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Feb 18

Written by: Diana West
Thursday, February 18, 2016 6:01 AM 

Part 4 is here.

Glenn Beck may believe The Lord took Justice Scalia so The People would vote for Ted Cruz, but I think something else has been revealed by the justice's sudden death. That is the extent to which the Constitution's balance of powers lies in ruins; and, much worse, the extent to which these ruins are accepted as the not-so-new normal.

This lesson emerges from the reaction to Scalia's vacancy. I don't mean the chatter over whether Obama has the right to appoint a new justice: of course, he does; just as the Senate has the right to confirm or reject his appointment. That's just politics as usual.

But the weight of this one single appointment tells us something else. Radio host Hugh Hewitt's tweet today is not atypical. 

It is as if it our government were not made up of three, but rather two branches -- and two very weird ones: (1) the imperial branch that executes and, when it likes, writes laws; and (2) one, single, now-vacant seat on the Supreme Court.   

Whether this is the de facto case is not the whole story. Most Americans seem not to regard this disastrous distortion of our constitutional system as something to remark upon, let alone decry. That strikes me as the real problem.

Such dysfunction arises from the nearly complete neutering of the legislative branch, which has been a long time coming. But even within the last year, we passed a key, also unremarked upon, milestone on this route to constitutional shambles.

On March 9, 2015, Sen. Tom Cotton (R-AR) wrote a landmark, three-cheers-for-the-Constitution letter to the mullahs of Iran to lay out the basics of checks and balances for the theocratic dictators then in nuke negotiations with the Obama administration. Forty-seven GOP senators signed the Cotton letter, including -- and this is important -- presidential candidates Cruz, Paul and Rubio.

As a refresher, here is something I wrote about the Cotton letter on March 12, 2015:

I can't express enough enthusiasm for freshman Sen. Tom Cotton (R-AR) and the spectacular letter that he and 46 other Republicans senators wrote to the leaders of Iran explaining how our constitutional republic works, how the US Senate must ratify treaties that the President negotiates by a two-thirds majority, how any agreement that is not so approved by Congress will be regarded "as nothing more than an executive agreement between President Obama and Ayatollah Khameini," and therefore subject to revocation by the next president, or modification by Congress at any time.

In sum -- and in language that "leaders" of the US government, executive branch, or even American media can understand -- 47 Republican senators declared that Obama is not a king, and that Congress is not, contrary to popular wisdom, a potted palm.

As Cotton put it to an incredulous Jake Tapper on CNN, "an agreement that is not approved by the US Congress will not be accepted by the US Congress." 

Insert a sardonic "hah!" here, in light of  later events. 

More (I had forgotten this choice tidbit):

This is cause for fireworks, but not on Fox News, where Megyn Kelly seemed, if anything, even more appalled than her disapproving CNN counterpart. "It's not just Howard Dean. It's not just Vice President Biden," Kelly said to Cotton. "It's the Wall Street Journal, calling you out, saying, this is not helpful ...!"

Sigh. Here is something the Founding Fathers seem not to have thought of -- the process by which elected members of a co-equal branch of government (The White House's party in Congress) and the Fourth Estate willingly lock shields around a king-like executive branch.  

Here's an idea: Sen. Cotton should take a copy of his open letter to the mullahs and readdress it to the Obama administration and members of the US media.

They don't "fully understand our constitutional system," either!   

Ah, constitutional idyll! This extremely healthy, responsible mustering of constitutional powers in the face of executive overreach was even catching on for a short while.    

Then the cave-in.

On May 7, 2015, the Senate voted 98-1 for the Corker-Cardin Bill. This Senate bill surrendered the Senate's own "advise and consent" powers on the disastrous Iran nuke deal. Among the 98 surrender-senators -- and this is important, too -- were presidential candidates Cruz, Paul and Rubio. In the end, just one senator -- Tom Cotton -- voted in favor of the Senate's rightful, constitutional powers. (Andrew Bostom lays out the sorry chronology.)

So, here we are, living under an Imperial Presidency, a Neutered Congress, and a Too Consequential Court. Does anyone (besides perhaps Tom Cotton) notice there exists no constitutional "balance of powers"? No "checks and balances"? Surely not the US senators still on the hustings, and that includes Ted Cruz, who, worst of all, parades himself as The Constitution-Defender. Post-Scalia, this means putting himself forward as the one potential president who will defend the Constitution against ... an empty court seat. The fact remains, however, when Ted Cruz had the chance and the power and the responsibility to cast a vote to safeguard constitutional powers, he chose not to do so. 

(More on Sen. Cruz's constitutional hypocrisies here and here.) 

It becomes clear what replaces the balance of powers in post-constitutional America: a tug of war.


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