Jason Willick’s thoughtful Dec. 22 column, “How Trump changed my mind on the filibuster,” ultimately rested on the assertion that an aggressive legislature is preferable to an aggressive executive.
James Madison explained in Federalist 48 why this view was understandable but wrong: “They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.”
This is still the case. An aggressive executive, for example, is almost always subject to judicial review for his domestic actions, which are measured not just against the Constitution but also their authorizing statutes. This is a lesson that Presidents Donald Trump and Joe Biden have learned the hard way. A frustrated president has few structural tools at his disposal to challenge hostile courts; all he can really do is comply or ignore them, the latter being a course no modern president has followed.
On the other hand, an unchecked legislature paints on a blank canvas. Its legislation is susceptible only to constitutional challenge, which is a very high bar. (Arguably, the Supreme Court has said only three statutes have violated the Commerce Clause over the past 30 years.) If Congress disagrees with how the courts are treating its laws, it has considerable coercive tools at its disposal to bring the courts in line, including defunding and restructuring. All of which can be done at simple majorities absent the filibuster. That power alone can be enough to defang the courts.
An unchecked legislature could therefore enact lasting, transformative change with a slim and fleeting majority. It’s good that Senate rules currently prevent that, even if it may result in an energetic executive.
Michael Fragoso, Washington
The writer is former chief counsel to Sen. Mitch McConnell (R-Kentucky).
Use assistant attorneys
Ian Ayres and Saikrishna Prakash in their Dec. 28 Sunday Opinion commentary, “Lawfare is a downward spiral. Here’s an escape hatch.,” said “Americans widely believe that prosecutions are increasingly being weaponized” by indictments against political opponents. So, the professors proposed creating a prosecutorial check. Their idea is: When a judge believes a prosecution appears politically motivated, they would be able to impanel a prosecutor jury composed of 20 randomly selected former U.S. attorneys, evenly divided between those nominated by Democratic and Republican presidents. The prosecution could proceed only if 14 out of 20 concluded the indictment was appropriate.
The professors’ fear that the weaponization of prosecutions gravely threatens the rule of law is well-justified and needs to be addressed. But it is naive to assume that president-appointed U.S. attorneys, who must be confirmed by the Senate, will always act in a nonpartisan fashion.
I think a better practice would be to select a 20-person panel of seasoned and highly qualified career assistant U.S. attorneys. They have civil service protection, have traditionally been hired as nonpartisans based on their qualifications and are sworn to uphold the U.S. Constitution and the rule of law. The panel could be selected by the Judicial Conference of the United States or one of its subcommittees, and those selected could serve three-year terms.
Lawrence Leiser, Oakton
The writer, a former assistant U.S. attorney for the Eastern District of Virginia, is founder and former president of the National Association of Assistant U.S. Attorneys.
Reverse Burma decision
Daniel Swift’s Dec. 28 Sunday Opinion commentary, “DHS is selling out Burma’s Christians and activists” is exactly correct about the Department of Homeland Security’s misconceptions about Burma’s alleged “progress in governance and stability.”
Contrary to DHS Secretary Kristi L. Noem’s claims, Burma is unreformed and unremittingly hostile to its democratic opposition and its Christian minority. It is exceedingly imprudent to terminate temporary protected status for its persecuted Christians and pro-democracy activists and to return them to prison in Burma. The Burmese army overturned its nascent democratic initiative about five years ago and returned to a brutal form of military warfare, abetted by China. This decision needs to be reversed with immediate effect.
Donald L. Horowitz, Durham, North Carolina
The writer is the James B. Duke professor of law and political science emeritus at Duke University.
Credit American Girl’s authors
I’m a school librarian, and I was disappointed that the Dec. 22 online Style article “American Girl dolls are turning 40, just like the millennials who loved them” did not give credit to the authors who wrote the early American Girl stories. Valerie Tripp wrote all the books in the Felicity, Josefina, Kit, Molly and Maryellen series and many of the books in the Samantha series. Authors Janet Beeler Shaw, Susan S. Adler, Connie Porter and Chryssa Atkinson also wrote many of the American Girl books between 1986 and 2001.
I have had the privilege of hearing Tripp speak on multiple occasions, including to the Catholic Librarian Association, to which I belong. It was fascinating to hear her talk about the extensive research and attention to detail that she put into her writing.
The American Girl dolls have a rich history, and their success was made possible by the authors who wrote the stories.
Carolyn Johnson, Adelphi
The writer is a librarian at Saint Francis International School in Silver Spring.
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