Taxes for thee but not for me

David Axelrod was on Fox News Sunday this past weekend and was asked about President Obama's taxes which were released this past week. I found the exchange over the Obamas' taxes very interesting and telling:

(CHRIS) WALLACE: It turns out that he [President Obama] paid a tax rate of 20.5 percent, which is a lot less than the 30 percent he talks about and yes, it is lower than what his secretary pays.

AXELROD: It is.

WALLACE: And the president has -- if I may, David, the question I have for you is: if the president feels so strongly about tax fairness, is he going to he contribute money to the Treasury and they have a special department just for this, to help with the deficit?

AXELROD: Listen, Chris, first of all, the reason that his tax rate was so low was in part because 22 percent of his income was donated to charity, mostly to these Fisher Houses around veteran hospitals. So --

At this point Wallace interrupted Axelrod to point out that Mitt Romney also contributes to charity. Axelrod agreed and then began to point out the differences between President Obama's tax proposal/plan and Governor Romney's. Wallace eventually returned to the original question:

WALLACE: I take it that he's [President Obama] not going to contribute money to the Treasury to help with the deficit.

AXELROD: Listen, well, that's not the way we operate our tax system, OK? We don't run bake sales. It's not about volunteerism. We all kick in according to the system. And the system allows that -- look, the fact that Mitt Romney pays 14 percent on $20 million income is not the issue. The issue is that the system permits it and he would perpetuate that and he would enhance it.

On the one hand, let me say, "good on Obama". If, as libertarians, we believe that taxes are theft, then we ought to commend any attempt to avoid paying them just as we would any defense against other criminal actions. On the other hand, it seems disingenuous of the president to call for the rich (millionaires, specifically) to pay 30% or more of their income in taxes while conspicuously failing to do so himself because the "system" allows it. Perhaps, it would have been wise for Mr. Axelrod to raise the point that the Obamas did not earn over a million dollars last year, and therefore, would not be subject to the president's proposal(s). But he didn't. In fact, he went on to defend the president's use of the system to lower his tax rate -- he's just following the rules. Nevermind that those rules permit him to contribute more.

There are a number of points raised by this story, all of which deserve a post of their own, but I don't have the time or energy to delve into each so deeply. Here they are, briefly and in no particular order:

• Taxes are not voluntary and are collected at the end of a government gun.
  
  Axelrod admits as much when he says [emphasis mine], "that's not the way we operate our tax system, OK? We don't run bake sales. It's not about volunteerism. We all kick in according to the system." The only issue I take with his description is the use of the phrase "kick in". Stop enforcing tax laws; only then can we truly know how "voluntary" taxes really are.


• No person should ever pay more than the "system" requires, the criminality of the system itself, notwithstanding.
  
  Obama's actions and Axelrod's defense of them (see the quote under the previous point) bear this out.


• It's hypocritical to call out Mitt Romney for paying "only" 15% of his income in taxes.
  
  Governor Romney lives under the same tax system that President Obama does. Why is it okay for Obama to "kick in according the system" while Romney is vilified for doing exactly the same thing?


• President Obama, himself, doesn't believe in his own tax proposal(s).
  
  As the Fox News story points out, Obama paid less in taxes, percentage-wise, than did his secretary. If he believes that a system in which this kind of "inequity" is allowed is "unfair", why wait for the system to change? Nothing is preventing him from correcting this particular injustice right now. Thus, we can infer that correcting this problem is less important to him than keeping his own money.


• Why are taxes proportional to income but not other things, too?
  
  If taxes are what we pay for government goods and services, why don't rich people pay more for everyday goods and services like groceries and carwashes?


• War is a racket.
  
  I note that the overwhelming majority of the Obamas' donations went to the Fisher House Foundation. It's been funny (interesting, not ha-ha) for me to see people on the political right who hate Obama with a passion turn around and lavish praise on him for donating money to this organization. Their love of war and support of those who fight it seemingly knows no bounds.
  
  The politics obscures the absurdity of it all. Why does the government pay for war and the private sector pay for cleaning up the messes left by it?
  

Is the state a criminal conspiracy?

Murray Rothbard famously called the state "a bandit gang writ large", or as it is more commonly rephrased, "a gang of thieves writ large". I have to admit that the first time I read this I was quite taken aback. I think I was first exposed to this idea early on after becoming a libertarian, and I wrote it off, in large part, to fiery rhetoric intended to get readers' attentions. Fortunately, it didn't scare me off, and as I read more and more, I came to understand the logic behind the assertion. As it usually goes for me, I have trouble seeing the forest for the trees right away.

