Daily Archives: December 7, 2021

Official Washingtons conventional wisdom about the Senate filibuster is a fairy tale. It is utterly unmoored from the choices being made by individual senators, party caucuses, and the body as a whole. Every person who has ever told you that the mean, nasty, outdated legislative filibuster is the source of Senate gridlock and the obstacle to common-sense legislating in Congress has either swallowed, or is peddling, a lie.

In an op-ed in the Washington Post this week, Ethics and Public Policy Center scholar Henry Olsen suggests requiring filibusters to be at least nominally bipartisan as a way of solving the familiar filibuster problem. What follows is not a fisking of Olsen, who is a good guy and perhaps the best electoral analyst in America today, but a corrective to the apparently universal pundit-class misunderstanding about whats really going on inside the worlds greatest deliberative body.

The mistake everyone makes is looking at Senate inaction and asking, How can we change Senate rules so it can start legislating again? The better question is, Why did the Senate stop legislating in the first place?

The answer isnt gridlock, any more than a car drove through that parade in Wisconsin. Somewhere along the way, senators behavior changed. Its not a coincidence this happened along the same timeline as the polarization of the parties over the last 30 years. Partisan filibusters were harder, and bipartisan legislating easier when the Senate had dozens of conservative-leaning Democrats and liberal-leaning Republicans.

Before moving inside the chamber, lets take stock of an important but easily overlooked point: Senate Democrats as a group are much farther left than they were in, say, 1990, and Senate Republicans are more uniformly conservative.

Because pundits and people who read them tend to be consistent ideologues themselves, this kind of polarization seems normal, even enlightened. But all it really means is that both parties in the Senate have drifted away fromabandoned, eventhe middle of the country.

The public didnt lurch left or right. Senate rules didnt change. Congress is simply less representative of the American people than it used to be. Pews well-worn ideological scatter chart from the 2016 election exit polls illustrates the point below.

The sweet spot in American politics would seem to be left-but-not-too-left-of-center on economic issues and right-but-not-too-right-of-center on cultural issues. (Im conservative on both, for whatever its worth.) But today, congressmen and senators tend toward the upper-right or lower-leftthe ideological extremeswith elite journalists overrepresented in the nearly empty lower-right: woke private-school parents.

The strike zone for both parties looking to forge a majority, then, should be the upper-left. This would be your pro-lifers for universal health care, men who want only their unions to build the border wall, women who want to raise taxes to build more prisons for pornographers and drug dealers. Such peoplereal, live, working-class moderates, the sort who decide our national electionsare thin on the ground in Washington, D.C. Indeed, they seem downright unwelcome in both parties.

Nuking the filibuster to establish a majoritarian Senate, in the context of our actual country, would only empower out-of-touch, unpopular, ideological extremists to unilaterally impose their outr elite values on a public that dislikes them. Constitutionally speaking, in the morality play of congressional politics today, the filibuster is the good guy. Its not the hero we deserve, but the one we need, stopping Republicans from gutting social programs and Democrats from banning guns or red meat.

So, if the Senates rules arent the cause of Senate inertia, what is? Snarky Washingtonians will say Republicans. But thats silly. Both sides take up the others tactics whenever the Senate changes hands. Gridlock is not an external force exerted on the Senate.

Nor is gridlock a condition imposed on it by an uncooperative minority. No, inaction is always a policy choice affirmatively, consciously taken by the majority. Gridlock and obstruction are weasel words Senate majorities use to duck responsibility for their own decisions.

Contrary to beltway shorthand, passing bills through the Senate doesnt require bipartisan compromise. It just requires compromise, full stop. Theres a difference. Sixty-vote majorities could be found on almost any issue, any week of any year, through an open amendment process on the Senate floor. Heck, they could call up a blank bill for floor consideration, and let every Senator offer whatever amendment he or she wanted, and before too long, a final bill that could get 60 votes would emerge.

Both parties know this, and refuse to do it. Why? Because an open amendment processthe wild west, they call itwould force senators to take amendment votes that would, quelle horreur, lay bare their actual beliefs and policy priorities to their constituents.

Thats it. Thats the whole story of Senate gridlock. Not the filibuster, not cloture, not grandstanding, not Donald Trump or norms, or obstruction or any other nonsense youve been told.

