The Day Of "Enlightened Administration" May Be Ending

A mere builder of more industrial plants, a creator of more railroad systems, and organizer of more corporations, is as likely to be a danger as a help.  The day of the great promotor of the financial Titan, to whom we granted anything if only he would build, or develop, is over.  Our task now is not discovery or exploitation of natural resources, or necessarily producing more goods.  It is the soberer, less dramatic business of administering resources and plants already in hand, of seeking to reestablish foreign markets for our surplus production, of meeting the problem of under consumption, of adjusting production to consumption, of distributing wealth and products more equitably, of adapting existing economic organizations to the service of the people.  The day of enlightened administration has come.

- Franklin Roosevelt, address to The Commonwealth Club of San Francisco, September 23, 1932

FDR was expressing the view of early 20th century Progressives (1).  The world of the Founders had disappeared by the beginning of the 20th century with the emergence of Industrial America and thus their ideas about property and liberty were now outmoded.  For the United States to continue to compete as a great nation the social reforms of late 19th century Bismarckian Germany and the government-industry cooperative model of the new corporatist Italian state provided a better path forward.  It was a world where all the could be invented had already been invented; a world where the large corporations now existing would always exist; a static world in which the pie had been baked and now just needed to be sliced fairly.

The improvisation and chaos of the New Deal administrative agencies was supposedly controlled and regularized by the Administrative Procedure Act of 1946 which created a standardized administrative process governing the actions of administrative agencies.  In retrospect, like many well intentioned legislative actions, the APA turns out to have unintended consequences, creating, without need of a constitutional amendment, a fourth branch of government, and providing effective cover, licensing agencies to create a sophisticated tangle of procedures that baffle and frustrate anyone who has to deal with them and prove expensive and time-consuming to legally challenge. 

Since the days of the New Deal, the administrative state has metastasized, expanding its breadth, scope, and power, becoming ever more unaccountable, in ways that I think would astound even its biggest proponents in the 1930s.  In its current state, its existence is incompatible with the rights and liberties of American citizens.

Contrary to the paeans to agency expertise penned by Justice Kagan (2) in West Virginia v EPA (2022) and in the Looper Bright case decided today, the expertise in federal agencies is in the processes and procedures that empower them rather than in the substance of what they ostensibly are regulating.  Are there competent people at these agencies?  Yes, and I dealt with some of them who were quite good at their jobs.  But the best move on, leaving for more productive careers, while the bureaucracy promotes those best at protecting and growing the bureaucracy.

During the Trump administration, the Supreme Court overturned the Commerce Department's decision to add a new question regarding citizenship to the 2020 census on the grounds that it was "pretextual".  That is, the stated grounds for the decision were not the actual motivating factors.  The truth is that most administrative agency actions are "pretextual".  Today's administrative agencies are dominated not by true subject matter experts, but by ideological personnel who use their expertise in process to advance their agendas.

The Supreme Court's decisions this week in Loper Bright v Raimondo and SEC v Jarkesy , along with Garland v Cargill decided two weeks ago, are blows against the administrative state.  In the SEC case, the Court restored the right of defendants in cases involving civil penalties to have access to the judicial system and jury trials.  The Court overturned the process that allowed regulatory agencies to pursue penalty cases brought by the agency and try them in front of judges appointed by the same agency!  It restored the 7th Amendment rights of American citizens.  Cargill overturned a Trump era regulation because it erroneously classified bump stocks as creating machine guns, ruling the ATF lacked statutory authority to due so, findings that the agency had creatively stretched the definition of machine gun to include bump stocks.

Loper Bright overturned the Chevron Doctrine, stemming from a 40 year old Supreme Court case in which the court ruled that in cases of legislative language ambiguity the federal courts would defer to the interpretation of federal agencies.  The case involved fishing vessels and herring. Here's the summary from the New Civil Liberties Alliance (NCLA), which represented the fishermen and to which I  contribute (NCLA also filed an amicus brief in the Jankesy case).

The National Oceanic and Atmospheric Administration implemented a Final Rule in 2020 to force fishing companies like Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC, to pay for human at-sea monitors aboard their vessels. Congress never gave the agency authority to launch such a program. This at-sea monitor mandate violates the Constitution’s Article I, and the agencies have exceeded the bounds of their statutory authority. NCLA’s clients are small businesses that commercially fish for Atlantic herring (as well as mackerel, Loligo and Illex squids, and butterfish). Paying for monitors would cost them more than $700 per day, substantially cutting into—or even exceeding—their daily fishing profits for herring. 

