Independent Agencies Must Follow the President’s Interpretations of Law

cordray

President Trump must soon decide whether to say “You’re fired” to Richard Cordray, the Director of the Consumer Financial Protection Bureau (CFPB). Cordray’s policies are clearly at odds with the deregulatory impulse of the administration, whose fate depends  on whether it can substantially increase prosperity beyond the sluggish growth of the Obama years.

The obstacle to getting rid of Cordray is that the statue setting up the CFPB permits the President to fire Cordray only on the basis of “inefficiency, neglect of duty, or malfeasance in office.” One possibility would be to fire him anyway on the theory that the restriction is unconstitutional.   Indeed, in PHH Corp. v. CFPB, a panel of the District of Columbia Circuit held that it was unconstitutional to limit the President’s removal power over the director. It acknowledged that the Supreme Court has upheld insulating other executive agencies, like the FTC, from presidential removal.   But those independent agencies were directed by multi-member commissions composed of members from different parties. The panel concluded that CFPB lacks the important check of collegial, bipartisan control, concentrating power in a single official.  Thus, the Constitution required that the President have the power to remove him at will.

The difficulty with acting on the panel’s analysis is that the full District of Columbia Circuit has vacated the PHH ruling to hear the case en banc.  It is true that the President could still follow the reasoning of the panel ruling and dismiss Cordray. But that action would be portrayed by the press as flouting a judicial order, even though the President is not a party to PHH v. CFPB.   Moreover the President’s substantial latitude to decline to follow statutes that violate his constitutional authority is premised in part on the need to obtain judicial resolution. But here the issue would already be before a court.

The President has a better option, because he has the constitutional duty to “take Care that the Laws be faithfully executed. “

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Trump’s High-Stakes Game of Chicken

In games of “chicken”—canonically, two teen boys drive their cars toward one another at breakneck speed, the one who swerves is “chicken” (and if neither swerves, then both lose and it’s small consolation to either that neither is “chicken”)—there are two ways to make the other guy swerve. One is a commitment mechanism: Tie down the steering wheel so it won’t swerve, jam the accelerator full down with a broom stick, and jump into the back seat. The second is to have the reputation of being crazy, as in being crazy enough not to swerve.

Acting crazy gets less respect than it should as a winning strategy in politics and other areas. North Korean dictators are given a wide berth in international affairs because the international community thinks they’re crazy. Overseas, George W. Bush was widely decried as a crazy belligerent. I often wondered whether he invited the reputation intentionally.

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Why Berkeley and BYU Should be Loud and Proud about It

The University of California, Berkeley emerged again as a bastion of protest against perceived fascism. Alt-Right leader Milo Yiannopoulos was invited by the Berkeley College Republicans to speak on the campus, only to be blocked by protestors and violent rioters. President Trump, in true late-night form, tweeted: No free speech, ‘NO FEDERAL FUNDS?’

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The President’s Conduct Is No License for Others’ Unlawfulness

On this President’s Day there is a lot to criticize about the behavior of our current President.  Although other Presidents have certainly not conducted themselves with dignity (think Bill Clinton), President Trump’s demeanor and decorum during his news conference was more a throwback to his days as a reality TV star than a performance befitting a head of state.  Presidential dignity promotes the stability of our union.

And while other Presidents have told more consequential falsehoods (think “If you like your plan you can keep it”), few have made statements that are so transparently false at the time they are made, such as the President’s claim about the relative strength of his electoral college victory. Presidents must rely on their credibility to take unpopular and contestable actions in times of crisis and President Trump is in danger of squandering his.

Some of the President’s executive orders, like that on immigration, have been issued without sufficient deliberation and his remarks in their defense have been intemperate insults rather than measured criticisms of the substance of their rulings.

But the behavior of the President is no license for lawlessness and the violation of long standing political norms. Yet that is what some of his opponents have claimed with the support from intellectuals.

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Gorsuch’s Opposition to Chevron Speaks Well of Trump and Is a Dilemma for Democrats

Judge Neil Gorsuch is worthy successor to Justice Antonin Scalia. He is an advocate of originalism who writes well enough to persuade the public and has the intellectual heft to engage the academy. But there is one way in which he differs sharply from Scalia. He is no fan of the Chevron doctrine, which directs judges to defer to agency interpretations of statutes so long as they are reasonable even if the interpretations are not the best. Given that much of modern law is administrative law and so much of our current democratic deficit is due to the administrative state, this is an important difference.

And it is a difference that reveals something about President Donald Trump, about the changing nature of modern legal conservativism, and about the internal tension of the Democratic opposition to Gorsuch.

