We are now a country that cannot legislate. So why is this governmental stalemate so intractable? It’s as if our system has evolved into all checks and no balance. It seems structural, but this is not the fault of Constitutional bicameralism and separation-of-powers. Instead, it is a gridlock of Congress‘s own rules — rules of parliamentary procedure in a legislative body that is not a parliament. As a result, passing legislation is no longer a matter of politics, but game theory. The filibuster rule, the “Hastert Rule,” special legislative rules — these are the rules that are making even mundane progress impossible. Unlike statutes and regulations, these are rules formulated without direct public accountability. These are rules by the houses of Congress for the houses of Congress. There are no hearings, there is no notice-and-comment. These rules, necessary to give sense and structure the the internal and day-to-day workings of the legislative body, are now creating nonsense and chaos in our broader society. The internal rules of legislative procedure have swallowed our founders’ designs for adopting legislation. We now have government shutdowns, judicial vacancies, and basic questions about what the full faith and credit of the United States even means anymore. Instead of rules of procedure to facilitate legislative action, we have rules to legitimize obstruction and stalemate. We are a nation of laws. Citizens and public officers are sworn to support and defend the Constitution — not the Senate and House rules. It’s time for reform.
As vocal armchair isolationism clogs the Congressional switchboard, it’s probably important to recognize that quiet armchair ambivalence is probably much more widely held. For my part, I hope my members of Congress understand that not calling Congress is not the same as not caring. Ambivalence toward warfare is not apathy. The countdown for a Congressional vote on intervention in Syria tick-tocks to a heartbreaking result, no matter what the result is. How do I call my Congressperson about that?
Can it be enough that I share in the agonizing frustration that there are no good options? I’m not sure that otherwise-reliable anti-war rhetoric has moral superiority when a dictator can use chemical weapons without consequence. On the other hand, does intervention draw an arbitrary line around one particular atrocity but not others? What price? What purpose? What result? It’s hard to find much solace in the vague descriptions a no-boots-on-the-ground, sending-a-strong-message intervention. What does that even look like? Is it even possible to have an appropriately scaled intervention that can be satisfactorily limited to punishment and deterrence, but nothing more? I can only hope that there are classified powerpoint slides about all of this.
Ultimately, I think I’m most persuaded by what appears to be this administration imbued with genuine pain in making the case to intervene. It seems the appropriate reaction to an impossible problem.
There’s a risk, when coming to an issue that’s been festering for years, of missing some of the nuance that make the issue so difficult. But I’m finding that the Drakes Bay Oyster Co. dispute is much clearer without any extra local-colorful details. When the 9th Circuit denied an injunction this week, it seemed to me to be the most obvious result to the most simple of problems.
At the very basic, the case it most understandable. In 1972 the United States purchased the site for permanent protection, which was conferred as part of the Point Reyes Wilderness Act in 1976. To ease the transition, the U.S. granted a 40-year lease to the ongoing oyster company business. In 2004 — more than 32 years into a 40 year lease — a new owner takes over, undoubtedly aware of the pending expiration date.
As the Court describes it:
In letting the permit lapse, the Secretary emphasized the importance of the long-term environmental impact of the decision on Drakes Estero, which is located in an area designated as potential wilderness. He also underscored that, when Drakes Bay purchased the property in 2005, it did so with eyes wide open to the fact that the permit acquired from its predecessor owner was set to expire just seven years later, in 2012.
Now, a whole lot of other stuff happened, and a lot of other law was invoked (dealt with by the majority opinion in 37 pdf pages), but none of it changed the fundamental legal nature of the problem. When the U.S. declined to renew the lease, at the discretion of the Secretary of the Interior, consistent with a wilderness designation by Congress in 1976, it shouldn’t have been to anyone’s surprise. And certainly not to anyone’s property rights expectation. As a general rule of property, leases are up when leases are up.