At the end of the day, senators care more about protecting themselves and their colleagues from unpredictable, inconvenient floor votes than they do about passing legislation. This, and no other reason, is why both parties now legislate via secret negotiations, followed by an obnoxious, rigged floor process (filling the tree) that blocks all amendments except the ones mutually agreed to by the party leaders.

Remember, the amendments this process blocks are not the ones that wouldnt pass, but the ones that would. Most Democratic senators dont want to have to vote on popular Republican amendments to, say, curb immigration or protect gun rights. Likewise, most GOP senators dont want to have to defend a vote against a higher minimum wage or increased spending for childrens health care.

All kinds of bills and amendments could get 60 votes in the Senate today. The problem is, they would be the wrong 60 votesmajorities representing the public as such instead of their party. When the dust settled, lots of incumbents on both sides would invite dangerous primary or general election challengers next time they faced the voters.

A good example of such a bill is the Higher Wages for American Workers Act, introduced by Sens. Mitt Romney, R-Utah, and Tom Cotton, R-Ark. It would raise the federal minimum wage to $10 and mandate the E-Verify instant immigration-status test for all employers.

To normal Americans, this might sound like a sensible compromise; to Washington insiders, its a five-alarm fire. It would be a brutal floor vote, triggering dozens of Club for Growth- or Squad-backed primary challenges and crippling TV ads come November.

If Senate leaders ever opened up the floor, thats the kind of legislation senators would face: popular, cross-partisan, and career-threatening. Party leadersalways at the behest of their constituents, the senators themselvessee their job as never letting an organic, unchoreographed, cross-partisan majority work its will on the floor on behalf of the American people.

Instead, majorities negotiate bills to get all of their teams votes plus just enough of the other teams to pass maximally partisan legislation. To leaders, this is a correct 60-vote majority that, with proper supervision and stage direction, may be permitted to pass bills through the United States Senate.

Ultimately, Senate majorities do not see gridlock as a frustrating, inferior alternative to passing legislation. They see it as a superior alternative to the transparency and accountability that comes with discharging their constitutional responsibilities.

Not convinced? When was the last time you saw a Senate majority of either party really put their shoulder to the wheel to break a partisan filibuster? I dont mean whining to cable news or talk radio. I mean work: staying in session all night, for days on end, forcing late night attendance, including the sick old men, the cancellation of weekend plans, missing piano recitals and family weddings? Never.

If Senate majorities really want to pass legislation, they could, anytime, through a combination of compromise, transparency, and the exertion of physical energy. This approach has not been tried and found wanting, but found inconvenient and left untried.

Finally, those on the left who think a post-filibuster Senate would help their cause are really missing the forest for the trees here. Senate Democrats are never going to nuke the filibuster to enshrine Roes protections in federal law, as New York Times columnist Ezra Klein proposed on Twitter yesterdaynot because they are weak or deferential to norms, but because Roe is really, really undemocratic.

Even without a red wave election, Kleins Roe Act would quickly be watered down to a restrictive bipartisan compromise he would hate. And when the next red wave did come, the Democratic Party would be left limping for a generation.

The vast majority of federal policies today rendered untouchable by the Senates 60-vote cloture threshold was written between the 1930s and 1960s when even Republicans were proud liberals. Are three years of Roe-lite or some half-baked Green New Deal ramp-up really worth giving President Ron DeSantis, House Speaker Jim Jordan, and Senate Majority Leader Ted Cruz free-rein to rewrite the Great Society and New Deal, the APA, the NLRB, NEPA, civil service, education, and immigration law in one swing?

They would decentralize and defund dozens of power centers within the progressive movement. The left has unimaginably more to lose from a majoritarian Senate than the right.

As a conservative who would welcome lots of those reforms, I nonetheless recognize that our system is built for consensus and stability. In America, its ideologues like Klein and me who are the weirdos, not the majority of the country with supposedly less consistent views. Its good that we never have too much power.

At any given moment, both parties are advancing, on different issues, popular and unpopular ideas. The way the Senate is designed to work is, the popular ideas get creatively cobbled together and passed as consensus compromises. And the unpopular ideas are discarded as slogans for the performance artists in the House.

The only reason this doesnt happen today is that senators real, if unstated, top priorities are personal convenience and partisan positioning. Passing major legislation is a distant second or third. What we see on C-Span2 every day is the majority applying minimal-to-modest effort to pass legislation, and maximal effort to protect their seats and undermine the other side.

