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.
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.
Like many others at the moment, I am making my way through Philip Hamburger’s Is Administrative Law Unlawful? One of the most shocking chapters is his chapter on America’s “Return to Extralegal Adjudication,” a problem that constitutional law had originally aimed to constrain, but which has re-emerged in the context of the modern administrative state.
I knew that there were problems with administrative adjudication – I just didn’t grasp how pervasive the problems were until Hamburger laid them out so systematically.
Democrats and Republicans, by entering and exiting the 2013 “government shutdown” without regard to America’s traditional Constitutional practices, practically instituted among us the European practice of single “crisis” votes that enable or disable governments. The remedy lies in removing any doubt as to what the US Constitution means.
Of all the vapidities behind the claim that President Obama can invoke the 14th Amendment to raise the debt ceiling unilaterally, the crowning asininity must be the comparison of this to the Civil War and of him to Lincoln.
Lincoln himself tried to warn us that the greatest threat to liberty in future generations would be demagogues trying to play Lincoln when the times did not require it. Burke, for his part, tried to tell us that exceptions—and the Civil War was most certainly that—were not rules.
Sean Wilentz evidently got neither memo before writing an op-ed in the New York Times urging the President, who to his credit has rejected such calls, to “invok[e] the Constitution in this emergency.” By this Wilentz at first seemed to mean the debt clause of the 14th amendment—except that, to pay careful attention to his argument, he didn’t.
This Liberty Law Talk is with philosopher Eric Mack on Friedrich Hayek’s 1973 magnum opus, Law, Legislation and Liberty. Hayek’s significant trilogy distinguishes between law and legislation, considers the appropriate rule of judges within a spontaneous order, observes the difficulties of even defining social justice, and attempts to set forth the principles of a new constitutional order for a free people. This conversation considers at length the major ideas that Hayek advances in his incredible work on the principles of law and just order.
The president, armed with inherent executive power topped with statutory authority, faced a dilemma: Danger beckoned. Congress alternated between theatrical hems and political haws. The international position and perhaps security of the United States were at stake. So he chose the path of boldness—the path down which greatness lies.
Reported in certain journals, that might have been President Bush at the height of the Global War on Terror. But portrayed in other outlets, it was President Obama bypassing Congress, employing unilateral executive power to regulate greenhouse gases. Politically, a great distance separates Bush and Obama. Constitutionally, it is increasingly difficult to tell them apart—and one reason is the theory of the Presidency some conservatives propagated a decade ago and which is now being bent toward purposes that probably make them wish they had remembered the axiom never to endorse any power one would not entrust to one with whom one disagreed.
Greg Weiner’s provocative essays on Congress remind us of another provocateur, a grand old man of constitutionalism who also defends Congress’s powers—George Anastaplo (profiled here). Anastaplo, whom I have known for almost 40 years, would be the classic American individualist—except he deeply respects manners, locality, and community. His extremism may lie in his devotion to the virtue of moderation. Our meetings have often included avuncular advice on topics including how to eat during an APSA convention. A guardian who takes his Hyde Park citizenship seriously, he rebukes local scofflaws–ride your bike on the street, not the sidewalk!–the former cyclist barks at a miscreant. And he has barked at power as well, having been expelled from both the Soviet Union and Greece of the Colonels for his outspokenness. No Chicago slaughterhouse got as much out of a hog, as Anastaplo gets out of a day.
The next Liberty Law Talk is a conversation with Randy Simmons on his recently revised and updated book, Beyond Politics: The Roots of Government Failure. Serious policy analysis frequently begins with the unspoken assumption that government must fill the gaps in the marketplace. Markets are vastly imperfect and require for their proper functioning the precise, i.e., perfecting, commands of the regulatory state. Not content with this narrative’s iron-clad belief that government rules and regulations live and move in rational operation, having their being serving the commonweal 24/7, Simmons provides a comprehensive way to think about the giant suck of political reality. The truth, Simmons tells us, is that markets are rarely corrected by government diktat (what would that mean, anyway?), but are frequently distorted, minimized, if not corrupted by the machinations of public law. Listen and learn from Randy Simmons.
Russ Roberts, host of the significant and highly influential podcast show, Econ Talk, interviews this week Leftist law professor Michael Seidman. Seidman, you might remember, started off 2013 with this breathless piece in the New York Times (no doubt fulfilling one of that publication’s New Year’s resolutions) disputing the need for our Constitution and its principles of federalism, separation of powers, checks and balances, and the rule of law. Mike Rappaport responded here. A tenured law professor at Georgetown, Seidman maintains that “obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions . . . has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.”