The U.S. Court of Appeals for the First Circuit upheld the Final Rule, deciding that broad “necessary and appropriate” language in the Magnuson-Stevens Act (“MSA”), which governs U.S. fisheries, augmented the agency’s regulatory power. It then relied heavily on Chevron deference to uphold the agency’s ostensibly reasonable interpretation of a supposedly ambiguous federal statute.

Note that nothing in this case involved NOAA's supposed expertise in managing fisheries.  Rather it was a question of how to pay for a monitoring system.

These cases are important wins against the administrative state and for American citizens but there is still much more that needs to be done.  Good first steps, but we will see if the Court has the willingness to go further.  Both the left and right overstate the impact of these cases, particularly Loper Bright, which does not dismantle the administrative state, but merely curbs its worst excesses to a limited extent.  Administrative agencies and their supporters are relentless and will continue their attempts to undermine constitutional rights.(3)

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(1) 20th and 21st century Progressivism while sharing a philosophy of government control by bureaucracy (read My Senator for more on this), differed in many other significant ways.  The 20th century version was nationalistic, demanded assimilation into The American Way, and would have rejected multiculturalism and identity as demanded by today's progressives.

(2) Of the three Justices appointed by Democratic presidents, Kagan is by far the best.  Thought I disagree with her judicial philosophy she is very intelligent, a clear thinker, and an effective writer.  It is worth reading her dissents; the other two, not so much.  When Kagan joins a dissent from one of the other two but does not write herself it's a signal that it can be safely ignored.  For instance, in this week's opinions in City of Grants Pass v Johnson, the Court ruled that a city ordinance prohibiting overnight camping on city property by anyone, is not a violation of the 8th Amendment prohibition on cruel and unusual punishment when applied to the homeless.  Justice Sotomayor wrote a ridiculous dissent joined by Kagan and Jackson.  Like many of her opinions, it is bereft of intellectual substance and simply a polemical policy piece.  

(3) The bureaucracy has many ways to get you.  EPA, the agency I'm most familiar with, was created in 1970 and administers several very complex statutes, requiring extensive regulatory schemes.  These regulations were often ambiguous and confusing and companies would write the agency asking it how it interpreted the application of their own regulations.  The object was not to file legal challenges but to simply allow the company's employees to operate in compliance and not be vulnerable to enforcement actions.  At its discretion, the agency would respond with a guidance letter.  However, the letter only went to the company making the inquiry and could not be located easily by other companies trying to ensure compliance with the same regulatory provision.  During the 80s and 90s, several DC based environmental lawyers became known for having the best collections of these guidance letters and if you wanted advice you had to pay for it.

During those years I had conversations with EPA attorneys in two Regional offices about this situation.  They were also frustrated because they also did not have ready access to the guidance letters, explaining that the enforcement attorneys at EPA HQ wanted to keep distribution restricted in order to maximize their ability to use enforcement discretion in the future and did not want to be bound by its interpretations.  This amounted to keeping the regulated community uncertain of how to act for the purposes of allowing the agency to arbitrarily use its power to punish.

When the Trump Administration came in, the new EPA Administrator directed that all guidance letters be made available on a searchable database, which was done over staff objections.  Within a week of President Biden taking office, the database disappeared from EPA's website.  I know that a previous EPA General Counsel issued a similar directive to his staff which simply ignored it until he left.

Opinions

The Supreme Court recently held oral arguments on the affirmative action programs of Harvard and the University of North Carolina which, at least in the case of Harvard, where I'm familar with the data, has increased black and hispanic admissions while significantly limiting Asian admissions.  I expect the Court will overturn the diversity rationale first expressed by Justice Powell in the Bakke case (1978) and then made an explicit holding of the Court in the 2005 Grutter case, which provided cover for academic institutions to unleash the scourge of Division, Intolerance, and Exclusion (DIE).  While I believe that to be the correct constitutional conclusion, the reality is that the Court's ruling will not make a difference to the admission practices of the elite colleges and universities most committed to DIE.  There are quite a few potential ways to work around the Court's anticipated ruling in order to achieve the same goals which, in turn, will trigger more litigation.

Reading the transcript of the arguments led me to reread the opinions in Bakke and two aspects jumped out to me.

The first was Justice Powell's explanation of the purpose of "diversity", why it was important in the educational environment, and thus a permissible factor in admissions.  Excerpts:

The atmosphere of "speculation, experiment and creation"—so essential to the quality of higher education—is widely believed to be promoted by a diverse student body. As the Court noted in Keyishian, it is not too much to say that the "nation's future depends upon leaders trained through wide exposure" to the ideas and mores of students as diverse as this Nation of many peoples.

