Noel Canning, Liberty, and the Coase Theorem

Conservatives have been celebrating Noel Canning, the recent Supreme Court decision on recess appointments, because President Obama lost 9-0. But in reality the case was a loss both for liberty and the rule of law. While the result was unanimous, the reasoning in Justice Stephen Breyer’s five-person majority dramatically diverged from Justice Antonin Scalia’s four-person concurrence.  And it is the reasoning, not the result, that may shape our constitutional future.  Justice Breyer’s majority opinion elevates practices of the President and Congress over the original meaning of the Constitution.  Adoption of Breyer’s principle of constitutional interpretation threatens our liberty.

The Recess Appointment Clause provides: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Breyer’s majority opinion permitted the President to make recess appointments during intrasession recesses, not only at the end of the congressional session, and to fill vacancies that happen at any time, not only vacancies that happen during recesses.  Those holdings provide the President with potentially substantial recess appointments power, assuming that the Senate in fact takes intrasession recesses.

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Will Congress Get Its Groove Back?

This week witnessed discordant events that may signal a renewal of congressional government while illustrating the peril of relying on another branch of government—the judiciary—to revive it.

In the first, the Supreme Court on Monday granted certiorari in a case, U.S. Department of Transportation v. Association of American Railroads, that could mark the first time since pre-New Deal jurisprudence that it invalidates a law on grounds of nondelegation, the principle that Congress cannot transfer its legislative authority to another branch of government. Then, on Wednesday, Speaker John Boehner announced plans for the House to sue President Obama over non-enforcement of laws.

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Undermining Our Conversation About the Right to Arms

We are in the middle of another round in the effort to scuttle the right to keep and bear arms. Justice John Paul Stevens, while on the Supreme Court and since retirement, has urged interpreting the Second Amendment as an individual right to keep and bear arms “while in the militia” or some such. This renders the right empty and ultimately incoherent. (Try to imagine the right Stevens proposes and you get zero. As the majority in D.C. v. Heller stated bluntly in 2008, it is nonsense to talk about a right to keep and bear arms within an organization from which Congress has plenary authority to exclude you.)

Also jumping into the fray is Michael Waldman, whose “biography” of the Second Amendment uses the militia conversations during the ratification debates of the late 1780s to accuse the 20th century National Rifle Association of inventing the individual right to arms.

There is so much wrong here that it may take several posts to unwind. This post will focus on the basic mischaracterization of our constitutional scheme of rights and powers and how unbridled federal power perverts our conception of rights.

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The Imperial Mount Rushmore

Though it’s been a few weeks since it appeared, I would be remiss if I didn’t mention Stephen Knott’s excellent piece on whether Woodrow Wilson destroyed the office of the presidency. The clamor about the imperial presidency is on the rise with many commentators (such as George Will) and Knott’s article gives us a better understanding of its rise, as well as its implications. Knott describes the “expectations gap” that has arisen due to modern conceptions of the presidency, where we expect the president to heal the planet, rather than work to enact reforms within the institutions of constitutional government.

In response to Professor Knott I would only mention that I think Woodrow Wilson may not even deserve top billing in terms of producing the rise of presidential power.

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The Once Famous Charles River Bridge Case

A reader asked for more discussion of  the Charles River Bridge decision, which I cited as a precedent against claims that taxis displaced by Uber were legally entitled to compensation.  Charles River Bridge is a fascinating Supreme Court case that is largely unknown to this generation of lawyers.  I remembered it only from discussions in American history class as a high school student.

The case marks the transition from the Marshall Court to the Taney Court. In fact, it was first argued under the Great Chief Justice but decided under Taney.   It shows how  Jacksonian democracy shifted the course of constitutional law.

The case revolved around bridges and the anti-monopoly principle.  The bridges at issue spanned the Charles River in Massachusetts.  That first bridge builder, the Charles River Bridge Company, argued that the state had given it a monopoly in return for building its bridge.    Thus a subsequent charter to another company for building another bridge violated the provision of the Constitution which bars states from “impairing the obligation of contracts.”

Justice Taney’s opinion based his reading on the original charter for Charles River Bridge company, which he interpreted as not granting any monopoly right. But his interpretation was heavily influenced by his democratic and indeed Democratic ideals.

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Maybe Once You’ve “Arrived,” Being Fair Is Optional

Rick Perlstein’s reputation rests upon his award-winning first book from 2001, Before the Storm, about the crushing defeat of conservative icon Barry Goldwater in his 1964 run against President Johnson, and the conservative movement born in that defeat.

