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Choking Choke Point: A Return to the Rule of Law

The Trump administration has been accused of being a threat to the rule of law but in at least one very important respect, it has restored the rule of law. The Department of Justice recently announced the end of operation Choke Point. Choke Point was a program by which the Obama administration through the Department of Justice  and banking agencies discouraged banks from lending to whole classes of businesses. Not surprisingly, two of the industries targeted, pay day lending and gun sellers, were ones that the Obama administration disliked but could not persuade Congress to shut down or harass.

The problem with this program is that the government lacked authority to try to attack certain industries by impairing their access to capital. To be sure, the government can prohibit banks from  doing business with particular companies that are engaged in money laundering or where there is evidence that that there is high risk of their doing so. But the government did not have the substantial evidence that whole industries engaged in money laundering to justify handcuffing completely innocent enterprises.  The Obama administration also tried to bolster its case by arguing that banks would damage their reputation by lending to these companies, as if the government has the general authority to figure out what burnishes the reputation of banks.

While the Obama administration was lawless in other respects, Operation Choke Point was particularly dangerous.  Banking lies at the commanding heights of the economy. By occupying it, the government can take control. Capital is the life blood of business. Deprived of it, business expire. And banks today are very vulnerable to government coercion because banking regulators have so much discretion actually delegated to them, unlike that claimed in Choke Point.  You might think that the prime directive of any banker is: “Know your customer.” But today it is: “Know your regulator.” As a result banks are not often not likely to challenge arbitrary directives because they recognize that banking regulators have so much discretion that they can be made to pay for the challenge.

To be sure, soft regulatory power is a general problem of the large modern state. The chairman of a congressional committee can try to shape behavior by conducting hearings and threatening legislation without even passing it. But banking is so central to the economy that Operation Choke Point stands out as a warning of future dangers if the populist left comes to power.

I have been critical of the current President’s commitment to the rule of law. And more importantly, the mainstream media and legal academia are carefully monitoring any threats. Indeed law professors have set up the Take Care Blog to weigh in on particular violations, actual, perceived and fanciful.  I only wish there was the same sensitivity to the dangers of lawlessness in every administration.

Reader Discussion

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on August 25, 2017 at 00:40:26 am

Shutting down these programs unilaterally is the worst possible decision. There is nothing to prevent future Democrat administrations from restarting these programs now. Trump should have used these programs to go after the Alt-Left until Democrats in Congress begged for legislation to shut it down.

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boxty
on August 25, 2017 at 09:17:02 am

There is no constitutional authority for the federal government to regulate banking at all, other than the value of any coins they might mint. Substantial effect on interstate commerce? Wrong. The power is to regulate interstate commerce, not anything that might "affect" commerce. Originally "commerce" meant transfers of possession and title to tangible commodities for a valuable consideration. It did not include services, including financial services. Or extraction, manufacturing, retail sales, storage, use, or disposal.

That means no authority to make "money laundering" a crime, or to make fraud, perjury, tax evasion, or contumacy a crime. None.

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Jon Roland
on August 25, 2017 at 09:51:30 am

You make a very good point; In my view, rescinding an EO or policy directive merely kicks the can down the road for its future resurrection; like the Contra-deception Mandate, and the Travel Ban challenges, (and the rightful decision not to withdrawal by Trinity Lutheran), I believe the better and more permanent option is to seek to drive these highly questionable, and most likely unconstitutional, power abuses through the court systems; the U.S. AG pushing such cases to be adjudicated on merit if necessary.

While these cases will all but certainly will be sustained in favor of the (agency and prior administration) at the liberal lower level federal courts, maybe the SCOTUS is less predictable under its latest composition and well worth the odds and risk.

To me, if anything has become obvious, its that the Constitution (and, rule of law), is becoming less and less viewed as a common sun which equally warms and illuminates, and unifies, a body of very disparate peoples, with a very broad range of competing and opposing interests and view-points, but rather ever more so, as a hulk of wayward meteor which needs to be somehow deflected, avoided, or knocked off course because its perceived to pose a threat to particular body. In other words, it is often seen either as an inconvenient impediment that must be circumvented, or a convenient implement of circumvention.

Of course, I suppose, this really isn't anything new. Constitutional abuses have always occurred, and by both sides of the aisle. In any case, the abuse or exploitation of it will continue under what ever forms they currently take unless it is constantly defended and its detractors are constantly required to justify their positions and maneuverings against it's principles and structures.

