No one cares about procedure until it’s too late

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A take I haven’t written elsewhere

No one cares about procedure until it’s too late

(via)

A fun thing about being a libertarian¹ is that sometimes you can switch from saying, Well, of course, I think this is a terrible policy, and also they’re doing it the wrong way to saying, Well, I think the policy is fine, but unfortunately they’re doing it the wrong way.

And by “fun” I mean “depressing,” because what almost never happens is that you get to say, Wow, this policy is great, and they’re actually doing it the right way, and that’s happening because everyone took the opportunity, ahead of time, regardless of partisan allegiance or personal ambition, to make sure we all attend to and agree upon the important procedural concerns—like separation of powers, rule of law, and carefully defined expressions of constitutional duties and restraints—on which this whole shindig depends.

Look, procedure is not sexy. I get that. I’ve written enough foreign policy op-eds to know that editors and readers alike are more likely to get pumped about This war is a moral horror than The president is actually not allowed to do this war because we are not under active or imminent attack, and he did not first seek a declaration of war or indeed any kind of authorization from Congress as required by both the war powers clause of the Constitution and the War Powers Act of 1973.

Now, in fairness, my editors at The Week let me do both, and so did the good folks at Reason. But the bigger point stands. Civics class rarely thrills, and it certainly doesn’t when our friends are in charge.²

This is why calls for robust, detailed, enforceable restraint on the imperial presidency go forever unheeded. I’m not being cynical here; I’ve just been writing about politics long enough to have been through this cycle several times now. It’s always the same! It goes—with but minor variations—like this:

1. A president from Party A is in office, paired with a divided or opposition Congress. Boy oh boy do we hate that guy! Look at all the illegitimate things he’s doing. Dang, when did presidential power get so out of hand? Anybody ever heard of the Constitution around here? What’s with all these executive orders?! It’s too bad divided government means we can’t possibly pass any laws to constrain what he can do.