For reasons known only to their coaches, the Seahawks decided against going “beast-mode” at the end of last night’s Super Bowl. Instead of running the unstoppable Marshawn Lynch, they flubbed a quick in-route and lost the game in the last seconds. So the Patriots weren’t faced with the challenge of stopping Lynch when it mattered. And that raises to mind a missed opportunity for another Lynch, Loretta Lynch, Obama’s nominee to be Attorney General and chief law enforcement officer of the land. This Lynch, however, has been given the ball. In what some thought might be a Judiciary Committee Superbowl on her nomination, instead turned out to be a fizzle for the constitutionalists. Lynch proved she can shed tackles also (although they were arm-tackles), while making the Republicans sound more like the press-defiant, laconic Marshawn Lynch.
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.
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.
Recently stumping for his cooperative federalism model of government-funded preschool, Barack Obama claimed that more money should be spent on these programs so that, in effect, women wouldn’t have to stay at home to take care of children. They should be working as the family’s core functions should be institutionalized by the state. This, of course, confirms what many on the Right think about these types of programs. They are back-door ways to ensure government gets more time with your children and you get more time at work, which you’ll need to pay the taxes for this program and the many other progressive bureaucracies.
Taking a different tack is Indiana Governor Mike Pence who says “This is a heart issue for me” when he urges renewal of his pilot program for government-funded preschool education.
Does that mean evidence-based debate on the subject is heartless? Well we’ll see.
On the day of midterm elections, it is worth taking the time to admire the Founders’ design. Gratitude does good for the soul at any time, but it is particularly warranted now, when a number of progressives have argued that midterm elections are a mistake, principally because they get in the way of powerful Presidencies that can transform American society through national politics.
The Framers kept government on a short leash because they were more realistic about what federal politics could accomplish and more pessimistic that any particular idea of national reordering would be good. They built a system of checks and balances to constrain the dangers from excessive power. Those restraints in turn protected other forms of more decentralized political ordering like the market, voluntary associations, and state and local government.
An op-ed in in The New York Times yesterday argued that it would be a good idea to eliminate the midterms and the amend the Constitution in favor of longer terms for members of Congress. They analogize the federal offices to state and local offices, like school boards, which have longer tenure. This argument gets things perversely backwards. We put checks on the power of the federal government in part to make it harder for the government to displace the more local ordering of state officials, thus preserving federalism. The more potentially powerful their political agents, the more opportunities the people need to check them.
Eighty years ago this week, Herbert Hoover published a book of political philosophy entitled The Challenge to Liberty. Although little remembered today, it deserves scrutiny, especially by those interested in the history and theory of classical liberalism in its American context.
When President Hoover left the White House in 1933, he and his wife returned to Palo Alto, California to live. At first he maintained a public silence about the new chief executive and his shimmering New Deal. He did not wish, by any premature, partisan outburst, to jeopardize or appear to jeopardize economic recovery during a national emergency. At any rate he doubted that comments of his would have an effect in the current public atmosphere, poisoned as he considered it to be by the incessant “smearing” of his record by the opposition. He hoped also that, as New Deal measures failed (which he expected them to do), the American people would learn from disillusioning experience and return to their traditional values.
Chapter 24 in Philip Hamburger’s brilliant book on—or rather against—administrative law is entitled “The German Connection.” The Progressive architects of administrative law—Frank Goodnow; Ernst Freund; John Burgess and apparently the rest of Columbia Law School; Woodrow Wilson—all admired the Germans’ post-Hegelian, “scientific” approach to administration. Many had studied at German universities. And so America acquired what she’d never had before: administration. The rule of “experts,” outside constitutional channels and constraints.
Staid old Gallup knows how to get attention. Its Presidential Job Approval Center recently announced a new report with the provocative title: U.S. Muslims Most Approving of Obama, Mormons Least. The full results of this extraordinarily large sample of 88,000 interviews showed an even more dramatic division. Majorities of Muslims (72 percent), other non-Christians (59 percent), Jews (55 percent) and atheists (54 percent) supporting President Obama faced Catholics (51 percent), Protestants (58 percent) and Mormons (78 percent) opposing him.
It looks like the basis for a religious war. Then it gets even bleaker.
Moral outrage, when it is not fatuous, is politically potent. Vivid examples of politicians and commentators in full-throated, red-faced attacks against malignant motives and vicious political acts come easily to mind for all but the most apolitical. In some cases these outbursts are reactions against assaults on how things are or have been—on the decent order of things as inherited. But any honest observer must acknowledge that the more successful production of moral outrage has issued from those seeking fundamental transformation.