The Mistakes of Chevron and a Separation of Powers Fallacy

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. 

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Conservative Crack-up(s)

Audio, seismic or stock market green wave diagram

The timing of George Hawley’s book is almost perfect. Questions raised over the past decade about the conservative movement’s survival have never been more pressing. Indeed, developments in the 2016 presidential campaign, combined with now-undeniable demographic, cultural, and sociological trends running against the Republican Party, may have shifted the burden of proof from naysayers onto anyone who is more optimistic.

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Meshugas About Chickens

Chicken on the meadow

As a society becomes more secular, what happens to religious rituals, customs, and ways of life that cannot be explained or justified in secular terms? When the freedom to engage in such practices is no longer presumed to be a good because of a firm commitment to religion as a social value, little stands in the way of its becoming just one more special interest. Religious freedom is then thrown into the bin of social oddities, to be haggled over and negotiated against whatever other idiosyncratic predilections one happens to find in there..

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The Founders Were Better than Trump and Clinton

Alan Taylor, a historian from the University of Virginia, has written an op-ed in the New York Times arguing that Americans wrongly disparage Donald Trump and Hillary Clinton in comparison to the Founders. Instead of recognizing their similarities to this year’s candidates, Taylor says that we treat the Founders as mythical giants. But, according to Taylor, they were as divided and divisive as  these nominees. And the Founders tolerated a society with less sound norms than our own. Moreover, we should just accept that Founders did not resolve the “core principles of our government,” leaving it up to us to fight about them.

This op-ed is misleading and flawed in many respects. It exaggerates the differences in principle as opposed to politics among the Founders. It does not give credit to the Founders’ principles for being a primary cause of the improvement in social norms in America. And its claim that the Constitutional text does not settle core governing principles is a conventional and undefended cliche of the academic Left.

First, while the Democratic-Republicans and Federalists had strong political differences, their respective appointees to the Supreme Court were united on  the constitutional principles of creating a strong but limited federal government whose focus was creating a commercial society. That justices of different parties agreed on so much after deliberation is strong evidence that there was substantial, even if not unanimous agreement, on core principles.

For instance, Chief Justice John Marshall and Justice Joseph Story hardly ever diverged on the resolution of constitutional cases, despite being appointed by  John Adams and Thomas Jefferson respectively.

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Is the Chinese Government in Late-Stage Regime Decay? A Conversation with Minxin Pei

china's crony capitalismThis new edition of Liberty Law Talk discusses with professor and author Minxin Pei how the nexus of corruption between businesses and officials within the Chinese Communist Party is negatively shaping the country's current trajectory in economics and foreign policy. Much conventional thinking holds that China's economic rise will continue unabated, but Pei's account breaks with current wisdom by focusing on a decadent ruling class mismanaging China towards disaster.

The Rise of Delegation

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.  

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Which Constitution Will We Live Under?

Architectural Columns on the Portico of a Federal Building in Ne

The Progressive apoplexy over Donald Trump—which is justified on myriad grounds, many of them other than those his critics are articulating—ought not obscure this decisive fact: Trumpism is a disease of Progressive constitutionalism. Its symptoms include an inflamed presidency and Supreme Court—and embrace of the former and a reaction against the latter.

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Why a Republican Senate Would Be Best for the Rule of Law

There has been a lot of discussion in the blogosphere about what candidate would be better for the rule of law—Hillary Clinton or Donald Trump. At City Journal I recently pointed out that both candidates pose some legal dangers.

But whoever is elected President, there can be no doubt that a Republican Senate would be best for originalism and thus the long-term prospects of the rule of rule. Begin with the election of Clinton, because that is the far more probable outcome and thus should be counted most heavily in the calculus.  She would nominate justices who are outright hostile to the meaning of the Constitution.  At the Presidential debate she said nothing about wanting justices who would follow the law, just judges who have empathy and who would follow her litmus tests of being in favor of Roe and against Citizens United. That latter comments were too much even for the Washington Post.

Even more importantly, she comes from a progressive movement that is dedicated to transforming the Constitution without going through the amendment process. As I said in my City Journal essay:

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Liberate the Captives

birth of a nation

The Birth of a Nation has been called a classic revenge movie—Braveheart set in antebellum America—and it’s a largely accurate assessment. This is a biopic of Nat Turner, a slave who led a rebellion in 1831 of slaves and free blacks in Southampton County, Virginia, that resulted in the deaths of some 55 to 65 white people. In retaliation, white militias and mobs killed more than 200 black people before hanging Turner.

Something crucial has been left out of that assessment, though.

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