position which causes us to disagree more, which causes more dissent and… Well, you see what I mean.

These divisions are reflected in our elected representatives.

In this context, compromise is both a dirty word and a necessity. Our founding fathers were wary of power consolidated. They had just fought a war to free them of the yoke of an oppressive monarchy, albeit one with a nominal parliament. Our system of government was established to mitigate against such consolidation. It was deliberately set up to create checks and balances, and so by its very nature was designed purposefully to be inefficient.

The only hope of coherence rests with the premise that each branch of government does its job. Congress must pass laws and create a national budget. The Executive branch executes the policy in accordance with enacted laws constrained by the budget. And the Courts, in a limited scope, adjudicate disputes and rule on the legitimacy (constitutionality) of the other two branches’ actions.

Our problem starts with Congress, particularly the House of Representatives. As dysfunction increases, each group splinters and recedes further into its parochial political views. Gerrymandering of districts to ensure purity further exacerbates the problem (congressional districts are a truly irrational) .

As this dual progression (disagreement and withdrawal) continues the body fractures evermore. The Republican Party has splintered, among which are moderates, Tea Party radicals, and Neoconservatives. Even with majorities in both houses, they cannot create a coherent platform. The Democratic Party has outright fractured between the Bernie Sanders socialists and the mainstream progressive liberals, once exemplified by Hillary Clinton.

In this environment, Congress has ceased to legislate (its very raison d’etre). It can’t pass laws: on immigration…on trade…on just about anything. Until recently, it had been unable to pass a budget. This year it didn’t, budget that is. It simply passed a multi-year spending bill without regard to a “budget.”

There have been dire consequences to the abject failure of our elected representatives to do their job.

First, President’s have taken it upon themselves to push their program through Executive Orders, which are directives issued by the President of the United States that manage operations of the federal government and have “the force of law” In other words, “laws” implemented without legislation by the body elected to enact them.

This has had two deleterious results. First, it concentrates power in one branch. Within broad parameters, the President can simply wave his pen and push forward his agenda. This is certainly in violation of the constitution, if not in letter certainly in intent.

Second, these decrees while having the force of law when implemented, can be overturned by a new President. This is exactly what we see today. President Obama used Executive Orders to implement his agenda over an ineffectual Congress. President Trump is rescinding many of these and implementing his own, often taking a diametrically opposed course of action.

The result is incoherence.

This brings the Judiciary into play. The Supreme Court has gained inordinate power. Because Congress won’t pass the laws necessary for our country and society to function and the Executive is abusing its role, evermore decisions are being made by this third branch of government. It is in fact creating law, something it was never intended to do.

Today, we have rule by Executive Order and Judicial decree rather than law and execution.

We need a national discussion about the fundamental social contract. What are the responsibilities of the individual to themselves and society? What does it mean to be a citizen? What is government’s responsibility to its citizens and to others? What powers do we cede to the government and what rights and freedoms must it protect?

Until such time as we can reach a consensus, not about the symptoms, but about these fundamental questions, our nation’s slide into dysfunctionality will increase.