Detail view of the Flight 93 National Memorial in Stoystown, PA (Chicago Photographer/Shutterstock.com).The Administrative State under Trump: A Conversation with Adam White
A (Long) Path to Reforming Our Administrative State
In response to: Ten Ways for the Next President to Promote the Rule of Law
When Law and Liberty invited me to write on 10 things that a new president could do to promote the rule of law, I was struck by how counterintuitive the question was. After years upon years of debate over presidents pushing the boundaries of the constitutional powers (and not just during the most recent administration, as Philip Wallach stresses), it seemed rather novel to reflect upon ways in which the president himself might promote the rule of law through unilateral action—or, in some cases, unilateral cessation of previous unconstitutional action. Needless to say, my list of ten suggestions was hardly intended…
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Adam White’s Liberty Forum essay offers 10 ways for our 45th President to promote the rule of law, many of which I find appealing. But I fear he could offer a thousand such ideas without much effect, and in the end he concedes that he, too, doubts that Presidents will restrain themselves or their governments…
It is very difficult to take issue with the pessimistic tone of Adam White’s sensible advice to the next President on 10 ways to promote the rule of law. All of the topics that he mentions are understood as serious, systemic weaknesses. When it comes to administrative law, President Obama has a penchant for excessive…
I can only applaud the excellent “to do list” in Adam White’s Liberty Forum essay, even as I scan the absentee ballot that I received in September wondering whether any of the leading candidates would have the good sense to give the list the attention it deserves. But we are giving advice here, not forecasting…
Ten Ways for the Next President to Promote the Rule of Law
After eight years of President Obama’s administration, conservatives are much more likely to see executive power as a threat to the rule of law than a tool in service of it. Indeed, after 16 years of Presidents Bush and Obama, we are all well accustomed to hearing critics comparing modern Presidents to King George III. (They don’t mean it as a compliment.) But it is a mistake to believe that presidential power is inherently and categorically a threat to the rule of law—quite the contrary. While it is true that presidential power unchecked by Congress, the courts, or the states can…
Responses
Adam White’s Liberty Forum essay offers 10 ways for our 45th President to promote the rule of law, many of which I find appealing. But I fear he could offer a thousand such ideas without much effect, and in the end he concedes that he, too, doubts that Presidents will restrain themselves or their governments…
It is very difficult to take issue with the pessimistic tone of Adam White’s sensible advice to the next President on 10 ways to promote the rule of law. All of the topics that he mentions are understood as serious, systemic weaknesses. When it comes to administrative law, President Obama has a penchant for excessive…
I can only applaud the excellent “to do list” in Adam White’s Liberty Forum essay, even as I scan the absentee ballot that I received in September wondering whether any of the leading candidates would have the good sense to give the list the attention it deserves. But we are giving advice here, not forecasting…
When Law and Liberty invited me to write on 10 things that a new president could do to promote the rule of law, I was struck by how counterintuitive the question was. After years upon years of debate over presidents pushing the boundaries of the constitutional powers (and not just during the most recent administration,…
A Great Example of Judicial Restraint
The Supreme Court is slowly but surely demonstrating, over a series of cases, that the First Amendment cannot plausibly be squared with public sector unions’ court-awarded power to require payments from non-members. The Court’s 1977 decision granting unions that extraordinary power, Abood v. Detroit Board of Education, is an anomaly that should be overturned next year in Friedrichs v. California Teachers Association. Michael Toth makes these points well in his lead essay, as do Daniel DiSalvo, my Manhattan Institute colleague, in his response and in his terrific new book, and John Eastman in his own response. Alongside their comprehensive critiques, I would…
“Just, Wise, and Constitutional”: Justice Thomas’s Legacy in Law and Politics
U.S. Supreme Court Justice Clarence ThomasRalph Rossum has followed his indispensible volume on Justice Scalia with an equally indispensible analysis of Justice Clarence Thomas’s life and work. The two seem destined to be paired forever. Because they share so much in common, each is the other’s best foil. Professor Rossum draws such contrasts expertly, as have Randy Barnett and Lee Strang, among others. Court observers often focus first on the justices’ differences on how best to temper originalist interpretive methods with the prudential limits of stare decisis (differences that Thomas himself thinks are exaggerated). But much more important are the differences in the justices’ basic senses…
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Not too long ago, I found myself discussing the U.S. Supreme Court with an acquaintance who does not particularly follow politics. During the conversation, I mentioned the name of Justice Clarence Thomas, which provoked the question, “He’s the one who doesn’t do anything, right?” I suppose there are worse ways that Justice Thomas could be remembered,…
Dr. Ralph Rossum’s most recent book, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration, performs the valuable service of cataloguing and synthesizing the jurisprudential work of one of America’s great living jurists. Rossum’s book joins other sympathetic—though not hagiographic—accounts of Justice Thomas’ work, most importantly Professor Scott Douglas Gerber’s First Principles: The Jurisprudence of Clarence…
I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there. Antonin Scalia, the Court’s…
The Rise and Rise of Independent Federal Agencies
This next edition of Liberty Law Talk is a discussion with Adam White, a lawyer in Washington with Boyden Gray & Associates, about the increasing policy significance of independent agencies. White discusses how these agencies have assumed increasing power for implementing policy items that are politically unpalatable but are favored by key segments of a president's political coalition. Analyzed by White in this podcast are the NLRB-Boeing episode, the derailing of the Yucca Mountain nuclear repository project, and the avalanche of independent agency power delegated by the Dodd-Frank Act.
“When the facts change, I change my mind”
Professor Epstein is right to shine a light on the Court’s decisions and analysis in the recent free speech cases, Snyder v. Phelps and Brown v. Entertainment Merchant Association. In each case, the Court embraced unnecessarily absolutist interpretations of the constitutional right to free speech. I say “unnecessarily” absolutist because, in my opinion, the Court’s most glaring failure in each case was its refusal to grapple seriously with factual circumstances presented in each case. And in each case, Justice Alito’s separate opinion demonstrates a much more sensible approach to handling difficult facts. Take Brown, the video game case. The State of…
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Professor Epstein argues that all textual constitutional rights — most particularly, those pertaining to contracts, property, speech, and religion — should be protected by the same regime. This argument has intuitive appeal, but he does not defend it, at least not here. Why should we protect contracts and property as much as speech or religion? …
