Abolish the State of the Union Address  

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The enigma, and perhaps impetus, of swelling executive power is that when constitutionally asserted, the presidency is shrinking. Witness the White House’s apparent intent to use the State of the Union address to propose that—wait for it—Congress enact national standards regarding how quickly companies must inform customers of data breaches.

Now, hacking is bad and reporting it is good. But it is also time—and the constitutional conservative should reach this conclusion with due reluctance—to abolish the State of the Union address, whose most pernicious effect is its political imperative for the President to propose as many new ideas as possible, regardless of the need for them, while Congress occupies a supine posture of reaction.

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A Partyist Solution to Partyism

Cass Sunstein has offered a new solution to advance good governance in a time of partisanship—what he terms an age of “partyism.”  Because a partisan world leads to gridlock in Congress, he suggests that executive agencies should continue to be empowered with substantial latitude to interpret their own statutes.  Indeed, Professor Sunstein argues that agencies should gain a “bit more” discretion to construe existing statutes since Congress will not be doing much updating.

Michael Greve offered his own excellent demurral to Professor Sunstein’s solution. Here are two additional points of critique.   First, empowering agencies is not neutral with respect to partisanship because bureaucrats lean to the left.  Second, empowering agencies is not neutral as an ideological matter.  The progressive agenda itself needs substantial discretion to continue the effectiveness and political endurance of much centralized regulation.  In contrast, conservatives and libertarians are more sympathetic to market and other forms of decentralized order that will take hold even if federal regulation cannot be updated.

There is substantial evidence to support the first point that most federal employees lean to the left of Republicans.

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It’s My Party. Cry If You Want To.

elections 2016 conceptual post

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. 

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The Inevitability of Monarchy

In The Once and Future King: The Rise of Crown Government in America, I argued that the United States was drifting towards the one-man rule of an all-powerful President. It’s not something people, especially American conservatives, wanted to hear, but then I had a secret ally in Barack Obama. He’s the gift that would never stop giving—but for term limits.

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The Ghosts of Presidents Past: A Conversation with Stephen Knott

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Presidential power scholar Stephen Knott discusses in this latest edition of Liberty Law Talk his book Rush to Judgment: George W. Bush, the War on Terror, and His Critics, recently released in paperback form by University Press of Kansas. Knott has a point in this book. He argues convincingly that the vituperative critics of George W. Bush’s use of executive power, in many instances, were willfully ignorant of the historical use of these powers. Past presidents, ranging from George Washington, Thomas Jefferson, James Madison, Abraham Lincoln and certain presidents in the twentieth century, defended and exercised powers similar to those…

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The Post-Constitutional Presidency Turns Inward

White House Wasghington DC view

The syllogism by which healthcare deadlines may be deferred against laws, recess appointments made without recesses, and international agreements negotiated sans treaties runs as follows: The national government is empowered to pursue the public interest. The power of the national government is vested in the person of the President.  Therefore, the President is empowered to pursue the public interest.

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Return to the Barbaric

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.

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The Imperial Mount Rushmore

Though it’s been a few weeks since it appeared, I would be remiss if I didn’t mention Stephen Knott’s excellent piece on whether Woodrow Wilson destroyed the office of the presidency. The clamor about the imperial presidency is on the rise with many commentators (such as George Will) and Knott’s article gives us a better understanding of its rise, as well as its implications. Knott describes the “expectations gap” that has arisen due to modern conceptions of the presidency, where we expect the president to heal the planet, rather than work to enact reforms within the institutions of constitutional government.

In response to Professor Knott I would only mention that I think Woodrow Wilson may not even deserve top billing in terms of producing the rise of presidential power.

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Administrative Adjudication: Even Worse than it Looks?

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.

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Time to Demote the Separation of Powers?

I’ve just finished F.H. Buckley’s excellent new book The Once and Future King. I’m reviewing the book for another outlet so I won’t repeat myself here, but here’s the short version: Professor Buckley has identified a key weakness in the American system of government, but perhaps has misidentified its roots. Regardless, I think that his book is very important for thinking about a way out of our present gridlock and dysfunction.

Here I would like to take up and challenge one of the most controversial parts of Buckley’s argument.  

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