This assertion -- government as a criminal gang -- often accompanies, or occurs during, a discussion of taxes. In fact, I had a discussion with someone just this past weekend during which I said that taxes were theft because I had never consented to them. Invariably, this leads (as it did in this case) into discussion about helping the poor, benefits of services paid for by tax revenue, and "civic duty" and what it means to be a "good citizen". The argument goes: taxes are fine and good as long as we put them to "good" use; to be against taxes is to be against the good that taxes provide. Don't get me wrong. I believe in helping the poor; I drive my car on roads; and I'm all for peaceful cooperation and being a productive member of society. I simply differ from the bulk of the population on how these ends should be achieved.

Since I'm likely in agreement with most about what can be achieved with the proper use of tax revenue (assuming the "proper" use could really be known), let's back up a bit and look at taxes themselves. A tax is simply a financial charge imposed by a state (or functionally equivalent "legal" entity), the payment of which is enforced under penalty of law. This is a somewhat euphemistic definition, though. A tax "is not a voluntary payment or donation, but an enforced contribution, exacted pursuant to legislative authority" according to Black's Law Dictionary. With that definition in mind, we begin to see now the shape of the criminal gang metaphor. The state imposes a financial charge on its subjects and enforces the payment of said charge with force. In less civilized societies, failure to pay may be immediately met with the state's armed enforcers stopping by to collect the charges. In more civilized societies, one might first be given a trial in a state-run court, after which failure to pay will be met by the state's armed enforcers. The result is always the same, though. Taxes are ultimately, always collected by force be it through property confiscation or (the threat of) incarceration. (A discussion of the equality of the threat and actual use of force is omitted.)

When a criminal gang takes money by force, it is theft. When the state does it, it is taxation. The difference is curious, to say the least. Looking back at Black's definition of taxation, note that taxes are "exacted pursuant to legislative authority". So, despite all outward appearances, taking money from someone against their will is not always a crime; the legality of the act depends on who is doing the taking. The state is empowered by "legislative authority" while the "criminal" gang has no such authority. So, let's step further back and examine from where the state derives this authority.

Imagine, for a second, a person living alone on an island. For all intents and purposes, this person owns the island and everything on it, if for no other reason than there is no one else contending for ownership. Now let's add a second person into the mix. There are myriad ways for the two to decide how to divide up the land and coexist, but they all begin with the question of the proper ownership of each person's body. The simplest, most common sense solution to this question is that each person is the exclusive owner of his or her body. After all, it doesn't make sense for each person to own the other's body but not his or her own. Nor does it make any sense for the two to own both bodies jointly. These latter solutions would only produce conflict as the two would never be able to agree on how best to use their bodies. Indeed, the only viable solution is for each person to be the exclusive owner of his or her own body.

If we accept this premise, then it follows that the initiation of force/violence against another (without this other's consent) is never justified as it constitutes a violation of the person's ownership of his or her body and sole discretion as to how that body should be used. It further follows that if a person does not have the authority to initiate violence against another, he or she cannot contract this authority out to a third party, namely, the state. That is, one cannot grant power or authority to another that one does not have in the first place. Thus, we arrive at the conclusion that the initiation of force/violence by the state is never justified, and since all state actions are predicated on the use of force, we must further conclude that all state actions are without proper authority, at a minimum, with respect to those who do not consent to violence against them.

By now, it should be clear that there is little difference between the actions of a "criminal gang" and the state in terms of their authority to commit those actions. The only place where the two may differ is in the fact that, occasionally, the state may use its ill-gotten gains to help the public in the form of welfare, roads, etc. But the state is no Robin Hood. It steals from the rich, the middle class, and the poor, alike. Not only that, but it pays its bureaucrats first and then uses what's left to pay for these services. So, even when the state does good, the taxpayers are forced to overpay for these services since they can be provided by and found in the private sector -- often the state ends up contracting with private sector businesses -- with less bureaucracy and the added benefit of market competition to keep prices down. We must also note that money left, after paying bureaucrats, is further reduced by the state's spending on warfare and all that that entails. Taxpayers really aren't getting a good bang, no pun intended, for their buck.

