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Time to End the Filibuster?

Putting aside Trump’s typical garbled formulations—and that his remarks were obviously prompted by his frustration with the lack of success in enacting promised legislation—doesn’t Trump have a point about the problematic centrality of the filibuster in today’s Senate? With few exceptions, very little can be legislatively accomplished unless 60 votes can be mustered there even though nothing in the Constitution requires this super-majority for passing ordinary legislation or appropriation bills. The constitutional system of separated powers and checks and balances is no doubt a complicated one. But it was also designed to allow a representative and refined majority to have its say in the end.

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Five Things to Think about with VA Reform

Reform efforts that have sought to make VA more accountable but that have not taken into account the “Human Resources” dynamics affecting VA have foundered on those rocks. The issues of public sector unions and Civil Service reform are larger than VA but profoundly affect it, and VA is dependent on Congress for legislating those broad reforms.

Past reform efforts focused on VA health care have also foundered on the rigid “Iron Triangle.” John K. Iglehart wrote in 1985 that the “VA and its advocates represent a classic example of an ‘iron triangle’ of interests that make their way through the Washington policy swirl.” The federal agency of the VA, the congressional committees that oversee and protect its interests, and veterans’ service organizations (VSOs, many of which operate under a federal charter) make up an “Iron Triangle” more often than not.

VA facilities provide thousands of jobs in certain congressional districts. Elected officials oppose the closure of VA facilities in their districts for identical reasons they oppose the closure of military bases. No one wants to appear to be anti-veteran—especially a Senator or Representative facing reelection. VSOs command prestige and influence both in public perception and on Capitol Hill, but they are traditionally or historically hesitant about reform efforts that appear to cut anything at all.

The actual needs of veterans seeking service from VA are often in direct competition with the perceived needs of the organizations and public officials designed to serve them. Thus the genuine desire to serve veterans often gets caught in the dizzyingly complex whirlwind of perceived and unperceived bureaucratic needs and interests, with the result that well-intentioned reform efforts seem merely to replicate its predecessor’s unsuccess.

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Event (May 8): Is Congress Broken?

The US Congress is regularly described as inefficient, ineffective, and polarized. How accurate is that description? Most reforms have sought to make Congress more open, responsive, and democratic. But have those reforms actually made Congress better at creating a governing consensus, overseeing the executive branch, and engaging in deliberation? What reforms might make Congress more effective, and what should be the standard for judging those reforms? Does the original constitutional design offer a better model for judging Congress today?

Please join AEI as a panel of scholars and experts discuss the state of Congress today and possible paths to reform.

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Event (March 28): Going A-Courting: The Senate, the Presidency, and the Gorsuch Confirmation Process

The Constitution calls for the president to nominate Supreme Court justices, but requires “the advice and consent of the Senate” to appoint them. What standards ought to guide senators in giving that consent? How much deference should the Senate show to the president’s choice? Is there a meaningful distinction today between partisan politics and competing visions for how a justice fulfills his duties? How does the confirmation process exemplify both the distinct powers and responsibilities of the different branches and the coordination required for functional government?

Join AEI on Tuesday, March 28, 2017 for a conversation with Sen. Ben Sasse (R-NE) of the Senate Committee on the Judiciary, followed by a panel of experts, who will discuss the confirmation process of Judge Neil Gorsuch in light of these questions.

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Imperial Branches

At times, the dispute between the Trump administration and the federal courts over the president’s executive order on immigration feels more like a WWE SmackDown than a considered statutory and constitutional dispute. Partisan critics of both branches leave one to imagine a sign over the entrance to Constitution Hall, reading “Tonight’s Main Match: ‘The Imperial Presidency’ versus ‘The Imperial Judiciary.’ ”

Such a dispute should not come as a surprise. Both branches have for some time been advancing their authority and reach, stretching respectively the meaning of executive and judicial power. It also shouldn’t come as a surprise since both the judicial and executive powers involve the interpretation and application of the laws—a fact that led John Locke, the political philosopher who first gave us the theory of modern separation of powers, to conflate the judicial power with the executive.

Indeed, if the Federalist Papers’ analysis is correct—that maintaining the constitutional order requires one branch’s ambitions to check another’s—then the occasional spat is to be expected and may sometimes be healthy. The push and pull means that each branch should be relatively clear about what its authorities are and be willing to argue in their defense. For the public, it can be a useful civic reminder that we do live in a constitutional republic.

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Event: Making citizens: A ‘Sputnik moment’ for civic education?

Did the 2016 presidential election represent a “Sputnik moment” for civic education? Voices on the right and left critiqued the recent election as proof of the failure of civic education — what the Founding Fathers and succeeding generations argued was the basic purpose of education. But if we revitalize civic education, we need to understand what has gone wrong and how current classroom, state, and national policies are shaping not just civic education, but the very principles of what it means to be a citizen capable of reflective self-government.

