In an exceptionally important article, Chris DeMuth addresses the deep pathologies of our politics. Chris has written extensively about the fateful drift into executive government, which (he cogently explains) is also a debt-ridden and lawless government (see his website here). In this piece, he tackles a principal institutional cause of those tendencies: for Congress, legislation has become an unnatural act, to be performed only in extremis. Thus, a constitutional revival will require a cultural revival. Recovering Congress’s lost powers will require relearning legislative skills, redirecting legislators’ energies, and risking the ire of party constituencies who are unfamiliar with the obligations of…
Among the cases teed up for the Supreme Court’s current Term is Comptroller v. Wynne, arising over the state taxation of personal income earned and taxed in other states (and therefore, in interstate commerce). The vast majority of state and local jurisdictions credit residents’ taxes paid to “foreign” jurisdictions, meaning other states. Maryland credits such taxes against state but not against local income taxes (which are collected by the state). Through an S-corporation, the Wynnes (Maryland residents) earned a ton of income in thirty-plus states and paid income taxes there—and then again paid the local tax on that income, without receiving a credit. The Maryland Court of Appeals deemed the arrangement unconstitutional. The Comptroller asked for and received cert. Briefs etc. can be found here.
Boring? Maybe (unless you live in Maryland and earn income elsewhere). But there are reasons to pay attention.
I’m grateful for the responses to my earlier Office for Civil Rights post, especially the comments that illustrate the corrupting consequences of “government by guidance.” As I suggested, and as many readers emphasized, the subject raises much larger questions about lawful government. Herewith a few more comments on how difficult this is—and a hopefully cheerful suggestion as to what could be done.
The trajectory from lofty, well-meant enactments (the Civil Rights Act, Title IX) to the scape-goating of students, teachers, and bandleaders is a straight line: statute to regulation to “interpretation/guidance” to “voluntary” compliance. But the incentives are lousy each step of the way. Congress would rather delegate than legislate; the agency would rather bully than write a rule; and the regulated entities would rather throw people overboard and kowtow or pay money than fight back. This happens everywhere; OCR is just an example. And, no: this isn’t about the Obama administration or particularly wayward bureaucrats. If it were, things could be fixed at the ballot box, or by courts. The grim, incentive-driven march of government by guidance isn’t.
This past Friday, Boston College’s excellent Shep Melnick (interviewed on this site not long ago) gratuitously ruined my weekend by alerting me to the latest “Dear Colleague Letter” (“DCL”) from the Education Department’s Office for Civil Rights (“OCR”). The DCL “shares” OCR’s views on “resource compatibility” at the nation’s schools, district by district. Horrendous in its own right, the letter also prompts broader thoughts on “government by guidance”: it’s a prescription for a banana republic.
There’s a terrific new blog out there, under the umbrella of the Yale Journal on Regulation. Cleverly entitled Notice & Comment, it’s the brainchild of Chris “Just-Because-We-Teach-AdLaw-Doesn’t-Mean-We’re-Boring” Walker. The blog follows the AdLaw literature, so we don’t have to. It also has posts on ongoing events, and they’re darn good. Among the recent entries: a fun piece by Peter Conti-Brown, an occasional contributor to this site, on how POTUS can fire the head of the Secret Service (“head” is a metaphor here) but not the President of the New York Reserve—and how stupid is that? And Jeff Pojanowski has an…
In a relatively brief, concise Order and Opinion, U.S. District Judge Ronald A. White (Eastern District, Oklahoma) has set aside a notorious IRS rule declaring that subsidies and mandates under the Affordable Care Act apply in states with federal as well as state-run health care “Exchanges.” The Order and Opinion in Pruitt v. Burwell agreed with the D.C. Circuit’s holding in Halbig v. Burwell, currently pending on en banc consideration, that the statutory language—an exchange “established by the State”—could not be read to include exchanges established by the federal government in and on behalf of the state. The District Court disagreed…
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?
In a temporary obsession over the mysteries of interstate taxation (a subject of forthcoming posts—skip alert!), I missed an important event until my twelve-year-old reminded me today: on September 23, Bruce Springsteen turned 65. Happy birthday, and God bless! And do let’s celebrate. Mick Jagger famously intoned that he’d rather be dead than sing “Satisfaction” at 45; how’s that working out for you, Mr. Geezer? Mr. Ezekiel Emanuel, who’s not much into revving up young people but would rather have government force them to subsidize others, wants to be dead at 75; let’s see how that plays out. Say about the…
A few posts ago I introduced “citizen suits”—brought by private parties, usually advocacy organizations, in a capacity of “private attorneys general” against the government to make it do something—as an example of the derangement of our administrative and constitutional law. Here’s a bit more on the real-world aspects of the phenomenon, and a few more thoughts:
A ton of these cases are “deadline” suits. Environmental and, increasingly, many other statutes contain countless provisions saying that the administrator or agency “shall” regulate this, that, or the other thing by date “x.” More often than not, the agency misses the deadline, and the Association of Irritated Residents (an actual group) or some such outfit strolls into court and demands compliance. Agencies rarely fight these cases.
My buddy Chris DeMuth and I are about to embark upon a long-term research project on fines, settlements, and fees collected by federal agencies. If we manage to pull it off, you’ll hear more about it.
Why would otherwise sentient humans volunteer for such a green-eyeshades program? Because the government itself doesn’t collect the data—not in one place, and very often not at all; and it doesn’t keep tabs on the spending, either. To paraphrase a leading public finance expert (the late Robert Palmer), the trend is irresistible—and there’s no telling where the money went. It appears, though, that a bunch of federal agencies have become profit centers for Congress. Our working hypothesis is that that’s bound to have incentive effects throughout the government. None of them, we suspect, are likely to be good.