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The US Senate is “absurd.” So said Katie Connolly of MSNBC in 2010.  She was referring to Sen Shelby (R-AL) being able to singlehandedly place a hold on all pending nominations.  Citing a congressional scholar, Johathan Chait noted that a blanket hold has never been used before. Connolly argued that Shelb was doing it “because he wants a European corporation to build some planes in his state.”  Such a reason would be ubiquitous if not squalid enough in either body of the US Congress, so it is certainly plausable.  One might recall the money Sen. Ben Nelson got for Nebraska by agreeing to the health care reform bill.  In needing all 60 votes from the democrats and two independents, that bill gave us all a reminder of what an international body is like where each member has a veto.  In singlehandedly blocking all pending nominations before the US Senate, Sen Shelby was drawing on this theory as well.  While it is easy to trounce on each Senator (or each state) having a veto, I would argue that it is far less sordid than Shelby’s reason (i.e., more pork).  Because every state in the Union is semi-sovereign (and enjoys residual sovereignty as per the tenth amendment), there is constitutional support for any state represented in the US Senate having a veto on any legislation or appointment.  Because the veto is based on governmental sovereignty (i.e., the US Senate being in this respect an international body—unlike the US House), Alabama can use its veto even for reasons we might find disgusting.

So if each Senator (who represents his or her state as a political body even though he or she is elected by the citizens of his or her state) having a veto makes the US Senate “absurd” (and I join with those who are frustrated by it), we might want to consider the consequences that would be involved in depriving the political members of the Union of their vetos in the General Government (ie., Washington).  We could expect an acceleration in the consolidation of power in the General Government at the expense of the state governments—resulting in one size fits all in a heterogenous empire-scale Union (i.e., empire).  Any state government objecting to Washington taking over yet another domain of power would be powerless to stop that train without breaks running down the tracks toward a central state.  Meanwhile, that train would be able to pass more legislation through the US Senate, further accelerating its speed.

Some time back, I asked Sandra Day O’Connor of the US Supreme Court why she wasn’t objecting to the US Government going beyond its enumerated powers.  She replied to the small group that Congress was acting like a state legislature.  Disgust was palpable in her voice.  In a sense of futility, she added that it takes five on the US Supreme Court to have a majority decision (meaning that a majority would not go along with her on the enumerated powers matter).   You might be wondering what is wrong with Congress acting like a state legislature. The problem is that the US is in scale (and its make-up) commensurate with an empire by today’s standards.  In other words, most of our states are equivalent to countries.  You just can’t (or shouldn’t) run a combination of countries as though it were one country.  For one thing, a combo is inherently diverse.  Also, its center is further from the people.  It means less democracy or republican principles of representation because there are far fewer US Reps and Senators than state Reps and Senators.  Also, the US Government is designed as an empire-level polity.  Whereas the states’ Senates represent citizens (just as the states’ assemblies do), the US Senate (unlike the US House) represents political entities (the states) rather than US citizens.  In other words, both US citizens and US states are members of the US.  The US Government isn’t fashioned like a state government because the Union is a combination of such states (whereas a state is not a combo of republics in turn).

