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Archives for February 2017

February 28, 2017|Congress, Executive Power, Federalist 51, Separation of Powers, Unitary Executive

Free Riding Hobbles Congress’s Ability to Stop Expansion in Presidential Power

by James R. Rogers|5 Comments

U.S. Capitol Dome: Washington DC

James Madison famously sketched an invisible-hand theory of institutional competition in The Federalist No. 51.

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February 28, 2017|Clinton Rossiter, Presidential Historian's Survey, Presidential Power, prudence

Grading on a “Change Agent” Curve

by Greg Weiner|5 Comments

Historians, as a profession, are understandably fascinated by change. Civilizations, as a phenomenon, are properly concerned with conservation. Tension is inevitable when the former apply criteria of success and failure ill-suited to the goals of the latter. The best recent evidence: C-Span has just released its Presidential Historian’s Survey for 2017. It is proof that historians celebrate Presidents the more change they achieve while consigning them  to obscurity for governing prudently according to circumstance.

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February 27, 2017|"blue slip" rule, John Cornyn, Neil Gorsuch, Ted Cruz

Reclaiming the Federal Judiciary: Start with the Fifth Circuit

by Mark Pulliam|14 Comments

Lawyer And The Law

The widely publicized judicial resistance to President Donald Trump’s executive order temporarily limiting entry into the United States by foreign nationals from certain countries has focused public attention as never before on the enormous power wielded by activist judges. Many people who do not generally follow the doings of the judiciary were alarmed by the ruling of Seattle-based Judge James L. Robart enjoining the so-called travel ban, despite the dubious “standing” of the two states challenging it (Washington and Minnesota). Many laypeople also listened in dismay to the oral argument before the Ninth Circuit, and have read extensive criticisms of both the temporary restraining order issued by Judge Robart and the unsigned Ninth Circuit decision refusing to stay the TRO, neither of which cited the statute expressly authorizing President Trump to take the disputed action.[1]

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February 26, 2017|CFPB, Donald Trump, Independent Agencies, PHH v. CFPB, Richard Cordray, Take Care Clause

Independent Agencies Must Follow the President’s Interpretations of Law

by John O. McGinnis|4 Comments

President Trump must soon decide whether to say “You’re fired” to Richard Cordray, the Director of the Consumer Financial Protection Bureau (CFPB). Cordray’s policies are clearly at odds with the deregulatory impulse of the administration, whose fate depends  on whether it can substantially increase prosperity beyond the sluggish growth of the Obama years.

The obstacle to getting rid of Cordray is that the statue setting up the CFPB permits the President to fire Cordray only on the basis of “inefficiency, neglect of duty, or malfeasance in office.” One possibility would be to fire him anyway on the theory that the restriction is unconstitutional.   Indeed, in PHH Corp. v. CFPB, a panel of the District of Columbia Circuit held that it was unconstitutional to limit the President’s removal power over the director. It acknowledged that the Supreme Court has upheld insulating other executive agencies, like the FTC, from presidential removal.   But those independent agencies were directed by multi-member commissions composed of members from different parties. The panel concluded that CFPB lacks the important check of collegial, bipartisan control, concentrating power in a single official.  Thus, the Constitution required that the President have the power to remove him at will.

The difficulty with acting on the panel’s analysis is that the full District of Columbia Circuit has vacated the PHH ruling to hear the case en banc.  It is true that the President could still follow the reasoning of the panel ruling and dismiss Cordray. But that action would be portrayed by the press as flouting a judicial order, even though the President is not a party to PHH v. CFPB.   Moreover the President’s substantial latitude to decline to follow statutes that violate his constitutional authority is premised in part on the need to obtain judicial resolution. But here the issue would already be before a court.

The President has a better option, because he has the constitutional duty to “take Care that the Laws be faithfully executed. “

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February 24, 2017|Democrats, Donald Trump, Republicans

Trump’s High-Stakes Game of Chicken

by James R. Rogers|11 Comments

NEW YORK, NY - FEBRUARY 17: (Photo by Spencer Platt/Getty Images)

In games of “chicken”—canonically, two teen boys drive their cars toward one another at breakneck speed, the one who swerves is “chicken” (and if neither swerves, then both lose and it’s small consolation to either that neither is “chicken”)—there are two ways to make the other guy swerve. One is a commitment mechanism: Tie down the steering wheel so it won’t swerve, jam the accelerator full down with a broom stick, and jump into the back seat. The second is to have the reputation of being crazy, as in being crazy enough not to swerve.

Acting crazy gets less respect than it should as a winning strategy in politics and other areas. North Korean dictators are given a wide berth in international affairs because the international community thinks they’re crazy. Overseas, George W. Bush was widely decried as a crazy belligerent. I often wondered whether he invited the reputation intentionally.

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February 24, 2017|20th Century Women, Annette Bening, Feminism, Mike Mills, Sisterhood Is Powerful

A Musth See

by Molly Brigid McGrath|2 Comments

20th-century-women-mike-mills-1000x520-1

It’s probably a drag being a liberal, always boycotting things. A Progressive friend who was surprised by my politics once asked me how I could like Radiohead so much, considering its front man Thom Yorke is such a leftist. It seemed a logical error (the “moralistic boycotter’s fallacy”?). I don’t judge songs by the artist’s favorite color, either. The fact is, conservatives can’t afford to discriminate merely to maintain moral cleanliness. I wonder whose music my friend might allow me to enjoy. Kid Rock? (Blah.) Rush? (Eye roll.)