Thus, in arguing that its universities must be accorded the right to select those students who will contribute the most to the "robust exchange of ideas," petitioner invokes a countervailing constitutional interest, that of the First Amendment. In this light, petitioner must be viewed as seeking to achieve a goal that is of paramount importance in the fulfillment of its mission.

"The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned."

Ethnic diversity, however, is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body. 

What is striking about Powell's rationale is that it appears no longer applicable in education, particularly in the elite colleges and universities.  His assumption is that ethnic and racial diversity, in and of itself, is an element in creating the "robust exchange of ideas".  Precisely the opposite is currently happening in academia.  What is important for students (and faculty) is complete conformity to a rigid set of ideas based upon race and gender being the sole lenses through which human experience and knowledge should be viewed.  Applicants, students, and faculty are increasingly being forced to pledge adherence to every element of the new creed, and dissent is immediately punished.  Classroom discussion, student group activities, outside speakers are all subject to a stifling conformity.

In light of the state of 21st century academia, Powell's concept of "diversity" has simply been nullified. On that basis alone, Grutter should be overturned.

The second thing that stood out was Justice Marshall's opinion.  Marshall's opinion is concerned solely with the situation of the Negro (his word) and the history of discrimination, pre- and post-Emancipation, experienced by that group.  After a lengthy recitation of that history, the Justice concludes;

 . . . these differences in the experience of the Negro make it difficult for me to accept that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effects of past discrimination.

It is a view I have sympathy with, though the argument carries less power in 2022 than in 1978.  The unique aspects of the descendants of the freed slaves, and the discrimination they faced nationwide consistently until the post-Second World War era are at the heart of this.  In the July 2022 post Justice You Shall Pursue, I wrote about an interview with Charles Fain Lehman:

Two thoughts prompted by the interview:

The first is whether the Civil Rights Act of 1964 (CRA) was a mistake in not limiting its scope to the problem we were trying to remedy - the exclusion of black Americans from the full scope of legal rights of citizenship, as well as their de facto exclusion from large parts of American life.

During the debates over the 14th Amendment after the Civil War, an alternative was proposed simply stating:

All national and State laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race and color.

It was overwhelmingly defeated in the Senate and instead we ended up with the more complex and legally ambiguous version of the Amendment we have now, in which we are still debating what "due process of law", "privileges and immunities of citizens" and "equal protection" mean 150 years later. 

The one sentence version was doomed to defeat because, at the time, white Americans would not accept social equality for blacks, but in the long-term I think it would have served us much better.  Was the same true of the CRA, which I've always considered one of the two greatest federal legislative achievements of the 20th century (the other being the 1965 Voting Rights Act)?  It is something recent events have led me to question. (1)

(1)  My point is not whether other groups should have civil rights, but perhaps we would have been better served focusing on the unique circumstances of those involuntary brought to America, held in servitude, and their descendants.  Whatever other groups may have faced, the degree, extent, and duration of discrimination against these people is unparalleled in our history.

Ironically, the elite academic institution focus on diversity has led to a highly disproportionate percentage of black admissions to be of first and second generation African immigrants or biracial applicants.  In some cases, as with Barack Obama, applicants fall in both categories.  This has been noticed by some black organizations who have called for preferences for those descended from slaves, in order to correct this imbalance. 

Unfortunately, all this is a diversion from the real issue - the failure of K-12 education to develop a pipeline of students for the institutions of higher learning.  The result is that the elite institutions are competing against each other for a small pool of black applicants.  Expanding that pool should be the focus.  There are a lot of theories about why this has happened but, unless and until it is solved, this issue will remain with us in one form or another.

On a side note, until rereading the case, I had not realized that arguing for the University of California was Archibald Cox, of Harvard Law School, and the Special Prosecutor fired by President Nixon in the Saturday Night Massacre of October 1973.

Regarding Dobbs

With the Supreme Court's recent abortion decision there has been talk in both parties about potential Congressional action.  For the Democrats it's been about codifying legislatively the precepts of Roe/Casey on a national level.  For the Republicans, in the event they gain control, it is passing a national ban on abortion after 15 weeks (or, for others, an absolute ban).

