The President’s use of executive power outside and above the bounds of the Constitution is well known at this point. In policies ranging from the railroading of creditors in the auto bailouts, to Obamacare by waiver, eliminating key work provisions in the 1996 welfare reform legislation, Deferred Action for Childhood Arrivals, and to the informed suspicion that he will unilaterally legalize 5 to 6 million illegal immigrants, this President has entered a new realm of abuse of power. Resulting from the stress he’s placing on our constitutional order have arisen significant interventions that attempt to underline how and why we have arrived at this new dimension of executive power, even in the case of Congress there is an attempt to reclaim its authority, if only in a pusillanimous manner.
I am beaming with delight to announce that Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at the Columbia University School of Law, will be joining Law and Liberty for the month of August as a guest blogger. You might have heard of his latest impressive work of scholarship Is Administrative Law Unlawful? My podcast with Prof. Hamburger earlier this month explores his exposition on the extralegal capacity of the administrative state. Progressives claim that law-making executive agencies are a necessity for organizing a large commercial and urban society, but Hamburger convincingly argues that it really is a return to the absolutist Stuart monarchs where such power was exercised outside and above the law. That is its true home, something borrowed from a past experience with unlawful power that our state and national constitutions tried to foreclose. Perfectly timed to speak to the myriad abuses our administrative agencies are imposing on American citizens on a weekly basis, this book promises to intrude and hopefully reshape, if not undermine, this strange system of law, one that exists apart from the Constitution, Hamburger observes.
I hardly need to add that he is one of the best constitutional historians in the academy today. His book Separation of Church and State is a must read for understanding the rather untoward history of strict separationist claims in American constitutional law. Law and Judicial Duty grounds the pedigree of the doctrine of judicial review in the two ideals of law and duty of English common law judges. Their duty was to rule in accord with the ‘law of the land’ in their official roles. Would that such a notion of fidelity to law could return.
I greatly look forward to his contributions to this space. Please welcome him!
It’s no fun being the skunk at the garden party, but amidst the widespread praise of Paul Ryan’s recently announced anti-poverty reforms it appears some criticism is overdue.
I link to an essay Peter Lawler and I have written now published in the current print edition of the Weekly Standard. We thought it worthwhile to sift through the good and the bad of the populist uprising against the EU. My fundamental conviction is that the EU is a political abstraction oriented to the interests of a meritocratic elite. Members of this cohort rule Europe without substantive accountability or political representation. As we say in the essay, the EU is a technocracy more than it is a democracy. The EU’s ruling class inspires no love or loyalty among Europeans for EU institutions. So a political reckoning, however long delayed and denied, will occur. The question is if it has already started, and the recent drubbing taken by mainstream parties in the UK and France, among other states, is an indication that it has.
I’m happy to introduce Joseph Postell as this month’s guest blogger. Joe is an assistant professor of political science at the University of Colorado-Colorado Springs and the co-editor of two books: Rediscovering Political Economy and Toward an American Conservatism. Joe has contributed to this site on several occasions, where he has called for an increased judicial role in the administrative state and highlighted the importance of Roscoe Pound’s critique of administrative justice. He looks forward to discussing some interesting aspects of his current project: a manuscript on the historical relationship and tension between American constitutionalism and the administrative state. He will also offer some thoughts on the need for stronger political parties and stronger party leadership in Congress — which surely will provoke some spirited discussion.
Published over a decade ago, Josiah Bunting III’s An Education for Our Time presents the plan of dying, septuagenarian billionaire John Adams, a descendant of those Adamses, for a new institution of higher learning to be built in eastern Wyoming. The broad goal is to provide a unique liberal education. In addition to studying classics, serving abroad, and mastering the outdoors, and classical and modern foreign language requirements, the College will also edify the character of its students through emulation by reading great biographies and engaging in deep historical learning that will form 1/3 of the curriculum.
There is no tuition. The school will operate as best it can free of any regulations from federal or state governments. SAT scores will not be considered for admissions. Grades will matter, but of greatest significance is character, or rather, the committees in each state that evaluate applicants will look for those young men and women who have demonstrated independence by taking risks under difficult circumstances. By this, Adams wants students who have been willing to pursue the good in the face of mockery.
It’s my pleasure to introduce Frank Buckley, Foundation Professor at George Mason School of Law, as our guest blogger for the month of May. You might recall his previous work on this site on the rise of executive power and the decline of liberty in America and the recent podcast we did on his latest book The Once and Future King: The Rise of Crown Government in America published by Encounter Books last month. I look forward to his posts on the administrative state, executive power, and other issues.
I am very pleased to announce that Keith E. Whittington, the William Nelson Cromwell Professor of Politics at Princeton University, will be blogging @ Law and Liberty for the month of April. I know that we are in store for an interesting array of posts on constitutional jurisprudence and other subjects.
Keith’s books include Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Kansas, 1999); Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton, 2007), and American Constitutionalism (Oxford, 2012) (with Howard Gillman and Mark A. Graber). He is currently finishing a history of the judicial review of federal statutes and a collection of source material in American political thought.
- Our Books section featured two great essays this week. In “Jewish Learning, Human Liberty,” David Conway evaluates Moshe Halbertal’s Maimonides: Life and Thought. Arnold Kling considers the economics and societal implications posed by rapid advances in computer technology in his review of The Second Machine Age.
- Scott Sumner @ EconLib: Central banks do not deserve our respect or our condemnation; they deserve our skepticism.
- Rick Garnett @ the Conglomerate on religious liberty and the rights of employees.
- After oral arguments in the Hobby Lobby case this week, which Marc DeGirolami profiled well, Richard Samuelson’s older essay “What Adams Saw over Jefferson’s Wall” is again timely and worth a read.
- Daniel McCarthy on the strange power of Willmoore Kendall.
- Indiana rising: recently named 3rd best state for protecting property rights by Mercatus.
A recent report from the Wall Street Journal flatly stated that with “so many unilateral executive waivers and delays . . . ObamaCare must be unrecognizable to its drafters, to the extent they ever knew what the law contained.” As Richard Epstein memorably put it, this amounts to “Government by Waiver.” In the case of Obamacare, the waivers and exemptions go to the heart of the bill itself. Healthcare coverage mandates for companies have been waived until 2015, and now word comes that the individual mandate has been quietly waived indefinitely for those individuals whose plans were cancelled and who cannot find affordable insurance on the exchanges.