I took a break from blogging a month ago, and the world has changed tremendously. Wow. When I left, nearly everyone thought Hillary Clinton would be the President. The odds were also favorable that there would be a Democratic Senate. Now, of course, Donald Trump will be the President, and the Republicans control not only the House but also the Senate. This is obviously an enormous change. At first, it was really disorienting. And for many opponents of Trump, the effect continues. But there has also been another change. We have started to get more information about Donald Trump and how he is…
Democrats are all abuzz with criticisms of the FBI's reopening of the e mail investigation of Hillary Clinton. Some people talk of this being unprecedented or the worst October Surprise. Sadly, these criticisms appear ignorant of what Lawrence Walsh did many years ago to help elect Hillary's husband. For those who do not remember, the story is told here and here. Put briefly, there is a way to understand James Comey's behavior as honorable. There is no way to understand Lawrence Walsh's behavior that way. Sadly, people who should know better don't seem to. At the 538 site, Harry Entin reviews six examples of October…
In my last post, I praised the D.C. Circuit’s opinion in PHH Corp. v. CFPB holding that the restriction on the President’s authority to remove the Director of the Consumer Financial Protection Bureau was unconstitutional. In this post, I want to discuss the most important precedent.
In PHH, the D.C. Circuit held that precedent and practice allowed removal restrictions on agencies headed by commissions, but not by agencies headed by a single individual. In reaching this decision, the court had to distinguish the Supreme Court’s decision in Morrison v. Olson. Some commentators have argued that Morrison governed this case, but I do not think so.
In Morrison, the Supreme Court approved the independent counsel statute, which had placed a similar removal restriction on the Attorney General’s authority to remove the independent counsel. If the independent counsel could be protected from executive removal, why could not the Direction of the CFPB?
Recently, a three judge panel on the D.C. Circuit held in PHH Corp. v. Consumer Financial Protection Bureau, that the for cause removal provision for the director of the Consumer Financial Protection Bureau was unconstitutional. Rather than striking down the entire statute, the court struck the for cause removal provision, leaving the director subject to removal at the pleasure of the President.
The Bureau is an example of the newest philosophy in administrative governance, which the Democrats have pursued in Sarbanes Oxley, Obamacare, and the Dodd-Frank banking act. The idea is to maximize the independence of administrative agencies and to enhance their power. In terms of maximizing the independence of the Bureau, the Bureau does not answer to the President (that is what the for cause removal provision means) and it is funded through the Federal Reserve, so that the Congress cannot use its appropriations power to control the agency. The power of the agency is enhanced, because it is controlled by a single director rather than a bipartisan commission as virtually all independent agencies are. Needless to say, this new philosophy of governance is extremely problematic.
In my previous post, I talked about how delegation came to dominate our government. I focused on two types of delegation – delegation of policymaking discretion and delegation of legal interpretation, such as Chevron deference.
I suggested that Chevron was a disaster, because it greatly added to the delegations that had already occurred though congressional statutes. The courts could have simply enforced those congressional delegations without adding to them with Chevron. But instead they invented Chevron – which had not been enacted by Congress – and greatly expanded the delegations.
Chevron was also a disaster in another way. One might believe that Republicans are generally more in favor of limited government than Democrats these days, especially as to government regulation. This is not an uncontroversial judgment, but I believe it is largely correct. And if that is so, then the Republican judges of the 1980s undermined their cause when they pushed Chevron. Chevron allowed administrative agencies significantly more authority to enact regulations.
We now live in a world of delegation. It is often said that most of the rules that are enforced at the federal level have not been enacted by Congress, but by administrative agencies. It was not always that way. The binding rules in the United States used to be enacted or recognized by other entities. The statutory rules would be enacted by Congress and they would be interpreted by the courts. Common law rules would be recognized by the federal courts. And, of course, more areas were addressed solely at the state level. It is true that agencies sometimes exercised delegated authority, but it was a much more limited affair.
This transformation to a world of delegation – to the Administrative State – has been quite astounding. It is worthwhile pausing to consider some of the ways it happened. There are two principal types of delegation that have occasioned this transformation: delegation of policymaking and delegation of legal interpretation.
The delegation of policymaking involves a congressional decision to authorize an agency to exercise policymaking discretion. For example, many statutes that authorize agencies to take actions that are in the public interest are best interpreted as delegating such discretion to the agency. The responsibility for this delegation largely lies with Congress, which decided to pass the statute. The lead in this type of delegation has been taken by the Democrats – during the New Deal, the Great Society, and the Obama Administration – but the Republicans have certainly employed this tactic as well. Additional responsibility for this type of delegation must lie with the Supreme Court, which after striking down a few delegations in 1935, has not struck down any, with the one possible exception of the Line Item Veto Act – the one delegation that would reduce the size of government.
In a recent post, I noted that Justice Scalia has been criticized for departing from originalism in various areas. But the positions that Justice Scalia took in many of these cases – including a prohibition on state affirmative action, limitations on regulatory takings, and protection of various state immunities, such as sovereign immunity and commandeering immunity – could have been defended on originalist grounds. One area, however, where there is little to be said for Justice Scalia’s position has largely been ignored: the federal government’s power over immigration. In Arizona v. United States, Justice Scalia started strong, initially questioning the federal…
The University of San Diego's Center for the Study of Constitutional Originalism has announced the papers and commentators for the Eighth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference scheduled for February 17-18, 2017 at the University of San Diego Law School. They are: Randy Barnett (Georgetown) & Evan Bernick (Institute for Justice), The Letter and the Spirit: A Theory of Good Faith Constitutional Construction. Commentator: John McGinnis (Northwestern) Will Baude (Chicago), Constitutional Liquidation Commentator: Bernadette Meyler (Stanford) Mitch Berman (University of Pennsylvania), Our Principled Constitution Commentator: Stephen Sachs (Duke) Jud Campbell (Richmond), Natural Rights and the First Amendment Commentator: Fred Schauer (Virginia) James Fox (Stetson), Black Originalism:…
With the passing of Justice Scalia, various critics of the justice have made a sport of trying to point out areas where the justice might not have lived up to his own originalist principles. I certainly think it is important for all justices, especially originalist justices, to follow originalist principles. But I don’t approve of the attempt to use originalist principles as a club to attack originalists who sometimes did not live up to those principles.
It is hard to be a justice. One does not have the luxury, like a law professor, of simply writing about the issues one feels comfortable discussing. The issues come up with the cases (even given certiorari at the Supreme Court) and the justices must decide them. Given the pressures and forces of judicial politics, especially in an age where nonoriginalism has been the dominant view for generations, it is hard to expect an originalist justice to be entirely consistent.
In determining how bad it was that a justice did not follow a principle, one must consider a variety of factors, including how difficult it would be to follow the principle (in terms of matters such as consequences and reputation). That nonoriginalist justices follow their own political views – which can be adjusted to their own values, to current politics, or to most other things – is not an especially difficult thing. Thus, comparing an originalist justice who follows originalism only 75% of the time with a nonoriginalist who follows nonoriginalism 95% or 100% of the time is misguided. It is much harder to be the originalist.