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Hamburger Nation: An Administrative Nightmare

04 Friday Mar 2016

Posted by pnoetx in Big Government, Judicial Branch, Legislative Branch, Regulation

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Administrative Law, Administrative State, Constitutional convention, Delegated Powers, Due Process, Extralegal Powers, Fourth Branch, George Akerlof, Glenn Reynolds, Ham Sandwich Nation, Ilya Somin, IRS Targeting, Ivan Carrino, Joseph Postell, Marginal Revolution, Mia Love, Michael Ramsey, Philip Hamburger, Richard Epstein, Robert Shiller, Rule of Consent, Takings, The Originalism Blog, Volokh Conspiracy

nanny-state

By what authority do unelected bureaucrats in administrative agencies increasingly make laws, enforce those laws and adjudicate violations? The fact that all of these activities take place within the executive branch of government appears to be an obvious contradiction of the separation of powers required by the first three articles of the Constitution, the principle of “Rule By Consent” of the governed, and protections of individual liberty. In a strong sense, the regulatory apparatus has grown so unwieldy that the powers routinely exercised by administrative agencies today seem beyond even the reach of elected executives. The rules promulgated by this “fourth branch” of government are essentially extralegal, a point discussed at length in Philip Hamburger’s “Is Administrative Law Unlawful“. He has also explained these issues at the Volokh Conspiracy blog in “Extralegal power, delegation, and necessity“, and “The Constitution’s repudiation of extralegal power“.

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.

This adds up to a dangerous lack of accountability and power. Marginal Revolution points out that critics of Hamburger’s book overlook the potential for harm that could be done by a “vindictive” president. But we should not lose sight of the fact that bureaucrats themselves, at any level, can be vindictive, as the IRS targeting scandal has shown. But that is only one motive for abuse of power; another motive may be more pervasive: the ability to reward those in a position to promote the self-interests of those who populate the administrative state. These are dangers that are endemic to big government. In a post entitled “Are Government Regulators More Virtuous than Everyone Else” (No!), Ivan Carrino highlights the weakness of arguments like those made by George Akerlof and Robert Shiller in “Phishing For Phools“, who call for greater government regulation on the grounds that consumers are vulnerable to manipulation by businesses. Carrino says:

“One can’t help but notice the central contradiction in this analysis. On the one hand, it is assumed that markets fail because of ‘normal human weakness.’ On the other hand, it is assumed that regulation, which must necessarily be implemented by human beings with equal or greater ‘weaknesses,’ will somehow solve the problem.

Akerlof and Shiller simultaneously demonize human beings who operate in the private sector while idealizing human beings who operate in the public sector.“

Glenn Reynolds has been a prominent critic of the administrative state. As a consequence of the vast and growing body of regulatory rules, it’s become increasingly difficult for individuals, acting on their own or as businesspeople, to know whether they are in acting in violation of administrative law. Reynolds discusses regulatory crime and over-criminalization in “You May Be Breaking The Law Right Now“, and in his great paper “Ham Sandwich Nation: Due Process When Everything is a Crime” (free download).

Hamburger’s main position is that law should be made by elected representatives, not by bureaucrats who lack direct accountability to voters. Ilya Somin believes that with time, Hamburger will have great influence on legal theorists in this regard. He compares Hamburger’s insights on administrative law to Richard Epstein’s work on takings. Epstein insisted that “almost all regulations that restrict property rights should be considered ‘takings’ that require compensation under the Fifth Amendment.” Somin notes that Epstein’s position, despite harsh criticism from certain quarters, has influenced legal thinking in a dramatic way over the years.

What’s to be done? Can a line reasonably be drawn between constitutional legislative power and delegated rule-making authority? Somin is skeptical that absolute restrictions on lawmaking by the administrative state are practical, in the sense that there will always be details that cannot be addressed in enabling legislation. Others have suggested practical paths forward: Joseph Postell attempts to give a roadmap in “From Administrative State to Constitutional Government“. A recent Glenn Reynolds op-ed, “Blow Up The Administrative State“, gives a qualified defense of Texas Governor Greg Abbot’s proposed amendments to the Constitution. Among other things, Abbot proposes to:

“–Prohibit administrative agencies … from creating federal law.
  –Prohibit administrative agencies … from preempting state law.
  –Give state officials the power to sue in federal court when … officials overstep their bounds.
  –Allow a two-thirds majority of the states to override a federal law or regulation.”

I would add that administrative review and adjudication should be independent of the agencies themselves. Also, Representative Mia Love (R-UT) has proposed legislation that would restrict Congress to bills focused on points directly related to a single issue (i.e., no omnibus bills), which would help to check the growth of the administrative state.

All of these measures seem consistent with Hamburger’s views. Reynolds is fully cognizant of the dangers of a constitutional convention. Nevertheless, he recognizes that Abbot’s proposals would impose harder limits on the size of government, and defends them in colorful fashion:

“A smaller government would mean fewer phony-baloney jobs for college graduates with few marketable skills but demonstrated political loyalty. It would mean fewer opportunities for tax dollars to be directed to people and entities with close ties to people in power. It would mean less ability to engage in social engineering and ‘nudges’ aimed at what are all-too-often seen as those dumb rubes in flyover country. The smaller the government, the fewer the opportunities for graft and self-aggrandizement — and graft and self-aggrandizement are what our political class is all about.“

For further reading, Michael Ramsey at The Originalism Blog posts links to several other essays by Hamburger at The Volokh Conspiracy, where he acted as a guest-blogger.

