Regulate Now, Obey the Law Later

A few posts ago I introduced “citizen suits”—brought by private parties, usually advocacy organizations, in a capacity of “private attorneys general” against the government to make it do something—as an example of the derangement of our administrative and constitutional law. Here’s a bit more on the real-world aspects of the phenomenon, and a few more thoughts:

A ton of these cases are “deadline” suits. Environmental and, increasingly, many other statutes contain countless provisions saying that the administrator or agency “shall” regulate this, that, or the other thing by date “x.” More often than not, the agency misses the deadline, and the Association of Irritated Residents (an actual group) or some such outfit strolls into court and demands compliance. Agencies rarely fight these cases.

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The Whip and the Sting of the Law

Richard Reinsch's post “Return to the Barbaric” leads me to think that there is indeed something different about the use of the executive power in the Obama Administration, though FDR set a new model–closing the banks and barring people from access to their savings, on the strength of nothing but the Trading with the Enemy Act of 1917. FDR also traded destroyers for naval bases, when his Attorney General, Robert Jackson, told him that those destroyers were not his property to sell or trade.  But as Reinsch and others have said, cashiering the president of GM, rewriting the law on Obamacare,…

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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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Delish Dinesh

dinesh

There’s something deliciously impertinent about Dinesh D’Souza. Watch D’Souza here, facing off against Bill Ayers in front of a full auditorium. He opens with a joke about metal detectors, a sly reference to the bombs Ayres set off in the 1960s. A few minutes later, he skewers Ayres for his cushy trust fund background. Attaboy Dinesh, you’ll be saying, in admiration of his guts and his articulate defense of America.

Debating the A-list celebrities of the Left is one thing; offering a conservative message to mainstream America in a movie is another. The filmmaker had better 1) understand America; and 2) be not just pro-American but an artist—or else he turns into a rightwing version of other entertaining but tendentious filmmakers like, say, Michael Moore.

D’Souza’s new documentary America: Imagine a World Without Her has apparently out-earned Moore’s Capitalism at the box office.

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From the Rule of Law to the Triumph of the Will

 

shutterstock_203668402The arguments by which the Obama administration is countering lawsuits that seek to limit Obamacare subsidies to participants in “exchanges” established by states—a limit that is specified in the Obamacare law itself—have raised the outcome’s stakes. Administration officials argue that the plain, unmistakable, uncontested language of the Affordable Care Act (ACA) is less important than what they want the law to mean, and that hewing to its words would deprive millions of people of the subsidies that the administration had granted them regardless of those words. Therefore the courts should enforce what the administration wants rather than what the law says.

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The Road to Lawlessness

court 2There will be a Republican President again someday. This will happen. Democrats, having forgotten that fact, would do well to remember it. Suppose this happens too: Congress cuts taxes, stating in the preamble to the law that it intends to spur economic growth and, Laffer-style, boost revenue. The cuts fail to achieve that goal, so the President—on the grounds that a law should not be implemented in a manner contrary to its stated overall purpose—unilaterally orders the IRS to cut them some more.

After the arguments made to the D.C. and Fourth Circuits to justify the subsidies for coverage on federal Obamacare exchanges, the howls of indignation might be hard to separate from the howls of righteous vengeance. Because while the tax-cut scenario takes the case to eleven, the species of argument is the same: that the President is authorized to violate—or, more politely, let us say, reconceptualize—the letter of a law in the name of achieving its overriding purpose.

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The Unlawful Administrative State: A Conversation with Philip Hamburger

Is Administrative

The standard narrative used to justify the existence of the administrative state and thus legitimate its powers is that America in the late 19th and early 20th centuries entered into a realm of industrialization, corporate power and concentration, density and urbanization, among other causes, that entailed the need for expert rule in executive agencies. Necessity of government action required courts and rule-making agencies that could adjust the social order to rapidly arising needs not anticipated in the 'horse and buggy' Constitution. However, what if there really is nothing new under the sun about administrative power? Instead, what if its call…

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Saved By the Bar?

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.

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The Cheese(makers) Stand Alone

In a decision that has been criticized on both the right and left, the FDA announced a ban last week (via executive decree) on the use of wooden boards for aging cheese. It has since relented after receiving pushback from cheese interests, including the American Cheese Society. While hardly unprecedented, this example of bureaucratic rule helps illustrate a few basic, fundamental problems with the administrative process.

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