The German Connection, Part II: Of Law and Citizens

My earlier post suggested that there might be something to learn from the liberal version of the German Rechtsstaat—the tradition that American Progressives ignored when they imported the most authoritarian versions of administrative law then circulating in Germany.

Philip Hamburger rightly calls attention to the Progressives’ selective acquisition, and he fully acknowledges that the liberal tradition, which over the long haul triumphed in Germany, has a great deal going for it. But he is diffident about the liberal Rechtsstaat because it remains rooted, he says, in a legal tradition that is inimical to the common law tradition that (according to Professor Hamburger) the Constitution seeks to enshrine.

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Why Government Fails When It Succeeds

It’s good to be back to blogging. For a warm-up bear with me through a family saga: it may be funny, for you. And there may be a point.

A late uncle of mine (let’s call him “Bruno”) died in 2013. I know little of him except that my mother, then 13 years of age, dragged him (then age 3 or 4) through the Hamburg firestorms in 1943. I met him once—at my grandmother’s funeral, where they had really good food. From various conversations that I did not follow at the time (the 1960s) and cannot now recollect, I understand that my mother and aunt bailed Bruno out of trouble at various times over the decades. His life was fully European—aimless, on public support, and fruitless (so far as we know). It’s a very sad story.

Having been informed of Bruno’s death, we all (with an exception noted below) promptly renounced the inheritance by means of a notarized declaration. The guy can’t own anything except debts, probably including colossal debts to the German government for late-life care: who wants that? But that clever maneuver has come a cropper.

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Return to the Barbaric

The President’s use of executive power outside and above the bounds of the Constitution is well known at this point. In policies ranging from the railroading of creditors in the auto bailouts, to Obamacare by waiver, eliminating key work provisions in the 1996 welfare reform legislation, Deferred Action for Childhood Arrivals, and to the informed suspicion that he will unilaterally legalize 5 to 6 million illegal immigrants, this President has entered a new realm of abuse of power. Resulting from the stress he’s placing on our constitutional order have arisen significant interventions that attempt to underline how and why we have arrived at this new dimension of executive power, even in the case of Congress there is an attempt to reclaim its authority, if only in a pusillanimous manner.

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Rule by Edict: Shep Melnick on the Power of the Civil Rights State

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This conversation with Shep Melnick looks into the enforcement practices of the Office for Civil Rights in the Department of Education, one of the most powerful and secretive agencies in the administrative state. This agency caught the attention of many in 2011 when Russlynn Ali, Assistant Secretary for Civil Rights, sent a “Dear Colleague” letter to colleges and universities lowering the standard of guilt in a sexual harassment or sexual violence proceeding from guilt beyond a reasonable doubt to preponderance of the evidence (i.e., it is more likely than not that sexual harassment or violence occurred). Topping it off was…

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Entropy in the Executive

The Massachusetts Constitution’s Declaration of Rights says, in its conclusion, that:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

That constitution, providing for a lower house, a Senate, and a governor armed with a (qualified) veto was, in many ways, the model for the federal Constitution drafted a few years later.

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The Unlawful Administrative State: A Conversation with Philip Hamburger

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The standard narrative used to justify the existence of the administrative state and thus legitimate its powers is that America in the late 19th and early 20th centuries entered into a realm of industrialization, corporate power and concentration, density and urbanization, among other causes, that entailed the need for expert rule in executive agencies. Necessity of government action required courts and rule-making agencies that could adjust the social order to rapidly arising needs not anticipated in the 'horse and buggy' Constitution. However, what if there really is nothing new under the sun about administrative power? Instead, what if its call…

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Fix Our Partisan Civil Service

irsAs most U.S. history textbooks teach, Congress passed the Pendleton Civil Service Act not long after a disgruntled office-seeker shot and killed President Garfield in 1881. The goal was to create a competent and politically neutral civil service. I wonder if, over a century and a quarter after America went down that road, the old problem is returning in a new guise, as we now have a highly partisan civil service, albeit one that has civil service protections.[1] 

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Bodychecking the Administrative State

It’s been great fun blogging at LibertyLaw this month, and I thank Richard Reinsch for the opportunity to opine. As I conclude my tenure as guest blogger, I want to respond to some of Greg Weiner’s very interesting and provocative suggestions about Congress and the administrative state. He is right to focus on Congress as the centerpiece of any successful reform movement, but I have a few tentative hesitations about his suggestions.

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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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Here the People (are supposed to) Rule

ClintonAs she hawks her new book, Mrs. Clinton is saying provocative things. Her assertion that “American political system is probably the most difficult, even brutal, in the world” has raised eyebrows across the country.

In a world in which violent coup d-etat are still relatively common in many parts of the world, that’s a striking claim. American politicians are toppled by elections, not by violence. The parties hurl invective at each other, not ordinance. As John Adams reflected to Thomas Jefferson in 1823, “I should like to see an election for a President in the British empire or in France or in Spain or in Prussia or Russia by way of experiment. We go on pretty well—for we use no other artillery than goose quills: & our ink is not so deleterious as language & grape.”*

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