All of this talk about how the state spends money, though, is simply a giant misdirection intended to confuse the issue. After all, we don't tolerate crime when the proceeds are used for ostensibly "good" purposes. Nor would we tolerate it if the criminal offered to give us a partial say -- a vote if you will -- in how he or she might use the proceeds. The criminal act must be addressed first and foremost, and this should be no different when it applies to the state. When there are different rules for the state and for the subject/citizen, what we have is most definitely not the rule of law.

The state is indeed criminal in its actions; the next step is to establish conspiracy. Strictly speaking, a conspiracy is "an agreement by two or more persons to commit a crime, fraud,or other wrongful act". Under this definition, a conviction of the state is all but certain. This isn't exactly what I have in mind, when I say conspiracy, however. Conspiracy, in reference to the state, implies to me some larger goal: not only to keep power but to further and further enhance and centralize it. It also implies that the state is always working toward this goal as an end unto itself. Now, I won't argue that this isn't what happens, in practice; however, I have a hard time believing that the state, at all levels, is always and everywhere conspiring toward this end for one simple reason. Again, Murray Rothbard:

[I]n a profound sense, no social system, whether anarchist or statist, can work at all unless most people are "good" in the sense that they are not all hell-bent upon assaulting and robbing their neighbors. If everyone were so disposed, no amount of protection, whether state or private, could succeed in staving off chaos.

If Mr. Rothbard is correct, which I believe him to be, that most people are "good", then we must conclude that either a significant number of people working for the state are "good" or that by some sort of social malfunction the state exclusively employs the "bad" people in society. There is certainly a good argument to be made for the latter possibility, but I'm a believer in the former.

If I am correct in that belief, then there only remains the question of why the state continues to exist. I believe there are two, related reasons: 1.) people do not understand the nature of the state, and 2.) people believe that they are not responsible for the actions of the state. I've addressed the former in this post; I'll try to address the latter in the next.

When does it end

Right now, I've got 18 tabs open on my Internet browser (I use Firefox in case you're interested). This is a real rarity for me. I never have more than 3, possibly 4, open for any length of time. One is the window in which I'm typing this entry, one is iGoogle, one is Facebook, one is a news story about Timothy Geithner "extending" the deadline by which the U.S. Congress "must" raise the debt ceiling, and the other 13 are news stories devoted to Osama bin Laden. I first found out about bin Laden's death when my wife received a text message from her sister who had apparently been watching the news. I received the same text message a few minutes later. (Good work AT&T, delivering text messages to two phones 5 feet away from each other 5 minutes apart.) I have to admit that my first reaction was: so what?

It was immediately obvious to me that no troops would be coming home. No civil liberties would be restored. We would all continue to be forced to take our shoes off and be molested at the airport. I even commented sarcastically to a friend of mine: "Awesome, so the war on terror is over and we all get our liberties back?" In reality it would seem that just the opposite has turned out to be true. Secretary of State Clinton was quick to "reassure" the public that "battle to stop al-Qaeda and its syndicate of terror will not end with the death of Osama bin Laden." Moreover, major government officials and every major news source and pundit has told us that we are in even more danger now because of the possibility of retaliatory attacks. The NBA took the extra step of mandating metal detectors at playoff games. So, killing bin Laden made us less safe? If that's the case, then logic would dictate that he shouldn't have been killed.

After confirming my sister-in-law's text message, we changed the channel back to our "regularly scheduled programming". Before going to bed, we turned again to the news to see what, if any, additional information might be available. We were treated to clip after clip of video showing people dancing in the streets in places like Times Square and the White House. I was disgusted to see the very same people who denounced people who danced in the streets while burning American flags after the death of one of our soldiers acting in the exact same manner. The news feed on my Facebook account exploded that evening with people cheering on our government and our military for summarily executing another human being.

In dying, Osama bin Laden showed us that we're really not so different from the very people that we deride as war-mongers and who we believe are incapable of a peaceful existence.

He taught this country the consequences of operating an open, free society. Literally, he showed Americans the price of their liberty, how many of their principles they'd be willing to cast aside, and how quickly they would do it.

In other words, bin Laden showed American exceptionalists how unexceptionally they behave when faced with horrors most older nations have endured.

The writer is referring to our weak-kneed acquiescence to government intrusion on liberty here in the U.S., our paranoia at the thought that a terrorist is hiding around every corner, and our rampant xenophobia. His point is equally applicable to our reaction to the news of bin Laden's death, though. The overwhelming reaction, that of proclaiming America's strength and celebrating our actions in the streets, was no different than that of the people you see in other parts of the world dancing upon hearing the news of the killing of American soldiers.

