Peter Schuck comes to Liberty Law Talk to discuss Why Government Fails So Often. Like James Buckley and John DiIulio, Schuck doesn’t have much good news for the large majority of Americans who are disgusted with the performance of the federal government and its ability to devise and execute policies. Schuck notes that in April 2013, only 28% of Americans had a favorable opinion of the federal government. Many have tried to explain this phenomenon with various government affirming answers, but Schuck is forthright in the book and this interview when he states that the best answer is that the…
I am a faithful subscriber to the Washington Post: morning after morning, it makes for merriment. Its editorial and op-ed pages, for instance, have been given over for weeks to the regurgitation of ACA defenses cranked up in New Haven or in the PR offices of the country’s health care lobbies (interspersed with an occasional George Will column). Then yesterday, the Post (printed version) conveniently supplied a long piece detailing “Five Myths About King v. Burwell”—written by a pro-ACA advocate in the litigation, who nonetheless earnestly professed to sort “fact from fiction” in the case. That was a good one.
This episode of Liberty Law Talk welcomes a truly gregarious man of public administration, John DiIulio, on his new book, Bring Back the Bureaucrats. That title might well lead to a collective sigh filling the air; however, DiIulio argues that we’re dishonest about the federal government in two significant ways: (1) The federal government spends lavishly, but we borrow it from the wealth of future generations rather than tax ourselves. (2) We actually administer most federal government programs not with federal bureaucrats but with a host of intermediaries: nonprofit entities, for-profit companies, state and local government employees that DiIulio refers to as…
The oral argument transcript in Armstrong v. Exceptional Child Center—subject of my preceding post —is here. Edwin S. Kneedler’s argument for the feds starts on page 16. ‘Tis a thing of beauty: it articulates the correct theory (mine J) almost verbatim, without any hedging or equivocation. This is remarkable for several reasons:
Earlier this week the Supreme Court heard oral argument in Mach Mining LLC v. Equal Employment Opportunity Commission (transcript and briefs). It’s a fairly big deal for employers, and another small window in the administration’s quaint views of administrative law.
The case concerns the EEOC’s enforcement practices. After the agency files a notice against an employer, conducts its investigation, and finds “reasonable cause” to proceed, it “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. 20002-5(b). What happens if they don’t do that prior to filing suit, or do a snow job on the employer? Nothing, says EEOC. The provision is unreviewable.
Feminism expresses, teaches, and even thrives on a contradiction. Put simply, feminism does not know whether to say that women are capable or vulnerable. If women are capable, they deserve to be independent—particularly of men. If they are vulnerable, they need to be protected, particularly from men.
Today’s movement to protect college women from sexual assault, led by the Office of Civil Rights (OCR) in the U.S. Department of Education, is riven right through with that contradiction. So far, universities have meekly submitted to being instructed by what the OCR, with a phrase for the books, calls “significant guidance.”
Before delving into the OCR’s mandate, it is best to examine the contradiction within feminism that both characterizes and inspires it.
Professor Cass R. Sunstein has unearthed a new –ism: partyism, meaning an animus or aversive reaction to someone based solely on party membership. As in: “I don’t care if people think I’m a racist or a child molester. But I’d die if they thought I’m a Democrat.” (I think Ann Coulter said that long ago. If she didn’t, she certainly could have.) Partyism, Professor Sunstein writes, is on the rise, and it contributes to political gridlock.
Today Republicans will take control of both houses of Congress, and the House of Representatives will have more Republicans than at any time since the New Deal. Given their party’s emphasis on limiting federal government, it is important for these lawmakers to consider transformations of administrative procedure that bring back some limits. In the long run structural reform can be more powerful than discrete policy changes.
Since the New Deal, administrative government has become a dominant force in political and social life. Executive branch agencies– not Congress– are responsible for most of the federal obligations imposed on individuals and companies. To be sure, executive agencies are operating under statutes Congress passed, but these delegations are often broad and, in some cases, almost unbounded. Moreover, the Supreme Court has permitted agencies to put their own gloss on the ambiguities in their statutes and even on the regulations that they write. This kind of executive power undermines democratic accountability and liberty, particularly because bureaucracy generally has inherent tendencies to expand government.
But Congress can cut back on the enormous discretion of the administrative state. Here are four measures that the new Republican Congress should consider:
The Federalist Society just held, and concluded, its 17th Annual Faculty Conference, running alongside (as always) the meeting of the American Association of Law Schools. Said events include a riveting debate between Jonathan Adler and Nick Bagley on (what else?) King v. Halbig. They further include two splendid back-to-back panels: one on “The Executive Power to Not Enforce the Law” (featuring John Harrison, Gillian Metzger, Zachary Price, and Nick Rosenkranz; moderated by Tara Grove); the other on “The Administrative State: Within the Bounds of Law?” (featuring Philip Hamburger, Kristin Hickman, Richard Pierce, and yours truly; moderated, with Teutonic punctuality, by our very own John…
What does federalism have to do with the administrative state, and vice versa? Everything. Statutes typically confer authority on a federal agency (or several) in the first instance. However, practically all federal regulatory programs are “cooperative,” meaning they’re implemented by state and local officials. Entitlement programs from Medicaid to education are likewise run through states. So states will participate in the federal agencies’ process. Federalism isn’t shaped in once-in-a-generation enumerated powers cases; it’s shaped in millions of daily administrative interactions. How does that work?