So we ought to be very careful about kneejerk reactions to fix the “absurd” US Senate.  To be sure, holding up appointments to get pork is squalid even by a pig’s standards, but turning the US Senate into a state senate would drastically alter what the US are.   Even though we use “the US” as a singular noun, the entity itself and its government were formed and designed with it as a plural noun (the states) in mind.  The US constitutional convention delegates invented modern federalism to suit this new genus of an empire: the Union.  The EU has since come into being along similar principles because it is of the same genus.  To treat either the US or EU as though it were commensurate with one of its states would be to treat something other than what it is.  That can only lead to a downfall.   So perhaps rather than change the US Senate to fit our understanding, we might alter our understanding to fit what the US are. This would entail taking the pressure off of the US Senate by returning most of the domestic legislation to the state governments (where there is more democracy).  Consider the coherence in having the US Senate  mainly involved in foreign policy (and regulating between the states) and having a filibuster (which is close to the principle of international organization).  That is, the state governments meet in the US Senate technically on an international basis. Moreover, the U.S. Constitution forms a hybrid between or composed of international and national governance.  This unique situs fits with the empire-scale of the United States, especially as they have expanded to fifty. 
Treating the US Senate as a state legislature…legislating on everything from healthcare to education…is a gross departure from this coherence.  It is indeed absurd—only we have the arrows reversed.  It is our use of the US Senate that is absurd—not the Senate’s principles (even though they can be abused, such as by Nebraska and Alabama). Treating the US Senate (and the Union) as other than what it is can only lead to the fall of our empire…our Union of States. To be sure, every empire that rises must fall.  So why write?  I’m merely trying to stay the fall a bit, but the outcome is certain.  In the meantime, let’s not help it along.  This will take more humility and much less presumptuousness in what we think we know about our system of public governance.  With more humility, perhaps more of us will be content to get involved in our state governments.  As it is, we overlook them and advocate changing the US Senate into our own image of what it should be, presuming the extant Senate is "absurd" (perhaps it is sheer hubris to make such a summary judgement?).
Source: http://blog.newsweek.com/blogs/thegaggle/archive/2010/02/05/need-more-evidence-the-senate-is-absurd-look-no-further.aspx

WASHINGTON - Republican leaders expressed renewed skepticism Tuesday about President Barack Obama’s call for a bipartisan forum on health care, raising questions about how much can be achieved at the televised event later this month. “This is a clever tactic by the president to try to put the Republicans on the defensive,” said John Feehery, a GOP consultant and former congressional aide. With the two sides at such odds, some Republican activists privately worry that their party’s leaders might be walking into a trap on Feb. 25 designed to portray their health care proposals as thin. The House’s top two Republican leaders openly questioned Obama’s sincerity and hinted they might skip the meeting if he uses the Democratic bills as the starting point for discussions.

Analysis: 

The problem may well be that President Obama is trying to have his cake and eat it too—meaning that he is trying to draw on the credibility of a head of state (i.e., a neutral party who is presiding) while at the same time being the captain of one of the partisan teams.  This is a structural conflict of interest that is centered in having the head of state also be the head of one of the contending political parties.  Even in how he characterizes what is not bipartisanship, his bias is palpable. “Being bipartisan cannot mean that Democrats give up everything they believe in, find the handful of things that Republicans have been advocating for, and we do those things, and then we have bipartisanship.”  To make such a statement literally from the presidential podium undercuts the presiding nature of the office.  To consistently side with one side in a house over which one is presiding undercuts one’s credibility to preside.  In presiding, one is looking out for the good of the whole, and coming down on one side or the other can legitimately only be done when the whole is in jeopardy.  Hence, Andrew Jackson came down against Congressional encroachment on the states in vetoing a Congressional appropriation for a road completely within Missouri’s borders; he feared the precedent would ruin the system of federalism (which must be balanced to be viable). Shortly thereafter, he sent the US Army down to South Carolina after it passed the Nullification Acts by which the South Carolina government claimed it could nullify any federal law that was not in the state’s interest.  Jackson’s involvement in taking sides was both for the states and the federal government because his only criterion was the long term viability of the Union.  To take sides on lesser matters tends to reduce one to an ideology, hence to one of the partisan groups.  This undercuts the credibility of the presiding officer for people in the other parties.  To “spend” that credibility for expedient purposes (an ideological agenda)—trying to get the most out of the power of the office—is to lose the kind of power that the office of the US Presidency was designed to have.  No wonder most occupants of the office have failed.  Barak Obama on health care is only the latest. Had Barak pushed the need for health-care reform without taking sides as the legislators debate possible plans, he would be treated as much more credible in hosting a meeting.  In other words, the seriousness of the conflict of interest can be gaged by the trepidation of the Republican leaders.  A partisan evoking the credibility of a figure head is inherently duplicitous and bound to lead to failure.

