Chuck Berry v. The Administrative State

I have very fond memories of the late Chuck Berry, deceased this past weekend at the age of 90.  His music changed my life, from my ill-spent youth to the AdLaw lessons I seek to convey in my dotage.

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Posner and Gorsuch

Wooden Gavel with book over white

As the Senate prepares to question Judge Neil Gorsuch for possible appointment to the Supreme Court, my former colleague Eric Posner asks: “Is Gorsuch a Hamburgerian?” Posner thereby attempts to set up Gorsuch by associating him with . . . not really me, nor my scholarship, but a boogeyman of Posner’s imagination.

The version of my scholarship Posner presents to the world is almost unrecognizable: “Hamburger is anti-elite”; “Hamburger is anti-foreigner”; “Hamburger is anti-executive.” These views bear no resemblance to my scholarship or my personal opinions, and it therefore is necessary to state my views as they really are.

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Originalism and the Incentives of the Legislator

recht

We usually assume that legislators write laws to be understood. But cases exist in which legislators write less clearly rather than more clearly. Well known and often discussed are the whys and wherefores of legislative delegation to executive agencies. Without intending a comprehensive list, here are a couple of other reasons why legislators write more ambiguously rather than less.

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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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