Jonathan Rauch of the Brookings Institution, a dear friend and one of the nation’s most insightful and thoughtful political observers, explains in a provocative Atlantic piece “How American Politics Went Insane.” The short answer, more fully elaborated in Jonathan’s earlier e-book, is disintermediation—that is, the demolition of political structures and mechanisms that, in a system of divided powers, make politics work and enable “middlemen” and power brokers to protect the system against crazies. Primaries and campaign finance reforms have weakened the parties. The destruction of the seniority and committee system has disabled Congress from legislating even when a (latent) consensus does exist. “Open government” reforms have constricted the space that is needed for political bargaining. The “pork” that once greased the system has mostly disappeared. Over time, the institutional immune system has collapsed. The ensuing chaos has produced further public disaffection and populist agitation against “the establishment.” It’s a feedback loop, and not a good one.
In a momentous decision, a panel of the D.C. Circuit (Judges Srinivasan, Tatel, and Williams; opinion by Srinivasan, partial dissent by Williams) has upheld the FCC’s “net neutrality” rule. Henceforth broadband providers will be regulated not as information providers but as a “telecommunications service” under Title II of the Communications Act. Among other things this entails “must carry” obligations and a command that the providers may not charge different rates to different content providers (in regulatory parlance, “paid prioritization”).
Last month, the EPA finalized major new rules requiring carbon dioxide reductions across the energy-generating industry. The rules require power plants to reduce emissions levels to 32% below their 2005 levels in the next fifteen years, and it is part of the administration’s attempt to force plants to shift from coal to wind and solar energy. President Obama views the new rules as a crucial part of his environmental legacy; he introduced his “Clean Power Plan” (CPP) as “the single most important step America has ever taken in the fight against global “climate change.”
The new rules are big, they are complex – but we’ve seen the basic story of what the administration is doing here before. In various areas of environmental policy, along with several other policy areas as well – most notably with immigration, health care, and financial regulation – the president has directed agencies to do through administrative edict what could not be accomplished through Congress. Think of the CPP as the failed cap-and-trade bill, take two – only now announced through the executive branch, rather than enacted through the legislature.
In last week’s post on the regulatory state I surmised that “a retrospective review of the [Obama administration’s] retrospective review exercise would prove it to be largely pointless.” Well, not quite. As the American Action Forum’s excellent Sam Batkins explains, agency review of old, outdated regulations has actually added some $14.7 billion in costs. Thank you, Doctor Sunstein. To the iron laws of the administrative state, we should add the following: It’s always worse than Greve thinks. Never permit the administrative state to look back. Instead, let the heralded purposes of Congress and of rulemakings past get lost in the vast hallways of the…
The Mercatus Center has just published a troubling snapshot analysis of the accumulation of regulatory mandates and restrictions since the Carter administration. Other analyses confirm the picture of a burgeoning regulatory state. My own favorite is the Competitive Enterprise Institute’s annual, invaluable !0,000 Commandments Report (link no longer available). But it’s the same picture wherever you look:
This next edition of Liberty Law Talk is a discussion with Michael S. Paulsen, co-author with his son, Luke Paulsen, of their new book entitled The Constitution: An Introduction. The Paulsens’ book is a thoughtful and probing overview of the foundations and evolution of American constitutionalism. Our discussion focuses on key ideas in the book: What does it mean to be a country that is defined by a written constitution? Is the Founders’s Constitution a pro-slavery document? Has the use of substantive due process in Lochner, Griswold, and Roe corrupted our understanding of the Fourteenth Amendment? Of what worth is the Youngstown decision that…
In the recent Hobby Lobby Case, Justices Elana Kagan and Sonia Sotomayor said that corporations that don’t want to pay for abortions should simply not provide any health insurance: “But isn’t there another choice nobody talks about, which is paying the tax, which is a lot less than a penalty and a lot less than — than the cost of health insurance at all?” Dissenters from the official line must pay a tax. That sounds familiar.
There is, I think, quite a bit to learn from the D.C. Circuit’s greenhouse gas cases, reviewed in yesterday’s post. Let’s start with a dorky but telling AdLaw point and move on to more cosmic themes:
- GHG regulation in strict compliance with the CAA would mean shutting down the country. To finagle that problem, EPA now routinely invokes two canons—“one-step-at-a-time,” and “absurdity”—that are mutually exclusive. If the statutory shut-down is absurd, why take even the first step? If it isn’t, why not follow the statutory commands (instead of re-writing the statute)? No prob, says EPA: it makes perfect sense to move step by step toward an insane result. In my view, a fine description of the entire regulatory state; on EPA’s account, the logic of Mass v. EPA and Coalition. To borrow a movie line, EPA has a point. A stupid point, but a point.
- There’s been a lot of huffing—in connection with judicial nominations and appointments—about the D.C. Circuit as the last line of defense against the Obama Administration’s imperial tendencies (or a roadblock to its urgent initiatives, depending on who’s talking). The GHG cases don’t quite fit that account, do they? It’s pedal to the metal.
- Conservatives cherish the image of a headless, unaccountable fourth branch of government. But that’s not what’s happening here. For starters, EPA’s climate initiatives are engineered and supervised by the White House, at the President’s feet (see here). That’s presidential administration pure and the “unitary executive” in action. If memory serves we used to be for that. Are we still—or would we rather have Cass Sunstein’s AdLaw of “reasoned deliberation”?
- · Somewhat at variance with the preceding point, one could argue that the Prez is simply jumping at the head of a climate parade that would march ahead without him because that’s the way the courts have construed the CAA. Under Mass and Coalition, once you feed some chemical into one of its “endangerment” provisions, the act is a machine that will go by itself: EPA must regulate. If EPA delays or “tailors” to avoid “absurd results,” it gets sued. Adherence to the law, and all that. Under the D.C. Circuit’s brilliant standing jurisprudence, regulated firms can’t sue: their injury comes from the “automatic operation” of the CAA, not from anything EPA did. In contrast, pro-regulatory enviros can sue over delays and exemptions. They can choose to go ahead or hold off (for example, if they fear a blow-back from Congress, or if EPA asks politely enough). What we have here is government rulemaking on demand.
Only two institutions are capable of arresting the momentum: Congress, and the Supreme Court. Will they?
In countries such as Germany (see recent post), climate change regulation proceeds by idiotic, popular and partisan consensus. Stateside, there’s less enthusiasm for post-carbon fantasies. Thus, climate regulation must be and has been put on autopilot. Two recent D.C. Circuit decisions (described below) illustrate the point. They also illustrate the need to think a bit harder about the administrative state. Today, the decisions; tomorrow, the lessons.