nettime's_netizenry on Thu, 2 Feb 2017 16:34:03 +0100 (CET)

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<nettime> will someone digest [x4: keenan, s0metim3s, miller, byfield]

Re: <nettime> will someone explain

     Thomas Keenan <>
     s0metim3s <>
     Eric Miller <>
     "t byfield" <>

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From: Thomas Keenan <>
Date: Thu, 2 Feb 2017 08:59:03 -0500
Subject: Re: <nettime> will someone explain

   Very short version, from a non-lawyer. The Congress makes the laws, the
   executive executes them, and the judiciary reviews them. Of course,
   much law can be made in a de facto way through rules, regulations,
   (non-)enforcement, administration, etc. The executive order, legally
   speaking, is a way for the President to execute existing law. But any
   EO can be overturned or nullified by Congress, or invalidated by the
   courts. Obama used EOs to get around an unfriendly Congress, and did
   not always succeed. Trump can use EOs to move more quickly, and seems
   confident that this Congress won't block them. We'll see about the

   This is a good summary:

   On Thu, Feb 2, 2017 at 4:02 AM, David Garcia <> wrote:

     Will one of the American nettimers take a few moments to explain
     something to a constitutional ignoramous such as myself.

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Subject: Re: <nettime> will someone explain
From: s0metim3s <>
Date: Fri, 3 Feb 2017 01:09:56 +1100

The Republicans have majorities in both Congress and Senate. Many
Democrats are voting for Trump's nominations. Federal judges have issued
limited rulings against the travel ban, for instance - but many border
officials are ignoring those rulings. US Marshalls are supposed to
enforce judicial rulings but they have not - and in any case Trump just
sacked the Attorney-General for refusing to legitimate the travel ban.
Some or all of the judicial rulings against Executive Orders will end up
going to the Supreme Court, which is unlikely to strike them down
(especially if Girsuch is confirmed). The only remaining bulwark (at the
lower scale) is state governors & mayors who are declaring sanctuary
cities, but that is uneven, and Trump is threatening withdrawal of funds
for social services. Those are all the institutional checks and

But if it were true that power is reducible to these formal mechanisms,
then Trump would not be President. 


On 2 Feb 2017, at 8:02 PM, David Garcia <> wrote:

Will one of the American nettimers take a few moments to explain
something to a constitutional ignoramous such as myself.

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Subject: Re: <nettime> will someone explain
From: Eric Miller <>
Date: Thu, 2 Feb 2017 06:40:35 -0800

Finally, all those years of Schoolhouse Rock pay off in an international forum.

Congress was designed to be the hub of the process by passing and
repealing laws.  What wasn't necessarily envisioned in the
Constitution was the possibility of one party realizing that it could
benefit politically from _not_ using that power.  So recent Congresses
have been passing the fewest pieces of legislation in decades.

The courts can also counter executive actions.  Whether they will or not
is another story.  There's a lot of deference to Congress and
the executive built into judicial processes and customs.  You'll
see the courts step in when there's a constitutional question
involved, or resolving ambiguity, but otherwise they tend to let the
other branches take the lead.

So yes, Congress and the courts both have power to balance the
executive.  But for their own reasons they may not do so on any given

But one other dimension to this: Trump can issue whatever executive
orders he likes, but whether they get implemented as he envisions is
another story.  The federal government has a _lot_ of rules that cannot
be discarded by executive order.  And Trump will eventually learn that a
lot of career civil service staff (underneath the political appointees)
who may disagree with the more extreme executive orders cannot be fired
and instead have to be convinced to carry out instructions.  

Honestly, though, I have no idea how all of this is going to play out
eventually.  But for the sake of conversation, I'll hazard a guess. The
American system in recent decades has proven remarkably stable; perhaps
too stable, as progress gets stymied by the status quo.  And by "system"
I'm including all the parties outside government that have a hand in
governance; NGOs, lobbyists, advocacy groups, nonprofits, businesses,
healthcare organizations, and so on.  They've demonstrated that they can
use inertia to their advantage when dealing with reformers.  Trump, if
viewed as just another extreme reformer, is going up against a powerful
array of interests inside and outside government.  When those interests
get threatened and use the levers they have at their disposal, Trump's
lack of interest and ability to fight on those fronts will be a huge
liability.  So Trump and Bannon may want to blow up the system but that
may not be realistically possible.  It might be like throwing a stick of
dynamite into water; might make him feel better when there's a big
splash, but the water is still there afterwards.


Eric Miller
O: 503 488 5951 / M: 503 780 1847 / SQM.IO

> On Feb 2, 2017, at 1:02 AM, David Garcia <> wrote:
> Will one of the American nettimers take a few moments to explain
> something to a constitutional ignoramous such as myself.

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From: "t byfield" <>
Subject: Re: <nettime> will someone explain
Date: Thu, 02 Feb 2017 09:46:45 -0500

Here's an idealistic overview:

The Constitution is a continuous fact of US history, but fetishizing it 
-- magical thinking that it "enshrines" or "guarantees" anything -- is 
mostly recent. Different constituencies indulge in it in different ways 
and for different reasons, most of which will sound ritualistically 
familiar: "states' rights," "gun rights," "appeal to the Supreme Court," 

At the federal level, Congress passes legislation that broadly states 
what the government and private parties can and can't do. Specific 
interpretations and applications are left to the affected parties, one 
of which is the executive branch. The president wears several hats, one 
of which is that s/he's head of the executive branch, and as such has 
wide latitude to issue orders and directives. These documents provide 
guidance at a higher level (the "vision thing") and lower level 
(detailed application) than most legislation. The cabinet (the rough 
equivalent of ministries: Defense, State, Interior, Commerce, Education, 
etc) hands them down through their respective administrations, where 
they're further elaborated, for example, through administrative 
rule-making. When there are conflicts, they're resolved through further 
legislation, administrative processes, or (if someone has standing to 
sue) the courts. So basically the president can do whatever he wants, 
and if someone doesn't like it s/he can challenge it. So who would?

The legislative branch: It has a variety of powers at its disposal, but 
isn't using them. The GOP has its issues with [[[Benny Hilll]]], but on 
balance for now it sees more benefit from getting a piece of the action 
than from challenging it. The Dem leadership mostly represents the same 
factions that were aligned behind Clinton, so they're committed to 
continuity rather than rupture.

The executive branch: [[[Benny Hilll]]] quickly purged the political 
(i.e., appointed) levels of several branches, and he made it clear that 
he won't tolerate challenges -- for example, Sally Q Yates, a US Deputy 
Attorney General appointed by Obama, was fired and accused of 

The judicial branch: The courts can say whatever they want, but they 
rely on the executive -- and we've seen intimations of how that pans out 
in the conflicts over detainees at airports: lawyers arguing with 
enforcement. These cases can filter up through the judiciary slowly or, 
for no reasons that make sense, quickly -- like huge protests behooving 
the judiciary to move quickly.

Other levels of government (state, municipal, etc): That's what all the 
fights about "sanctuary" are about, but the bottom line is that the US 
economy at every level is built around federal funding, and the 
president has (or at least can arrogate) the power to cut that off. 
We've already seen some of that (noise about defunding arts and 
humanities), and we'll see much more of it -- very blunt forms of it.

Private parties: see above.

"Checks and balances' assume that all of the parties involved are 
good-faith actors. No political system can resist people who act in bad 


On 2 Feb 2017, at 4:02, David Garcia wrote:

>For those of us outside of the long standing narrative put about is
>that the US constitution is so cunningly constructed with -checks and
>balences- so as to ensure that the President can never be a

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