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Paul Binotto
on August 25, 2017 at 10:11:15 am

McGinnis's hypocrisy is so thick here, you couldn't pierce it with a daisy-cutter. Uh, it's not like the American Taliban hasn't been trying to regulate abortion out of existence for over a generation. To suggest that this is a sin peculiar to the "populist left" is as bizarre as a Trump tweet.

Marijuana is another industry that has been wrongfully beset by the Right, and their friends in the pharmaceutical and liquor industries. Unlike opioids, it isn't addictive. ln Colorado and Washington, it has to be an all-cash business, and no deductions can be taken for expenses. (lt would be legalized the moment that Big Pharma could get a monopoly.)

And then, there is the sex trade. Prostitution is legal in many advanced democracies, and it is hard to see why it is illegal here. lf you are in a healthy relationship, you don't need it, but l feel for those who aren't.

He who is without sin, may cast the first stone.

Now, you can make the argument that payday lending--government-sanctioned loan sharking--is a business that should be interred. lt certainly can be regulated, pursuant to the Commerce Clause. But l won't be the one to make that argument, aside from the imposition of reasonable regulations.

"Freedom" is the right to do what you disapprove of. My concern is aimed at those who choose to insinuate themselves on others unreasonably by unduly stretching the envelope of the commerce and police powers. And that is a bi-partisan problem.

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LawDog
on August 25, 2017 at 10:29:12 am

Have to respectfully disagree, my friend (you'd know who l am if l de-cloaked). The power to coin money reasonably implies the power to create and regulate a banking system; remember that it is a constitution we are expounding. Never been sanguine about the Fed, and agree that it s/b audited, but l don't see how you could have an advanced capitalist economy without that power.

ln short, if SCOTUS hadn't found this power, we'd be obliged to amend COTUS to facilitate it.

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LawDog
on August 25, 2017 at 10:57:56 am

This is admittedly, all above my "pay-grade", but I would have thought at least fraud and perjury to have legitimate and constitutional basis of enforcement against.

And, this is likely the one and only time anyone will ever hear me admit this, but I think Mr. Dog makes a good point in his amazingly brief (even to compel me to read it) reply here.

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Paul Binotto
on August 25, 2017 at 11:33:53 am

JMc: "Indeed law professors have set up the Take Care Blog to weigh in on particular violations, actual, perceived and fanciful. I only wish there was the same sensitivity to the dangers of lawlessness in every administration."

American lawlessness starts with the bench. Judge Bork elaborates:

The Justices are our masters in a way that no President, Congressman, governor, or other elected official is. They order our lives and we have no recourse, no means of resisting, no means of altering their ukases. They are indeed robed masters. But "band of outlaws"? An outlaw is a person who coerces others without warrant in law. That is precisely what a majority of the present Supreme Court does. That is, given the opportunity, what the Supreme Court has always done."

Robert H. Bork, Our Judicial Oligarchy, 67 First Things 21, 24 (Nov. 1996) (emphasis added). Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges 13 (AEI Press, 2003) (American judges have engineered "a slow-moving and genteel" "coup d’êtat."); see Sam Stein, Kagan: In Bush v. Gore, Court Was Affected By Politics and Policy, Huffington Post, May 19, 2010 ("Platonic Guardians" and "tip of the iceberg" remark in her Princeton commencement speech)

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LawDog
on August 25, 2017 at 14:23:39 pm

But no where in your comment did you mention who are the people that ignore the Constitution? Those very same people that are still in Congress collecting a paycheck from Our Taxes. IN other words We are not being represented at all. We suffer for eight long years having this black boy go around Congress, and the spineless group cowered. America hates Congress more than they hate the black boy. You comment here and I do admire the way you conduct yourself. But we won't get that from a politician in DC. The elites still don't get it. They have a wonderful healthcare plan, and what do we get?

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Abelardo Aguilu
on August 25, 2017 at 15:04:54 pm

"black boy"

Are you for for real? Or are you one of those social engineers, perhaps working for pay, to stir up trouble on the internet?

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Scott Amorian
on August 25, 2017 at 15:27:49 pm

#1,237, don't you have anything better to do with your time?

Here you have accused McGinnis of hypocricy because (you claim) he is against drugging and whoring. None of that is in the post or is even relevent to the topic. Your commentary is worse than useless.

I find it interesting that whenever people are being judgmental towards someone they are always guilty of the sin themselves. I don't know why that is. It's just a strangeness of human nature. If I were to take a few moments to pull apart #1,237's trolling I'm sure I would find lots of evidence of that. But it is not worth the time.

