A Return to Constitutionalism

Neil Gorsuch, Supreme Court nominee.  Andrew Harrer/Bloomberg via Getty Images

Judge Neil Gorsuch of the Tenth Circuit Court of Appeals is by virtually every account a stellar jurist. His writings are now being mined, by supporters and opponents alike, for evidence of his commitment to judicial restraint and the separation of powers.

That evidence is not hard to find. In an address delivered on April 27, 2016, Gorsuch spoke of “the great project of Justice Scalia’s career,” namely to expound “the differences between judges and legislators.”

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After Administration

Scartoffie, pratiche e burocrazia

Do we need a theory of managerial class disintegration? Such an ambitious question can at the least be ventured given our headlines: Brexit, Trump, Le Pen, the European Union and the larger rise of the Euronationalist parties, and the questioning of postwar international institutions, to name a few.

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Regulatory Reform: A Few (Not So) Easy Pieces

US President Donald Trump signs an executive order on January 20, 2017. (JIM WATSON/AFP/Getty Images)

In Monty Python’s immortal words I’m not dead, yet; but I don’t have much insight into the new political era, either. I therefore commend to your attention a sensational essay by someone who does: “Regulatory Reform,” by Christopher C. DeMuth. One of Chris’s best pieces ever, and that is saying something. Under a cheekily acronymed REFORM Act (Refer­rals from the Executive For Regulatory Modernization):

[T]he president would refer selected reg­ulatory reforms to the House and Senate and urge their prompt consideration and approval. Where an agency rule departed from a reasonably clear statutory provision, or from judicial interpretations of a broad or ambiguous provision, the agency would explain the departure and the reasons for its new approach. The reasons could not, for the REFORM procedure, be sheer policy preference—rather, they would be limited to improving the agency’s pursuit of the missions Congress had already assigned to it. […] Congress would approve the rule itself, not just its issuance. And, in cases of uncertain stat­utory authority, the submitted rule would be accompanied by suggested, surgical statutory revisions, and Congress could enact the revisions along with its approval of the implementing rule.

With characteristic verve, sophistication, and political horse sense, DeMuth explains how and why this might actually work, and why it would be a very good thing.

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Prospects for Constitutionalism

The Assembly Room in Independence Hall

What are the prospects for constitutionalism and the rule of law under President Donald Trump? 

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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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