It all started during a golf outing on the plush courses of northern Maine (summer, I presume) among Bowdoin president Barry Mills and Thomas Klingenstein, Chairman of the Board of Directors of the Claremont Institute, that I guess Mills would like to have back. That day at the links, or rather Mills’ public recollection of it, launched a National Association of Scholars’ 363 page study of the curriculum and education offerings of Bowdoin College.
Archives for April 2013
Liberty for Britons: David Conway reviews this week in our Books section Gary Charter's Au Revoir, Europe. Conway notes Charter doesn't sugarcoat things: None of Britain’s future options are easy, argues Charter. Without declaring a preference for any one of them, he leaves it clear that, in his opinion, Britain must shortly leave the EU, but that there will be life after its doing so, albeit probably a slightly less prosperous one than it might otherwise have enjoyed had it remained a member. Arnold Kling contemplates a de-schooled world at Econ Lib. The real costs of college group-think: Judith Grossman, an attorney in…
The one and only George Will has a Washington Post column today on the one and only Chris DeMuth’s speech on “Executive Government and Bankrupt Government,” delivered at GMU’s Transatlantic Law Forum this past February. I’ve blogged and linked to the talk here. Go read if you haven’t already. You now have it on Mr. Will’s authority that this is big—the deepest, most sober reflection on the state of our politics you’ll find. In the printed Post, George Will’s column appears underneath a rare E.J. Dionne column that’s not only not inane or infuriating but right on, and moving. The Boston…
In my earlier post, I discussed how the Supreme Court’s failure to enforce the nondelegation doctrine has allowed legislative and executive power to be combined. Here I want to discuss another way in which the Supreme Court has not merely allowed legislative and executive power to be combined, but has actually encouraged the process; and done so probably against Congress’s will.
Under the Chevron doctrine, the Courts permit administrative agencies to adopt any reasonable interpretation of a statute that the agency administers. (This is a simpler formulation than the Court normally gives, but it is accurate and will do for this post.) The doctrine provides the agencies of the executive branch with more power over the implementation of the laws than they would otherwise have. The agencies are given authority to choose any reasonable interpretation of the statute that they desire. Thus, more policymaking discretion is given to the agencies. The agencies therefore enjoy more legislative power in that they get to decide the meaning of the legislation that Congress enacted. (Another way to view the doctrine is that it confers judicial power on the agencies. While I don’t pursue that view here, that is hardly better.)
Significantly, the Chevron doctrine is not a command of the Congress. The Court has largely made the whole thing up, so that agencies receive more of a delegation than Congress appears to have intended. If the Congress had actually delegated the authority to the agencies, then the Court could at least claim to be following Congress’s will. (For those who doubt my claim that Congress did not delegate this power, see my next post.)
The President was on television recently stumping again for his gun control agenda. He spoke in his favored repetitive mode except for one sort of new flourish, which was the acknowledgment that there are good people on both sides, and we all need to walk a bit in each other’s shoes. This advice actually might illuminate our way through the coming teeth gnashing-debate about the Senate’s vote on expanded background checks, among other things.
The Supreme Court has just released its decision and opinion(s) in Kiobel v. Royal Dutch Petroleum. I haven’t read or analyzed this carefully, but here’s the gist of it:
Kiobel involves the hotly contested question of whether the Alien Tort Statute, 28 U.S.C. 1350, permits courts to recognize a cause of action for torts in violation of customary international law—and if so, what causes. On its face, the ancient statute (part of the 1789 Judiciary Act) is purely jurisdictional: it says that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” That tells you where to sue and who may sue, but it doesn’t say what torts “count.” In Sosa v. Alvarez Machain, 542 U.S. 692 (2004), the Supreme Court held that aliens can sue over torts that are like—in character, specificity, and international consensus—the “violations of the law of nations” recognized in 1789: violations of safe conduct, infringement of the rights of ambassadors, and piracy. What does that mean, though?
I should have noted that the proposal I discussed in my earlier post actually has been promoted in the form of the REINS Act, which stands for Regulations From the Executive in Need of Scrutiny Act. Jonathan Adler has a post and article on the subject, where he notes his debate with Jonathan Siegel. Jonathan discusses both constitutional and policy issues concerning the proposed legislation. While I welcome the efforts in favor of the legislation, I don't think it has much chance of being enacted. Not only is it opposed by people who favor regulation, it will also be opposed by members of…
The stridency of the Obama administration’s secularism has led advocates of religious pluralism and the fully-clothed public square back to the Founders’ well to reproduce and rearticulate our vital heritage of religious liberty. Such stridency has been most clearly evidenced by Obama’s lawyers advocating against the rights of a Lutheran church to pick its clergy leadership in the Hosanna-Tabor case and the HHS contraceptive mandate. We could go on here, but these examples will do. Both cases illustrate the desire of the administration to do something that in other policy contexts it wouldn’t dare do: Privatize.
There is a strong argument that the Constitution’s original meaning employs a strict separation of powers approach. But many people argue that it would be too difficult to go back to this arrangement after the New Deal combined the powers in administrative agencies. Previously, I wrote about how the separation of judicial and executive power could be effected without incurring too much in terms of adjustment costs. See here and here.
Now, I want to move on to the separation of legislative and executive powers. During the New Deal, the Supreme Court greatly relaxed the nondelegation doctrine and this separation so that now there is no real judicial check on delegations. It is this change, more than any other, that has made the administrative state possible. So, it might seem that it cannot be reversed without undermining the administrative state.
But not so. Administrative law professors have for some time been aware of the following alternative arrangement. The agencies could formulate significant legislative rules as they do now. But instead of simply promulgating them, the agencies would send them over to the Congress. Then, congressional rules would employ a kind of fast track procedure that would require each house to vote up or down on the proposed rule with very limited debate. If passed, the rule would then be presented to the President. In this way, the agencies could propose the rules, but the Congress and the President would have to decide whether to enact them. There would be little delegation of legislative power to the agencies.
Ronald Brownstein and Stephanie Czekalinski have a fine article (National Journal, Apr. 13) on the increased partisan-ideological divisions among states. There’s way more ideological and partisan homogeneity within states, and
Across the full range of economic and cultural issues, Democratic and Republican state officials are pulling apart far more than they did as recently as two decades ago. On gun control, gay marriage, immigration, taxes, and participation in President Obama’s health reform law, among other issues, states that lean red and those that lean blue are diverging to an extent that is straining the boundaries of federalism.
The article is vintage National Journal, both in a good sense (well-informed, thorough, judicious) but also in a not-so-good sense. As the title suggests (“How Washington Ruined Governors”), it’s too taken with mainstream, bipartisan, consensual, good-government-from-good-governors to recognize the downside of that mode of federalism—or the upside of the more contentious brand that seems to be on the ascent. E.g., the authors lament that the
widening gap is recasting the role of governors. Well into the 1990s, state executives considered themselves more pragmatic than members of Congress; they regularly shared ideas across party lines and often sought to emerge nationally by bridging ideological disputes.
Over roughly the final third of the 20th century, … this movement accelerated. State lawmakers converged around a burst of policy innovation that led some to describe the period as a second Progressive Era. From the 1970s through the 1990s, many of the most prominent governors in both parties prided themselves on recombining ideas from left and right on issues such as education, health care, transportation, and welfare.