Yesterday, the Supreme Court heard extended oral argument in the litigation over the administration’s Deferred Action for Parental Accountability “DAPA” program, which would grant “deferred action” and along, with it, work authorization and other government benefits to over four million unauthorized aliens (chiefly, parents of U.S. citizens). Most of the argument—frustrating, over long stretches—focused on two issues: the plaintiff-states’ “standing” (constitutional and statutory) to litigate the case; and DAPA’s grant of “lawful presence” to millions of immigrants.
Once again Justice Clarence Thomas has given originalist jurisprudence its most robust defense through his revival of an obscure part of the U.S. Constitution.
In 2010, in McDonald v. Chicago, he had protected the right to individual gun ownership by invoking the Fourteenth Amendment’s Privileges or Immunities Clause. Now he has concurred in the decision in Evenwel v. Abbott (2016), which unanimously affirms the state of Texas’ use of population (rather than being required to use eligible voters) as the basis for devising electoral districts.
Among the intriguing AdLaw cases on the Supreme Court’s docket is U.S. Army Corps of Engineers v. Hawkes. The Hawkes own some land 120 miles from the nearest navigable river, where they want to dig up peat moss. The feds think that this land is their land, or water. In any event, no. To figure out whether this or that parcel is actually water and thus subject to the feds’ jurisdiction under the Clean Water Act the Corps has created a process called a “Jurisdictional Determination” (“JD”), which involves expensive (for the enforcement target) fact-finding and then adjudication before an administrative body.
Judge Merrick Garland may be the best for which constitutionalists can reasonably hope with a President Clinton or President Trump in the offing, but there is no basis on the record presented thus far for the popular press’ breathless conclusion—see, for example, here and here—that he believes in judicial restraint rightly, which is to say politically, understood.
When Charles G. Koch, the chief executive officer of his family business, recently wrote an op-ed for the Washington Post saying he agreed with Democratic presidential candidate Bernie Sanders that our economic system is “often rigged to help the privileged few,” it raised eyebrows even among the company-town’s power structure.
The online version was absolutely swamped with comments. Almost all of the commenters agreed about the evils of crony capitalism but most of them unfairly attacked Koch as hypocritical for being a capitalist himself. The examples he presented of Koch Industries’ opposing government subsidies that could have advantaged its business counted for exactly nothing. Pretty tough to crack the capitalist stereotype even when the capitalist supports one of the Left’s core precepts.
The Wall Street Journal has looked over some big bank settlements--$110 billion worth—and asked one of the obvious questions: where did all that money go? Approximate answer: no one has any idea. No one keeps a tally; no one keeps track. That’s too bad because I’ve been wanting to know. Jointly with Chris DeMuth (former boss of OIRA, former boss of me, dear friend and no stranger to this site) I’ve written about “Agency Finance in the Age of Executive Government.” The subject is every scholar’s nightmare: lousy data, and no explanation that sounds immediately plausible. The idea that the settlements…
Peggy Noonan recently suggested that “elites are often the last to see their system is under siege. ‘It couldn’t be, I’ve done so well.’” There is much to this idea, especially in a nation like America where many are, in fact, doing very well, and are often socially isolated from others who are not doing so well. Near zero interest rates have flooded the stock market with money, and that, among other things, has been good for the wealthy. Outside of that, however, things are tougher, and not only economically. Because Americans are increasingly isolated socially and economically, our governing class often has trouble seeing this reality.
Our system was supposed to be designed to ensure regular contact between elites and the common citizen.
On February 24, 1943, a grand jury in Boston returned a criminal indictment against Albert Yakus, the President of the Brighton Packing Company, for selling cuts of beef in violation of the Emergency Price Control Act of 1942 and price orders issued by the Office of Price Administration (OPA). Mr. Yakus, and many others like him, never had a chance to contest the legality of the rule under which he was convicted. They just went to jail. And the Supreme Court, in Yakus v. United States (1944), said: no problem. That’s just the administrative state and its judicial partners at work.