The Senates rules do not stop it from legislating. Its the senators themselves, entitled and vain, cowering in the shadows behind the one thing in Washington with the courage to stand up for all of us, simultaneously against the mob and the elite. The filibuster isnt our hero. Its a silent guardian, a watchful protector. A dark knight.

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It's Not The Filibuster's Fault We Have 'Gridlock,' It's The Senators' - The Federalist

On this episode of The Federalist Radio Hour, Dr. Scott Atlas joins Federalist Executive Editor Joy Pullmann to discuss his new book A Plague Upon Our House: My Fight at the Trump White House to Stop COVID from Destroying America.

This is the ultimate example of sort of moral bankruptcy, in my view, Atlas said. I mean, we must learn the lessons from this. I outline the lessons in the book and I then talk about the big issues that were really exposed, that were facing now as a society because it goes well beyond COVID.

Atlas said at some point he became burned out by the lack of challenges to the claims made by people on the task force.

We can never let this happen again. I mean, this is one of the big lessons. I was stunned at the lack of competence, at the lack of critical thinking, at the lack of rigor, at the lack of preparation, at the lack of questioning, and this can never happen again, Atlas said.

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Scott Atlas On How Everything Media Says About COVID Is Wrong And Why Trump Didn't Fire Fauci - The Federalist

Dr. Anthony Fauci conceded Sunday, more than two years after COVID-19 emerged, that it is time Americans learn to live with the virus.

Were not going to eradicate it, Fauci said on NBCs Meet the Press as the Omicron variant triggers a new wave of pandemic panic. But, Fauci added, we really need to be prepared for an Omicron outbreak with 32 or more variants in that very important spike protein of the virus.

Of course being prepared in Fauci-land means compulsory vaccination, endless mask-wearing and a forever lockdown.

If normality means exactly the way things were before we had this happen to us, Fauci said on CNN in March, I cant predict that.

True preparation for a future of endless variants, however, is an urgent and immediate commitment to confronting the underlying epidemic that is obesity, a primary COVID comorbidity.

New variants will always be in the pipeline, popping up as the virus spreads, leading to new vaccine boosters engineered to better protect individuals from the evolving disease.

If we keep pulling back on life with every new variant, however, and demand universal compliance with endemic boosters, well never return to anything that even resembles normalcy, let alone reclaim the virtues of individual liberty or personal responsibility. Americans have become too comfortable with shutting down their neighbors lives for the sake of their own risk aversion.

One major way to protect oneself in the COVID era is to maintain a healthy weight, where in the event a variant does emerge that evades vaccine-given immunity, Americans will be in better shape to confront it. Right now, most Americans are not healthy.

According to the latest data from the Centers for Disease Control (CDC), more than 42 percent of Americans qualified as obese in 2017-2018, marking a 31 percent spike since 1999-2000. More than 70 percent of adults 20 years old and older were overweight.

Considering the CDC statistics are now three years old and precede the pandemic, the number of Americans struggling with weight already on an upward trajectory is almost certainly far higher.According to data from the Epic Health Research Network tracking the weight of nearly 47 million patients in the first 14 months of the lockdowns, the average American continued to gain weight.

More than 6 in 10 Americans reported undesired weight gain, according to the American Psychological Association.

Our population is hugely sick, saidDr. Tim Logemann of the Wausau Aspirus Hospital Cardiologist and Obesity Treatment Program in Wisconsin. We dont really understand health Health starts with a healthy diet, a healthy lifestyle.

Logemann told The Federalist it was conceivable Americans would react to new coronavirus variants far differently if Americans maintained a healthy weight, offsetting other comorbidities in the process. Beyond tripling ones risk of hospitalization from COVID-19, obesity has also been linked to heart disease, stroke, type 2 diabetes, and certain types of cancer. In March, CDC data showed nearly 80 percent of those hospitalized with the coronavirus were overweight or obese.

At the beginning of the pandemic, the big concern was overwhelming the health care system, right? Logemann said. And if your population doesnt get sick and doesnt end up in the hospital, then they dont overwhelm the health care system.

Dariush Mozaffarian, a cardiologist and dean of the Tufts Friedman School of Nutrition Science and Policy told the Boston Globe in November his research shows 64 percent of all hospitalizations from COVID could have been prevented, if we had a metabolically healthy population, without the rates of obesity and diabetes and hypertension that we have now.