 

 

 

IRS Parlance: “Difficult To Retrieve” = “Destroyed”

26 Tuesday Aug 2014

Posted by pnoetx in Uncategorized

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DOJ, IRS, IRS Targeting, Judicial Watch, Lois Lerner, Obstruction of Justice, Political Targeting

 IRS Records

DOJ attorneys told Judicial Watch on Friday that the federal government backs up all emails “in case of a government-wide catastrophe.” According to these attorneys, the real reason that the IRS has not provided Lois Lerner’s emails is that retrieval from back-up tapes would be “onerous.” Here is Judicial Watch’s statement on the discovery, which includes this quote from Judicial Watch President Tom Fitton: “You can bet we are going to ask the court for immediate assistance in cutting through this massive obstruction of justice.”

The latest revelations are related to the ongoing Judicial Watch v. IRS lawsuit over IRS abuses being heard by U.S. District Court Judge Emmett Sullivan. In July 10 ruling, Judge Sullivan gave the IRS 30 days to provide details regarding the missing emails. Following the agency’s response, which seemed less than forthcoming, “Judge Sullivan authorized Judicial Watch to submit a request for limited discovery into the missing IRS records after September 10.”

Obama’s Fog Machine Politics

12 Tuesday Aug 2014

Posted by pnoetx in Uncategorized

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Benghazi, DOJ, Fake Scandal, Fast and Furious, Gaslighting, Glenn Reynolds, Government Failure, Inspectors General, IRS Targeting, John Fund, Obama, Obstruction, Separation of Powers, Sharyl Attkisson

Corruption

President Obama and his aides have raised the ire of his own inspectors general, who are charged with oversight duties within each federal agency. A letter signed by 47 IGs to the Congressional Oversight and Homeland Security Committees claims that the administration has obstructed efforts to perform their investigative tasks. The “most transparent administration in history” has generated a series of controversies (Fast and Furious, Benghazi, IRS Targeting, and the Healthcare.gov rollout are just the most prominent) and has managed to shield them from effective investigation using delay tactics, apparent destruction of evidence and pure obstinance.

Sharyl Attkisson weighs in on the subject with “Six Serious Questions Regarding Elusive Federal Documents.” In “Stonewaller-in-Chief,” John Fund documents the blatant hypocrisy displayed by Obama last week when he told African leaders of “the positive role inspectors general can play in fighting corruption in government agencies.” More from Fund:

President Obama appointed most of the IGs in office today, and all those who were appointed by him have been confirmed by a Democratic Senate. 

That makes the complaints raised in the IGs’ letter all the more serious. More and more agencies are setting documents off-limits by declaring them “privileged.” The Peace Corps is said to have refused to provide documents for a probe into whether its administrators were properly handling charges of sexual abuse. The Environmental Protection Agency withheld documents by claiming they might fall under an attorney-client privilege, though the IGs’ letter makes clear that such privilege shouldn’t prevent another executive-branch official from reviewing them. Eric Holder’s Department of Justice withheld FBI records that had been previously produced to investigators in past administrations. FBI Director James Comey told Congress in June that the DOJ’s Office of Legal Counsel was still reviewing what “was a difference of view as to what the law permitted here.”

As Glenn Reynolds has mentioned in the past (though I can’t find a link), the administration seems to be engaged in an unending campaign to “gaslight” the public, rather than any effort at transparency.

Aside

The IRS Mission As Ideological Enforcer

25 Wednesday Jun 2014

Posted by pnoetx in Uncategorized

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Federal Records Act, First Amendment, IRS Targeting, Lois Lerner, Obstruction of Justice

Image

The use of government to silence critics is an extremely dangerous abuse of power. Was the IRS acting as an instrument of the Obama reelection campaign when it targeted conservative organizations? The blatant cover-up apparently underway at the IRS is worthy of a special prosecutor. The statistical likelihood that the computer hard drives of Lois Lerner and six other high-level IRS staffers, all at the nexus of communications about the suspicious activities, all crashed is just about nil. How high might the scandal go? One of those staffers is Nicole Flax, who was a frequent visitor to the White House as the scandal unfolded. Somehow, Jay Carney and Barack Obama are certain the there wasn’t a “smidgeon of corruption” in the targeting incident. First, Obama insisted that the whole thing was caused by “a couple of ‘Dilberts’ at the Cincinnati IRS office.” Ah, the little people. Of course, we learned that was not true even before Lois Lerner took the Fifth to avoid incrimination.

The latest Congressional hearings on the targeting scandal have featured an intransigent IRS Commissioner seemingly intent on reinforcing the impression of an “arrogant and lawless IRS.” His answers to questions about the hard drive crashes and their ultimate disposal, his earlier promises to provide all of Lois Lerner’s emails, the failure to back-up the information on the hard drives, and the delays in informing Congress about the crashes were unsatisfactory. Today, the House Oversight Committee heard testimony from the National Archivist that the IRS has violated the Federal Records Act. There is undoubtedly more to come.

Inherently Contemptible

31 Monday Mar 2014

Posted by pnoetx in Uncategorized

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IRS Targeting

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The Tax Prof reports that the House could jail Lois Lerner under its “inherent contempt” authority, without any review by other branches of government. I’m not sure it’s a credible threat. 

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