Administrative Law—both in its New Deal and its modern, post-Chevron version—rests on legislative supremacy. In other words, it assumes that there’s a halfway functional Congress. What if there isn’t? What happens when Congress fails to update ancient statutes and, when legislating at all, enacts convoluted statutes (such as Dodd-Frank or the ACA) that no one can make sense of? What if everyone starts taking it for granted that Congress is hopeless? Ashley Parrish and I explore the question in a forthcoming article in the GMU Law Review. (Mr. Parrish, a dear friend and frequent co-conspirator, is a partner at King &…
What does federalism have to do with the administrative state, and vice versa? Everything. Statutes typically confer authority on a federal agency (or several) in the first instance. However, practically all federal regulatory programs are “cooperative,” meaning they’re implemented by state and local officials. Entitlement programs from Medicaid to education are likewise run through states. So states will participate in the federal agencies’ process. Federalism isn’t shaped in once-in-a-generation enumerated powers cases; it’s shaped in millions of daily administrative interactions. How does that work?
Calling Facebook co-founder Eduardo Saverin’s renunciation of American citizenship an “outrage,” that allows him to “duck up to $67 million in taxes,” Senator Charles Schumer wants to create a special tax on Americans who renounce their citizenship. One can understand his frustration–America welcomed Saverin’s family when they needed a place of refuge, and now he is turning his back on us, for no other reason, it seems, than to reduce his tax bill. Perhaps no one at Harvard taught him that patriotism is a virtue.
Yet Schumer’s attack is fundamentally misguided, and reveals a disturbing attitude toward private property. Should it impose such a tax, the American government would be saying that property is no longer truly private. It would be saying that the American government has a presumptive claim on any and all property “owned” by an American citizen.
That is a far cry from the ideas that made America great. Consider the American revolution. In January, 1777, when times were grim, and the fate of the Union rested on his shoulders, General Washington issued his “Proclamation Concerning Loyalists.” Washington lamented that there might be some who “prefer the interest and protection of Great-Britain to the freedom and happiness of their country.” Leading a revolution built upon the presumptive right of men to choose not to belong to the King, he realized that the same principle applied to those who continued to choose British subjecthood over American citizenship. Hence he declared that such people had “full liberty . . . to withdraw themselves and families within the enemy’s lines.”