A common criticism of President Trump is that he is an authoritarian executive. But he has chosen to nominate a judge who is on the record against giving deference to interpretation of statutes by heads of executive agencies. Gorsuch opposes an important doctrine that would protect the administration’s authority.

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Gorsuch Nomination: Potentially the Best News for Originalism since 1987

With his nomination of Judge Neil Gorsuch President Trump may have done more for originalism than any President since Ronald Reagan. Unfortunately, a few days later, he called into question his own commitment to the rule of law by calling an Article III judge a “so-called judge.”   The juxtaposition of the excellent and the reckless continues what I have argued is the essential pattern of his Presidency:  He makes appointments (except in the trade area) that  on balance advance classical liberalism and limited government, but makes remarks that are foolish with the potential to undermine much of the good his appointments will do.

First, the good news: Gorsuch is a fine nomination, a worthy successor to Justice Scalia in the three ways that count. First, he is an originalist. That matters, because the last two Republican appointees, Chief Justice John Roberts and Justice Samuel Alito, have not shown themselves to be either declared or relatively consistent originalists. And it is originalism tha holds the most promise for maintaining a beneficent Constitution and a constrained judiciary.

Second, as I argued at the City Journal, Gorsuch is a superb writer. To be powerful and influential  with the public, as Scalia was, a justice needs to convey his ideas clearly and pungently. Justice Clarence Thomas, for all his other fine qualities as justice, is not as good as Scalia was at this task.  Gorsuch is in the top 2 percent of all federal judges in this ability.

Third, to be influential with academics, justices must be at home in the world of legal scholarship and theory.

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American Nehemiad

A view of the US-Mexican border fence at Playas de Tijuana. (Justin Sullivan/Getty Images)

For many Republicans, the presidency of Barack Obama felt like a Babylonian exile. America was in ruins, and Donald Trump surveyed them—seeing, as he said in his inaugural address, “rusted out factories scattered like tombstones across the landscape of our nation” as evidence of a broader “American carnage.”

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Stumbling Out of the Blocks

There is much to criticize about President Trump’s executive order on immigration, particularly the slapdash way the Administration drafted the order and announced it to the agencies responsible for implementing it. The Administration apparently bypassed the normal interagency review process, which checks orders for legality and advises on possible consequences. No doubt the Administration calculated that it couldn’t trust Obama holdovers not to create obstacles—a calculation that seems to have been correct in some cases. But lawyers do help sometimes, and it’s wise to listen even to bureaucrats on occasion. The normal interagency review could have avoided much of the confusion at airports over the weekend, which benefited no one, and which created a sense of disorder which will not help the Administration in the future. It would have been much better for the Administration to wait until its new team was fully in place, including its Attorney General, before taking legal action bound to inflame many people.

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Meet the New Boss

oval office

The most revealing executive action of the new administration may have been among the least reported. President Trump, by memorandum, ordered the Secretary of Commerce to “develop a plan” under which all new, retrofitted, repaired or expanded pipelines inside the United States would use U.S.-made materials and equipment “to the maximum extent possible and to the extent permitted by law.”

Cutting to the chase, the extent permitted by law is zero. The president of the United States neither has nor ought to have the authority to tell private companies making private investments where to buy their equipment or materials. He has no authority to encourage them, pressure them or bully them. The conservative response to a comparable order from President Obama would, appropriately, have been apoplexy.

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America First Leaves Americans Behind

America countdown

President Trump more than any President in decades has embraced industrial policy. He not only wants government to favor manufacturing, but vows to use the tax law to prevent manufacturers who are here from shifting factories overseas. And auto manufacturing seems to be his particular focus. To be sure, in this respect his policy has some continuity with the Obama administration, which intervened in extraordinary ways—including bending the bankruptcy laws—to bail out U.S. auto companies.

Industrial policy fails to reckon with the ignorance of government. Central decisionmakers lack the information to choose the best services and products in which Americans should specialize. The past shows that what is best produced here tomorrow will not be what is best produced here today: many of our most productive lines of work did not even exist 20 years ago, let alone 50 years ago. An industrial policy that puts up barriers to companies from moving factories abroad creates a more static economy here at home, one less responsive to the seizing of future opportunities in an era of technological acceleration.

That policy clearly makes American consumers and American shareholders in American companies worse off, because companies will fail to locate where they would be most profitable and to deliver products to consumers at the lowest possible cost. But a government-directed industrial policy is also not good in the long run for the American worker, because the industries that can provide good jobs for the long run change over time, and change faster as technology speeds up.

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