Liberty Law Blog

Solutions to the Problem of Bureaucracy

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Responding to my post on the problem of bureaucracy, some commentators asked how to prevent bureaucrats from creating a bigger and more left-wing government. Here are a few solutions:

1. Delegate less. Conservatives and libertarians should be reluctant to delegate power that is likely to be exercised in a liberal direction. To put it another way, these lawmakers should demand a statute several degrees to the right of where they think it should be if there is a delegation because the bureaucracy will move it several degrees to the left.

2. Pass the REINS Act. The REINS Act would apply to open-ended delegations of power already in place by requiring a Congressional vote under fast track procedures to approve major agency rules before they become law. This act would transfer power currently held by bureaucrats back to legislators. Of course, people on the left realize the constraints imposed by the REINS Act and thus it could not be enacted until the next era of unified Republican government. Continue Reading →

What Do Americans Voting with Their Feet Prefer? Better Public Services or More Cash?

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In his new book, Average is Over, Tyler Cowen makes a number of observations about the intersection of technology and society, and explains how these shifts will impact our society. Specifically, Cowen argues that being average is over. Echoing forecasts by Charles Murray, Cowen explains how the middle class will continue to shrink as technology can replace many more of their routine jobs. Those with certain skills and abilities, or can learn to work with technolgoy, will continue to flourish more. Those who do not adapt, Cowen argues, will earn less, and learn to deal with less (and that is not necessarily a bad thing, he contends). One manifestation of this shift will be that people with less means will, to use Ilya Somin’s framework, vote with their feet, and move to places where living is less expensive, and a lower salary will go further.

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Can Scotland Govern Itself?

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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. Continue Reading →

Holmes: “If my fellow citizens want to go to Hell I will help them. It’s my job.” And he meant it.

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In a letter to Harold Laski, Justice Oliver Wendell Holmes famously wrote:

I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.

And he meant it. Beyond such obvious examples of this philosophy, such as Buck v. Bell, where Justice Holmes upheld a law requiring the sterilization of those deemed mentally incompetent (even if there was no real evidence they were mentally incompetent), I was recently reminded of this quotation when I taught Giles v. Harris.

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The Pen, the Phone—and the Constitution

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The President of the United States speaking by telephone at a distance of 500 kilometres. Illustration by Achille Beltrame on the Italian newspaper 'La Domenica del Corriere', November 20, 1913

The President of the United States speaking by telephone at a distance of 500 kilometres. Illustration by Achille Beltrame on the Italian newspaper ‘La Domenica del Corriere’, November 20, 1913

President Obama and his advisors have told us that he can work around a purportedly obstructionist Congress by using what they claim is legitimate executive authority exercised by “pen and phone.” The phrase is meant to put across the idea that the president can get things done by signing off on various formal and informal executive initiatives, and cajoling Americans within government and without to act according to his vision. White House advisor Dan Pfeiffer, who is credited with inventing the phrase, recently explicated its meaning by observing that in an era of divided government, a Democratic president cannot easily get his way when Republicans control Congress. In order to “move the ball forward” on the president’s agenda, the deployment of “executive power” is required, according Pfeiffer. Continue Reading →

Originalism and Judicial Review – Part II: The Textual Arguments

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For the first post in this series, see here.

This post discusses the textual arguments supporting judicial review. In this area, there are two issues. The first is whether the Constitution takes priority over ordinary legislative action; the second is whether the courts get to determine whether legislation violated the Constitution.

It appears that virtually everyone agrees on the first issue that the Constitution takes priority over ordinary legislation. This appears to follow from the meaning of the Constitution (and perhaps as well from other provisions in the Supremacy Clause). It is the second issue where there is dispute: whether the courts get to determine whether legislation violated the Constitution or whether the courts should defer to the legislature’s determination that the legislation conformed to the Constitution. Put differently, where in the Constitution does it say the Courts get to say what the Constitution meant rather than the legislature? Continue Reading →

Section 4 of the Fourteenth Amendment and Compensation for Emancipation of Slaves

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Today, one of the least-discussed aspects of the Emancipation Proclamation is whether it gave rise to a takings claim. The Proclamation was enacted under Lincoln’s war powers, whereby he seized property (slaves) in the rebel states, and then emancipated them. Apparently, many southerners sought to raise takings claims against the Federal Government. Similar claims were lodged following the ratification of the 13th amendment. At the time, Congress estimated that the cost of compensating the emancipated slaveowners was somewhere between $1.6 billion and $2 billion, roughly half of the total value of all property (real and personal) in the south.