In other words, the COVID crisis wouldnt be as much a crisis as if a public health crisis hadnt already existed. If Americans werent so at risk due to widespread obesity, perhaps businesses wouldnt have been shut down, graduations wouldnt have been canceled, and overdoses might not have reached records highs. The death toll attributed to coronavirus certainly wouldnt have eclipsed 778,000 within two years.

When something like COVID comes along, it just wipes us out, Logemann told The Federalist. Were just set up.

The western world, said South African Dr. Angelique Coetzee, who was the first to discover the Omicron variant, is already overreacting to the news of its existence even at the poor baseline of public health.The world will continue to overreact so long as it refuses to act on the underlying epidemic.

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Living With The Virus Requires Confronting Obesity - The Federalist

CNNs Chris Cuomo is not the only media icon who needs to answer for his attempts to shield his scandalous brother from fallout following accusations of sexual misconduct.

CNN finally caved on Tuesday and announced that the Cuomo Prime Time host would be indefinitely suspended after a series of text messages exposed the anchors attempts to help cover up former New York Gov. Andrew Cuomos sexual scandals earlier this year.

While CNN staffers such as Brian Stelter already hinted that Chris would return to the air as soon as January 2022, there are multiple other corporate media anchors, hosts, and writers who need to be held accountable for simply taking the governors weak defense at its face and amplifying it.

On the same day that Andrew Cuomo claimed he didnt sexually harass someone, MSNBCs Katy Tur ran a segment asking why someone like Gov. Andrew Cuomo, who is a savvy politician, [would] not have buttoned things up, not have gotten the message to be careful about what he says around his staffers, around others. Tur also cited somebody who is close to the family as her source.

And the person said, its not that he didnt think the rules didnt apply to him, its just that in the Cuomo DNA, they are extraordinarily friendly, I guess, by nature, Tur claimed.

Turs public response not only gave undue credibility to the then-governor but used the words of Cuomo brother allies to inform her coverage.

Lis Smith, a Democrat political consultant who worked as Pete Buttigiegs senior presidential campaign adviser, was one of the many people who immediately aligned herself with the governor and began working overtime to coo corrupt corporate media icons into doing what they do best: amplify narratives to cover Democrats butts.

Im texting [with] Katy tur, Smith wrote. Katy is saying my spin live. Like verbatim.

As T. Becket Adams noted in his Substack on Thursday, the anchor was repeating the governor teams official stance, but Tur didnt have to repeat any of what Smith apparently told her.

She certainly didnt have to repeat it uncritically. Also, the fact Smith was privately pleased with Turs coverage suggests Tur did indeed serve Cuomos interests as opposed to the interests of MSNBCs viewers, Adams wrote.

Smith also reached out to Edward-Isaac Dovere at The Atlantic, whom she described as being very hard on our side on this.

Total mind meld. He says he could be convinced to write something on andrew Bc he thinks this whole thing is bullsh-t, Smith wrote.

Three days after Cuomos infamous March 3 press conference, Dovere wrote an article titled Of Course Andrew Cuomo Isnt Going To Resign just a few months before the governor called it quits.

Smith also reached out to Bill Maher, who didnt appear to take the bait.

Ok I texted Bill mahers producer, she wrote. To see if i could connect w him before show- want him to tee off on this.

We need some big names weighing in on our side, Smith said.

Two days after Andrew Cuomos address at the beginning of March, Maher roasted the governor for being f-ckin stupid.

Were four years into the MeToo era, hes this dumb that you dont hit on the help, dont touch people without their permission. What could this guy be thinking? Maher asked.

Other media outlets that Smiths recently released text messages do not discuss also gladly ran with pro-Cuomo narrative until they couldnt any longer. Countless corrupt corporate newsrooms gladly took aim at Republican leaders such as Gov. Ron DeSantis while fawning over the New York governor for offering press briefings that were like a tender embrace even though thousands of nursing home residents were dying as a result of his failed COVID-19 policies.

God, now theres a leader, said MSNBCs Joe Scarborough.

Smith, while doing the dirty work to help Andrew Cuomo cover up his sins, shouldnt be the focus of peoples wrath. After all, she was technically doing her job. The media veterans who lent a listening ear to her and the Cuomo brothers spin, however and then ran with it were not doing their jobs. They didnt offer scrutiny to the bait laid right before their eyes. Instead, people such as Tur, Dovere, and others repeated the narrative because they wanted to protect Cuomo and their Democrat alliances.

