Hong Kong, Democracy, and Constitutionalism

The Chief Executive of Hong Kong recently lamented that permitting democratic elections there would permit too many relatively poor people to vote. He fears that this group – comprised of those earning less than $1,800 per month, in his view – could vote themselves excessive benefits and endanger Hong Kong’s prosperity.

The irony is delicious – the Chief Executive, vetted for his position by the Communist Party of China, opposes democracy because it empowers the poor. May the communist slogans in China rest in peace!

But does the Chief Executive have a point, at least in the Hong Kong context?

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Is It Another Great Awakening?

GAEconomist editors John Micklethwait and Adrian Wooldridge shocked the secular West in 2009 by announcing that God Is Back—starting with China, of all places. Here were two epitomes of British reasonableness explaining that Europe was the modern exception in viewing God as dead, an irrational shadow of the past, with its Continent declining in population and power, and the rest of the world resembling America in having religion as a part of their cultural dynamism.

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Reforming Nonlegislative Rules

In my last post, I noted the problem of nonlegislative rules – rules, such as guidance documents, announced by administrative agencies that are not required to go through the procedural check of notice and comment and are usually not subject to judicial review.  These nonlegislative rules are greatly favored by administrative agencies because these rules allow the agencies to circumvent the ordinary checks on them.  Good governance requires that this loophole be closed.

The key feature about nonlegislative rules is that they are supposed to be non-binding.  In contrast to a legislative rule, no one is required to follow a nonlegislative rule.  In essence, they are simply supposed to provide information to the public about how the agency plans to interpret the law or exercise its policy discretion.  This is what is said to justify not following notice and comment and not being subject to judicial review.

The problem is that nonlegislative rules often have a real effect as a matter of practice.  For example, the guidance by the Department of Education announcing that the preponderance of the evidence standard should be used for sexual assault cases came in a nonbinding guidance, but of course many colleges have been pressured into adopting it for fear that the Department might otherwise take action against it, risking the federal funds it receives and the reputational hit it would take for being seen as violating Title IX.

But entirely forbidding nonlegislative rules is not a desirable solution, because these rules can often provide useful information to the public.  So what should be done?

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A Constitutional Congress

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…

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Halbig and the Nonchalance of Six Small Words

New legislation

The psychology of legislative draftsmanship involved in the six words at stake in Halbig v. Burwell—“an exchange established by the State”—reflects a short-odds gamble that did not hit. The bettors first wanted the IRS to rescue them from the consequences, and now they want the courts to do it.

The gamble was that states, enticed by subsidies for their citizens or intimidated by the threat of losing Medicaid funds, would establish healthcare exchanges. The Obama administration is surely right that the whole idea of the Affordable Care Act (ACA) was that such subsidies be provided, and that the consequences that have ensued from those six small words were probably unintended.

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Same-Sex Marriage, the Political Process and Judicial Manipulation

There is a new meme circulating among journalists about the Supreme Court’s decision not to take certiorari in the same sex-marriage cases. According to the left-liberal Jeffrey Toobin, the Court’s decisions allow the “political process to go forward, one state at a time.” Or as David Brooks, a moderate conservative, said at greater length: “Sometimes, you just let the country have its way, and you don’t try to determine the shape of the country. You sort of modestly step back and let the country figure out what it believes. And I think they’re doing absolutely the right thing in just withdrawing and not getting too involved.”

Whatever one thinks of same-sex marriage (and I favor it as a policy matter), these claims completely distort the truth. The Supreme Court is letting go forward a judicial process that permits courts to invalidate traditional marriage laws if they think such a decision would best reflect the signals the Court itself has previously sent on the subject.  In contrast,  a political process would allow states—principally their legislatures and people—to make decisions about same-sex marriage, one state at a time.

The journalists’ claims are even more disingenuous because of the way the Supreme Court has set the stage for the lower courts.

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The Problem of Nonlegislative Rules

One of the big problems involving administrative agencies is that they are often insufficiently checked.  With the relaxation of separation of powers during the New Deal, modern administrative law limits agencies through two principal mechanisms: required procedures and judicial review.  Unfortunately, administrative law allows certain loopholes to these mechanisms that agencies can exploit.

One of the biggest problems these days occurs when agencies regulate through the use “guidance documents.”  Mike Greve recently had a post discussing the Department of Education’s use of one such guidance.  When agencies issue legislative regulations – rules that bind the public – they are normally required to do so after a notice and comment procedure.  Moreover, such rules are often subject to judicial review when they are issued.  Thus, there is a procedural and judicial review check on such legislative rules.

By contrast, guidance documents – which often read like legislative rules in that they appear to tell regulated parties how to act – are not subject to the notice and comment procedure.  While guidance documents do not formally bind private parties, they often operate in the real world to exert a practical influence on the public.  Moreover, while the matter is subject to dispute, there is often not judicial review of such rules.  As a result, agencies love to regulate with such guidance documents since they can avoid scrutiny.

While the courts could possibly address these problems, the best way would be through legislation.  Administrative agencies have enormous influence over the country and the Congress needs to pay attention to them.  Republicans, who have recently been greatly concerned about the abuses of administrative agencies, should attempt to address this problem through legislation.

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Why Iraqi Chemical Weapons Embarrass the U.S. Government

The New York Timesaccount of Washington’s embarrassed secrecy about the U.S. military’s encounter with several thousand chemical weapons in Iraq, and the often callous medical treatment provided to the troops who dealt with them during the 2003-20011 occupation, is incomplete.

Not mentioned by the Times is that our special operations forces had run into these weapons in 2002 during secret, pre-invasion reconnaissance missions under CIA operational command. At least one U.S. officer suffered kidney failure after coming upon a suspect site, ordering his men to stand back as he entered to check it out and collapsing upon exiting. Discharged on medical disability, he has been on dialysis awaiting a kidney transplant since 2004. He and other special forces were warned—more categorically than the occupying troops discussed by the Times—that divulging what happened to them would be treated as a serious breach of “top secret” security.

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Your Credit History (the Accurate Version)

Wallet with cards

The story is a familiar one: Irresponsible consumers and rapacious borrowers collide in a frenzy of consumption that takes down the American economy and banking system. Only heavy-handed government regulation can rein in the excesses, providing comprehensive regulation of the consumer-credit economy and protecting vulnerable groups of Americans from exploitation by lenders who goad consumers to take on more debt than they can handle to sustain a consumerist lifestyle they can’t afford.

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