Apart from the intra-party political disputes each party would face in drafting legislation (1), I have my own problem with these proposed solutions because I do not believe Congress has any Constitutional authority to pass such legislation.  Past legislative proposals have invoked the Commerce Clause as the Constitutional justification but my view of that clause is that the decision of an individual to have an abortion does not constitute interstate commerce.  Some conservatives have made an alternative argument that Congress has authority to legislate on this subject under the 14th Amendment but it is a big stretch to do so, and moreover, it would mean effectively reading that Amendment as supporting substantive due process, which is otherwise anathema to conservatives.

If I were in Congress I would vote against any such proposals and that is why THC is never going to be nominated for public office by either party!

UPDATE:  For those interested in the underlying constitutional law issue, listen to this Bari Weiss podcast in which Akhil Reed Amar, a pro-choice Yale Law School professor, explains the constitutional deficiencies of the 1973 Roe decision.

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(1) For the Democrats the problem is the party has moved way beyond Roe/Casey and takes the position that there should be no legal constraints on abortion - the Equality Act proposed by the party would Federalize abortion and allow it at any time until birth (though there are legislative proposals in California and Maryland to extend that for a bit after birth).  For Democrats, abortion has moved from the Clintonian formula of "safe, rare, and legal" to the Calhounian doctrine of a positive good.

For Republicans it is going to be extremely difficult to reconcile the differences between those supporting a European style 15 week limit, with appropriate health exceptions, and those who will strongly advocate for an absolute ban.  The former is roughly consistent with American public opinion, the latter opposed by most Americans.

Sometimes They Get One Right

At least they did on this date in 1954:

You can find the full text of the NY Times story here.  Oddly enough, despite popular belief, Brown v Board of Education did not overrule the holding in Plessy v Ferguson (1896) which ruled that segregation was not unconstitutional if equal facilities were provided to both races, the "separate but equal" doctrine.  The 1954 Court simply held that the doctrine did not apply in the field of education. 

Empathy For Kelo

 

With the recent Supreme Court decisions in the news this week, let's take a moment to remember the 8th anniversary of Kelo v City of New London, a 2005 Supreme Court ruling.

A New London paper just ran a story about one of the families on the losing side of the case.  Losing in this context meant being forced to sell your family home and see it leveled.

The Kelo litigation started with the desire of the city of New London, Connecticut to attract a large, global corporation to the city as part of a "redevelopment" project which would pay more taxes to the city than the homeowners in the long-standing residential neighborhood which would be destroyed to make way for the commercial development.

Six of the families refused to sell their long-time homes and sued the City claiming it was misusing its eminent domain power which under the Fifth Amendment of the US Constitution was limiting to takings for "a public purpose" (the lead plaintiff was Susette Kelo).  The plaintiffs claimed that taking their homes in order to give their land to large corporations merely because the City could obtain more taxes was not "a public purpose".

In 2003, the Supreme Court of Connecticut ruled against the plaintiffs on a 4-3 vote.  The case was appealed to the US Supreme Court, where it attracted a number of amicus briefs, including from the NAACP and the Southern Christian Leadership Conference, supporting the plaintiffs, briefs prompted by memories of the liberal use of eminent domain to uproot and destroy long-standing black American neighborhoods in the 1950s and 60s under the guise of "redevelopment".  Despite this, the Court ruled in favor of the City in a 5-4 vote, ruling that taking the land of the homeowners to give to big business was a "public purpose", with Justices Ginsburg, Breyer, Souter and Kennedy joining in the opinion written by Justice Stevens.

In the minority, convinced that the City's actions were unconstitutional, were Justices Thomas, Scalia, Rehnquist joining in the opinion by Justice O'Conner who wrote:

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

THC is confident that it was these four justices that President Obama had in mind when he spoke about the need for Supreme Court justices to have empathy.

The line up of the justices should not be a surprise.  There is a thread on takings cases, particularly on the liberal side, which gives broad leeway to government.  Informally, there is a clear hierarchy - local planning is good, state planning is better and federal planning best of all.  The justices retain a touching, if naive, faith in the magic of planning.  This approach resonates all the more with them since the Court's sleight of hand in the 1930s when it created an artificial separation of "individual" from "economic" liberties and decided that it would pay attention to rights in the first category and ignore rights in the second.  In this view, the property right of the homeowner has nothing to do with an individual right.  [UPDATE: Of course, self-interest can play a role in one's views - see, for instance, the New York Times' effusive endorsement of the Kelo majority and its own use of eminent domain to seize the property of less-powerful business owners.]

And what happened to the properties in question?  Well, after the homes were destroyed, nothing.  The development never happened and the land remains vacant eight years later.  On the other hand, all that open land served as a great storage area for debris from the recent hurricanes! 

