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Administrative Supremacy, Lost Checks and Balances

16 Friday Jun 2017

Posted by pnoetx in Regulation

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Administrative State, Chevron Deference, Cost of Regulation, Due Process, Eric Boehm, Evan D. Bernick, Executive Power, Fourth Branch, George Mason University, Glenn Reynolds, Inez Stepman, Jarrett Stepman, Judicial Deference, Mercatus Center, Philip Hamburger, Reason.com, Regulatory Dark Matter, Separation of Powers, Townhall, Two-For-One Regulatory Order

The two-for-one regulatory order issued by the Trump White House in January raises some practical difficulties in implementation. It requires that federal agencies eliminate two regulatory rules for every new rule promulgated, both in terms of the number of rules and any incremental regulatory costs imposed. Two out for every one in. Questions surrounding the meaning of “a regulation”, how to define incremental costs, and whether a particular rule is actually mandated by legislation are not trivial. Nevertheless, the spirit of this order is admirable and it serves as the leading edge of the Administration’s attempt to roll back the scope and impact of excessive government authority.

The cost of regulation is vast. Economists at the Mercatus Center at George Mason University have estimated the total cumulative cost of regulation in the U.S., finding that regulation has reduced economic growth by 0.8 percent per year since 1980. Without the additional regulatory growth since 1980, the U.S. economy would have been about 25 percent larger than it was in 2012. That’s a $4 trillion shortfall, or roughly $13,000 per person.

While regulation and administrative control over the private economy takes an increasing toll on economic growth and human welfare, the problem goes beyond economic considerations: administrative agencies have “progressively” usurped not just legislative but also judicial power. The concentration of executive, legislative and judicial power constitutes a “fourth branch of government“, a development inimical to the principles enshrined in our Constitution and a prescription for slow-boil tyranny. It facilitates rent seeking and corporatism just as surely as it creates a ruling class of individuals who act on their personal and arbitrary inclinations. We are ruled by men backed by police power, not impartial laws.

Glenn Reynolds writes that unelected rule makers and central planners are able to manipulate decisions across a broad swath of the economy and society. He quotes a new book by Philip Hamburger of Columbia Law School called “The Administrative Threat“:

“Government agencies regulate Americans in the full range of their lives, including their political participation, their economic endeavors, and their personal conduct. Administrative power has thus become pervasively intrusive. But is this power constitutional?

A similar sort of power was once used by English kings, and this book shows that the similarity is not a coincidence. In fact, administrative power revives absolutism. On this foundation, the book explains how administrative power denies Americans their basic constitutional freedoms, such as jury rights and due process. No other feature of American government violates as many constitutional provisions or is more profoundly threatening. As a result, administrative power is the key civil liberties issue of our era.“

Two previous posts on Sacred Cow Chips have dealt with Hamburger’s work. The first, “Hamburger Nation: An Administrative Nightmare“(1) provides the following explanation of his position:

“Hamburger examines the assertion that rule-making must be delegated by Congress to administrative agencies because legislation cannot reasonably be expected to address the many details and complexities encountered in the implementation of new laws. Yet this is a delegation of legislative power. Once delegated, this power has a way of metastasizing at the whim of agency apparatchiks, if not at the direction of the chief executive. If you should want to protest an administrative ruling, your first stop will not be a normal court of law, but an administrative review board or a court run by the agency itself! You’ll be well advised to hire an administrative attorney to represent you. Eventually, and at greater expense, an adverse decision can be appealed to the judicial branch proper.“

The exercise of rule-making authority, and even extra-legal legislative action by the administrative state, has economic costs that are bad enough. Hamburger also emphasizes the breakdown of the separation of executive and judicial powers inherent in the enforcement and adjudication of disputes under administrative law. This was the subject of the second Sacred Cow Chips post referenced above: “Courts and Their Administrative Masters“. It reviewed an unfortunate standard established by court precedent involving judicial (“Chevron”) deference to administrative agency fact-finding and even interpretation of law. While the decisions of administrative courts, which are run by the agencies themselves, can be appealed to the judicial branch, such appeals often amount to exercises in futility.

“…courts apply a test of judgement as to whether the administrative agency’s interpretation of the law is “reasonable”, even if other “reasonable” interpretations are possible. This gets particularly thorny when the original legislation is ambiguous with respect to a certain point.

