Any serious checks on the separation of parties and executive government, I’ve argued in my earlier post, would compel us to re-think big pieces of the constitutional and institutional architecture—stuff we haven’t thought about and that’s wholly missing from the GOP’s pedestrian “Better Way” agenda. Herewith some examples of what that might look like. Here’s an option that ABW stumbles toward: under the German Constitution, one-third of the legislature can ask for immediate constitutional review of any piece of legislation. Why? Because Germany doesn’t have a separation of powers that permits one political branch to check the other’s transgression. It’s a…
Yesterday, the Hoover Institution hosted a conference on “A Better Way,” the House Republicans’ agenda to make America perhaps not great again but at least work again. That proved a useful focus for a panel discussion featuring yours truly (video link to come). As for ABW itself, I’m with the Boss: Well my soul checked out missing as I sat listening To the hours and minutes tickin' away Yeah just sittin' around waitin' for my life to begin While it was all just slippin' away The fact is that ABW is dead for the foreseeable future. Mr. Trump has severely compromised, if not single-handedly destroyed,…
“Stroke of a pen . . . law of the land. Kind of cool.” That insouciant comment, made by Paul Begala when he worked in the Clinton White House, raised controversy when Begala said it back in 1998, but it hardly would today.
After all, just in the past few weeks we have discovered that President Obama plans to sign, on his own authority, an international “climate change” treaty. He calls it an executive agreement and so claims he needs no congressional approval, even though his administrators will use the treaty to impose new policies and rules binding American individuals, governments, and businesses to change their behavior on pain of federal sanction.
As this post goes up I’m off to Germany, this time for some actual work. In cooperation with the Council on Public Policy (a German think tank run by my buddy Michael Zoeller), the GMU Law & Economics Center runs something called the Transatlantic Law Forum (TLF). We assemble legal scholars, judges, and lawyers from both sides of the pond and the blessed isle in-between to discuss serious, salient questions related to constitutionalism and the rule of law. Our conferences alternate between GMU’s Antonin Scalia Law School and Bucerius Law School in Hamburg (Germany’s only private law school, and therefore far and away the best). Last year’s event at ASLS, on “The Administrative State and its Law,” produced terrific essays that will appear in a forthcoming issue of the George Mason Law Review; I’ll blog them.
Is America in a constitutional crisis or is the country already post-constitutional and merely adjusting to a regime of quasi-law? Bruce Frohnen joins this edition of Liberty Law Talk to discuss this question and his latest book, coauthored with the late George Carey, Constitutional Morality and the Rise of Quasi-Law.
A good explanation of the Clinton-Trump clash we are living through, and of Trump’s having taken the Republican Party by storm, is in Eric Posner and Adrian Vermeule’s 2010 brief for executive supremacy as the way we do constitutionalism. The Posner-Vermeule thesis in The Executive Unbound is that the Madisonian philosophy of separation of powers as a constraint on the presidency no longer exists, and good riddance. The more authoritative check on executive power, they say, is majority opinion and the fact that the President must face the voters every four years. This, and not Greg Weiner’s paean to Jemmy Madison, is the only source we have now for safe, effective, and informally limited government. Those wanting Madison on demand, Posner and Vermeule inform us, are whistling past the graveyard of a constitutionalism that no longer fits this American nation.
Last week, in a case brought by the State of Texas and several other states and state agencies, a U.S. District Court (Judge O’Connor, Northern District, Texas) issued a preliminary injunction against the feds’ rule, or maybe it’s just a suggestion, contained in a “Dear Colleague” letter regarding bathroom, locker room, and shower access for transgendered individuals. Judge O’Connor ordered some further briefing on the appropriate scope of the injunction. The ruling is just one brief episode in the transgender bathroom saga, whose trajectory points to yet another Supreme Court determination on conflicts between the Constitution’s Meaning of Life Clause and the rule of law as we thought we knew it.
In this year’s presidential campaign, it would be a wonderful contribution to the republic and perhaps a winning move to run credibly on a rule of law platform. This kind of platform is to be distinguished from a “law and order” one, because it emphasizes that in a well-ordered republic that government must enforce order only through law. And this slogan also underscores that the problem we face is not simply or indeed mainly lawlessness on the streets, but lawlessness in government. Respect for law must begin at the top.
This interview with Wayne Crews explores the growing lawlessness in the administrative state's exercise of its powers. This regulatory "dark matter" ignores the formal rule-making requirements of the Administrative Procedure Act that mandates publishing a notice of proposed rule-making and allowing public comment. Crews outlines how the agencies of the regulatory state are resorting to the exceptions of using “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” to exert authority informally and without accountability.