I woke up the next morning to hear people on the radio explaining that it's different when American's celebrate. You see, Osama bin Laden killed innocent civilians on September 11th, 2001. Therefore he is evil, and not only was his killing justified but morally right. On the contrary, our soldiers are overseas doing good work, and when they are killed, that is wrong. Never mind that the "rebels" in Afghanistan see us as an invading and occupying force; never mind that America regularly kills civilians as part of its eternal war on terror; never mind that America locks up and tortures "militants", denying them any sort of access to a justice system to sort out their guilt or innocence; never mind that America has "peacefully" killed hundreds of thousands, if not millions, via sanctions of various kinds. Everyone wants to point to 9/11 as if bin Laden started this fight and America's hands are clean, but it's been going on for much, much longer. All of those American actions I just cited have been and continue to be used as justifications for Al Qaeda's actions. And regardless of how it started, it is only escalating.

But, there are likely those that remain unconvinced that America has any responsibility for the fight in which it now finds itself, but, nevertheless, it must see it through. That is, they believe that "we didn't start the fight, but we're going to finish it." So then, when does it end? If one truly believes that we are going to finish it, then the answer would be "when we've killed or captured all of the terrorists". As I pointed out, though, capturing terrorists and refusing to bring them to justice -- for those that have forgotten, justice means a trial in a court of law, not vigilante killings or indefinite detention -- or killing them, especially when unarmed, tends to drive more people into the fight. This so-called solution actually perpetuates the problem. Yet, it seems to be the solution America is intent on carrying out.

Attorney General Eric Holder sat in front of the U.S. Senate and had this to say about the whole affair:

The operation in which Osama bin Laden was killed was lawful. He was the head of al-Qaida, an organization that had conducted the attacks of September 11th. He admitted his involvement and he indicated that he would not be taken alive. The operation against bin Laden was justified as an act of national self defense.

Ah, national defense. Of course. I wish Mr. Holder would have gone on to explain exactly what our military was defending when it shot and killed an unarmed man. Apparently, bin Laden resisted, but I find it hard to believe that a team of highly trained and very well armed men were unable to subdue a frail, old man in regular need of dialysis, without killing him. Jeffrey Toobin explains that the U.S. had to kill bin Laden because messy details like whether bin Laden would be given a civilian or military trial, who would defend him, and where his trial would be held are just too difficult for us to sort out. That's right; when the government has a "difficult" problem on it's hands, killing people is the only way out. I'm not sure why that same principle didn't apply to Saddam Hussein or Khalid Sheik Mohammed.

But let me return to the idea of national defense brought up by Mr. Holder. Exactly what are we defending with our actions overseas? The knee-jerk answer is always "freedom". It's hard for me to believe that anyone can still respond this way with a straight face; I'm chuckling to myself a bit just writing this. Even if it were true, though, what will be left should we ever finish fighting this war on terror? We've abandoned the idea of innocent until proven guilty. We've abandoned the idea that people are entitled to a trial before being assessed any sort of punishment (including death). We've abandoned the idea that our government is subject to the same laws as the people. If the war on terror, by some miracle, ever does come to an end, we will find that we were busy throwing away our freedom, all the while claiming that our military was overseas fighting for it.

The truth is that we're not fighting for freedom. We're fighting for empire. We're fighting to bring the rest of the world under our control. Osama bin Laden understood this all too well. "We, alongside the mujaheddin, bled Russia for 10 years, until it went bankrupt," he explained.

The campaign taught bin Laden a lot. For one thing, superpowers fall because their economies crumble, not because they’re beaten on the battlefield. For another, superpowers are so allergic to losing that they’ll bankrupt themselves trying to conquer a mass of rocks and sand. This was bin Laden’s plan for the United States, too.

And that returns me to my original question: when does it end? I can't say for sure, but my money's on "soon". As for the "how" question, I'm not so sure that we're not about to follow in the Soviet Union's footsteps and those of every other major empire throughout history. Those who fail to learn from history are doomed to repeat it.

When will we learn? Or, will we ever learn?

It should be abundantly clear to everyone now that the U.S. involvement in Libya is not limited to the creation and enforcement of a no-fly zone. "Adm. James Stavridis admitted that, while allied forces were not yet considering the deployment of troops on the ground in Libya, it was a possibility." Furthermore, the Washington Post reports that the U.S. is using planes to bomb Gaddafi's ground forces focusing their effort on "halting advances by government ground forces in and around key coastal cities". It would seem that the U.S., while not directly fighting Gaddafi, is in fact allied with his enemies, even going so far as to consider arming them despite reports that the rebels are comprised, at least in part, of members of Al Qaeda.

