Liberty Law Blog

Friday Roundup, April 19

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None of Britain’s future options are easy, argues Charter. Without declaring a preference for any one of them, he leaves it clear that, in his opinion, Britain must shortly leave the EU, but that there will be life after its doing so, albeit probably a slightly less prosperous one than it might otherwise have enjoyed had it remained a member.

  • The real costs of college group-think: Judith Grossman, an attorney in New York, writes in the Wall Street Journal this week about the show trial her son endured on campus because of a bogus sexual assault allegation by a former girlfriend that allegedly happened years earlier. Her son was presented with no evidence, no specific allegations, or allowed to confront his accuser or other “witnesses.” The standard of guilt for this crime owing to the Obama Department of Education’s Office of Civil Rights is preponderance of the evidence or 50% + a whisper. Yes, you read that right. Why are college panels trying these cases to begin with? DOE tied the implementation of these changes for conviction (50% and a whiff) to a college campus’ continued receipt of federal funding. Practical. Grossman’s son had a lawyer mother with means who protected him. It goes without saying that many others will not be so fortunate. Harry Lewis and Jane Shaw have a similar report @UNC. Apparently, it’s no good for the accusers either.

Beyond making clear that “mere corporate presence” in the United States will not suffice, the Chief Justice’s opinion observes that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” That observation (and its supporting citation) ought to signal that there will not be ATS jurisdiction over claims based predominantly on, or focused on, foreign conduct, but future cases will have to sort out the precise lines.

  • New Fed Soc operation: Executive Branch Project. This is greatly needed. I look forward to many excellent contributions.

Will on DeMuth

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The one and only George Will has a Washington Post column today on the one and only Chris DeMuth’s speech on “Executive Government and Bankrupt Government,” delivered at GMU’s Transatlantic Law Forum this past February. I’ve blogged and linked to the talk here. Go read if you haven’t already. You now have it on Mr. Will’s authority that this is big—the deepest, most sober reflection on the state of our politics you’ll find.

In the printed Post, George Will’s column appears underneath a rare E.J. Dionne column that’s not only not inane or infuriating but right on, and moving. The Boston Marathon runs up Commonwealth Avenue (“Heartbreak Hill”) past Boston College, where I’ve taught and where my daughter goes to school. This one hit close to home, and I thank Mr. Dionne for his tribute to one of America’s greatest, gutsiest cities.

The Problematic Chevron Doctrine

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In my earlier post, I discussed how the Supreme Court’s failure to enforce the nondelegation doctrine has allowed legislative and executive power to be combined.  Here I want to discuss another way in which the Supreme Court has not merely allowed legislative and executive power to be combined, but has actually encouraged the process; and done so probably against Congress’s will.

Under the Chevron doctrine, the Courts permit administrative agencies to adopt any reasonable interpretation of a statute that the agency administers.  (This is a simpler formulation than the Court normally gives, but it is accurate and will do for this post.)  The doctrine provides the agencies of the executive branch with more power over the implementation of the laws than they would otherwise have.  The agencies are given authority to choose any reasonable interpretation of the statute that they desire.  Thus, more policymaking discretion is given to the agencies.  The agencies therefore enjoy more legislative power in that they get to decide the meaning of the legislation that Congress enacted.  (Another way to view the doctrine is that it confers judicial power on the agencies.  While I don’t pursue that view here, that is hardly better.)

Significantly, the Chevron doctrine is not a command of the Congress.  The Court has largely made the whole thing up, so that agencies receive more of a delegation than Congress appears to have intended.  If the Congress had actually delegated the authority to the agencies, then the Court could at least claim to be following Congress’s will.  (For those who doubt my claim that Congress did not delegate this power, see my next post.) Continue Reading →

Gun Control Advocates are Playing Chess

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The President was on television recently stumping again for his gun control agenda.  He spoke in his favored repetitive mode except for one sort of new flourish, which was the acknowledgment that there are good people on both sides, and we all need to walk a bit in each other’s shoes. This advice actually might illuminate our way through the coming teeth gnashing-debate about the Senate’s vote on expanded background checks, among other things. Continue Reading →

Alien Torts

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The Supreme Court has just released its decision and opinion(s) in Kiobel v. Royal Dutch Petroleum. I haven’t read or analyzed this carefully, but here’s the gist of it:

Kiobel involves the hotly contested question of whether the Alien Tort Statute, 28 U.S.C. 1350, permits courts to recognize a cause of action for torts in violation of customary international law—and if so, what causes. On its face, the ancient statute (part of the 1789 Judiciary Act) is purely jurisdictional: it says that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” That tells you where to sue and who may sue, but it doesn’t say what torts “count.” In Sosa v. Alvarez Machain, 542 U.S. 692 (2004), the Supreme Court held that aliens can sue over torts that are like—in character, specificity, and international consensus—the  “violations of the law of nations” recognized in 1789: violations of safe conduct, infringement of the rights of ambassadors, and piracy.  What does that mean, though? Continue Reading →

More on Separating Legislative and Executive Power

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I should have noted that the proposal I discussed in my earlier post actually has been promoted in the form of the REINS Act, which stands for Regulations From the Executive in Need of Scrutiny Act.

Jonathan Adler has a post and article on the subject, where he notes his debate with Jonathan Siegel.

