Strengthening Constitutional Self-Government

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Ensuring and Enforcing the Rule of Law

AEI resident scholar, Norman Ornstein, isn't very happy with a fellow named Donald McGahn.  It seems that Mr. McGahn, who serves on the Federal Election Commission, recently told an audience at the University of Virginia Law School, "I'm not enforcing the law as Congress passed it."  Instead, McGahn announced, he's enforcing the federal election laws as the Supreme Court has interpreted them . . . except that's not quite accurate, either.  It seems Mr. McGahn (who is a Republican) is also selective about that.  McGahn, "refused to enforce the parts of the law that the court has not reversed or changed, making his own judgments about what he wants the court to do or thinks it might do at some point down the road."  Ornstein senses something amiss in this chain of events.  Where is the rule of law?  How is it that some guy--appointed to serve on a federal commission--is now tasked with making his own judgments about federal election laws instead of looking to Congress for guidance.  Ornstein condemns McGahn for this and puts his violation on a par with Donald Trump's dalliance with the "birthers." 

Not so fast, says our own Steve Hayward.  To be sure, there are plenty of reasons to worry about the rule of law  (or, rather, the lack of it) in today's administrative state.  But is it fair to single out one guy at the FEC who could (at least conceivably) offer up Article 6 of the Constitution as a defense for his actions.  If Congress and the Courts are filled with people who, when questioned about the constitutionality of a piece of legislation, respond as Nancy Pelosi did, with "Are you serious?" why shouldn't a mere apparatchik in some federal agency take the cue that all bets are off and it's every man's interpretation for itself?

Steve notes that other Pelosi gem--the one about figuring out what's in the health care legislation after we pass it--not in order to ridicule her, as so many other pundits have (over) done, but in order to take Pelosi at her word and as a serious representation of her brand of progressive.  In fact, her statement was and is an brilliant summation of the current reality in Washington.  Missing from the ridicule is a true understanding of the import of Pelosi's words.  It's not just that the bill was too long or that not enough people had read it.  Would their reading it have made it any better?  A stricter page count made it more faithful to the Constitution?  No.  The problem Pelosi's statement actually demonstrates is, as Steve puts it, "the enormous discretion and policy responsibility delegated to executive branch agencies."  This means, "in effect the actual operating law [will] be formulated by administrators rather than Congress."  So if administrators are now law-makers, don't they have at least a perfunctory claim to use their own best judgment with respect to the Constitution and constitutionality?  Can't they enter the Separation of Powers game of push and pull vis-à-vis the Court?  What is to stop them if Congress has delegated some of its legislative power to them?

Unfortunately, spreading the legislative power around in this way (a way that is only very tangentially connected to consent) invites even more opportunities for the vices of faction and arbitrary usurpation.  We are seeing this now with the implementation of the recent health care legislation.  With all the special waivers and exemptions granted to the "right" people, the rule of law is suffering.  According to Steve, these waivers show "the essentially arbitrary (some might say lawless) nature of administrative government."  The only thing that might be said in favor of all of this is that it does present an opportunity for clarity about fundamental questions of good government.  This may be the kind of government we deserve right now . . . but, in seeing that, can't we re-group aspire to something better and more worthy of free men?  
Categories > Progressivism

Discussions - 4 Comments

The other night I handed out (gave away) my Ashbrook Center pamphlets containing the Declaration, Constitution and other documents. The assignment or my students is to summarize and then paraphrase (with suitable use of quotes) the first two paragraphs of the Declaration. A higher percentage of the class than usual had read the Declaration before: 4/15.

One of my students asked about the Constitution, asking, "Does anyone really pay attention to it anymore?" Someone mentioned the role of the Supreme Court and she asked, "Yeah, but don't they just say what they want and make excuses [justify themselves?] by referring to the Constitution?"

Since none of them had ever read that document, they didn't really know. It is probably a good question; is it relevant after being organically overgrown with bureaucratic accretions?

Anyone who has dealt with our government's bureaucracy might wonder if this is not a bottom up phenomenon. Bureaucrats on the most basic level interpret law and regulation as they see fit.

You guys are actually tempting me to be serious. I agree with Ornstein on Trump.

For an academic understanding of your own intellectual position, read: Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. rev. 1231, 1233 (1994). (a google search might reveal a free copy.)

Seeking anything like principled attachment to any such academic position, would make you a Ron Paul supporter.

Actually there is a good debate to be had about questions of law/principle/ideology and questions of fact.

Of course Pelosi was factually right. Heck even after the bill is passed we won't know what is in it, or what its effect is. We will just kinda guess, and lobbiyst on both sides will posture and doctor cherry picked data. You literally have to be radically insane to step into this game and take yourself too seriously with a bold prediction. What the hell is the proximate cause of this bill? Ah actually that is a slightly easier question, because it is asking proximate cause. But even that is a flipping nightmare because I have a huge imagination, and some folks are still blamming Lincoln for the APA. That is it was actually foreseeable that when Pelosi passed the thing, various lobbyist and states would dislike it and fight it legally, and that it would be overturned on some level and spawn legal challanges, and discussion.

