Introducing James Rogers and Brian Mannix as November Guest Bloggers

So yesterday Michael Greve announced that he was going to step back from full-time blogging and would join our conversations from time to time. Mike has been a part of this site since its launch in 2012 and has contributed much to its success. I know that his regular posts will be greatly missed. As one reader commented to Mike, “You have been a lucid and consistent voice in a relative wilderness. I am a non-lawyer who has learned a ton about administrative law and executive federalism: fascinating and horrifying in equal parts. I am sure there are other law professors who know…

Read More

They’re Still Ignoring Lawrence Walsh’s October Surprise

Democrats are all abuzz with criticisms of the FBI's reopening of the e mail investigation of Hillary Clinton.  Some people talk of this being unprecedented or the worst October Surprise.  Sadly, these criticisms appear ignorant of what Lawrence Walsh did many years ago to help elect Hillary's husband. For those who do not remember, the story is told here and here.  Put briefly, there is a way to understand James Comey's behavior as honorable.  There is no way to understand Lawrence Walsh's behavior that way. Sadly, people who should know better don't seem to.  At the 538 site, Harry Entin reviews six examples of October…

Read More

Judicial Review as Moral Hazard for Legislators and Citizens

Justice statue with sword and scale and books. Law concept

Most people think of judicial review in the way that Justice Owen Roberts described it in a 1935 Supreme Court decision:

The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the Government has only one duty — to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question.

It seems straightforward. A judge takes a law, sets it next to the Constitution, and determines whether the “latter squares with the former.”

Read More

Farewell

With this post I bid a very fond farewell to Law and Liberty, its brilliant mastermind Richard Reinsch, and readers and commentators, faithful and occasional, over the past near-five years. I’ll continue to contribute as the spirit and Richard’s impetuous demands may move me. But my more-or-less regular contributions end with this post. That is as it should be, and it comes at the right moment. My engagement here has been like most of my career: wholly fortuitous, and undeservedly rewarding. Richard recruited me for the launch in the hope of giving air to a fresh, heterodox voice in a vibrant…

Read More

Does Morrison v. Olson Govern the PHH case (concerning the Director of the CFPB)?

In my last post, I praised the D.C. Circuit’s opinion in PHH Corp. v. CFPB holding that the restriction on the President’s authority to remove the Director of the Consumer Financial Protection Bureau was unconstitutional.  In this post, I want to discuss the most important precedent.

In PHH, the D.C. Circuit held that precedent and practice allowed removal restrictions on agencies headed by commissions, but not by agencies headed by a single individual. In reaching this decision, the court had to distinguish the Supreme Court’s decision in Morrison v. Olson.   Some commentators have argued that Morrison governed this case, but I do not think so.

In Morrison, the Supreme Court approved the independent counsel statute, which had placed a similar removal restriction on the Attorney General’s authority to remove the independent counsel.  If the independent counsel could be protected from executive removal, why could not the Direction of the CFPB?       

Read More

Whittaker Chambers’ Pumpkin Patch

Whittaker Chambers sits during the HUAC investigation of Alger Hiss.

The warm weather hasn’t stopped the wind from blowing or the foliage from turning gold and red and orange. As the leaves fall, and the trick-or-treaters prepare to make their rounds, here in Baltimore it’s also “Pumpkin Papers” season. Recalling this fascinating chapter of the Cold War is as much a part of an anticommunist’s autumn as little kids dressed like ghosts and storefronts decorated with dried cornstalks and hay bales.

Read More

Investigating the Investigators

AGs United for Clean Power press conference on March 29 in New York.

The last several weeks have seen extraordinary developments in the climate-change investigation of ExxonMobil. What once was an investigation of ExxonMobil by states attorneys general has become an inquiry into the misconduct of the attorneys general. First came a mid-September order from Judge Ed Kinkeade, of the U.S. District Court for Northern Texas. Exxon had received a subpoena requiring massive disclosure—a subpoena (or “Civil Investigative Demand”) signed not by a judge but merely by the Attorney General of Massachusetts, Maura Healey—and the company responded by suing to enjoin its enforcement. Ordinarily (under the Younger abstention doctrine) a federal court would hesitate…

Read More

The Enlightenment, Liberty, and Tradition

In A Culture of Growth: The Origins of the Modern Economy Joel Mokyr has located the source of the industrial revolution in the culture of the Enlightenment. The Enlightenment prioritized the idea of human progress. As a result, people began to think constantly of finding material in the world to make new technologies for human betterment.  The Enlightenment also replaced more scholastic modes of thought with scientific method.  As a result, people began intensively to test both new theories to see if they explained the world and new mechanisms to see how they would move the world. As a consequence, the Western economy began to grow at a rate never before seen in history.

A Culture for Growth is a wonderful book to which I cannot do justice in a short post. Mokyr is in equal measures a great intellectual historian and a great economist. He sees the cultural change of the Enlightenment as transforming the incentives for economic and intellectual activity. It removed taboos that impeded progress and created a market where the best new ideas rapidly gained a large market share of elite approval.  This book is welcome for many reasons, but not least because it is a blow to tedious, tendentious, and false political correctness about the roots our our prosperity. The Enlightenment was indeed key to material progress that helped the least well off, first in the West and now more broadly throughout the globe. And yes, it was the product almost entirely of dead white men, and relatively wealthy ones at that.

Although this is not his focus, I believe Mokyr’s book also establishes the crucial link between the levers of the Enlightenment and the growth of liberty.

Read More

Tolkien’s Establishment

tolkien exeter

To those of us in the universities, the Left’s animus to Catholicism revealed by Wikileaks this past week is not news. What Podesta and the Clinton circle said might have been exposed, but such slights about Catholicism are heard around universities all the time. As the Wall Street Journal points out, if such things were said about Islam they would be denounced as bigotry.

Read More

Brokering the Battle of Ideas

Meeting Of The Minds

A political movement’s success must be judged ultimately by how much change it causes, or prevents, in society. The Right has been greatly frustrated in this respect by the fact that the presidency seems unattainable by any serious conservative not named Ronald Reagan.

Read More