What Hath Obama Wrought

Pete Marovich/Bloomberg via Getty Images

The defeat of the Democratic Party in the 2016 election is an astonishing and unmistakable repudiation of the “transformation of America” to which Barack Obama dedicated himself as constitutional chief executive. Obama’s transformation of America disavowed the natural law principles on which the country was founded. For more than a century Progressive reformers assiduously indoctrinated Americans in the philosophy of pragmatist relativism. Faithful to the Progressive tradition, Obama appealed to pragmatism to rationalize the transformation of America. While post-mortems are being prepared to explain what went wrong, it is pertinent to reflect on how Left-liberal opinion makers understood the “once-in-a-life-time” opportunity that Obama’s election provided to achieve long sought progressive goals.

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How Do You Solve Crony Capitalism?

Hundred dollar bills close up

“Crony capitalism” is the idea that politically well-connected owners of productive factors – land, labor, capital, entrepreneurial skill – can use the government’s coercive power to limit competition and increase their return on those factors. More generally, it’s the use of the coercive powers of the state to redistribute resources to specific groups and their associates.

As Gordon Tullock was fond of pointing out, while government protection is not a factor of production, it can be a factor of profit.

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Midnight Mulligan – The Congressional Review Act Rides Again!

pointers of antique marine chronometer reaching twelve

Might the administrative state have expired quietly, six months ago?  Arguably it did, if what we mean by the administrative state is the array of regulatory agencies, not only executing the law, but also creating binding new law without legislative consent.  Bear with me.

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Using Benefit-Cost Analysis to Harness the Administrative State

Environmental Law

Benefit-Cost Analysis (BCA) is now widely known and used, but it is also widely misunderstood – by many of its advocates as well as its detractors.  Over the next few weeks I want to examine some of the strengths and weaknesses of BCA as a normative science; and, yes, that phrase is an oxymoron, which is a source of much of the controversy.  BCA is an imperfect answer, but often perhaps the best available answer, to the question of how a society should go about making collective but not unanimous choices.  Nowhere is its use more contested than in its application to decisions by regulatory agencies.

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Better Days, Really?

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…

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While It Was All Just Slippin’ Away

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,…

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The Descent Into Quasi-Law

Lawyer And The Law

“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.

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Liberalism, Populism, and the Politicization of Everything

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.

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The Decline of Constitutional Morality: A Conversation with Bruce Frohnen

const moralityIs 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 Tale of Two Majorities

George Caleb Bingham, Stump Speaking. 1853.

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.

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