Source: http://www.msnbc.msn.com/id/35313584/ns/politics-health_care_reform/

Secondary Source: http://www.nytimes.com/2010/02/10/us/politics/10obama.html?hpw

A Republican US President pushes hard for the US Government to play a more active role in K-12 education via “No Child Left Behind.”  A Democratic US President pushes hard for the US Government to play a more active role in health-care.  In regard to the latter, proponents of the health-insurance law argue that Congress acted within its authority under the Constitution’s Commerce Clause.  However, Ken Cuccinelli, the attorney general of Virginia, says the U.S. Supreme Court has never ruled that the clause allows Congress to require citizens to purchase a good or service like health insurance. Cuccinelli’s complaint also argues that the Virginia law that outlaws the federal government from forcing state residents to purchase health insurance trumps the federal law because it is a matter assigned to the states under the Constitution’s 10th Amendment. That amendment says that all powers not explicitly granted to the federal government remain with the states.

In spite of being semi-sovereign (plus having the residual sovereignty beyond that which is enumerated for them and for the US Government), the State governments have generally been sleeping through federal encroachments for decades.  This is understandable, as past efforts to thwart federal encroachment have failed.

In 1830, Andrew Jackson sent federal troops into South Carolina because its legislature had decided that it could nullify federal law encroaching on its domains of governmental sovereignty.  The South Carolina legislature relented (though its succession document would be retreived in 1858 after the Congress passed a tariff on rice and cotton exports).

In 2010, one would think that the lesson against nullification had suddenly been lost on several of the State governments.  In March, the Senate defeated an amendment that would have allowed states to opt out of the health-insurance requirement.  Yet the governor of Virginia signed the nullification bill into law nonetheless.  The policy argument against nullification stresses that state opt-outs would reduce the size of the insurance pool and thus preempt the anticipated cost-savings.  There is also the point that if access to health-care is indeed a redistributionist right, then it could be argued that it ought to exist in the entire Union.  However, such a right could be argued to be basic law, and thus requiring an amendment to the US Constitution.  Alternatively, it could be argued that the determination of whether a right is involved ought to reside with the states.  In terms supremacy and nullification, if the power to require health-insurance is not within the commerce clause, then the federal law would not override state laws to the contrary.  However, it is commonly thought that preemption and supremacy go with any US law.  Yet this has not stopped states from reasserting their constitutional prerogatives.

Gov. Mike Rounds of South Dakota, a Republican, signed a bill into law on March 12, 2010 declaring that the federal regulation of firearms is invalid if a weapon is made and used in South Dakota. On the day before, Wyoming’s governor, Dave Freudenthal, a Democrat, had signed a similar bill for that state. The same day, Oklahoma’s House of Representatives approved a resolution that Oklahomans should be able to vote on a state constitutional amendment allowing them to opt out of the federal health care overhaul. In Utah, lawmakers embraced states’ rights with a vengeance in the final days of the legislative session that week. One measure said Congress and the federal government could not carry out health care reform, not in Utah anyway, without approval of the Legislature. Another bill declared state authority to take federal lands under the eminent domain process. A resolution asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.” Alabama, Tennessee and Washington are considering bills or constitutional amendments that would assert local police powers to be supreme over the federal authority. Rhode Island, Vermont and Wisconsin — none of them known as conservative bastions — are considering bills that would authorize, or require, governors to recall or take control of National Guard troops, asserting that federal calls to active duty have exceeded federal authority.

Given the Nullification Crisis in the nineteenth century, the actions in the twenty-first seem likely to be dismissed by US Supreme Court. Given the structural conflict of interest, the federal high court has tended historically to interpret the Constitution in the federal government’s favor. It is like having a member of one of the teams as the umpire.  So it is easy to dismiss the state laws as political theater.  However, ignoring them would only stoke the fires of resentment and add to the pressure that could eventually dissipate the Union.