Section 1 of the 14th Amendment would make all slaves born or naturalized in the United States into citizens of the United States, and of the state in which they resided. This would nullify Dred Scott, and vitiate any claims that slaves could still be held as property. But what about any outstanding claims that resulted from the Emancipation Proclamation, or the 13th Amendment?

In direct response to this concern, the framers of the 14th Amendment added this sentence to the end of Section 4.

“[N]either the United States nor any State shall assume or pay . . . any claim for the loss or emancipation of any slave.”

In other words, this provision would have mooted any possible takings claims against the United States, or a state, as a result of emancipation of slaves. At the time, because the states were given an all-or-nothing ultimatum for ratification, this provision received little debate. It recognizes that the framers of the Amendment were concerned about the ramifications of takings claim. Imagine if a single judge found a taking, and that issue would go up to the Supreme Court! The opinion, if it found a taking, would have to reaffirm the principles of Dred Scott that slaves prior to the 14th Amendment were in fact chattel.

As Professor Aynes notes in his article, “Unintended Consequences of the Fourteenth Amendment“:

Even with Salmon P. Chase, a leading antislavery lawyer and the national architect of the antislavery movement’s legal strategy, as its Chief Justice, the memory of Dred Scott was too vivid in the mind of the public to erase the possibility that a suit by even a single former slaveholder might result in a judgment against the United States for taking property without just compensation. Moreover, the perpetual fear of an alliance between former slaveholders and their former allies, northern Democrats, provided a strong incentive to lay this question to rest by a constitutional amendment. The prospects of risking between $1.5 and $2 billion in debt, when weighed against complying with common law jury provisions, would make the latter seem petty. Faced with such a choice, even a ratifier who disdained common law jury provisions would see ratification as a “greater good.”

This is also an example of an Amendment specifically modifying an earlier Amendment, such as how Section 5 of the 14th Amendment impacts the 10th and 11th Amendments. Here Section 4 of the 14th Amendment seems to create a carveout from the 5th Amendment’s takings clause.

Cross-Posted at JoshBlackman.com

Les Maladies and Le Monde

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When I was a student, my friends and I would stay up all night to discuss such questions as the truth or otherwise of determinism. Was the entire future of the universe immanent in its past, indeed had everything been determined from the very foundation of the universe (if it had one)? If so, what of our supposed freedom? Continue Reading →

Dianne Feinstein: Whose Ox is Being Gored?

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Recently, Senator Dianne Feinstein objected to CIA surveillance of Senate committee staffers who were looking through classifed documents relating to the agency’s previous interrogation and detention practices.  Feinstein, who has generally been supportive of NSA monitoring, has been criticized on the ground that she only objected to government surveillance when it affected her.

Feinstein has now opened herself up to more criticism of this sort.

In an interview with CBS’s “60 Minutes” that aired on Sunday night, the California Democrat said a drone spied into the window of her home during a protest outside her house, and that privacy concerns for the technology were “major.”  Feinstein appeared as a pro-regulation voice in a Morley Safer segment on the legal questions surrounding the commercial drone industry.

“I’m in my home and there’s a demonstration out front, and I go to peek out the window and there’s a drone facing me,” she recalled.  Demonstrators from Code Pink who were protesting government surveillance at the time, said the device was merely a toy helicopter, but Feinstein used the instance to sound off about the importance of controlling the technology through government regulation.

I am sure there are other ways of viewing these events, but they do seem to be an example of a privileged person getting upset only when her privileges are affected.  The most hopeful consequence would be if her responses to these intrusions operate to protect not only her privileges but everyone’s.  Here’s hoping.

The Problem of Bureaucracy

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Bureaucracy helps enable both larger and more left-wing government because that kind of government accords with the preferences of most bureaucrats and makes them better off. Classical liberals and conservatives neglect this problem at their peril. Even when the President leans to the political right, the permanent government of the left provides a powerful counterweight to the realization of his objectives.

The political beliefs of the median federal government employee lie to the left not only of the median Republican, but also the median Democrat. This imbalance should not surprise, because individuals enthusiastic about using government power will self-select to become government regulators. In some departments, like the Environmental Protection Agency or the Civil Rights Division at the Department of Justice, the effect is particularly pronounced. Missions of such intensity often attract those of missionary zeal.

It might be thought that an administration in favor of more limited government could recalibrate  the bureaucracy during their tenure by hiring more conservative government workers. Continue Reading →