Jordan Boyd is a staff writer at The Federalist. She graduated from Baylor University where she majored in political science and minored in journalism.

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Chris Cuomo Isn't The Only Media Icon Who Should Be Held Accountable - The Federalist

Liberal legislators in high-tax states like New York, New Jersey, and California seem determined to make sure that their own high-income constituents pay for as little of their big spending plan as possible.

Recently, the House of Representatives passed thelargestexpansion of means-tested welfare spending in U.S. history, along with hundreds of billions of new corporate welfare. In addition to about$2 trillionof new taxes in the bill, fully funding the so-called Build Back Better Act would requiremultitrillion-dollartax increases in the future.

Members of congress in high-tax statesboastthat they fought to include an increase in the cap on state and local taxcommonly known as SALTdeductions, a provision that benefits high-income residents of their states. This change would effectively shift federal tax burdens away from the wealthy, especially those in high-tax states.

Since the 2017 passage of the Tax Cuts and Jobs Act, taxpayers that itemize their tax returns arelimitedto $10,000 of state and local tax deductions when determining their federal taxable income. Taxpayers can deduct state and local income taxes and property taxes (or sales tax in lieu of an income tax).

Under the House plan, the cap on SALT deductions would increase to$80,000through 2030. This is problematic for several reasons.

Problem #1: Taxpayers in the Top 1% Would Benefit From This Provision Nearly 1,000 Times More Than Taxpayers in the Bottom 80%.

Cutting taxes on the wealthy is not necessarily problematic. After all, the wealthy do pay aninordinateshare of federal taxes. However, a large tax cut benefiting the wealthy is certainly noteworthy, givenPresident Joe Bidensfalse claimthat households earning less than $400,000 a year wouldnt pay a penny more under his plan, and his vow to make the highest income Americans pay their fair share.

Yet, according to the Committee for a Responsible Federal Budget, raising the SALT deduction capa benefit almost exclusively for the wealthyis the single most expensive provision in the bill. The organization estimates that increasing the SALT deduction cap would reduce revenues by$275 billionthrough 2025.

Because of the increased SALT cap, taxpayers making $500,000 to $1,000,000 would receive an overall tax cut under the bill of 1.8% in 2023 and 2.5% in 2025. Meanwhile,government scorekeepersestimate that taxpayers earning between $50,000 and $75,000 would face overall tax increases of 0.4% in 2023 and 0.3% in 2025.

The Wharton School of the University of Pennsylvania estimates the increased SALT cap would reduce the federal taxes of the bottom 80% of taxpayers by about $16 in 2022. It would, on average, provide taxpayers in the top 1% a tax cut of nearly$16,000.

Fewer than 2% of taxpayers in the bottom 80% would benefit at all from a higher SALT deduction, partly because only about6%of them itemize their deductions (due to the standard deduction having been doubled in 2017). Even among lower- and middle-income taxpayers that do itemize, they seldom pay $10,000 in state and local taxes, let alone the new $80,000 SALT limitation.

Problem #2: Proponents Rely on Deceptive Logical Arguments to Defend Raising the SALT Cap

Defending an expanded SALT deduction, Rep. Katie Porter, D-Calif.,stated, If you are forced to pay part of your income to the state where you live, you dont have that income left over The federal government ought to tax you on what you have left [after state taxes.]

On the surface, that argument may make sense. But it ignores the benefit that taxpayers receive from the state and local government spending that their tax dollars fund. In a well-run state, residentsshouldreceive a net benefit from each dollar taxed and spent by the state government.

Voters either directly or indirectly (through elected representatives) choose the level of taxes and spending in their states and localities. Nobody is forcing taxpayers in California to pay higher state taxes, except California voters and California elected officials. The mere fact that residents of some states consume more goods and services provided by the public sector rather than by the private sector shouldnt entitle those taxpayers to reductions in their federal taxes.

Theres a glaring logical inconsistency in arguing that the SALT deduction is necessary to level the playing field between taxpayers in big government states and small government states, while simultaneously voting for whatcouldend up being the largest expansion of government spending in history.

Problem #3: The SALT Deduction Encourages Wasteful Spending by State and Local Governments.

The SALT deduction effectively acts as a federal subsidy of state and local government spending. The deduction insulates governments from negative consequences when they spend taxpayer dollars inefficiently, thereby encouraging more waste.