…the courts should not abdicate their role in reviewing an agency’s developmental evidence for any action, and the reasonability of an agency’s applications of evidence relative to alternative courses of action. Nor should the courts abdicate their role in ruling on the law itself.“

This paper on Judicial Deference to Agencies by Evan D. Bernick of Georgetown Law makes the case that judicial deference is a violation of the constitutional separation of powers, concluding that:

“… in cases involving administrative deprivations of core private rights to ‘life, liberty, or property,’ fact deference violates Article III’s vesting of ‘[t]he judicial power’ in the federal courts; constitutes an abdication of the duty of independent judgment that Article III imposes upon federal judges; and violates the Fifth Amendment by denying litigants ‘due process of law,’ which requires (1) judicial proceedings in an Article III court prior to any individualized deprivation of ‘life, liberty, or property’; and (2) fact-finding by independent, impartial fact-finders.“

Inez and Jarrett Stepman in Townhall note that there are almost three million well-paid federal employees with job security that would make most private sector workers envious.

“Though the abolishment of the spoils system [which allowed civil service hiring and firing based on political party] was meant to mitigate corruption and incompetence, it has resulted in a toxic combination of enhanced agency power and an entrenched civil servant class with its own institutional—and frequently political—interests, virtually unaccountable to the president or any other elected official.“

The Stepmans discuss legislation that might stem the usurpation of lawmaking power by the administrative state. They are convinced that the administrative state must be reigned-in. Ironically, expanded executive authority means that the process of reversal is not that difficult in many cases. By way of example, here’s a piece on the ease of undoing certain Obama era regulations. Executive orders, or “the pen and the phone” in Obama’s charming parlance, lack legitimate legislative authority and can be reversed by new executive orders. I firmly believe that reversing the earlier orders is the right thing to do at the moment, but the unchecked authority that makes it possible (and the supremacy of the administrative state) is a source of economic instability, and it must end. Eric Boehm makes this point eloquently in Reason at the last link above:

“New policies that affect wide swaths of the economy and reshape entire business models should go through Congress, or at the very least should be subject to the public rulemaking process. Guidance documents and other ‘dark matter’ regulations that by-pass those processes can be un-made as quickly as they were made, leaving businesses to deal with an ever-changing and unpredictable regulatory state that does not really help anyone, no matter which side you’re on in any individual policy fight.“

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

(1) The principle title “Hamburger Nation” was intended as a play on Glenn Reynolds’ paper “Ham Sandwich Nation: Due Process When Everything Is a Crime“, in which he discussed the judicial implications of over-criminalization and regulatory overreach.

 

Trump Versus the Holocaust Trivializers

13 Monday Mar 2017

Posted by pnoetx in anti-Semitism, Identity Politics

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A Tale of Three Cities, Adolf Hitler, Anti-Defamation League, anti-Semitism, Anti-Zionism, City Journal, David Bernstein, Donald Trump, Fake Hate Crime, Fiddler On the Roof, George Mason University, Godwin's Law, Holocaust, Jewish Community Centers, Jewish Journal, Kevin Williamson, Rob Eshman, Shylock, Stefan Kanfer, Steve Bannon, Volokh Conspiracy, Washington Post

trump-tallit

George Mason University Law Professor David Bernstein observed this week that many in the American Jewish community are panicked by Donald Trump’s election because they perceive Trump and his followers as anti-Semitic. That perception was seemingly reinforced by recent anti-Semitic acts, such as bomb threats at Jewish Community Centers and the desecration of graves at Jewish cemeteries in St. Louis, MO and Philadelphia, PA. Bernstein, who is Jewish and not a Trump supporter, wrote a piece entitled “The Great Anti-Semitism Panic of 2017“, which appeared in the Volokh Conspiracy blog sponsored by the Washington Post.

Like Bernstein, I’ve seen a number of indignant posts by Jewish friends connecting Trump and anti-Semitism, complete with comparisons to Adolf Hitler. My quick reaction is that such comparisons are not only irresponsible, they are idiotic. The ghastly implication is that Trump might entertain the idea of exterminating Jews, or any other opposition group, and it is complete nonsense.

Taking a step back, perhaps all this is related to Trump’s nationalism and his views on border security. That includes “extreme vetting” of refugees, deportation of illegal immigrants, and even the dubious argument for a border wall. While that’s not about Jews, those policies appeal to certain fringe, racist elements on the extreme right where anti-Semitism is commonplace. However, those policies also appeal to a much broader and diverse audience of voters who harbor anxieties about economic and national security, and who are neither racists nor anti-Semites.

Bernstein takes progressive Jews to task for tying any of this to anti-Semitism on the part of Trump, his Administration, or his broader base of support:

“…  the origins of the fear bear only a tangential relationship to the actual Trump campaign. For example, I’ve lost track of how many times Jewish friends and acquaintances in my Facebook feed have asserted, as a matter of settled fact, that Bannon’s website Breitbart News is a white-supremacist, anti-Semitic site. I took the liberty of searching for every article published at Breitbart that has the words Jew, Jewish, Israel or anti-Semitism in it, and can vouch for the fact that the website is not only not anti-Semitic, but often criticizes anti-Semitism (though it is quite ideologically selective in which types of anti-Semitism it chooses to focus on). I’ve invited Bannon’s Facebook critics to actually look at Breitbart and do a similar search on the site, and each has declined, generally suggesting that it would be beneath them to look at such a site, when they already know it’s anti-Semitic.

