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.
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.
The 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.
There 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.
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 for the exercise of judicial and legislative powers, apart from the channels of the Constitution, also found comparative expression in medieval and early modern legal absolutism, particularly in the Stuart monarchs? That’s the stunning claim made by Philip Hamburger in his latest book, Is Administrative Law Unlawful?
Hamburger does not make formal arguments of constitutional law, instead he seeks to show that administrative law, which he hesitates to even properly call law, is a fundamental threat to our liberties in its very operation. The administrative state, he believes, must first and foremost be criticized for the deprivations it works on individual liberty in defiance of the core protections set forth in the Anglo-American legal tradition. This conversation explores how the administrative state operates above and apart from the law. We focus on the detailed legal historical arguments made in the book that compare the operations of our administrative state with the prerogative powers of the Stuarts as the best way to understand the constitutional settlement of the 17th century that law must be exercised through the law of the land and the courts. This settlement naturally found expression in our own Constitution. The reasons why our Founders set forth these limitations are at the heart of Hamburger’s book and this podcast.
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.
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.
I previously posted about the rise of computation and its implications for legal practice, as machines replace some of the functions of lawyers. I recently wrote an essay that focused more on the displacement’s implication for the status of lawyers in politics and in society. As De Tocqueville saw almost two hundred years ago, lawyers were the aristocrats of America’s democratic society. The rule of law, not men, made them paradoxically the key men in the early Republic. But their position is now threatened by the rise of engineers and tech entrepreneurs.
This development may have good effects for society. As I observed:
In the twentieth century, lawyers continued to wield power, but the direction of their influence in economic affairs changed. Since the birth of the modern regulatory state and social democracy, lawyers have had incentives to increase and revise legislative mandates; they became the technocrats of regulation and redistribution. The more a nation intervenes in the free market, the more in compliance costs and transfer payments that lawyers can expect to receive. As a result, lawyers don’t tend to be strong proponents of economic liberty or even of a stable rule of law. Their interest frequently lies in legal complexity and the uncertainty it brings.
The decline of lawyers may therefore prove a boon to the rule of law and to market norms. Computational innovators benefit from capitalism’s process of creative destruction; their new applications transform industry after industry. Their success lies with a stable rule of law and relatively light regulation. True, once successful, innovators become incumbents and may seek to use government to hamstring new entrants. But the dynamism of technological acceleration will make it difficult even for big government to hold back waves of new “disruptions.”
Confirming ordinary experience, the polls leave no doubt that the majority of Americans now regard the U.S. government as more a threat than a protector, acting beyond law or popular control. How government in America became “them” rather than “us,” what government’s loss of legitimacy means for this country, and whether lost confidence and legitimacy may be reclaimed any more than virginity, are questions we must ponder.
It has been widely remarked that President Obama and his administration are making a habit of failing to enforce the law when legal obedience would be politically inconvenient. Most importantly it has suspended or delayed various provisions of the Affordable Care Act. My focus here is on how such behavior follows from the inner logic of progressivism as a political philosophy and a governing coalition.
Progressivism at its base is about enforcing a pattern of equality, necessitating redistribution and social engineering. As it has waxed over the last century, its projects have become more ambitious until it has culminated in effort to remake one sixth or so of the American economy. But the problem with central planning is that life, including political life, is unpredictable. Just as no military plan survives contact with the enemy, no positive program of government social construction and certainly not one as ambitious as Obamacare can anticipate all the secondary and tertiary effects that come in its wake. It could not do so, even if the program were wholly coherent at its inception, which limitations of knowledge and politics make impossible.
Thus, there will be an inevitable need for ad hoc changes. And yet the Progressive coalition is always unstable, being made up in large part of people who want things from the government that conflict. Thus, the coalition that passed the law will not remain unified. Indeed, it may lose its congressional majority. Hence, as Obama has found, it has become impossible to adapt the program to new circumstances through the democratic means. Unilateral power of legal suspension is the logical outcome so long as the President is a Progressive and his coalition has frayed.