A frank left-winger who got his start at the Nation, Lingua Franca, and Mother Jones, Perlstein nevertheless was, Orwell-like, harder on his own side than on his opponent’s. Although taking swipes at Goldwater for denouncing federal intrusions into the business world when his family’s fortune was gained with government help, Perlstein depicted the Republican as much more admirable overall than President Johnson. (As an example, Goldwater ran a clean campaign whereas LBJ brought out the heavy lumber, authorizing CIA agent Howard Hunt to violate the Agency’s domestic charter and bug Goldwater’s campaign headquarters.) Perlstein saw it all and was so fair-minded, with a slight bias toward the Right, that it was hard to detect any agenda in that book.

The same cannot be said of his latest, The Invisible Bridge: The Fall of Nixon and the Rise of Reagan.

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Is Originalism the Law?: The Constitution in Exile Problem

In the past, I have discussed the justification for originalism that the original meaning of the Constitution is the law. Under this positivist view, originalism is the law and and therefore one can make a normative argument that the original meaning should be followed. I have expressed skepticism about this argument: my tentative position is that the law allows, within significant limits, both originalism and nonoriginalism.

Steve Sachs has a new paper out that attempts to develop the positivist originalist argument further. In The “Constitution in Exile” as a Problem for Legal Theory, Steve in part responds to my post questioning this positivist argument:

On its face, the jurisprudential objection is quite plausible. It has even persuaded some originalists. Michael Rappaport, for example, straightforwardly defends originalism as a “desirable” reform program, rather than as a consequence of “following the law.” He notes that “people are in jail in the U.S.—lots of them—for violating laws that are inconsistent with the Constitution’s original meaning,” and that “nonoriginalist Supreme Court decisions are enforced without a second thought by most people all the time.” In this context, “[w]hat does it mean to say that the Constitution’s original meaning is the law?” More generally, “[w]hat does it mean for something to be the law, if the legal system is not enforcing it?”

Steve’s paper is excellent and I strongly recommend it. The paper contains all types of interesting insights from which I learned quite a bit. But in the end the paper does not really move me any closer to the view that the original meaning is the law under positivism.

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Failure in the Use of Knowledge

Good sense, said Descartes at the beginning of the Discourse on Method, is the most evenly-distributed thing in the world. However displeased we may be with the distribution of anything else, each of us believes that we have a sufficiency of it (unlike, he might have added, everyone else).

I suppose the question of who are the wise men and who the fools will never be settled once and for all—certainly not in matters that touch on politics. For my own part, though not over-endowed with political perspicacity, I am often surprised by the utter foolishness of the great ones of the world. They seem to me to take the Bourbons, who learnt nothing and forgot nothing, not as a warning but as a model. Over and over they make the same mistakes and fall prey to the same illusions. It is almost as if ineducability were the key to success in a political career. That, or naivety.

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Saved By the Bar?

2014 has been a great year for reading about the tense relationship between the modern administrative state and American constitutionalism. F.H. Buckley’s The Once and Future King attempts to grapple with the accretion of power towards the executive in modern democracies, while Philip Hamburger’s Is Administrative Law Unlawful? explores the challenges that the administrative state poses for the rule of law.

A third contribution by Georgetown Law professor Daniel Ernst, titled Tocqueville’s Nightmare, argues that the tension between bureaucracy and freedom was actually resolved in American history by reformers between 1900-1940. Thus (like Jerry Mashaw’s 2012 book Creating the Administrative Constitution) it seeks to defend the administrative state against accusations that it cannot coexist peacefully without our constitutional system.

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Uber and Taxicab Licensing

John McGinnis argues against compensating traditional taxi companies for the harm that Uber imposes on them. His policy argument is that:

New technologies always replace the old. That is the story of the creative destruction of capitalism. Providing compensation would make individuals less likely to shift employment in the face of foreseen technological change and government more likely to suppress innovation. . . . Taxis are in the same position as blacksmiths, carriage makers, and providers of telegraph services, all enterprises that lost out to new competitors with better technologies.

I agree with John, but I have some thoughts to add.

It is not simply that the new technology of Uber should be allowed to displace the old technology of taxicabs. It is also that taxicab licensing is a pernicious regulation. Like most licensing systems, the system restricts competition. There are strong arguments against any licensing, but even if one believes licensing should be allowed, one can only make a plausible case for it if consumers are unable to monitor the quality of the service. This is certainly not the case with taxicabs. Moreover, even if one allows licensing of a service, one would not permit a restriction on the number of persons allowed to enter the industry, as does taxicab licensing. (One could conceivably make an argument that industries with high fixed costs require restrictions on entry, but that is not true of taxicab companies.)

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