Suppose a taxpayer faces a40%federal income tax rate. If his state taxes increase by $250, and he claims that $250 as a SALT deduction, he can then reduce his federal taxes by $100. Given the federal tax savings, the taxpayer may support a state government project that he values at $150 but costs him $250 in state taxes.

Let that sink in. With an unlimited federal SALT deduction subsidy, some high-income taxpayers could rationally shrug off projects with a 67% cost overrun ($100 divided by $150), because so much cost is absorbed by the federal government. The SALT deduction rewards wasteful spending and excessive taxation.

With or without the full SALT deduction subsidy, governments in many high-tax states have been poor stewards of taxpayer dollars, and residents of those states have fled to other states.

The four states whose residents benefit most from the SALT deduction (as a percentage of adjusted gross income) are New York, New Jersey, Connecticut, and California. Every year, these high-tax states experience a large net outflow of residents moving to other states. In the year from 2015 to 2016, over140,000more tax filers moved out of these states than moved into them.

The migration out of these four states continues apace today. Between 2017 and 2019, New York, New Jersey, Connecticut, and California lost almost170,000tax filers per year.

New York, New Jersey, Connecticut, and Californiahave top individual income tax ratesthat range from 6.99% to 13.3%, compared to a U.S. average of about 5.3%. Property taxes in these four states are alsovery high. These four high-tax states rank 43rd, 47th, 49th, and 50th in net interstate migration. By contrast, of the seven states with no income tax (including investment income), four rank in the top seven for net interstate migration.

If migration is any indication, even with federal subsidization, many taxpayers in big government states were unhappy with their states burdensome taxes. Its bad enough that taxpayers in New York and California must pay for their own governments mismanagement, but taxpayers in other states absolutely shouldnt have to share the tab.

Problem #4: Congress Shouldnt Use the Tax Code to Promote One Style of State Government Over Others.

Changing federal tax law for the sole purpose of shifting the geographic burden of taxes is a perversion of our federalist system.

In 1932, liberal Supreme Court Justice Louis Brandeiswrote, It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

While most on the right bristle at being guinea pigs in state governments social and economic experiments, most peopleleft or rightshould see the value of a federal system where citizens can choose between 50 different state democracies.

A federalist system gives citizens more control over how theyre governed. If they disapprove of how their state or locality is run, Americans can move. Some Americans prefer expansive state and local government and are willing to pay the corresponding high taxes. Others prefer more limited state governments. Citizens ability to vote with their feet provides a natural check on poor state governance.

By shifting costs of state government away from the states, the SALT deduction weakens our federalist system. It tampers with the scales in the laboratories of democracy, biasing the system in favor of big state government.

It also biases the system toward certain forms of taxation over others, specifically encouraging income taxes over sales taxes. In 2017, of the seven states with no income tax, eachrankedbetween 40th and 50th in SALT deductions (evenotherwisehigh-tax Washington state).

Taxes on income are more economicallydamagingthan sales taxes. Unlike sales taxes, income taxes discourage work, saving, and investing. Yet, the SALT deduction rewards states that choose an income tax over a sales tax.

The Senate Should Reject This Effort to Centralize Control Over Individuals and State Governments

Increasing the SALT deduction cap would add insult to injury for supporters of limited government. The rest of the Build Back Better Act would expand the role of thefederalgovernmentinvirtuallyeveryareaofAmericanlife. A higher SALT deduction would encourage one-size-fits-all big government at the state level, too.

This piece originally appeared in The Daily Signal

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4 Problems With Left's Hypocritical Plan to Give Wealthy Constituents a Bigger SALT Deduction - Heritage.org

The first landmark ruling delivered by the U.S. Supreme Court was Marbury v. Madison (1803), in which Chief Justice John Marshall asserted the power of judicial review, the authority of the federal judiciary to review the constitutionality of governmental acts, including laws passed by Congress.

Consider the fundamental impact of the power of judicial review for American Constitutionalism. In 1627, in The Five Knights Case, an important case in English legal history, the Attorney General, representing the King, asked: Shall any say, the King cannot do this? No, we may only say, He will not do this.

In contrast, in the United States, the power of judicial review ensures that we could say: the government cannot do this. Judicial review thus empowers the courts to enforce constitutional limitations against Congress and the president, which, in theory, protects the American people from governmental violation of the Bill of Rights and usurpation of power.