Please join AEI as a panel of educators and scholars discuss the state of civic education at the primary and secondary education levels and how our education system can become serious about making citizens once more.

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Presidential Power

Every president these days thinks he’s acting in the name of the people, with a mandate to fundamentally change this or that about the country. In the process, he makes too little of the fact that his actual power rests on the Constitution, not popular vote, and that, unlike the legislatures in parliamentary systems, congressional majorities have wills and minds of their own. Schooled by Woodrow Wilson to believe that a president is “the only national voice in affairs” and “if he rightly interpret the national thought and boldly insist upon it, he is irresistible,” modern presidents habitually promise too much and then face the need to expand their reach to try to accomplish those lofty goals.

These underlying facts of American political life are not likely to change anytime soon, if ever. The power of the presidency, moreover, was never intended to be minimal. Within a decade of the revolution, the founding generation had overcome their fears of anything smacking of monarchical authority. They saw, in the absence of independent, unitary executive authorities at both the state and national levels, shoddy governance when it came to domestic and national security affairs. America’s first constitution, the Articles of Confederation, did not have a separate executive branch, and the Constitution, in adopting a system of separated powers, intended to free up executive capabilities more than limit them.

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Event: The Imperial Presidency in the Age of Trump

Executive power has expanded so steadily under both Republican and Democratic presidents that the epithet “imperial” is regularly applied to the presidency. President Obama’s aggressive use of unilateral powers led many conservatives to call for a more assertive Congress and Supreme Court to curtail this expansive employment of executive authority. But these same conservatives now face a new president, Donald Trump, who appears equally prepared to use the powers of the bully pulpit to achieve his policy goals.

Is the imperial presidency now a permanent fact of American life? How should today’s constitutionalist think about the presidency’s role in governance at home and in light of America’s role in the world? Join AEI for a timely discussion on the foundations and proper use of presidential power.

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Why Veterans are Underrepresented in Congress

For well-on 30 years military veterans have been a decreasing presence in Congress. Any reversal of the declining trend will probably begin with the one tried-and-true way to gain legislative experience, build name recognition, and increase access to a fundraising network: election to a state legislature.

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Fifth Annual Walter Berns Constitution Day Lecture with Former Attorney General Michael Mukasey: Terrorism and the Bill of Rights

The United States finds itself the target of terrorists who are incited by, and think their actions justified by, their religious beliefs. This has created a profound tension between the country’s commitment to religious freedom and the tools the government uses to provide its citizens security. Is the tension real? Does the Bill of Rights prevent the government from adopting measures necessary to keep our homes, places of business, and public spaces safe?

Please join us for the annual Walter Berns Constitution Day lecture as Michael B. Mukasey, former US district judge and US attorney general, explores whether Americans have had to surrender fundamental rights so their country can protect itself from Islamist terrorism.

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When Our Country Came of Age: An Argument for Constitution Day

In the history of man there’s never been a legal order that has provided the same level of stability, prosperity and popular legitimacy as the US Constitution.

For ten-plus years, the republic was governed by the Articles of Confederation; a document ineffective in delivering those very rights, international and domestic, that the citizens of the 13 states had gone to war with the British crown to secure. While never as exciting as the ends of government expressed in the Declaration, the Constitution has nevertheless been the stolid means for securing those ends for more than two centuries. For as problematic as we might find politics and government today, in the history of man there’s never been a legal order that has provided the same level of stability, prosperity and popular legitimacy as the US Constitution.

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New Volume! “The Professions and Civic Life” arriving June 15, 2016

This volume on the professions and civic life undertakes a unique and timely examination of 12 individual professions to see how each affects the character of American citizenship and the civic culture of the nation through their practices and ethos. What is distinctive — or not — about the specific profession as it came to be practiced in the United States? Given the specialized knowledge, training, and sometimes licensing of a profession, what do the professions perceive to be their role in promoting the larger common good? How can we bring professionals’ expert knowledge to bear on social problems in an open and deliberative way? Is the ethic of a particular profession as it understands itself today at odds with the American conception of self-government and a healthy civic life?

Through analysis of these questions, the chapters present a rich treatment of how the 12 long-standing professions of political science, teaching, the law, the military, economics, medicine, journalism, literature, science, architecture, music, and history help support and challenge the general public’s civic behavior in general and their attachment to the American regime in particular.

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Serving After Serving: Veterans in State Public Office

Are veterans in public office a vanishing breed? The composition of the state legislatures doesn’t tell such a story. Actually, it tells an entirely new story, since no one up to this point appears ever to have compiled the data on the military service backgrounds of state-level legislators.

Combing through publicly available sources regarding every member of every state legislature, the AEI Program on American Citizenship has gathered such information for the first time, to form a more comprehensive picture of the veteran composition of public office holders in 2016.