More Thoughts On The Decision

No, not The Decision


I  mean yesterday's Supreme Court decision on the healthcare law.  I've only read excerpts of the opinions and some commentaries so I'll limit my comments to two general observations along with some advice from a Dr that you can find at the end.  You'll probably see a further post on The Decision in a few days.

1.  While this may be the end of constitutional challenges to the entire statute it is only the start of a wave of litigation over the next few years regarding various aspects of the healthcare law.  Because of its scope, complexity and structure as an extensive regulatory scheme with a goal of controlling a large swath of the American economy and the lives of its citizens, Obamacare will inevitably butt up against many aspects of what have, until now, been considered aspects of private life, triggering conflicts with our Constitutionally protected liberties, including rights of association, free speech, religion and, to put it at its most basic, our rights to be left alone.  There is simply not enough space in society for Obamacare and constitutional liberties to co-exist in peace.  Sort of like when the Lakers had both Kobe and Shaq on their team a few years ago.

Happy Ratification Day!

On June 21, 1788 New Hampshire became the ninth state to ratify the Constitution proposed by the Convention which had met in Philadelphia for five months the previous year.  With this action, the Constitution became effective for the United States.  Even with this milestone, there was still some uncertainty as to the size of the United States since Virginia, New York, North Carolina and Rhode Island had yet to vote on the proposed Constitution.  The first three did vote to ratify but Rhode Island did not do so until 1791 and even then only under threat from the United States.

Pauline Maier's book Ratification (2010) tells the story of the battle for ratification in the state conventions.  Along with being an entertaining read on what could have been a very dry topic, Professor Maier made me think about aspects of the process for the first time.

The book relies heavily on the Documentary History of the Ratification of the Constitution, a 23 volume work begun in 1976 which is a collection of everything (journals, newspapers, memoirs, minutes, letters) that can still be found related to the state ratification debates.

The procedural issues are fascinating - did the Continental Congress have the right to recommend a plan by a runaway Convention that subverted the existing government and the Articles of Confederation?   What action should the Congress take on it?  Who should determine whether to ratify in each of the states - the legislature or a representative convention called for that purpose?  Did the states have to vote yes or no, or could they vote for ratification with conditions?

Maier emphasizes the importance of the state conventions in expressing the "original intent" of the people.  As James Madison wrote in 1796:

" . . . whatever veneration might be entertained for the body of men who formed our constitution, the sense of that body could never be regarded as the oracular guide in . . . expounding the constitution.  As the instrument came from them, it was nothing more than the draught of a plan, nothing but a dead letter, until life and validity were breathed into it, by the voice of the people, speaking through the several state conventions.  if we were to look therefore, for the meaning of the instrument, beyond the face of the instrument, we must look for it not in the general convention, which proposed, but in the state conventions, which accepted and ratified the constitution."

This was a political battle with strategies for each state by both the federalists and their opponents.  And the tactics used employed all the wiles of good politics, with some skulduggery thrown in.

The term "anti-federalist" was a term applied by the federalists to their opposition and was not used by the opponents themselves.  In fact, while the opponents to the constitution varied in the reasons for their opposition there was almost full unanimity among them that the United States needed a stronger central government than that allowed under the Articles of Confederation - their fear was that the government proposed under the new Constitution would be too strong. 

What comes through strongly is the degree to which not just officials, but citizen delegates from communities across the states were conversant with the issues raised by the proposed Constitution and knowledgeable about the specific provisions.  This comes through most strongly in the Massachusetts debates which is one of three key states, (Virginia and New York are the others) on which Maier spends the most time.  In all three the vote in favor of ratification was very close.

Virginia was the most intriguing with Patrick Henry leading the opposition. Everyone had strong views on Henry; Thomas Jefferson called him "avaricious and rotten hearted" as well as "the greatest orator that ever lived".  The entire strategy of the Federalists in Virginia was built around how to prevent Henry from hijacking the debate at the Convention - kind of like when an opponent was playing the San Francisco Giants from 2000-2004 and their whole game plan was built around how to handle Barry Bonds (though I don't think Patrick Henry used steroids).  Henry did manage to hijack the Convention for awhile with multiple orations, including the "thunderstorm" speech, but Maier takes us through the machinations that allowed the Federalists to finally prevail.

Congressman Actually Asks Coherent Questions!

Not a headline from The Onion.

Two astounding things here:

1. Congressman Gowdy is pointed and precise in his questions.
2. Secretary Sebelius lacks any interest in the constitutional issues.

Too bad this whole thing got turned into a circus instead of focusing on the serious issues raised.