Marbury v. Madison is the greatest case in American constitutional history precisely because it marked the courts first exercise of the doctrine of judicial review, in this instance, a ruling on the constitutionality of a statute passed by Congress, arose in the context of intense and divisive partisan politics between the Federalists and the Jeffersonians.

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In the last hectic days of the presidency of the ardent Federalist, John Adams, who had been defeated by Thomas Jefferson in the election of 1800, the Federalist-dominated Congress passed the Judiciary Act of 1801. This law created a host of new circuit court judgeships, to which Adams nominated and the Senate approved, good loyal Federalists. These judges, appointed in the last hours of the Adams Administration, were nicknamed, the midnight judges. A second bill, passed just days later, created new judgeships in the District of Columbia, to which Adams would, again, appoint strong Federalists.

Jeffersonian newspapers were appalled by the Federalists power grab, seemingly an abuse of the public will since American voters had in the election changed the political landscape by thoroughly rejecting the Federalists at the polls in favor of the Jeffersonians. The electoral upheaval led scholars to call the election, The Revolution of 1800.

Federalist intentions were crystal clear. They aimed to pack the courts with judges who would maintain Federalist legal principles. As Henry Adams, the eminent historian and great-grandson of President John Adams, observed, the Federalists felt bound to exclude Republicans from the bench, to prevent the overthrow of those legal principles in which, as they believed, national safety dwelt.

In one of his last official acts, President Adams appointed 50 Federalists to these newly minted judicial posts, including one William Marbury, as justice of the peace for the District of Columbia. Marbury was a banker, large landowner and member of a prominent Maryland family.

Marbury, and the other Federalist nominees, were quickly confirmed by the Senate. Adams signed their commissions of office. As a statutory duty, it fell to Secretary of State John Marshall, who had just been appointed Chief Justice of the Supreme Court, to deliver the commissions. For one reason or another, he failed to deliver the commissions, including Marburys. The new president, Thomas Jefferson, furious at Adams and the Federalists for what he perceived to be an act of usurpation, ordered his secretary of state, James Madison, not to deliver the commissions. Jefferson believed that withholding the commissions would prevent the Federalist judges from assuming their judgeships. This order set up the basis for Marburys suit against Madison.

Marbury filed a suit in the Supreme Court, not in a federal district court, which is where most federal suits are initiated. Marbury asked the court to issue a writ of mandamus to Secretary of State Madison, an order that would direct Madison to deliver the commissions. Marbury brought the action under section 13 of the Judiciary Act of 1789, which gave the court original jurisdiction in mandamus cases against federal officials.

Marbury v. Madison seemed only to raise the question of whether the court could issue the mandamus to the secretary of state. The court seemed to have two options. It might deny it possessed authority over the executive branch, that is, authority to order Madison, which really meant President Jefferson, to deliver the commissions. That course was unappealing because it would mean the court was abdicating its judicial power to decide cases and controversies brought before it.

A second option, that of ordering the president to deliver the commission, seemed equally unappealing, since the court lacked authority to enforce its ruling. Would Jefferson refuse to obey the courts ruling? While the principle of executive accountability to the law has since been well established, it had yet to be litigated.

In what scholars have termed a masterstroke in judicial statesmanship, Chief Justice Marshall avoided both courses, including a collision with the president. Marshall held that section 13 of the Judiciary Act was unconstitutional since the original jurisdiction conferred upon the court by the Article 3, could be exercised only in cases involving ambassadors, public ministers and cases involving states. The court, he declared, might issue a mandamus, but only in cases involving its appellate jurisdiction. Congress has no authority to enlarge the courts original jurisdiction, which was granted by the Constitution.

When the court announced that section 13 was unconstitutional, on grounds that it was in conflict with Article 3 of the Constitution, it was exercising the power of judicial review for the first time in our nations history. Marshall wrote: It is emphatically the province and duty of the judicial department to say what the law is. In a case involving a conflict of laws -- in Marbury v. Madison a statute and a constitutional provision -- it is the essence of judicial duty to say what the law is. Given the supremacy of the Constitution, a statute in conflict with its terms is unconstitutional.

The source of the judiciarys authority to exercise the power of judicial review, unmentioned in the Constitution, has been a source of concern for many citizens.

David Adler is president of The Alturas Institute.This "We the People" series is provided by the North Dakota Newspaper Association and Humanities North Dakota.

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David Adler: Marbury v. Madison: The greatest of landmark decisions - Bismarck Tribune