Recently I've been reading Scott Adams' (of Dilbert fame) blog. Besides being an astute social commentator, he is a trained and practiced hypnotist and social engineer. Anyone wanting to better understand the mindset of #1,237 here might find Adams' blog interesting. (I look forward to reading his upcoming book when it comes out in October.)

http://blog.dilbert.com/?utm_source=dilbert.com&utm_medium=site&utm_campaign=brand-engagement&utm_content=shelf-space-2-blog

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Scott Amorian
on August 25, 2017 at 16:00:51 pm

Of course he's a troll-dog. He especially likes humping up leg, if you hadn't noticed. I can't wait to check out your link!

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Paul Binotto
on August 25, 2017 at 16:02:39 pm

"humping up MY leg".

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Paul Binotto
on August 25, 2017 at 17:41:07 pm

The "black boy" comment is kind of uncalled for, though you are entitled to say it. I do agree that Congress is a major culprit of many of the nations ills. Don't know how to fix it. Not making excuses for the bunch, but all and all, I suppose it works better or as well as any other system populated by and dependent on flawed and corruptible humans.

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Paul Binotto
on August 25, 2017 at 20:48:46 pm

You finally got around to Dilbert? Where have you been for the past quarter-century? Glad to see that you finally crawled out from under your rock....

And as for hypocrisy, do you know why they call Oxycodone "dittos"? Marijuana is safer, and isn't addictive. And when is the last time you saw a bunch of lrish stoners getting into a bar brawl? Better that we legalize ganga and outlaw booze.

And what is objectively wrong with a woman selling sexual favors? lt's legal in Australia, and the world hasn't stopped on its axis.

And you think loan-sharking should be legal?

Scott: "I find it interesting that whenever people are being judgmental towards someone they are always guilty of the sin themselves."

So, you and Paul are gay lovers? Makes sense. But that is beside the point.

You don't mind defenestrating COTUS when it serves your purposes, but excoriate the Left for stealing a page from your playbook?

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LawDog
on August 26, 2017 at 10:37:11 am

Some folks get offended when I call the previous by his rightful name. Why not? Paul look at the regulations that he implemented, all against our industry at large. Then by Executive Order a directive for bathroom laws. Rules of engagement for the military. BLM movement access to Our House? I can go on for days. But no I won't. Paul being PC sometimes does not pay. I will be nice enough and call him Kaffir ok. For those who knows what it means is simple.

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Abelardo Aguilu
on August 26, 2017 at 12:37:05 pm

Dawg:

Agreed on the Black Robes.

Suppose we were to dispense with the fiction that "we have no recourse, no means of resisting, no means of altering their ukases. " We do indeed have recourse, and constitutional ones at that. It appears however that resort to such recourse would not serve the interests of our elected (UN-) Representatives, nor their UN elected counterparts in either the Fed Admin State or the Judicial Department.

It seems that the "lawlessness" of the bench, under the guise of COTUS interpretation (are we expounding or *expanding* a Constitution) may engender (if not already) a deep seated suspicion that "all is but a fiction" and that the Black Robed guardians of Delphi are simply "winging it" or as the original maidens of the Oracle were sniffing toxic fumes.

What happens when all sides determine that COTUS has been killed by the very guardians appointed to defend it.

BTW: curious - Your thoughts on Phillip Hamburger

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gabe
on August 27, 2017 at 09:54:22 am

Forgive, Mr. Gabe, I know this question of Hamburger is not directed to me; But, hey, maybe my commentary will, if nothing else, precipitate a response from that dog.

In my view, Hamburger makes quite the convincing argument, (The Administrative Threat, by Philip Hamburger, Encounter Books (May 2, 2017))that much of what constitutes the AS is unconstitutional, in its usurpation of Legislative and Judicial powers, and in its frequent disregard for due process; a double-disregard when Judicial deference comes into play. I do also believe the AS, as he asserts, is one of the major Civil Liberties issues the U.S. faces, (after on demand legalized abortion- my assertion not Hamburger's).

I also believe that (again my assertion, not Hamburger's), that if the Legislative Branch has the power to delegate its role to the Executive, (and the Judicial Branch has the power to delegate its role in the form of Chevron deference), that the Executive equally has the right to not accept the powers the legislative wishes to delegate to it. It would seem, just as Congress cannot legislate away any of powers reserved for the Executive under the Constitution, that neither can it legislate additional powers to the Executive, against the will and approval of the Executive.