I'm reminded of this clip from The Daily Show a few years back:



As Glenn Greenwald points out this morning:

The real question is the wisdom of this escalated involvement. How many times do we have to arm one side of a civil war -- only for that side to then become our Enemy five or ten or fifteen years later -- before we learn not to do that any more? I wrote earlier on Twitter, ironically, that one good outcome from arming the Libyan rebels is that it will lay the foundation for our new war 10 years from now -- when Commander-in-Chief George Prescott Bush or Chelsea Clinton announce that we must wage war to stop the Libyan faction from threatening its neighbors and supporting Terrorism (with the weapons we provided them back in 2011). One of the most reliable ways that the posture of Endless War has been sustained is by our flooding the world with our weapons, only to then identify various recipients as our new (well-armed) enemy. Whether this is a feature or a bug, it is a very destructive outcome of our endless and always-escalating involvement in military conflicts around the world.

The demise of the rule of law

After the U.S. and other nations attacked Libya this past weekend, I posted a portion of one of Laurence Vance's recent blog posts as my Facebook status:

But to American soldiers I would say this: Is there any country you won’t attack? Is there any order you won’t obey? Without a declaration of war or even a congressional authorization, you are just acting as the president’s personal army.

Having broken the first rule of American politics—never criticize the military—I expected a swift and vitriolic reaction to those words. Much to my surprise, none ever materialized. However, I did have to further explain that the purpose of those words, as I understood them, was not necessarily to criticize the military. While the question/statement does call into question the military oaths of enlistment/office, it was intended primarily to draw attention to the President's having sent troops to war without congressional authorization.

This, to me, was a clear violation of Article 1, Section 8 of the U.S Constitution which grants the Congress the power to declare war. It turns out that I wasn't alone in thinking that. Presidential hopeful Barack Obama, in 2007, when asked about the President's authority to send troops into action without congressional authorization said the following:

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

Since U.S. military involvement in Libya began, the President, via his staff, has gone to great lengths to assure lawmakers and the public that the U.S. is not at war. No less than Defense Secretary Robert Gates seems to disagree, and while he stopped short of using the phrase "act of war", others have not been so reserved in their descriptions of the actions. In fact, the President himself, who now believes he does not need congressional authorization, still took the step of notifying the Congress of military action, "consistent with the War Powers Resolution", anyway. (Wikipedia explains that the use of "consistent" instead of "pursuant" is because Presidents are loathe to recognize limits on their ability to wage war. The word "pursuant" implies that the President recognizes Congress's limit on his office. "Consistent" implies only that the President is following the law, not that he recognizes its legitimacy.)

It's curious, to say the least, that the President felt compelled to notify the Congress while, at the same time, arguing the U.S. isn't at war. Nevertheless, it would seem that the President has placed himself (back) within the law... such as it is. The question of whether or not the President has the power to send the military into action without congressional authorization is still ambiguous, at best, though. When exactly can the President wage war? According to James Madison's notes taken during the Constitutional Convention, the framers intended the President to have the authority to use the military without congressional authorization only in one specific case. During the convention, the legislative branch's power to "make" war was changed to "declare" war for the purpose of "leaving to the Executive the power to repel sudden attacks". However, since Libya did not attack the U.S., nor was it even threatening to do so, it would seem that the President's action is illegal, even considering his notification to Congress.

So, what about the U.N. Charter to which the U.S. is a signatory? On March 17th, 2011, the Security Council adopted Resolution 1973 authorizing a no-fly zone over Libya, and Chapter 7 of the charter allows the Security Council to act with force to enforce its resolutions. Thus, the President claims he is "acting under a mandate issued by the United Nations Security Council" which is binding on the U.S. presumably under Article 6, Paragraph 2 of the U.S. Constitution which gives treaties made by the federal government the force of law. There are two problems with this claim. First, Chapter 1, Article 2, Paragraph 7, of the U.N. Charter specifically prohibits U.N. involvement in "matters which are essentially within the domestic jurisdiction of any state", e.g. civil wars. (Some might argue that the text that follows, "this principle shall not prejudice the application of enforcement measures under Chapter VII" allows for the actions now taking place. I disagree for two reasons: 1) not prejudicing the application of enforcement measures is not the same as allowing enforcement measures in violation of the preceding "principle", and 2) if my first reason is incorrect, then the second half of the paragraph contradicts, essentially nullifying, the first which makes no sense since the section would basically then read "the U.N. has no jurisdiction in domestic affairs unless it does".) The second problem with the President's claim is that Article 6, Paragraph 2 of the U.S. Constitution declares that the Constitution is the supreme authority when it and a treaty made pursuant to it are in conflict. That is, the President's authority to use the U.S. military cannot be increased by any treaty beyond what the Constitution allows.

