A good explanation of the Clinton-Trump clash we are living through, and of Trump’s having taken the Republican Party by storm, is in Eric Posner and Adrian Vermeule’s 2010 brief for executive supremacy as the way we do constitutionalism. The Posner-Vermeule thesis in The Executive Unbound is that the Madisonian philosophy of separation of powers as a constraint on the presidency no longer exists, and good riddance. The more authoritative check on executive power, they say, is majority opinion and the fact that the President must face the voters every four years. This, and not Greg Weiner’s paean to Jemmy Madison, is the only source we have now for safe, effective, and informally limited government. Those wanting Madison on demand, Posner and Vermeule inform us, are whistling past the graveyard of a constitutionalism that no longer fits this American nation.
Archives for August 2016
The argument for ideological diversity on campuses is strengthened by the growing political polarization in society. Political polarization is costly, because citizens then are more likely to dismiss a policy position based on the identity of its supporters and opponents than on the merits. Polarization also makes it harder to reach compromises, and compromises are more often likely to lead to political stability than ideas with a more narrow range of ideological support.
One of the reasons for polarization appears to be that citizens today are more able to live in ideological and partisan cocoons than in the past. They can look at the websites they like and not at those that might challenge their views. Cities and towns also sort themselves out more by political beliefs. Those opposing the predominant views of the their current residence are more likely to move to a more politically hospitable climate. Apparently, Republicans and Democrats even choose to follow different celebrities although they do admire a golfer or two in common.
The most obvious place where citizens should learn to interact with ideological opponents and confront arguments that will challenge their views is the university. But this experience is less likely if the gatekeepers of ideas are almost uniformly of one political persuasion. And so many of our modern universities are ideologically monochromatic.
In the mid-1960s, Liberty Fund’s founder, Pierre Goodrich, decided to travel to Montauk, Long Island and rent an apartment overlooking the ocean. He arrived there with his wife and top personal assistant and spent a month reading Ludwig von Mises’ most important work, Human Action (1949). Such was Goodrich’s commitment to understanding the classics of liberty and such were his resources that he went to great lengths to read and contemplate one of the great works of 20th century Austrian economics.
Let’s suppose you are not a multimillionaire businessperson with the time and dedication to live by the ocean and read the great works of Mises and other Austrians. Fear not—John Tamny’s excellent, accessible, and surprisingly provocative Who Needs the Fed? will save you the cost of a beachfront rental on Long Island and give you a nice introduction to one of Mises’ other classic works, The Theory of Money and Credit.
Last week, I blogged about the DEA’s decision not to change the classification of marijuana as a Schedule I substance. While the decisions seems to me absurd, not all of the news in this area is bad. In fact, the movement to legalize marijuana under varying circumstances has never been stronger.
It should not be all that surprising that the DEA – a government agency charged with the mission of enforcing the drug laws – should be so unsympathetic and hostile to the benefits of one of the drugs they regulate. After all, they would be in essence admitting significant error if they acknowledged that marijuana had important benefits. Of course, less understandable is why Congress and the executive assign this task to the DEA. Still, the point here is that who makes the decision is important in a political system.
One of the virtues of the American system is federalism. While the federal government has been very hostile to marijuana for years, decisions in the U.S. are not only made at the national level. Thus, the federal government may continue to be strongly against marijuana, while at the state level there is growing support for permitting it under certain circumstances.
The number of states allowing medical marijuana (25) has been expanding as has the number of states allowing recreational use (4). In 2016, 4 additional states will decide on whether to legalize recreational use of marijuana and another 5 states will decide on medical marijuana.
Last week, in a case brought by the State of Texas and several other states and state agencies, a U.S. District Court (Judge O’Connor, Northern District, Texas) issued a preliminary injunction against the feds’ rule, or maybe it’s just a suggestion, contained in a “Dear Colleague” letter regarding bathroom, locker room, and shower access for transgendered individuals. Judge O’Connor ordered some further briefing on the appropriate scope of the injunction. The ruling is just one brief episode in the transgender bathroom saga, whose trajectory points to yet another Supreme Court determination on conflicts between the Constitution’s Meaning of Life Clause and the rule of law as we thought we knew it.
This is a follow-up to my previous blog post on the decision by the DEA not to reclassify medical marijuana. I came upon this piece in the Scientific American Blog by “a resident physician specializing in mental health.” He writes that every day he “screens patients for substance use. . . . During my medical training, I’ve learned which substances to worry about, and which ones matter less.”
Alcohol “is usually the first substance” he asks about. Whether it is the “roughly 88,000 deaths in the US each year” from excess alcohol consumption or the effects when heavy drinkers attempt to cut back and go into alcohol withdrawal, alcohol is a very serious problem.
Ben-Hur is basically three films in one. The first is an action-adventure tale. The second is a family drama. And the third is a story of the redemptive power of the love of Christ. It’s an absorbing adaptation of the novel that a former general of the Union army, Lew Wallace, published in 1880, called Ben-Hur: A Tale of the Christ.
It is hard to suppress schadenfreude about the recent ruling of the National Labor Relations Board giving graduate students the right to organize labor unions. Elite universities are united in their opposition, but these same institutions are dominated by left-liberals who want to expand the reach of unions in businesses. Most of their professors approve of increased regulation on everyone but themselves. The NLRB is giving them a taste of their own medicine.
Universities are in fact a much more hierarchical world than most businesses with a vast gulf in compensation, prestige, and autonomy between tenured professors and everyone else. If critical university theorists were as much in vogue as critical race theorists and radical feminists, we would be treated to endless papers on the oppression of university hierarchies. But for some reason universities don’t produce such advanced thinkers.
Nevertheless, given the baleful effects of this ruling, we should contain our glee. First, the university is not the factory floor, and graduate students are essentially students, not employees. Teachers are mentors of students, not their bosses.
A central principle of modern administrative law is that federal agencies—not the courts—are the primary interpreters of ambiguous federal statutes that Congress has charged the agencies to administer. The Supreme Court crystallized this deference doctrine in its 1984 Chevron decision, though some variation had existed since the 1940s (and maybe even longer, or perhaps not). In 2005, Justice Thomas framed Chevron’s practical significance:
If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.
That opinion, National Cable and Telecommunications Association v. Brand X Internet Services, upheld and expanded the doctrine of Chevron deference. But in recent years Justice Thomas has led the way in expressing skepticism about it.