“Everything we’ve tried to keep the federal government confined to rational limits has been a failure, an utter, unrelenting failure — so why not try something else?” said Thomas E. Woods Jr., a senior fellow at the Ludwig von Mises Institute, a nonprofit group in Auburn, Alabama.  Article 6 of the US Constitution indicates that federal law is superior over state law where there is a conflict, but it wouldn’t make sense for this to apply outside of the federal government’s enumerated powers—for otherwise why even include the latter?  In other words, a constitution cannot be both consolidated and federal with the republics having some governmental sovereignty, or autonomy, from the government of the Union.  We can’t rely on elections to protect the balance of power necessary for our federal system to remain federal (and thus operate as a check on each government); there are too many other contending issues and character traits at issue in a given election.  “Whether the political impulse of states’ rights and nullification will become a direct political fault line in the national elections this fall is uncertain,” said Mr. Woods of the von Mises institute. Also, drawing the federal dividing-line by election presumes that the people understand federalism.  Even so representatives pushing for more of a balance miss it. “Who is the sovereign, the state or the federal government?” said State Representative Chris N. Herrod, a Republican from Provo, Utah.  In actuality, both governments have governmental sovereignty in the American federal system.  It is not “either or.”

States opting out is not unprecedented in federalism.  In the EU, for example, three States have opted out of the EU’s currency.  One State has opted out of the EU’s social program.  If the US Supreme Court will not allow us to do likewise, we can propose and ratify an amendment to the US Constitution instituting a process for it.  If we deem that as insufficient to restore a balance, we can propose and ratify an amendment stating that the supremacy and spending clauses pertain only to the powers that are enumerated expressly for the US Government.  Lastly, we can propose and ratify an amendment that puts sitting State Supreme Court Justices on the US Supreme Court (on a rotating or nominated basis) so to counter the conflict of interest in having a federal branch being the umpire on conflicts involving federalism questions.  The deck, as it were, is presently stacked against a healthy federal system in favor of a consolidated Union.  The individual republics standing up in protest by passing laws that will likely be cut down by the US Government Court may be counterproductive because people might assume the efforts are sufficient and go on to other things.  Proposing and ratifying amendments to the federal system take a lot of energy—it would be ashamed to dissipate it just when it could be used for structural changes…systemic change…real change.

Sources: http://www.msnbc.msn.com/id/35906430/ns/politics-the_new_york_times// ; http://politicalticker.blogs.cnn.com/2010/03/24/virginia-governor-to-sign-law-firing-back-at-health-care-bill/?fbid=UERb4EI-c6a#more-96318

On the US Supreme Court being the decider of last resort, Madison’s Report of 1800 reads in part, “this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.”  The government being referred to is the US Government—that is, the federal, or general, government. The parties to the compact are the states.  So the theory here is that the US Supreme Court can have its say after the US President and the Congress, but not as binding on the States.  John Breckinridge, who sponsored the Kentucky Resolutions in the Kentucky House, wrote, “Who are the judiciary? Who are they, but a part of the servants of the people created by the Federal compact?” (James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery, 1957), 75) The Federal Courts are part of the US Government that was created by the states, so those courts can’t be the final deciders with respect to the states.

Historically, nullification of US Law by a State has been urged by some (such as by South Carolina in 1831). In his book, Nullification, Thomas Woods argues that the VA and Kentucky Resolutions of 1798, the Report of 1800, and the Kentucky Resolutions of 1799 hold that the federal government had been created when sovereign states granted it a few enumerated powers. Also, should the federal (general) government exercise a power it had not been delegated, the states ought to interpose. The Virginia Resolutions of 1798 read in part, “the powers of the federal government, as resulting from the compact, to which the states are parties.” The Kentucky Resolutions of 1799 read in part, “that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy” (Woods, p. 50).

It seems to me that there is indeed a conflict of interest in having the US Supreme Court be the umpire of conflicts between the federal and state governments.  However, nullification presumes that the states did not cede part of their sovereignty.  In other words, were nullification to be allowed, there would be no compact, as any state could exempt itself from any federal law it didn’t like under the claim that the law exceeds the enumerated powers. The states are semi-sovereign, so there must be a means of holding them against their will. I contend that the final decider of contests between the US Government and any of the states should be composed of judges selected from the state supreme courts. That way, the conflict of interest would be eliminated and an individual state could still be held against its will. In other words, we need not succumb to either the hegemony of the US Supreme Court whose members are selected and paid by the US Government, or to the destructive effects of nullification on the federal compact itself.

Source: Thomas Woods, Nullification: How to Resist Tyranny in the 21st Century (Regency, 2010).