It should be clear now why the President is working so hard to portray the U.S. involvement in Libya as anything but a war. Based on notes taken during the Constitutional Convention, it is plain that the framers never intended for the executive branch of the U.S. government to have unilateral authority to send the military into action except when timely consultation with Congress was infeasible due to a sudden, unforeseen attack. Since many (but not President Obama as evidenced by his own words in 2007) have forgotten this intent of the framers, President Obama is focusing on this (not) being a war in order to deflect any accusations of usurpation of Congress's authority. Much like the use of "consistent" vs. "pursuant", the meaning of "torture" vs. "enhanced interrogation", and the meaning of "is", the debate will revolve around what exactly constitutes "war". Ultimately government lawyers (the Supreme Court, if the debate ever reaches that level) will decide what "war" is. No longer is the U.S. government subject to the rule of law.

The rule of law is, in part, the idea that no person is above the law. This is in contrast to "ancient" times when the king or ruler of a nation or people was him or herself the law and, in many cases, above or not subject to it. When this nation was founded, Thomas Jefferson wrote in the Declaration of Independence that "all men are created equal", and it is this idea that gives rise to the notion that all people, therefore, should be subject to the same laws. Other writers at the time also argued for this idea. Thomas Paine, in Common Sense, wrote that "in America, the law is king" in reference/contrast to earlier ideas that the king was the law. The Massachusetts Constitution also contains this ideal, using the phrase "government of laws and not of men".

In order for the law to be king, however, it must "possess the characteristics of [...] certainty". And this is where the problem lies. The law is (no longer) certain. Can the government listen to your phone calls without a warrant? Can it see you naked when you try to board an airplane? Can it abridge your right to free association as it is attempting in Wisconsin, among other places? Can it force you to buy healthcare? Can it imprison you indefinitely without trial? Not only are existing laws not certain, but new ones are constantly being added. It has been estimated that "the average busy professional commits three felonies every day", and the government, via its police forces, decides, on its own, which crimes to prosecute and which to ignore. And in cases where the law is unclear, a government lawyer will twist the words of the law to suit his or her purposes, or the case will ultimately end up in front of a judge, employed by the government.

In this way, we are no longer a nation of laws, but of men. The government decides what the law is and when to enforce it. In the case of the federal government, it has become the arbiter of its own power, in contrast to the tenth amendment to the U.S. Constitution. There used to be a fairly well organized and loud opposition to this violation of the rule of law. During the (George W.) Bush administration, the political left was up in arms about the President's usurpation of power. It was constantly demonstrating against his "illegal" war in Iraq. It wanted him to pull troops out of Afghanistan. Now that a Democrat is in the White House, though, opposition to those wars, as well as the current one in Libya, has all but disappeared.

While small government types and libertarians (note the little 'L') continue to oppose war no matter who is in office, it would seem that they constitute a rather small portion of the population. Eric Posner, writing for the Volokh Conspiracy, agrees arguing that "[t]here is no constituency for reforming the executive". There do exist constituencies for limiting executive power when the "other team" is in power, but since the team occupying the White House changes rather frequently, each team ultimately gets to exercise the very powers that they railed against when they were out of power. Thus, no one is really interested in reforming the executive branch, itself.

Posner continues:

arguing that we should return to the original Madisonian design is tilting at windmills [...] these arguments are on the fringes—not because they violate the rules of logic but because they have no constituency—and that is where the Madisonian argument belongs as well.

[...] Arguing that our current system of government is unconstitutional is like arguing that the original Constitution was unconstitutional because it violated the amendment procedures of the Articles of Confederation. It is a logical argument that makes no difference in the real world because ultimately what matters is popular sentiment [...].

I can't tell you how dismaying it was for me to hear, correct as it may be, that arguments for a return or adherence to Madisonian design, that the people should be ruled by laws and not men, are on the fringe, but there you have it. The rule of law is dead.