This edition of Liberty Law Talk discusses with the Wall Street Journal’s Bret Stephens his recent book, America in Retreat. Stephens argues that an America which declines to engage globally with its military is accepting a false promise of peace at the expense of rising disorder. The introduction chapter is entitled “The World’s Policeman” where Stephens quotes President Barack Obama’s proclamation in a 2013 speech: “We should not be the world’s policeman.” Similarly, Rand Paul states that “America’s mission should always be to keep the peace, not police the world.” “This book,” says Stephens, “is my response to that argument.” Our conversation focuses on…
Archives for March 2015
There’s been some good writing on Common Core—e.g. by Richard Reinsch on this site and by my ex-colleague Rick Hess in National Affairs. And there’s been a lot of hyperventilation over it, mostly in connection with de facto presidential contender Jeb Bush’s “doubling down” on his support for Common Core: can he really be a conservative? Isn’t Common Core a liberal conspiracy, hatched in D.C. to take over local schools? Etc. What’s been missing is the voice of a true education expert: me.
In a recent article published at the Harvard Law Review Forum, Paul Clement and Professor Neal Katyal emphatically denied the existence of any substantial controversy as to whether Senator Ted Cruz meets one of the eligibility requirements for the presidency, viz., whether he is a “natural born citizen” of the United States. Any claim otherwise, they argue, is “specious,” for the historical evidence “clearly” demonstrates that he is such a natural-born citizen; because he was born to a citizen mother and thus a citizen “from birth,” he was a “natural-born citizen.”
I write to note my disagreement with their certitude, but tentative agreement with their conclusion.
Last week California followed New York in proposing a requirement of 50 hours of pro bono work for prospective lawyers. Unlike New York’s existing rule, which requires lawyers to serve their time before admittance to the bar, the California proposal permits them to meet the requirement shortly afterwards as well. California’s proposal also requires 15 “units” of “experiential learning,” within such activities as clinics or externships, that can be satisfied either during law school or separately in a private externship. This proposal is an unfortunate one–both protectionist and ideologically one-sided.
First, assuming that units translate to credits, the requirement of 15 credits of experiential learning —a significant proportion of law school coursework—will make some students’ legal education less valuable and likely make it more expensive for everyone. Some students would benefit more from the additional course work crowded out by experiential learning.
In my last post, I wrote about how the Congress might be able to limit executive power. In the near future, the most likely possibility is that the Republicans would gain control of the Presidency, keep control of the Congress, and have an ideological commitment to constraining executive power. Whether this is likely or not, it is certainly a real possibility.
In a recent concurrence, Justice Thomas wrote an opinion making the argument for a reinvigoration of the nondelegation doctrine. If the Supreme Court were willing to agree with Justice Thomas and hold delegations to be unconstitutional, then executive power would be constrained. But unfortunately this seems extremely unlikely.
Another way delegations would be constrained is if Congress were to return to a system of limited delegations by eliminating or constraining the various regulatory statutes that delegate broad legislative authority to the agencies. Unfortunately, it seems obvious that Congress would be unwilling to do this and that the President would oppose it.
But there is yet another possibility: one could pass a cross cutting law that required congressional approval before agencies could adopt major rules. This type of law – which is known as the REINS Act – would operate to significantly reduce delegations to the agencies.
Under the Act, major regulations would have to be approved by the Congress before they could be put into effect. Each house of Congress would have an up or down vote on the regulation proposed by the agency. To minimize the time for delay and debate, the vote would be on the proposed regulation rather than on amendments that either house might propose.
The latest news from the world of technology suggests that advances in computation may disrupt the legal profession sooner and more broadly than I had thought. Students at the University of Toronto recently designed a new legal search tool, winning a competition for the best use of IBM’s newest computational resource, Watson. Specially designed and programmed, Watson challenged the best Jeopardy players in the world in 2011 – and won. IBM, however, was not aiming at world Jeopardy domination but at making money by invading other more lucrative domains. And it has already spun off a division to exploit Watson’s technology in fields as varied as medical diagnostics and aerospace engineering.
Wisely, IBM has also begun university competitions to interest students in designing new uses for Watson. The result from Canada is Ross, an application expressly designed for legal research. Computerized legal research is itself nothing new, having begun over forty years ago. Today, Lexis/Nexis and Westlaw are better known than any single law firm. But Ross has two advantages over the kind of computerized legal search most of us have known.
Broken clocks tell the right time twice daily. The academic Left does not stumble across the truth quite that often, but Matthew Guevara, a student in the University of California-Irvine’s School of Social Ecology (link no longer available)—mission: “transformative research to alleviate social inequality and human suffering”—has. He put a resolution before a student-government committee to ban the American flag—okay, all flags, but still—as a particular, separating, and yet also a simultaneously homogenizing symbol that ought to be excluded in the name of inclusivity.
Conservatives were outraged. Multiculturalists, likely not recognizing this assault on the concept of culture, surely applauded. Lost in the din was that Guevara’s premise was right even if his conclusion wasn’t. Premise: The flag is particular and exclusive. That is the point of political identity. The font of wisdom flows as to the conclusion, namely: Not that there’s anything wrong with that.
Modern progressivism’s relatively weak legislative coalition explains much of the behavior of the Obama administration and the new threats it poses to our constitutional order. As I discuss in an article just published in the City Journal, under FDR and even LBJ, the Democratic party had much more enduring power in Congress. Moreover, these administrations were not nearly so hamstrung as is the Obama administration by deficits and high government spending caused in no small measure by previous progressive experiments. Thus, previous progressive administrations could often be more forthright in the proclamation of their goals and rely on their large legislative majorities to enact and revise the central parts of their programs.
But the Obama administration needs to compensate for its relative weakness by misleading the public and exalting executive power even beyond the previous efforts of progressives. For instance, the President’s repeated promise that you can keep your health care insurance and doctor was necessary to enact the Affordable Care Act, because in our more affluent society the great majority are happy with their health care. As I note in the piece:
Executive power has been growing. Many people on the right have come to appreciate this growth over the last 6 years of the Obama Administration. But the growth in recent years first began under George W. Bush. In this area, Bush and Obama have more in common than not.
Can anything be done about this? While it is possible that the courts could act to constrain the executive, the better way – in terms of effectiveness – would be if the Congress were to pass reforms of executive power. But can Congress feasibly constrain the executive? One question is whether Congress is willing to take such constraining action. Another is whether Congress would have the power to take such action, given that the President has a veto over legislation.
If one looks at modern American history, there appear to be two situations where significant reforms of the existing power of the executive branch have been enacted.