Should Congress Adopt a New Independent Counsel Statute?  The Constitutional Issues

One of the principal concerns about the Obama Administration are the scandals and the claims that it is violating the law.  And sadly the congressional investigation process does not seem to be adequately doing its job.  Thus, it is worthwhile thinking about alternative institutions.

The principal method used back in the 80s and 90s was the independent counsel (IC). Unfortunately, the independent counsel was both unconstitutional (for the reasons discussed in Justice Scalia’s dissent in Morrison v. Olson) and subject to serious problems. But while the original IC statute had these problems, that does not preclude employing a reformed IC to investigate the executive branch.

Let’s start with the unconstitutionality of the original IC. Under the old regime, the IC was not subject to the direction of the President and therefore in my view was unconstitutional. In addition, the IC was appointed by a court on the ground that he was an inferior officer, even though he was clearly in my view a principal officer who could be appointed only by the President with the advice and consent of the Senate.

Both of these problems are rectifiable. First, the IC could be made formally subject to the direction of the President. The statute might provide that the IC is subject to the direction of and removal by the President, but that the Congress believes that presidential direction of the IC would be problematic as a policy matter and requests that the President not direct the IC. The statute might also require the IC to disclose to the public if the President gave him a direction and to keep notes of what the direction was. It is likely under this arrangement that the President would not give any orders to the IC, because he would pay a significant political price for doing so.

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Bolivar with a Burr

The words that Lord Falkland is supposed to have said—that when it is not necessary to change, it is necessary not to change—are a lesson that humanity and above all politicians are reluctant to learn.

There’s no profit in it for “projectors,” Edmund Burke’s term for those who place at the center of their own sense of importance change brought about by them.

And there’s no greater projector than the leader of the Scottish National Party (SNP), Alex Salmond. Mr. Salmond does not so much promise to solve specific problems as arouse hope, a hope that is vague, general, and unfocused. He has been very successful at this, assisted as he is by the fact that there is good cause for discontent in Scotland. Deindustrialization has not been kind to the country, and there are parts of Glasgow, its largest city, where living standards and life expectancy are at levels found in the old Soviet Union.

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Telling the Truth about Aleksandr Solzhenitsyn

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Comes now the great Daniel J. Mahoney, author of penetrating intellectual biographies of Bertrand de Jouvenel, Raymond Aron, and Charles de Gaulle, among other books, to discuss his latest work, The Other Solzhenitsyn. Mahoney, coeditor of The Solzhenitsyn Reader, offers in this discussion a tremendous introduction to the Russian dissident writer’s oeuvre and a rebuttal to his many critics.

We might say that some Western writers who, from their position of faux outrage, frequently critique their governments, societies, and cultures have Solzhenitsyn envy, earnestly wishing their work had even a fraction of the impact of the Russian anticommunist’s corpus of writings. Not that they admire Solzhenitsyn’s political or moral philosophy, or his belief that freedom is ultimately born of spiritual commitment. They only yearn to have it said that their words put a “sliver in the throat of power.” Such was the praise given Solzhenitsyn in 1962 after the publication of One Day in the Live of Ivan Denisovich.

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Halbig: Another Expert View

The federal judiciary is in great need of expert economic advice, and mercifully some are happy to supply it. “Stop the Anti-Obamacare Shenanigans,” Henry J. Aaron (senior fellow, Brookings), David M. Cutler (professor, Harvard), and Peter R. Orszag (shill, citigroup) plead on the New York Times op-ed page. They urge the Supreme Court to await the D.C. Circuit’s en banc decision in Halbig before granting cert in King v. Burwell. Because if the petitioners’ position and the D.C. Circuit’s ruling—ACA tax credits and mandates apply only under health care exchanges established by states, not to exchanges established by HHS in a state—were to prevail, “it would create total chaos.”

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The Scottish Earthquake

The  effects of the vote on Scottish Independence, like the French Revolution, will not be contained within its borders. Whatever the outcome in Scotland, its referendum will reverberate across Europe, energizing the many culturally homogeneous peoples who view themselves as trapped within distantly governed and soulless nation states. The consequences will likely be the creation of more nation states within Europe and certainly more devolution to subunits within nation states. It is a revolution of both cultural solidarity and political subsidiarity.

The European Union, European peace, and the affluence and anonymity of the globalized market economy are the tinderbox for the coming conflagration.

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The Perverse Effects of the “All Comers” Requirement

The recent decision by the California State University system to enforce its “all comers” policy against religious groups on its 23 campuses is the latest in a disturbing and (at least in some cases) unprincipled effort to rid colleges and universities of conservative religious groups with creedal faith statements.

The Supreme Court bears much of the blame. In its 2010 decision in Christian Legal Society v. Martinez, the Court unwisely upheld the nondiscrimination policy of the Hastings College of the Law, a public law school in San Francisco. Its “all comers” policy is that student groups must admit as members and even leaders any student who wants to participate. The Republican club must accept Democrats. The pro-choice club must accept pro-lifers. The Jewish club must accept Christians.

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Debating War to Secure Peace

Freedom is not free

President Obama told the nation that he, on his own presidential authority, has committed the American people to actions in the Middle East that common sense calls war. But he did not call it war. He directed those actions against persons who call themselves Islamic but who he said were not Islamic, who rule a state with the (often enthusiastic) consent of its people but who Obama said were not a state. He said that allies largely would carry this campaign’s weight. But the countries he mentioned have made clear that they will do no such thing. This makes no sense, and augurs further disasters abroad.

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Reinvigorating the Nondelegation Doctrine through the Constitutional Amendment Process

One of the ways that small government and democratic accountability could be promoted in the modern world is through the reinvigoration of the nondelegation doctrine.  Under that doctrine, administrative agencies would be prohibited from making discretionary legislative decisions and therefore Congress would have to do so.  If Congress, rather than administrative agencies, were to make the discretionary legislative decisions, this would both reduce the number of regulations that were enacted and would ensure that members of Congress would have to be responsible for their decisions.  By contrast, under the current system of delegation, the administrative agencies can use the efficiency of the administrative process to pass large numbers of regulations and members of Congress can avoid accountability for these regulations, always claiming that they did not intend any particular regulation which might turn out to be unpopular or controversial.

One common argument against reinvigorating the nondelegation doctrine is that it is not possible in the modern world.  Congress has neither the expertise nor the time to enact all of these regulations.  But this is not actually a good argument.  There is a method that would allow Congress to make these decisions, even assuming that it does not have the expertise or time to do so.

Under a well known proposal, all substantial regulations would have to receive the approval of Congress to become law.  The adminstrative agency would propose the regulation in much the same way it does now.  Thus, it would reflect the agency’s expertise as well as the efficiency and speed of the administrative process.  But the regulation would not go into effect unless it was approved by the Congress. 

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The Post-Constitutional Presidency Turns Inward

White House Wasghington DC view

The syllogism by which healthcare deadlines may be deferred against laws, recess appointments made without recesses, and international agreements negotiated sans treaties runs as follows: The national government is empowered to pursue the public interest. The power of the national government is vested in the person of the President.  Therefore, the President is empowered to pursue the public interest.

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Victim of a Practice Audit

Audit Word Ball Anxiety Fear Tax Financial Accounting PracticesOver at Instapundit, I read yesterday that the IRS defended its Breitbart audit with this statement: “The IRS stresses that audits are based on the information related to tax returns and the underlying tax law — nothing else.”

Glenn aptly writes “And who could hear this without laughing?” Actually, I know from personal experience it is false, because a while back I was subject to a “practice audit.”

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