This past Friday, the U.S. Department of Justice filed its expected petition for certiorari in Texas v. United States, involving several states’ challenge to the administration’s “deferred action” program (“DAPA”). DAPA would grant deferred action—and, along with it, work permits and other benefits—to several million immigrants who are unlawfully present in the United States. The Fifth Circuit Court of Appeals affirmed a preliminary injunction against DAPA on November 9; DoJ’s petition to review that preliminary ruling on an expedited schedule arrived within a fortnight. Why the haste, my child? Well, on an expedited schedule this case could still be heard and…
In response to a recent post of mine, Mark Pulliam asks: “How and when did higher education administration in America become completely captured by knaves, fools, and cowards?” Great question. “Completely” doesn’t quite capture it: Purdue and Baylor and Hillsdale are run by responsible, courageous people. Conversely, Mark’s question doesn’t quite capture GMU. “Just last evening,” GMU President Cabrera breathed in his missive to the GMU “community,” a “racially offensive” picture was found in a residence hall that was “demeaning, dehumanizing, and unfit for our community.” That picture appears nearby. Nobody at GMU—not any students’ association, not nobody—has been able to…
Last Friday, the following missive (sent, I believe, to the entire George Mason University “community”) landed in my inbox:
Racism has no place at George Mason University.
This past week, at the invitation of a dear friend (Christopher Wolfe —no, wait: this guy), I visited the University of Dallas. On some accounts it’s the ugliest campus in America. On all accounts it’s among the most amazing: where else would you find students who sit in rapt attention for a six-hour (!) debate on inequality (featuring William Galston, Ross Douthat, and yours truly)?
Pending the webilcation of the entire event, herewith my opening remarks. I’m way out of my league here but what the heck:
Inequality, we have it on presidential authority, is “the defining challenge of our time.” Arguably it’s the (or at least a) defining challenge of all times—a profound question that invites deep reflection. Jerusalem had one answer; Athens had another. Hobbes and Machiavelli had different answers yet. A bit closer to home, this country was famously founded on the “self-evident” truth that all men are created equal.
The raging contemporary debate, for good or ill, has nothing to do with any of that. It is limited to income inequality, and it says that r is greater than g: the returns to capital will exceed the economic growth rate and so the rich get richer and the poor get poorer over time. That’s not quite inevitable, or always true. The post-War era experienced a “great compression.” But income inequality has increased dramatically since the 1980s and especially after the 2008-2009 financial crisis: all the gains from growth have gone to the 10 percent or the one percent or whatever. Surely we should do something about that.
Last week, I visited Boston College for a discussion of the Supreme Court’s recent decisions. Herewith an abbreviated version of my remarks. Comments etc. most welcome because the thoughts (some old, some new) are embryonic: I’m working on a more serious, grown-up presentation.
We are living in an age of Executive Federalism. That form of government has some deeply disturbing features, including several that should prompt a judicial response. So far, the Court has given no indication that it has a clue.
As we noodle over administrative law’s foundations, we should also think carefully about its mechanics, and how these could better shape its compliance with the rule of law. Herewith an example: preliminary relief. (I’ll run together a bunch of doctrines that are technically different. But they all go to the timing of effective judicial relief.)
In an exceptionally well-written and economically literate op-ed, Mrs. Rhea Lana Riner describes her unpleasant interactions with the U.S. Department of Labor. She operates clothing consignment shops. Her business model, which she has franchised with great success, allows consignors to volunteer at sales events. The Labor Department says the volunteers are actually employees and must be paid minimum wage, plus overtime. So the Department went to town on Rhea Lana’s: it urged the volunteers to sue for back pay (none did) and then sent a demand letter: pay them or else. Mrs. Riner explains that
[t]he Labor Department’s years long and still-unofficial crusade has placed Rhea Lana’s into regulatory purgatory. The department is ordering me to conduct business to my detriment, and threatening hundreds of thousands of dollars in civil penalties if I fail to comply. Yet a federal court has ruled that I lack any meaningful recourse until the agency files an official complaint, which it has not done.
And may never do, Mrs. Riner. Because then, they’d have to defend their position in court.
This past weekend (October 23-24), George Mason Law School’s Law and Economics Center, in cooperation with the Council on Public Policy (a German think tank) and the Federalist Society, concucted a Transatlantic Law Forum on “The Administrative State and its Law.” Excerpts: Scholars, pundits, politicians, and even Supreme Court Justices have come to lament that the administrative state—ill suited to the country’s constitutional culture in any event—appears increasingly beyond effective political and judicial control. Among the proposed remedies, perplexingly, is a quintessentially “European” product: bureaucratic legalism, either through more specific legislation or more aggressive judicial controls (or both). All the while,…
Lately, some members of the federal judiciary have begun to voice misgivings about “Deferred Prosecution Agreements” in corporate criminal cases. That attention is long overdue. One has to wonder, though, how much can come of it.
Now that the Supreme Court is back in session, do you feel better? I do, a little. The docket for the 2015-2016 Term so far contains about 40 cases half the expected load for the Term. There is the usual smattering of Eighth and Fourteenth Amendment cases, which cannot end well. But there is also a gratifying number of cases (13 by my count) that (1) are about something real (money) and (2) pose difficult FedCourts-ish questions. Those cases may go right or wrong. But at least the justices will behave like lawyers, not oracles. Herewith three favorites, along with intrepid predictions.