Fixing a broken system is often hard because systems involve lots of parts and you might not be able to control all the parts involved in the fix. Knowing what to fix is usually pretty easy once you orient yourself to the system. Politics is this way.
We know we need to fix elections by taking the money out of elections because having dollars doesn’t entitle you to more or louder protected political speech, so we should publicly fund elections, regulate contributions to candidates and spending on “issues”, and set smaller windows when aspiring politicians can collect money for election campaigns. This is hard because there are a few people who have so much more money than the rest of us that they can pay to keep this from changing.
We know we need to fix Presidential elections by getting rid of the Electoral College because it no longer reflects the way we think about the ideals of our country, so we should pass and ratify a constitutional amendment that changes how we elect the President and Vice-President to a national popular vote. This is hard because there are a people who live in empty states enjoy having more political representation when selecting the President than the many people who live in populous states.
We know we need to fix the Presidency itself because it is constrained by convention and the maturity and sobriety of the men who have occupied the role, so we should have actual rules than can be enforced when an immature or un-sober person does. This is hard because there are people, often Presidents, who don’t want the Presidency to be constrained from acting in “urgency” when the country is attacked or when Congress is dead-locked.
Except that is wrong – I didn’t actually say what rules should exist, just that “actual rules that can be enforced” should exist. Vague utterances like this are softballs for the folks who use doubt as a weapon. You don’t make them oppose a particular thing, just the idea of a concept. Rhetorically, this is a lot easier because it doesn’t force them to commit to any concrete position.
If instead we said something like, “We need to fix the President’s ability to declare a National Emergency because it lacks the appropriate checks on it’s potential abuse. To fix it we will create a law that says:
- the President may only declare a national emergency until Congress is able to convene and either concur, by issuing a Declaration of War against another country or a Declaration of Emergency within the territory of the United States,
- and that if Congress is in session, then they must have a vote on the matter within 7 days of the declaration,
- and if Congress is not in session, then they must convene, and have a vote within 30 days of the declaration.
- and if Congress has been destroyed by an Enemy, then the President must act immediately to reconstitute Congress within 30 days, according to the procedures in State Constitutions so they can vote on the declaration,
- and, if the the vote doesn’t happen or if Congress doesn’t issue one of these two Declarations, then the national emergency automatically ends and the President must accept as Law that the cause does not constitute an emergency.”
We can even draw a flow chart that shows all the possible states:
This type of thinking – I’m not sure it is actually systems-type thinking, but someone might call it that – is formal and deliberate. It is concrete. It has constraints and clearly defined outcomes. And it forces action, but in the absence of action, it defaults to a decision so that we can’t just ignore our way around it.
In this case, when a President declares an emergency only three things can happen: Congress concurs and formally declares an emergency; Congress concurs and formally declares war on another country; or Congress does not concur, either by ignoring it, or by formally declaring there is no emergency.
Congress is not allowed to politic away from their duty to be a check on Executive power because inaction is by default a declaration that there is no emergency. When Congress acts, their action is constrained to only functional outcomes, and when Congress fails in their duty, the system does the safest thing by default.
Well designed systems get you past decisions by making the easy and obvious decisions automatic so that humans don’t have to be bothered making a decision, and by making hard decisions simple and clear so that fear or greed or vengeance doesn’t corrupt the decision, because every decision is a referendum on our identity, on who we tell ourselves we are. If we are constantly asking ourselves who we are, we never become who we want to be, and if, when we really do have to prove to ourselves and everyone else that we are who we say we are, we haven’t built systems that protect us when we fall, who we are is only one wrong step away from catastrophe.
We can be both who we say we are, and fail to be who we want to be, but only if we systematically protect ourselves from failure.