Here Comes Everybody

We will soon know if the U.S. Senate changes hands, but I’m not one of those waiting with bated breath. I had lunch with a prominent conservative columnist a while back. “It’ll be different in November,” he exulted. “We’ll take the Senate!” “And then what will happen?” I asked. “We’ll pass legislation and send it up to Obama,” he answered. “And then what will happen?” I asked.

My friend thought that the most arrogant and narcissistic President the country has ever seen would blanche before Mitch McConnell. Count me a skeptic. We have gridlock this year, and we’ll very likely have gridlock in 2015, whatever happens in November.

Oh, I know there’s the Senate’s advise and consent role, when it comes to judicial appointments. Conservatives like to pretend that that’s important. All it means is that, with divided government, we won’t see Justice Eric Holder. So we’ll see Justice Elena Kagan. Tell me what’s the difference.

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Who’s Afraid of Consumer Credit? A Discussion with Todd Zywicki

CCredit

The market for consumer credit has been subjected to an ever increasing amount of federal regulation since the 2008 crisis. The Dodd-Frank Act created the Consumer Financial Protection Bureau to intervene in consumer credit markets and protect us from the rapacious lenders who devour household income and place consumers in unmanageable levels of debt through stealth and manipulative business practices. The predictable results have been a marginal increase in the cost of credit and its decreasing availability to lower income consumers as the CFPB’s rules price them out of this market. Todd Zywicki, co-author of Consumer Credit and the American…

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The American: Not Ugly, Not Quiet

Hoover

George Nash, the dean of Herbert Hoover scholars, wrote about our 31st President most recently in the Wall Street Journal, commemorating the centenary of Hoover’s heroic World War I disaster-relief efforts in Europe. Nash described how, in 1914, a young and successful London-based mining engineer made his move “to ‘get in the big game’ of public life.”

Nash’s words capture a do-gooding impulse, but one that is mixed with personal ambition. This interesting alloy should be familiar. It puts Herbert Hoover in a long line of Americans in whom self-improvement and world-improvement seem inextricably tied—a line stretching back in our history, at least to Benjamin Franklin, and forward into our time.

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Who Are the Terrorists?

Protestors Hold Vigil, Rally Condemning "Klinghoffer" Opera Outside Lincoln Center

For a generation, the U.S. government, public figures, and the press have been affixing the label “terrorist” or “dangerous extremist” to their least favorite people and causes. Setting subjective preferences over reality has been detrimental to our safety as well as politically divisive. It is past time for our body politic to make such designations in a democratically responsible way.

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The Dormant Commerce Clause

Mike Greve and Mike Ramsey both have interesting posts on McCulloch v. Maryland and the Dormant Commerce Clause.  Here are my views:

1. In McCulloch, the Supreme Court held that federal institutions such as the Bank of the United States were immune from discriminatory state taxes. I have long been skeptical of this opinion. The federal government has the power to immunize federal institutions and so an argument for a constitutional immunity is extremely weak.  That said, there is a reasonably strong argument that the federal statute establishing the bank preempted the state tax.

2. I do not believe that the Constitution’s original meaning supports the Dormant Commerce Clause. It is possible that some of the work may be done by the Privileges and Immunities Clause of Article IV, but only some of it. While there are articles attempting to ground a Dormant Commerce Clause in the original meaning, I have not found them persuasive.

3.  I believe the Dormant Commerce Clause doctrine is beneficial and therefore I would be disappointed from a policy perspective if it were overturned. By contrast, I do not think desirable policy would be harmed if the immunity portion of McCulloch were overturned, because Congress would step in.

4. While Congress would surely, in the absence of the McCulloch immunity, preempt state laws that interfered with federal institutions, it is less clear that it would act to prohibit states from taking actions that interfered with interstate commerce. But I believe it is much more likely than Mike Greve does. It may be, as Mike says, that “No tax coordination rule has ever come from Congress (let alone the states themselves).”  But that does not mean, as Mike says, that “The argument against the dormant Commerce Clause is an argument for unchecked state aggression.”

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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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