And, in my opinion, a President, so motivated, as an co-equal of government under the Constitution, and equally sworn to uphold it, issue an Executive Order rescinding Executive (ongoing) acceptance of these Congressionally delegated legislative (and judicial) powers, on the condition that he deems them unconstitutional, and not within the Executive’s legal pervue to undertake? - of course, this would have been most plausible and effective in the 1930's vs. 2017; (And, FDR, as the primary instigator for delegated legislative power, in my opinion, this couldn’t have happened – he was progressive, but not forward looking about what he was creating) - fact is, so deeply entrenched as AS is, this is realistically and feasibly not really an option.

Therefore, the three or four feasible actions Hamburger does propose for scaling back the AS, at least making it more responsive to the Constitution, seem very reasonable, at least as starting points for debate. Of course, I don't have a working handle on the nuances of the Constitution, so I can't say. As a layman, what I like in that old bird we call the Constitution is what I consider to be constitutional, and what I don't like, unconstitutional. I simply don't have the mental capacity to make the necessary distinctions or to look beyond my own narrow self-interests. In a word, it’s simply too nuanced, thank goodness I can rely on enlightened folks like the dog to tell me how properly to think about these issues. Thank goodness he’s so generous in always offering sharing his vast knowledge.

I also believe that (again my assertion, not Hamburger's), that if the Legislative Branch has the power to delegate its role to the Executive, (and the Judicial Branch has the power to delegate its role in the form of Chevron deference), that the Executive equally has the right to not accept the powers the legislative wishes to delegate to it. It would seem, just as Congress cannot legislate away any of powers reserved for the Executive under the Constitution, that neither can it legislate additional powers to the Executive, against the will and approval of the Executive.

And, in my opinion, a President, so motivated, as an co-equal of government under the Constitution, and equally sworn to uphold it, issue an Executive Order rescinding Executive (ongoing) acceptance of these Congressionally delegated legislative (and judicial) powers, on the condition that he deems them unconstitutional, and not within the Executive’s legal pervue to undertake? - of course, this would have been most plausible and effective in the 1930's vs. 2017; (And, FDR was the primary instigator for delegated legislative power, in my opinion) - fact is, so deeply entrenched at AS is, this is realistically and feasibly not really an option.

Therefore, the three or four feasible actions Hamburger does propose for scaling back, at least making it more responsive to the Constitution, seem very reasonable, at least as starting points for debate. Of course, I don't have a working handle on the nuances of the Constitution, so I can't say. As a layman, what I like in that old bird we call the Constitution is what I consider to be constitutional, and what I don't like, unconstitutional. I simply don't have the mental capacity to make the necessary distinctions or to look beyond my own narrow self-interests. In a word, its simply too nuanced.

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Paul Binotto
on August 27, 2017 at 09:57:53 am

Forgive the repetition of paragraphs, this wasn't intended, but perhaps worth repeating :-)

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Paul Binotto
on August 27, 2017 at 12:24:17 pm

gabe: "What happens when all sides determine that COTUS has been killed by the very guardians appointed to defend it."

Everybody already has. Why do you think we are having such grotesque battles over who is elevated to the bench? Bork and Kagan agree: Our judges are self-appointed and self-styled Platonic Guardians. And Scalia is the worst offender in recent memory. That is why our two factions want to appoint _THElR_ Platonic Guardians--people who agree with their vision of what America ought to look like.

l concur with Dworkin: There is one right answer to virtually every constitutional problem. But as Justice Scalia openly confessed, the Court is often tempted “toward[] systematically eliminating checks upon its own power; and it succumbs.” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 981 (1992) (Scalia, J., dissenting).

Abraham Lincoln put it simply: "No man is good enough to govern another man, without the other’s consent," and the Constitution and Bill of Rights marks the outer limit of our consent. Thereunder, our judges are entrusted with the “judicial Power,” understood as authority to declare the law only, as opposed to rewriting it to comport with personal preference. Justice Cardozo writes that courts are to “take the statute as we find it,” Anderson v. Wilson, 289 U.S. 20, 27 (1933), for “enact[ing] a law under the pretense of construing one [is a] flagrant perversion of the judicial power.” Heiner v. Donnan, 285 U.S. 312, 331 (1932).

“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.” The Federalist No. 78, at 438 (Alexander Hamilton). Ergo, every judicial attempt to rewrite the law is void ab initio.