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AEI Event: The Court: Power, Policy, and Self-government

Judges must navigate between interpreting the Constitution and statutes, working within existing precedents and applying both bodies of law to particular cases. Striking this balance has policy consequences that render the Supreme Court a political branch in the public’s mind. As the heated debate over Justice Antonin Scalia’s replacement demonstrates, the Court is no longer seen as the “least dangerous branch.”

How should justices address this tension in their decisions and opinions? Can the Court return to a narrower vision of its judicial duty? If not, what judicial philosophy best fits the reality of the Court’s role in a self-governing republic?

Join AEI for a timely discussion between Judge Brett Kavanaugh and The Wall Street Journal’s Paul Gigot, followed by an expert panel on the Court’s challenges in carrying out its duty to “say what the law is.”

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Reconsidering Women, the Draft, and the Duties of Citizenship Series

In principle, we aren’t merely flattering contemporary prejudices when we invoke the long history of republican women, from Lucrecia to Portia to modern Americans, to show that civic-minded, patriotic women strengthen self-governing nations. As long as our armed forces have existed, women have taken it upon themselves to serve honorably in or alongside of them, hiding their gender, seeing combat “unofficially,” or serving in support roles that have often involved bullets and capture by the enemy.

It’s heartening to think of women’s demonstrated potential both in their willingness to serve their country and their ability to do so. Should the occasion arise in future, we should hope for and celebrate women and men rising to the challenge. But neither the presidential candidates nor the nation is truly debating whether women can be called upon to serve their country. We are also not, actually, debating “The Draft”— military conscription.

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The Problem with Presidents and Heroes

The escalation of this Frank Underwoodization of government in general and the presidency in particular seems inevitable. But a study of our great statesmen-presidents of old shows with what tools they confronted the immense difficulties of their day and what was the measure of their success. That they were successful is born out by the endurance of the American project, one feature of which is the once every four-year ritual of electing a president. If that does not inspire confidence about the health of our democratic society, the continued observance of Washington’s Birthday at least ought to encourage us that it is not yet so fragile as the snow crusts of February.

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The Party of Trump: The Case for Principled Partisanship

As Edmund Burke, the founding father of the modern idea of party politics, understood, partisanship in government is inevitable. Without principled parties, however, men were bound to take advantage of that partisanship by appealing to the fears and hopes of citizens and doing so without offering up policies that might provide sound and stable government.

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One Person, One Vote: It’s more complicated than it sounds

Evenwell v. Abbott has the substance to be among the most important voting cases of the past 60 years—at its heart, it reaches beyond legalistic or judicial considerations of apportionment processes to pose the question to American society about how a free government acknowledges the political equality of its citizens.

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After Johnny’s Marched Home: Military Veterans and the Shaping of American Politics

With every major military conflict involving Americans the nation has reevaluated its relationship with the veteran, partly in consequence of the demands each specific war required it to lay upon the soldier in the first place. The changing face of industrialized society and the technologies of war as well as political thought have influenced each generation’s consensus…How veterans themselves have responded to their new status as citizen-soldiers turned soldier-citizens has traditionally reflected national attitudes. Beyond any affects of combat, the equation of individual civic duty and civic virtue and the nation’s reciprocal duty and virtue has influenced—although not dictated—veterans’ social and political behavior. Aside from the significant role citizen-soldiers fill in defending the country, citizen-veterans have played a defining role in the shaping of American political culture that has not been widely appreciated. The combined circumstances of the polarized electorate and the estimated already 2.6 million soldiers of the post-9/11 wars who have returned to civilian status recently—in private ceremonies on guarded bases far away from the public eye—highlight the value of a modest conceptual review of veterans and politics in America.

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2015 Walter Berns Constitution Day Lecture: The Magna Carta, Due Process, and Administrative Power

Magna Carta is important, argued Philip Hamburger of Columbia Law School recently at AEI, not so much for what it says, but for what it reveals about the enduring danger of absolute power and the repeated constitutional responses in common law countries of its substitute, rule under law. Not only does Magna Carta allow us to trace the ebb and flow of absolute power and the law, but it also allows a proper understanding of due process of law.

Where today due process is most often thought of as a procedural protection for happenings in court, Hamburger invoked Magna Carta to show that due process is meant to also apply to outside the court, specifically administrative tribunals within administrative agencies. Tracing the development of due process from Magna Carta’s Article 39 through a series of 14th century statutes to the Fifth Amendment in the US Constitution, Hamburger argued that the Constitution’s due process clause was designed primarily to be an obstacle to administrative or extralegal adjudication. The prevalence of administrative power today, he concluded, denotes a practical evasion of due process and an evisceration of the entire concept, and that poses the gravest threat to the Bill of Rights.

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