To get at this you need to understand "ripeness", the key case here is Abbott Laboratories v. Gardner 387 U.S. 136. (1967). In fact in Abbott Laboratories Judge Fortas writting for the dissent warned of the sorts of challenges that Pelosi knew ObamaCare would spawn.

"Experience dictates, on the contrary, that it can hardly be hoped that some federal judge somewhere will not be moved as the Court is here, by the cries of anguish and distress of those regulated, to grant disruptive injunction."

In fact I realized this when I disagreed with the New York Times upon immediately noticeing that no injunction was granted in the case, the reason being that "ripeness" was decided under Abbott Laboratories, the law had not yet taken full shape under the CFR's.

Thus I think that if Reilly is right about Islam vs. the West he doesn't really understand that there is no necessary suicide in the position of Islam. In fact a lot of so called christians are basically trading puts in God when they use faith as credibility/currency to come down hard on the side they think proximate cause will take. Craig S. always hammers you guys for this and he is right to do so. It is obviously true that the idea that one cannot say anything about causality is false in the practical day to day realm, but considered cosmically I think Islam is more or less right and the view of Natural Law is simply blasphemy. That is the realm of the humanly intelligible is actually circumscribed significantly by aptitude, character, knowledge and intelligence, but at any point the understanding of proximate cause must as Cardozo points out be cut off. The principle of proximate cause is itself arbitrary, but also according to nature. The law is intelligible for Pelosi, she is in fact very smart, but as a somewhat pious Catholic(Muslim?) she feels comfortable enough chearleading for progressive history, but is not absolutely certain as to the details(questions of fact) that the law will end up accomplishing.

In fact my problem with Reilly was that it seemed he was actually setting up the question of closing of the Muslim mind in ways that seemed to line up very loosely with administrative law. But it is a sort of insane delusion to get tricked into thinking that just because the universe is intelligible you as an individual actually comprehend it in its fullness. We aren't immediately smarter just because we live in a world with airplanes, or the world wide web. In every single thing we do we relly upon a massive network of knowledge, and experts. We can't re-create the world, we aren't even sure how it was created, but as we do get smarter, epistemically it is intelligence by reliance, that is it is a sort of legal positivism that allows us to capture for ourselves the intelligence of an Einstein we do not possess. We deal with objects we cannot create, I have ideas about my laptop and smartphone. We are incredibly dependent creatures.

I don't believe that anyone knows exactly what the health care bill will do, we all have good guesses, but these guesses themselves impact what or how it turns out, and it does so via notice and comment, waivers and exceptions, everything that is an ongoing battle. So many moving pieces, so much partial knowledge masquerading as dangerous certainty. Politics cosmically is a random walk, actually the stock market is more susceptible to timming but this is likely a dangerous delusion.

I am tempted to give you a caveat about the Sun going Supernova. But after my long ramble I will answer your questions:

So if administrators are now law-makers, don't they have at least a perfunctory claim to use their own best judgment with respect to the Constitution and constitutionality?

No, administrators don't worry about the constitution at all, that is outside the pay grade. But an administator will consider an authorizing statute and make sure that enough studies have been done to ensure that the regulations do not violate authorizing statutes, mandate statutes or the APA's arbitrary, capricious, abuse of discretion or not in accordance with law standards.

see Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) +Barnhart v. Walton.

Read the constitution a bit closer, does it mention anything about what trees should be cut down in what national forest, or the proceedures companies interested in cutting them down must follow? Ever hear the saying: Can't see the forest for the trees? That is an admin law joke about Ohio Forestry Association, Inc. v. Sierra Club 523 U.S. 726 (also a supreme court case, so Con Law in one sense, again ripeness.)

"Can't they enter the Separation of Powers game of push and pull vis-à-vis the Court?" I literally don't know what this question means so I apply Chevron and interpret it to suit my whims. The answer I think you want is in Lawson. The actual answer is that courts defer a great deal, and administrative agencies do everything. The courts never write law for the administrative agencies, at best they remand back, and the agencies find another way to solve the problem. Also see Abbott for avoiding these sorts of "abstract disagreements over administrative policies".

What is to stop them if Congress has delegated some of its legislative power to them? Some judicial review, some level of due process brought by an unholy army of lawyers, economists, statisticians, congressmen, environmentalist and corporations. Basically K-Street, Wall Street, and Elm Street. Actually anyone can comment during notice and comment periods. As a citizen you could actually be your own activist.

@ Kate: "Bureaucrats on the most basic level interpret law and regulation as they see fit."

Well if you want to be an english proffesor, don't we all. But this is not a reading of Nietzche, or Tolstoy. There is a transparency and process to creating the regulation from the statutes and there is a contested process every step of the way. But there is also a good faith ascertainable certainty requirement. See G.E. v. U.S. EPA 53 F.3d 1324. The bureaucrats must have a clear standard that is not arbitrary or capricious, if you interpret the law and regulation in a good faith manner, and the agency does not inform you otherwise, potentially the fine will be set aside.

Can we re-group and aspire to something better and more worthy of free men?

You are always even.

That's a fine articulation of a basic issue by Hayward. Thanks for highlighting it, Julie, and thanks, Nancy, for adding that sure-to-become-classic phrase to American political speech.

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