The present abuse of executive power through and with the administrative state has been generously prepared over many decades.
I have very fond memories of the late Chuck Berry, deceased this past weekend at the age of 90. His music changed my life, from my ill-spent youth to the AdLaw lessons I seek to convey in my dotage.
Way back in 1970 among the evergreens of Hamburg, Germany, we had three FM radio stations. All three were public and sounded like NPR on Ritalin. The concession they made to the rebellious youth was to air German translations of English classics: Komm Gib Mir Deine Hand (and yes: I remember the lyrics). Plus, once a week (Tuesdays, 2-3pm) they had some sociologist report on U.S. oppression in Vietnam, Duluth, and elsewhere. One day this blowhard has a report on how mean American life is especially for school girls. By way of evidence he pre-translates Sweet Little Sixteen. And then they actually play it, in English. First time, it takes your breath away. You listen for the umpteenth time: it stills sounds fresh.
Later that summer I got to see Mr. Berry perform that song and then some, at a concert on the Isle of Wight. (There must be a recording on the net someplace; except I can’t find it.) That sealed it: I want to live in the country that can create music like that, and plays it all the time. On all three stations.
Mr. Berry’s music has accompanied me through all those decades, and it has proven essential to my teaching in recent years. Leading AdLaw cases—State Farm, Geier v. Honda Motor Company—have to do with car safety, and Chuck Berry had a view on that. In one memorable song he takes his baby [then a term of endearment, not a microaggression] out for a romantic ride, with no particular place to go. They buckle up like they’re told to but—
Can you imagine the way I felt?/I couldn’t unfasten the safety belt.
So this goes nowhere; and
All the way home I felt a grudge/for the safety belt that wouldn’t budge.
Well. I’m guessing that even a few short days out of here and up there, Chuck Berry is beginning to appreciate the upsides of Purgatory: it has an exit and it knows mercy, which is more than you can say of NHTSA. Nowadays in the U.S. of A you get to make out in a minivan that sounds like a sewing machine, strapped in and surrounded by multiple airbags and chaperoned by Ralph Nader (and lucky for you if he’s strapped in). All this is based on elaborate cost-benefit analysis. But you can’t shake the sense that something has gotten lost in the social calculus.
Those of us who suspect that government may be saving bodies but is sure killing the spirit have lost a powerful voice. Luckily, though, that voice begat others, including one that’s perhaps even more iconic and relevant to the safety/Adlaw issue. The guy didn’t have a driver license until well in his twenties; drove a wholly unsafe van across the country without one; and nearly killed himself and his entire band. He survived to become Chuck Berry’s true, proud, self-acknowledged heir, from the showmanship to the lyrics to the Gibson riffs to a dino-rock, no-seatbelt tribute to the master.
Breathe that (I tell my students), and you’ll know what’s wrong with administrative law. Don’t agonize over Chevron; meet ‘neath the giant Exxon sign. Rev up the volume and listen to Chuck Berry perform with Max and Steve and Clarence and the Boss and the rest of the band. Three minutes. More than you’ll ever learn in school.