But law is only as good as our ability to enforce it at need, and our judges have disabled all of the safeguards against abuses of their power. Take away all remedies for its breach, and you take away the right.

Hamburger? Ground horsemeat. The Framers understood agency law and the practical need for delegation. l've had this debate with Living Constitutionalist profs, who contend that you have to reinterpret COTUS to allow for the administrative state. But as long as the principal retains ultimate control over the agent, there is no constitutional crisis.

Simple example: Federal judges quite literally cannot make up the rules governing their own courts. Congress delegates that authority to them under the Rules Enabling Act, and they can overrule any rule SCOTUS comes up with.

A more practical example: lRS regs. Congress will, from time to time, authorize the issuance of regs which have the full force of law. Congress doesn't have the technical expertise that they need to write rules as detailed as they need to be to administer our tax code--and when they do, they can write single sentences longer than the Gettysburg Address:

"For purposes of subsection (a)(1), a corporation shall not be considered to be a collapsible corporation with respect to any sale or exchange of stock of the corporation by a shareholder, if, at the time of such sale or exchange, the sum of - (A) the net unrealized appreciation in subsection (e) assets of the corporation (as defined in paragraph (5)(A)), plus (B) if the shareholder owns more than 5 percent in value of the outstanding stock of the corporation the net unrealized appreciation in assets of the corporation (other than assets described in subparagraph (A)) which would be subsection (e) assets under clauses (i) and (iii) of paragraph (5)(A) if the shareholder owned more than 20 percent in value of such stock, plus (C) if the shareholder owns more than 20 percent in value of the outstanding stock of the corporation and owns, or at any time during the preceding 3-year period owned, more than 20 percent in value of the outstanding stock of any other corporation more than 70 percent in value of the assets of which are, or were at any time during which such shareholder owned during such 3-year period more than 20 percent in value of the outstanding stock, assets similar or related in service or use to assets comprising more than 70 percent in value of the assets of the corporation, the net unrealized appreciation in assets of the corporation (other than assets described in subparagraph (A)) which would be subsection (e) assets under clauses (i) and (iii) of paragraph (5)(A) if the determination whether the property, in the hands of such shareholder, would be property gain from the sale or exchange of which would under any provision of this chapter be considered in whole or in part as ordinary income, were made - (i) by treating any sale or exchange by such shareholder of stock in such other corporation within the preceding 3-year period (but only if at the time of such sale or exchange the shareholder owned more than 20 percent in value of the outstanding stock in such other corporation) as a sale or exchange by such shareholder of his proportionate share of the assets of such other corporation, and (ii) by treating any liquidating sale or exchange of property by such other corporation within such 3-year period (but only if at the time of such sale or exchange the shareholder owned more than 20 percent in value of the outstanding stock in such other corporation) as a sale or exchange by such shareholder of his proportionate share of the property sold or exchanged, does not exceed an amount equal to 15 percent of the net worth of the corporation."

Better that we have an lRS to help us make sense of it.

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LawDog
on August 27, 2017 at 12:28:01 pm

Hamburger's recommendations are of interest ONLY if there is a "will" to effect them - or as Greg Weiner (and I think, Yuval Levin - another guy I like) if the respective Branches pursue their institutional "ambition, as Madison anticipated. This, of course, would require that the citizenry also pursue their own *institutional* ambition.

I am not confident of wither scenario.

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gabe
on August 27, 2017 at 12:36:59 pm

Dawg:

" But as long as the principal retains ultimate control over the agent, there is no constitutional crisis."

And therein lies the dilemma - does it not?

Chevron aside - can it be said that the Legislative, the Principal in this case, actually exercises control over the agency to which it has delegated power? This is less than clear and as even some Black Robes have argued SCOTUS handling of the matter is at best confusing, at worst execrable.

I think Hamburger makes a pretty persuasive case that the extent (and nature of some powers) of delegation goes far beyond what was understood and contemplated by the *crafters* of the COTUS.

In any event, most of the citizenry appears oblivious to it until their little girls lemonade stand is raided by armed agents of the Food and Drug Administration.

seeya

time for a crummy round of golf - ha! it's never THAT bad!

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gabe
on August 27, 2017 at 12:39:43 pm

"The first to plead his case seems right, Until another comes and examines him." Prov. 18:17.

Read Adrian Vermeule's analysis of Hamburger. As AV shows, his work is undeserving of serious consideration.

