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?
A few posts ago I introduced “citizen suits”—brought by private parties, usually advocacy organizations, in a capacity of “private attorneys general” against the government to make it do something—as an example of the derangement of our administrative and constitutional law. Here’s a bit more on the real-world aspects of the phenomenon, and a few more thoughts:
A ton of these cases are “deadline” suits. Environmental and, increasingly, many other statutes contain countless provisions saying that the administrator or agency “shall” regulate this, that, or the other thing by date “x.” More often than not, the agency misses the deadline, and the Association of Irritated Residents (an actual group) or some such outfit strolls into court and demands compliance. Agencies rarely fight these cases.
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.
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.