Jonathan discusses both constitutional and policy issues concerning the proposed legislation.  While I welcome the efforts in favor of the legislation, I don’t think it has much chance of being enacted.  Not only is it opposed by people who favor regulation, it will also be opposed by members of Congress who do not want to be held accountable.

If one favors cutting back on regulation, a more promising approach is to institute some additional check on agencies, such as cost benefit regulation subject to judicial review or outside fact finding by advisory boards.  Members of Congress will not have the same institutional interest against such proposals.  Notice, however, that the principal focus of these proposals is to cut back regulation rather than separating legislative and executive power (although a cost benefit standard would put some additional checks on executive policy-making discretion and therefore would limit legislative power).

The Limits of James Madison’s “Memorial and Remonstrance”

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The stridency of the Obama administration’s secularism has led advocates of religious pluralism and the fully-clothed public square back to the Founders’ well to reproduce and rearticulate our vital heritage of religious liberty. Such stridency has been most clearly evidenced by Obama’s lawyers advocating against the rights of a Lutheran church to pick its clergy leadership in the Hosanna-Tabor case and the HHS contraceptive mandate. We could go on here, but these examples will do. Both cases illustrate the desire of the administration to do something that in other policy contexts it wouldn’t dare do: Privatize. Continue Reading →

Separating Legislative and Executive Power

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There is a strong argument that the Constitution’s original meaning employs a strict separation of powers approach.  But many people argue that it would be too difficult to go back to this arrangement after the New Deal combined the powers in administrative agencies.  Previously, I wrote about how the separation of judicial and executive power could be effected without incurring too much in terms of adjustment costs.  See here and here.

Now, I want to move on to the separation of legislative and executive powers.  During the New Deal, the Supreme Court greatly relaxed the nondelegation doctrine and this separation so that now there is no real judicial check on delegations.  It is this change, more than any other, that has made the administrative state possible.  So, it might seem that it cannot be reversed without undermining the administrative state.

But not so.  Administrative law professors have for some time been aware of the following alternative arrangement.  The agencies could formulate significant legislative rules as they do now.  But instead of simply promulgating them, the agencies would send them over to the Congress.  Then, congressional rules would employ a kind of fast track procedure that would require each house to vote up or down on the proposed rule with very limited debate.  If passed, the rule would then be presented to the President.  In this way, the agencies could propose the rules, but the Congress and the President would have to decide whether to enact them.  There would be little delegation of legislative power to the agencies. Continue Reading →

The Cartel Breaks

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Ronald Brownstein and Stephanie Czekalinski have a fine article (National Journal, Apr. 13) on the increased partisan-ideological divisions among states. There’s way more ideological and partisan homogeneity within states, and

Across the full range of economic and cultural issues, Democratic and Republican state officials are pulling apart far more than they did as recently as two decades ago. On gun control, gay marriage, immigration, taxes, and participation in President Obama’s health reform law, among other issues, states that lean red and those that lean blue are diverging to an extent that is straining the boundaries of federalism.

The article is vintage National Journal, both in a good sense (well-informed, thorough, judicious) but also in a not-so-good sense. As the title suggests (“How Washington Ruined Governors”), it’s too taken with mainstream, bipartisan, consensual, good-government-from-good-governors to recognize the downside of that mode of federalism—or the upside of the more contentious brand that seems to be on the ascent. E.g., the authors lament that the

widening gap is recasting the role of governors. Well into the 1990s, state executives considered themselves more pragmatic than members of Congress; they regularly shared ideas across party lines and often sought to emerge nationally by bridging ideological disputes. 

Over roughly the final third of the 20th century, … this movement accelerated. State lawmakers converged around a burst of policy innovation that led some to describe the period as a second Progressive Era. From the 1970s through the 1990s, many of the most prominent governors in both parties prided themselves on recombining ideas from left and right on issues such as education, health care, transportation, and welfare. Continue Reading →

Same-Sex Unions, Assumed Historical Facts, and Interracial Marriage

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At oral argument in Hollingsworth v. Perry, Justice Scalia challenged Theodore Olson as to when it became “unconstitutional to exclude homosexual couples from marriage?”[1] Olson replied first with what he called a “rhetorical question,” viz., “When did it become unconstitutional to prohibit interracial marriages?”  For Olson, the answer was clearly not 1868—the date of the Fourteenth Amendment’s ratification.  Rather, he explained, in nullifying racial-endogamy laws, the Court in Loving v. Virginia (1967) had ventured into “unchartered waters” with reliance on “evolutionary” jurisprudence as a compass.

Richard and Mildred Loving

Richard and Mildred Loving

In making this claim, Olson is in good (and numerous) company.  Prominent jurists have repeatedly declared the Court’s decision in Loving v. Virginia to be incompatible with the original sense of the Amendment.  The judges include Justice Kennedy[2] and his colleagues in Planned Parenthood v. Casey; Judge Reinhardt and the Ninth Circuit in Washington v. Glucksburg; numerous progressive scholars, including Jack Balkin, Michael Klarman, and William Eskridge; and even some prominent conservatives like Steven Calabresi and Hadley Arkes [on this blog].

But this belief, as Lincoln would say, represents one of those “assumed historical facts which are not really true.” Continue Reading →