There is .. a general sense among Jews, at least liberal Jews, that Trump’s supporters are significantly more anti-Semitic than the public at large. I have many times asked for empirical evidence that supports this proposition, and have so far come up empty. I don’t rule out the possibility that it’s true, but there doesn’t seem to be any survey or other evidence supporting it. Given that American subgroups with the highest proportions of anti-Semites — African Americans, first-generation Hispanic immigrants, Muslims and high school dropouts — are strong Democratic constituencies (though the latter group appears to have gone narrowly for Trump this time), one certainly can’t simply presume that Trump has a disproportionate number of anti-Semitic supporters.“

Bernstein goes on to discuss the hostility to Trump from groups like the Anti-Defamation League (ADL), hostility which he characterizes as essentially opportunistic:

“The ADL’s reticent donors are no longer reticent in the age of Trump, with the media reporting that donations have been pouring in since Trump’s victory. It’s therefore hardly in the ADL’s interest to objectively assess the threat from Trump and his supporters. Indeed, I’m almost impressed that an ADL official managed just the other day to link the JCC bomb threats to emboldened white supremacists, even though the only suspect caught so far is an African American leftist.“

He also notes the irony that progressive Jews have been shunned by many leftists, who almost uniformly condemn Zionism. Now, progressive Jews hope to renew common cause with those whose political purposes are defined by membership in groups with a history of marginalized treatment, and who now believe they are threatened by Trump. Will they be happy together? Bernstein attests that many Jews privately acknowledge the danger of “changing demographics”:

“… which is a euphemism for a growing population of Arab migrants to the United States. Anti-Semitism is rife in the Arab world, with over 80 percent of the public holding strongly anti-Semitic views in many countries.“

As a non-Jew, some would say I lack the bona fides to comment on how Jews “should” feel about Donald Trump. I was raised Catholic, but I attended a high school at which over 60% of the student population was Jewish. I was a member of a traditionally Jewish fraternity in college, where I witnessed occasional anti-Semitism from certain members of non-Jewish fraternities, and I felt victimized by it to some degree. My late brother married a Jewish woman, and he was buried according to Jewish custom. I was once stunned by a brief anti-Semitic wisecrack I overheard in the restroom at a community theatre production of the great musical Fiddler On the Roof!

So, I am connected and strongly sympathetic to the Jewish community. I am also well acquainted with white Gentiles who have had much less interaction with Jews. Those individuals span the political spectrum, and there is no doubt that racists and anti-Semites reside at both ends. I will state unequivocally that among this population, I have observed as much racism and denigration of Jews from the left as from the right. It partly reflects anti-Zionism, but there have been leftists in my acquaintance who seem to regard Jews as Shylockian, as greedy moneychangers and crooked lawyers, or as “hopelessly bourgeois”. Jews should not be blind to the hatred that still exists for them in certain quarters on the left, even if it’s easier to pretend that right-wing religious nuts are their only enemies.

Bernstein’s column was met with outrage by some Jewish progressives. In the Jewish Journal, Rob Eshman accused Bernstein of making apologies for Trumpian anti-Semitic behavior. Here is Bernstein’s response, in which he castigates Eshman for distorting both his thesis and the reaction of the Jewish community to Trump. He also notes that Eshman assigns guilt for the recent spate of anti-Semitic acts to Trump supporters where no evidence exists. That implication is a constant refrain from certain Jewish friends on my Facebook news feed. But there is ample evidence of “fake” hate crimes by progressives, as documented last week by Kevin Williamson.

Finally, it is hard to square the idea that Trump and his leadership team (which includes his Jewish son-in-law) are anti-Semitic with other evidence, such as the unequivocal support they have pledged to Israel, and their hard stand on vetting refugees from nations that are avowed enemies of the Jewish people. Yes, Bernstein is well aware of the anti-Semitic, fringe-right elements that have supported Trump, but those are not the sentiments of anyone serving in the administration, including Steve Bannon. The left has become quite blithe about observing Godwin’s Law, which states that all political opponents will eventually be called out as Nazis. Progressive Jews have taken the cue without much thought: the frequent comparisons of Donald Trump to Hitler are awful and are not compatible with healthy discourse. As Stefan Kanfer writes in City Journal in his review of the book “A Tale of Three Cities” (my emphasis added):

“… those who persist in comparing Adolf Hitler with any U.S. politician reveal themselves as members of a group just to the side of the Holocaust denier—the Holocaust trivializer. There are no lower categories.“

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