Regulate Now, Obey the Law Later

A few posts ago I introduced “citizen suits”—brought by private parties, usually advocacy organizations, in a capacity of “private attorneys general” against the government to make it do something—as an example of the derangement of our administrative and constitutional law. Here’s a bit more on the real-world aspects of the phenomenon, and a few more thoughts:

A ton of these cases are “deadline” suits. Environmental and, increasingly, many other statutes contain countless provisions saying that the administrator or agency “shall” regulate this, that, or the other thing by date “x.” More often than not, the agency misses the deadline, and the Association of Irritated Residents (an actual group) or some such outfit strolls into court and demands compliance. Agencies rarely fight these cases.

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The Old and the New: An Empy Restaurant and Yelp

The other day I was confronted by competing social signals: one old and one new.  I was visiting Santa Barbara with my family and, due to a comedy of errors, we ended up not having found a restuant at dinner time.  Needing to find one quickly, we looked on Yelp and discovered a four star restaurant, with a significant number of reviews, nearby. When we drove up to the restaurant, however, we questioned our choice.  It was 7:30 on a Friday night, but the restaurant was completely empty.  No one was inside, except for the staff.  That did not seem like…

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

Having addressed the constitutional issues, I now turn to the policy issues  Would it be a good idea to have a new IC statute?  This is a complicated issue and not one I have fully made my mind up about.  But if Congress were to enact a new IC statute, I believe there is a reform that would significantly improve its operation as compared to the old statute.

The biggest problem with the old IC statute is the incentives it gave to the IC.  If one is appointed to be an IC, there is a sense in which one is only successful if one hauls in a big fish – if one prosecutes and convicts someone for a significant crime.  Moreover, the IC has only one task – to investigate a single target – in contrast to a normal prosecutor who has many other possible prosecutions to investigate.  Consequently, the IC has more time and resources to devote to the one target.  These considerations provide the IC with an excessive incentive to prosecute the person they are investigating.

There is a way to address this problem.  There should be two ICs that undertake the task of investigating and prosecuting an official.  The first IC’s job should be to investigate.  At the conclusion of his investigation, he should issue a report which makes the following determinations: (1) whether there were any violations of federal law, and if so, (2) whether based on normal standards of prosecutorial discretion, those violations should be prosecuted.  If the prosecutor concludes that violations should be prosecuted under (2), then he refers these violations to the second IC, who can only prosecute these violations.

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Will the Secret Weapon Be Enough?: Brown’s Barnstorming to Make “No” as Inspiring as “Yes”

Three hundred and seven years ago, Englishmen and Scotsmen brought forth, upon the British Isles, a new Union, conceived in English insecurity and Scottish impecuniosity, and dedicated to the proposition that the two peoples, if not equal, at least had more in common than either did with the French.

The original Anglo-Scottish Union of 1707 was a “political necessity for England, a commercial necessity for Scotland,” as one historian put it. For contemporary champions of Union, the necessities that were the mother of its invention are as pressing as ever.

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The Successes and Failure of John Quincy Adams

john-q-adams-photograph

The public career of John Quincy Adams poses this paradox: he was the greatest ever Secretary of State but only a mediocre President. As Secretary of State, he concluded the Adams-Onis treaty with Spain and the 1818 convention with Great Britain. Both were diplomatic triumphs, gaining Florida for the United States and resolving border disputes with both nations. He was the architect of the Monroe doctrine, the cornerstone of American foreign policy in this hemisphere until the present day. He articulated more eloquently than any other Secretary of State a preference for America’s soft power over military deployment. The United States, he said, “goes not abroad in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own. She will recommend the general cause, by the countenance of her voice, and the benignant sympathy of her example.”

John Quincy Adams’ presidency was a disappointment.

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Can Scotland Govern Itself?

Editor’s Note: This excellent post by Hans Eicholz on the need for the Scots to recover their former capitalist and free society enthusiasms if they are to govern themselves is worthy of re-consideration today.

 

What does it take to secure an independent, self-governing nation? Arguably it takes a self-governing citizenry. And what does that mean? Generally speaking, it means a citizenry composed of persons capable of independent thought and action—capable of sustaining themselves through much of the thick and thin of life through their own voluntary efforts in civil society.

A modern welfare state works directly against that capacity by encouraging ties of hierarchical dependence on political authorities. The modern fallacy is to believe that majority voting is sufficient to prevent the abuse of power; anyone familiar with the workings of government cannot seriously entertain that idea.

The wild increase in laws and more importantly, administrative agency rules, does not translate into the rule of law, but into the selective enforcement of special programs by those entrusted to administer them. That sort of re-feudalization of the economy and society was well understood by Mancur Olson years ago in his book, The Rise and Decline of Nations. But Olson was really only further developing the critique of mercantilism first put forward by Adam Smith.

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There’s No Telling Where the Money Went

Corruption

My buddy Chris DeMuth and I are about to embark upon a long-term research project on fines, settlements, and fees collected by federal agencies. If we manage to pull it off, you’ll hear more about it.

Why would otherwise sentient humans volunteer for such a green-eyeshades program? Because the government itself doesn’t collect the data—not in one place, and very often not at all; and it doesn’t keep tabs on the spending, either. To paraphrase a leading public finance expert (the late Robert Palmer), the trend is irresistible—and there’s no telling where the money went.  It appears, though, that a bunch of federal agencies have become profit centers for Congress. Our working hypothesis is that that’s bound to have incentive effects throughout the government. None of them, we suspect, are likely to be good.

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On Adam, Eve, Tribes, and Nations

The prospect of Scottish independence has spurred a great deal of discussion here and elsewhere. It’s worth remembering that the Act of Union of 1707, which drew England and Scotland together, factored into the story of the American Revolution. Thomas Jefferson and other colonists believed that each colony had the same relationship to Britain in the 1770s that England and Scotland had to each other before the Act of Union: as an equal state with a common monarch.[1]

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For Constitutional Federalism, but not the Dissolution of Nation States

I am all for vigorous debate on the site, but I am sorry to say that Michael Greve has misunderstood my post. I do not think it would be at all sensible for Scotland or other nations to secede from their nation states for some of the reasons that Michael discusses. In particular, I do not agree at all that security threats in Europe have declined so as to  justify dissolution.   In my original post, I say they are perceived to have declined, but  expressly observe that Putin should be a “wake-up call.” I am sorry that I was too subtle, but my observation that Europeans regarded Ukraine as  “faraway country of which they know nothing” was a sarcastic reference to Neville Chamberlain’s comment about Czechoslovakia in 1938, showing that I agree that ignoring security concerns is indeed partying like it is 1938. I also made an essential  distinction in my post between dissolution of European nation states and federalism within those nation states.  

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