Any serious checks on the separation of parties and executive government, I’ve argued in my earlier post, would compel us to re-think big pieces of the constitutional and institutional architecture—stuff we haven’t thought about and that’s wholly missing from the GOP’s pedestrian “Better Way” agenda. Herewith some examples of what that might look like. Here’s an option that ABW stumbles toward: under the German Constitution, one-third of the legislature can ask for immediate constitutional review of any piece of legislation. Why? Because Germany doesn’t have a separation of powers that permits one political branch to check the other’s transgression. It’s a…
Archives for October 2016
Recently, a three judge panel on the D.C. Circuit held in PHH Corp. v. Consumer Financial Protection Bureau, that the for cause removal provision for the director of the Consumer Financial Protection Bureau was unconstitutional. Rather than striking down the entire statute, the court struck the for cause removal provision, leaving the director subject to removal at the pleasure of the President.
The Bureau is an example of the newest philosophy in administrative governance, which the Democrats have pursued in Sarbanes Oxley, Obamacare, and the Dodd-Frank banking act. The idea is to maximize the independence of administrative agencies and to enhance their power. In terms of maximizing the independence of the Bureau, the Bureau does not answer to the President (that is what the for cause removal provision means) and it is funded through the Federal Reserve, so that the Congress cannot use its appropriations power to control the agency. The power of the agency is enhanced, because it is controlled by a single director rather than a bipartisan commission as virtually all independent agencies are. Needless to say, this new philosophy of governance is extremely problematic.
The modern conservative legal movement grew up in response to the Warren Court’s activism in the 1960s. In opposing the decisions of Justice Brennan and the rest, conservatives made use of the same arguments that liberals had used during the New Deal, when the Supreme Court had a conservative majority resistant to the Roosevelt program. In essence, the conservatives during the Warren years called liberals hypocrites for not deferring to the legislature, since deference was the claimed reason for the 1937 overturning of Lochner v. New York (1905). When the conservatives finally did get a majority on the Court in the 1980s, it was under a Republican president, and deference to the Reagan administration made a lot of sense for conservatives.
Whatever the outcome of this year’s election, conservatives and other friends of American constitutionalism have our work cut out for us. The Republican candidate for president has not shown much familiarity with or interest in the workings of our constitutional system. And the Democratic candidate (as usual) has evinced a desire to continue, with judicial backing, a transformation of that system—one that further enhances executive and regulatory power while weakening the powers of Congress.
My first year with my first born daughter has been an occasion for both personal joy and melancholy public reflection. Governments, both state and federal, created an obstacle course for raising our child. And for many other children the natural obstacles have been exacerbated by bad social norms, most particularly norms against rendering judgments about how people’s living arrangements affect children.
To begin on a happy note, however, the first year has reminded me once again of the transcendence of individual genius. The classics of children’s literature are antic marvels of cheer and cleverness. Reading the best of them allows for adult pleasures as well, because like all great works they offer different line readings and different interpretations. For instance, if one gives Sam the resonant voice of God, Green Eggs and Ham becomes a parable of reconciling man to God’s creation.
But the government has been a constant frustration, making it difficult for a working couple to comply with its laws while also providing personal care for their child. Hiring a nanny requires one to calculate social security, withholding, buy unemployment and workman’s compensation insurance, and obey various federal and state regulations. Quite apart from the absurd nature of some these laws, their intricacy defeated this lawyer from doing the compliance work himself and required the additional expense of hiring an outside service. No wonder the agencies referring nannies all told me that very few of their clients even attempt to follow the law. In this context, complexity makes the law self-defeating.
Yesterday, the Hoover Institution hosted a conference on “A Better Way,” the House Republicans’ agenda to make America perhaps not great again but at least work again. That proved a useful focus for a panel discussion featuring yours truly (video link to come). As for ABW itself, I’m with the Boss: Well my soul checked out missing as I sat listening To the hours and minutes tickin' away Yeah just sittin' around waitin' for my life to begin While it was all just slippin' away The fact is that ABW is dead for the foreseeable future. Mr. Trump has severely compromised, if not single-handedly destroyed,…
It began as curiosity, an alienated feeling, the desire to understand. It became a temptation. The occasional trace of a melody would wriggle into my imagination. So what if I snuck away to enjoy a hot single now and then? No one had to know. But now I’ll admit it—I have two pop stations preset in the car. And I’m not ashamed.
In my previous post, I talked about how delegation came to dominate our government. I focused on two types of delegation – delegation of policymaking discretion and delegation of legal interpretation, such as Chevron deference.
I suggested that Chevron was a disaster, because it greatly added to the delegations that had already occurred though congressional statutes. The courts could have simply enforced those congressional delegations without adding to them with Chevron. But instead they invented Chevron – which had not been enacted by Congress – and greatly expanded the delegations.
Chevron was also a disaster in another way. One might believe that Republicans are generally more in favor of limited government than Democrats these days, especially as to government regulation. This is not an uncontroversial judgment, but I believe it is largely correct. And if that is so, then the Republican judges of the 1980s undermined their cause when they pushed Chevron. Chevron allowed administrative agencies significantly more authority to enact regulations.
The timing of George Hawley’s book is almost perfect. Questions raised over the past decade about the conservative movement’s survival have never been more pressing. Indeed, developments in the 2016 presidential campaign, combined with now-undeniable demographic, cultural, and sociological trends running against the Republican Party, may have shifted the burden of proof from naysayers onto anyone who is more optimistic.
As a society becomes more secular, what happens to religious rituals, customs, and ways of life that cannot be explained or justified in secular terms? When the freedom to engage in such practices is no longer presumed to be a good because of a firm commitment to religion as a social value, little stands in the way of its becoming just one more special interest. Religious freedom is then thrown into the bin of social oddities, to be haggled over and negotiated against whatever other idiosyncratic predilections one happens to find in there..