Executive order

April 10, 2017|Executive order, judicial activism, National Security

Judicial Activists Take On National Security

Judicial activism always undermines the rule of law. Rarely, however, does it also endanger national security. Yet the federal judges who have blocked President Trump’s executive orders on immigration have done just that.

The lawlessness of the courts in question has been exposed by a group of five dissenting judges on the Ninth Circuit Court of Appeals. As these judges so ably observe, the federal district courts that ruled against the President’s policy simply ignored binding precedents—of both the Ninth Circuit and the Supreme Court—recognizing the legal authority of the President to act as he did. Moreover, these judges achieved their aim by deploying an utterly novel application of the First Amendment, holding that an executive order that does not even mention religion somehow violates the Establishment Clause.

February 1, 2017|Donald Trump, Executive order, Muslim Ban, Refugee policy

Stumbling Out of the Blocks

by Mark L. Movsesian|7 Comments

View from the offices at the Institute for Justice. Image: Institute for Justice.

There is much to criticize about President Trump’s executive order on immigration, particularly the slapdash way the Administration drafted the order and announced it to the agencies responsible for implementing it. The Administration apparently bypassed the normal interagency review process, which checks orders for legality and advises on possible consequences. No doubt the Administration calculated that it couldn’t trust Obama holdovers not to create obstacles—a calculation that seems to have been correct in some cases. But lawyers do help sometimes, and it’s wise to listen even to bureaucrats on occasion. The normal interagency review could have avoided much of the confusion at airports over the weekend, which benefited no one, and which created a sense of disorder which will not help the Administration in the future. It would have been much better for the Administration to wait until its new team was fully in place, including its Attorney General, before taking legal action bound to inflame many people.

July 7, 2016|Administrative Law, Administrative Procedure Act, Administrative State, Drones, Executive Memorandum, Executive order, FTC, Net Neutrality, Obamacare

Regulatory Dark Matter: A Conversation with Wayne Crews

by Wayne Crews|1 Comment

This interview with Wayne Crews explores the growing lawlessness in the administrative state's exercise of its powers. This regulatory "dark matter" ignores the formal rule-making requirements of the Administrative Procedure Act that mandates publishing a notice of proposed rule-making and allowing public comment. Crews outlines how the agencies of the regulatory state are resorting to the exceptions of using “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” to exert authority informally and without accountability.

January 11, 2016|Congress, Constitution, Executive order, Executive Power, Presidency, Separation of Powers, Ted Cruz, The Federalist

Living the New Constitutional Morality

by Greg Weiner|7 Comments

Photo: Doug Mills/The New York Times

The presidential nominating contests continue to befuddle prognosticators, but the consensus winner of the Syntactical Caucus of 2016 is already in. Whether Republican or Democrat, the next President will almost certainly display an unreasoning proclivity for the first person singular.

November 10, 2015|Auto Bailouts, Executive order, Executive Power, Lawless, Obama, Rule of Law, Separation of Powers

Executive Power in the Age of Obama

by David Bernstein|2 Comments

This edition of Liberty Law Talk features a discussion with George Mason Law School Professor David Bernstein on his recently released book, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.

August 11, 2015|Barack Obama, By Order of the President, Executive order, Executive Power, Separation of Powers, With the Stroke of a Pen

The Lonely Executive

by Mark Rozell|Leave a Comment

Like movie sequels, second editions of notable scholarly books often disappoint. Phillip J. Cooper’s By Order of the President: The Use and Abuse of Executive Direct Action (University Press of Kansas, second edition) is an exception.

February 5, 2014|Douglas Smith, Executive order, Minimum Wage, Progressivism

A Progressive Mr. Smith Goes to Washington

by John O. McGinnis|6 Comments

View from the offices at the Institute for Justice. Image: Institute for Justice.

On Monday, The New York Times published “A New Way to Rein In Fat Cats,” an op-ed advocating an action so obviously foolish with such frivolous arguments that it is extraordinary that the paper of record thought it fit to print. Sadly, it may well be a harbinger of the direction of progressivism today.

In “Fat Cats,” Douglas Smith argues that the President should issue an executive order governing the ratio of compensation paid to the highest-paid executive relative to the lowest-paid employee in companies that contract with the federal government. According to Mr. Smith’s calculations, the ratio should not exceed the ratio of the President’s salary to the annual income of an employee earning the minimum wage.

Smith’s comparison of the President’s salary to those of highly paid executives is simply fatuous. Any President can enjoy an enormous income stream for years after holding the highest office of the land by virtue of having held that office. Look at Bill Clinton. Moreover, the President’s current annual salary – $400,000 – does not count perquisites of the office, such as residence in the White House and the use of Air Force One. These benefits dwarf those of any company’s chief executive. Most importantly, the President enjoys enormous non-monetary benefits that are not available in other jobs—the chance to move the nation toward one’s political ideals for human welfare and earn a place in American history, to name just a few. Certainly I would be delighted to be President for a twentieth of the salary currently paid, and I am sure that is true of thousands, if not hundreds of thousands of other people.

His leading argument for his proposal is that “it is our money after all.”

January 27, 2014|Congress, Executive order, Executive Power, James Madison, Obama, Pen and Phone strategy, Separation of Powers

From a Parliament to Proconsuls

by Greg Weiner|1 Comment

The White House staff is reported to have concluded after an internal review that the United States does not have a parliamentary system. The lesson deduced from this insight is evidently that we have proconsuls instead, but in neither case is a regime of separated powers treated as more than an inconvenience. This is to be “a year of action,” after all, and Press Secretary Jay Carney bottom-lines it for us: the president will “work with Congress where he can and … bypass Congress where necessary.”

About