And anyway, even if an artist’s politics do affect his art, what a spiritual poverty to entertain, or be entertained by, only what confirms one’s convictions! As a psychological fact, for many the private determines the political; must we also allow the partisan to constrict the personal?

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February 23, 2017|Conservative Originalism, Eighth Annual Works in Progress Conference, Liberal Originalism, original methods originalism, Originalism

Has Originalism Been Tried?

by Mike Rappaport|3 Comments

Last weekend was the annual Originalism Works in Progress Conference at the University of San Diego.  It was another very enjoyable and productive event.  University of Michigan Law Professor, Richard Primus, who is a nonoriginalist and was in attendance, had some kind words to say about the conference in a recent blog post: I spent the weekend at a terrific conference at the Center for the Study of Originalism at the University of San Diego Law School.  There were good papers, insightful commentaries, sharp questions, and a general seriousness of engagement.  Most of the people in attendance were originalists.  I was…

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February 23, 2017|Chief Justice John Marshall, Chief Justice John Roberts, James Madison, Judiciary Act of 1925, Ronald Dworkin, Thomas Jefferson

Is the Supreme Court a Court?

by Keith Whittington|8 Comments

Columns at the U.S. Supreme Court

Is the U.S. Supreme Court a court? On the one hand, the answer seems obvious. It says so right in there in the name. Plus, the justices wear those funny robes. Strong evidence, I admit. On the other hand, see every Supreme Court decision involving constitutional law over the past century and a half. I could rest my case there, but I haven’t gotten to the point yet. If the Supreme Court is a court, it is a weird one, and that often creates a great deal of confusion about how the Court does or should operate.

Generally speaking, we might think that a key characteristic of a court is that it resolves disputes in accord with some pre-established set of legal rules. It is not clear that the Supreme Court actually does that. The justices have relatively little interest in resolving disputes, and they have little concern for pre-established legal rules.

Let’s unpack that a bit.

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February 23, 2017|Howard Gillman, Mike Rappaport, Originalism, Precedent, Richard Primus, Steve Sachs, Will Baude

Once and Future Originalism

by John O. McGinnis|3 Comments

A sign of originalism’s strength is the annual conference on the subject now held at San Diego Law School under the direction of Mike Rappaport.  It attracts prominent originalists and, as importantly, ever more critics of originalism who now take this enterprise seriously.  One of those critics, Richard Primus, has blogged about the conference in a friendly manner.  Nevertheless, he is not correct in his thesis that many, if not most, originalist theorists  believe that originalism has never been tried before.  I have never heard such a bald assertion from my colleagues.

And that proposition would be obviously wrong about the course of constitutional law. James Madison, widely regarded as the father of the Constitution, supported what is now called originalism:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified in the nation. In that sense alone, it is the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable exercise of its power.

A historian of constitutional law who is not himself originalist concurs that until the Progressive Era, nearly everyone appealed to originalist reasoning even if they at times disagreed to its outcome.

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February 22, 2017|Federalism, Galarza v. Szalczyk, NFIB v. Sebelius, Printz v. United States, sanctuary cities

Of Sanctuaries and Sanctimony

by Michael S. Greve|14 Comments

Chicago: Protestors March Against Border Security Bill (Photo by Scott Olson/Getty Images)

There has been a lot of agitation and, predictably, litigation over the President’s firm intent to whip “sanctuary cities” into line. The general tenor of the online commentary has been “Federalism Lives!” exultation, from Left (Jeffrey Rosen) to Libertarian (my colleague Ilya Somin, whose post links to like-minded writers). Courtesy of the Rehnquist-Roberts Court’s constitutional doctrines on federal funding and “commandeering,” the chorus chimes, the President cannot do what he has proposed to do by executive order—yank federal funds from non-cooperative jurisdictions.

For reasons I’ll explain at somewhat painful length, it’s not at all certain he can. The “let’s hear it for federalism” folks may yet be right—but for somewhat different reasons than they think.

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Book Reviews

A Compelling and Compassionate Book about Epilepsy

by Theodore Dalrymple

Our knowledge of the human brain is limited, but neuroscientist Suzanne O’Sullivan’s observation of her patients yields astute insights.

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Andrew Roberts Takes the Measure of the “Populist” Aristocrat, Churchill

by Joao Carlos Espada

Yes, there is something new to be learned about Winston Churchill, and it's in the new 1,105-page biography by Andrew Roberts.

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Liberty Classics

Bringing Natural Law to the Nations

by Samuel Gregg

If sovereign states ordered their domestic affairs in accordance with principles of natural law, the international sphere would benefit greatly.

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Belloc’s Humane Defense of Personhood and Property

by James Matthew Wilson

Perhaps the memory of that metaphysical right to property informs our fears, and could lead to a restoration of human flourishing.

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Podcasts

Born-Again Paganism: A Conversation with Steven Smith

A discussion with Steven D. Smith

Steven Smith talks with Richard Reinsch about his provocative thesis that a modern form of paganism is becoming public orthodoxy.

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"Slouching Towards Mar-a-Lago:" A Conversation with Andrew Bacevich

A discussion with Andrew J. Bacevich

Andrew Bacevich discusses his new book Twilight of the American Century

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Bureaucracy, Regulation, and the Unmanly Contempt for the Constitution

A discussion with John Marini

John Marini unmasks the century-long effort to undermine the Constitution's distribution of power.

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Beautiful Losers in American Politics: A Conversation with Nicole Mellow

A discussion with Nicole Mellow

Nicole Mellow on the beautiful losers in American politics who have redefined the country.

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Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

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