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LawDog
on August 27, 2017 at 12:41:36 pm

I quite agree, without these ambitions, there is little to no hope. And, presently, the ambitions take on a decidedly different character than Madison envisioned, one that is dependent on the "efficiencies" of the AS serves up in terms of time and assumed responsibility.

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Paul Binotto
on August 27, 2017 at 12:57:53 pm

WRT the administrative state, Congress always has the last word. Whether it exercises it in a manner you or l might consider prudent is of no relevance.

"He who acts through another, acts himself." lf Congress can do X, then Congress can tell me to do X on its behalf. Ergo, the only conceivable argument you can make to oppose a delegation is that Congress exceeded its authority.

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LawDog
on August 27, 2017 at 13:06:45 pm

Therein, does lie the problem. Hamburger also makes the point, that Congress can also have access to the same outside expertise, but the real problem is when "experts" write policy (statute), as they necessarily concentrate on the considerations revolving around their particular expertise, at the expense of over-looking other just as important issues, outside of their expertise.

He also observes (paraphrasing his assertions), that private industry experts possess the superior expertise because they are better capable of rotating experts in and out of the corporation according to the evolution of a specialization or science, whereas, the public-employment structure, significantly limits any discretion in employment decisions, risks becoming technically stagnant, as well as functioning at a technological disadvantage and obsolescence compared to the private sector.

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Paul Binotto
on August 27, 2017 at 13:23:43 pm

Mr. Dog, in your view, do you think the Executive is bound to accept powers beyond reserved for it by the Constitution, simply because Congress delegates it? Couldn't the Executive simply decline (as a matter of its own interpretation of the Constitution) to accept them in the first place? I'll restate my remark above just for reference below:

"if the Legislative Branch has the power to delegate its role to the Executive, (and the Judicial Branch has the power to delegate its role in the form of Chevron deference), that the Executive equally has the right to not accept the powers the legislative wishes to delegate to it. It would seem, just as Congress cannot legislate away any of powers reserved for the Executive under the Constitution, that neither can it legislate additional powers to the Executive, against the will and approval of the Executive."

It just seems to me, the delegation of one branch's powers onto another independent branch, is a different animal than the legislation of "law", that the Executive is bound by the Constitution to execute, etc. I'm not trying to argumentative, merely inquisitive, as while this issue is essentially mute, it seems relevant on merely as a matter of legal principle. Whether the Executive freely accepts the burden of delegated powers is an entirely different matter. The notion of forced delegation for some reason sticks in my craw, so to speak.

Paul
PS: I apologize for the snarky comments also contained in my comments above - uncalled for and uncivil/impolite on my part.

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Paul Binotto
on August 28, 2017 at 01:33:45 am

l'm happy to lower the temperature around here.

One of my favorite lines from Scalia: Stupid, but constitutional." ln its infinite wisdom, Congress can delegate virtually any of its powers to administrative agencies; COTUS is the only limit. lf they wanted to create a Bureau of Underwater Basket-Weaving, they could. And it is up to the Executive to "take care" that the laws be faithfully enforced-- even those he disagrees with.

The only legitimate objection POTUS has is that the law itself is not constitutional. As an example, POTUS and his underlings acted properly by not defending DOMA. Scalia got it right in his Lawrence dissent: there was no principled basis for continuing to enforce SSM bans. Why spend our money on a losing endeavor?

The problem comes when POTUS (or a judge) decides that s/he isn't going to enforce the law, and you can't make him/her.

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LawDog
on August 28, 2017 at 06:24:37 am

Thanks for addressing the issue and my particular question; it helps me to better understand.

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Paul Binotto
on August 28, 2017 at 09:32:29 am

PB: "private industry experts possess the superior expertise because they are better capable of rotating experts in and out of the corporation"

Problem is, they aren't independent, and can't be trusted to issue honest and unbiased advice. And as a practical matter, even the government experts we do have are often compromised by conflicts of interest (the "revolving door"). When David Koch writes your checks, he is going to have considerable influence over what your conclusions will be. "It is difficult to get a man to understand something when his salary depends upon his not understanding it." [~Upton Sinclair]

But the question is not whether the AdState is efficient or even wise, but whether it is constitutional. As a matter of legal principle, it would seem that the only rational answer is yes. As Justice lredell observed, COTUS is "the great power of attorney"; the Framers understood agency law.

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LawDog
on August 28, 2017 at 09:49:24 am

I see; very interesting.

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Paul Binotto

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