Seila Law reveals the need to find a better legal foundation for the modern administrative state, one that works within the separation of powers.
- The next Liberty Law Talk is a conversation with John Vile about his new book, The Writing and Ratification of the U.S. Constitution.
- So if you’re a stranger to this site, we post frequently on the administrative state. Some have referred to Greve’s candid discourses on this topic as the case of a disgruntled admin law professor. I don’t think “disgruntled” quite catches Greve on this matter. However, for a change of pace we went historical this week with Joseph Postell’s insightful review of Jerry Mashaw’s Creating the Administrative Constitution. Mashaw argues that what we think of as the administrative state had roots in the founding and, in any event, was present for most of the nineteenth century. Postell’s conclusion begs to differ:
Yet in order to demonstrate this, we would need some definition of what it means to have an administrative state. The fact that we had administration since the Founding is unsurprising. Even the fact that administrators had significant amounts of discretion and could enact rules to govern the enforcement and administration of federal laws is unsurprising. After all, the Founders had no problem with administration, in the traditional sense of the term. What they clearly did oppose are governmental institutions that made law, executed law, and judged law, especially when not constrained by frequent elections. . . .
To put it clearly: in the first hundred years of the republic, did we have administration, or an administrative state? The existence of the former does not prove the achievement of the latter.
- So the Federal Reserve will stay the course it seems, the fully engaged, market participant course. Perhaps a return to its rather modest roots would suffice for the day. Richard Timberlake at the Concise Encyclopedia of Economics has the full story.
- The Sad Story of Affirmative Action, Gail Heriot in the current National Affairs.
- What is culture and what is its relationship with freedom, hope, and despair? Bill McClay’s review of Kimball’s The Fortunes of Permanence provides some interesting reflections.
Any belief in greatness offends against the cult of equality, the morass of indiscriminateness into which any democratic culture is always prone to degenerate if it is not careful to value excellence and protect liberty. But the cult of equality demands that all opinions should be equal, all expression legitimate, and all objects fungible: “the substitution of anything for anything,” Kimball writes, “is the ideal” behind the attack on permanence. A belief in permanent monuments of cultural greatness is, moreover, a threat to the primacy of political power for many of the same reasons that religion presents an equivalent obstacle. Both supply a point of reference and a measure of value that transcend the prerogatives of those who happen to be in power at any given time.