Critics of originalism typically accuse originalist scholars of deploying "law office history," but a look at the scholarship refutes this.
Mike Greve notes John Yoo’s call for a new conservative program. I don’t have access to John’s article, but Mike raises a number of important issues.
I agree with Mike that one wants a program that does not shift based on who is in power, but instead promotes the long run interests of the country in accordance with one’s political principles. And I also agree with Mike (and John) that much of the Scalia program from the 1970s and 1980s was ill considered (or in Mike’s terms, was tactical, not strategic).
As a brief response, let me offer some ideas concerning a new conservative program:
1. I agree that Chevron and the embracing of deference to agencies was mistaken. It is true that the conservatives embraced it as a way of resisting Skelly Wright, but that was mistaken. It was bad enough that the courts allowed Congress to delegate legislative power to the agencies. It was worse that the courts invented a doctrine that gave those agencies additional power over the extent of those delegations. As a matter of administrative law, deference should be found only in cases where Congress actually confers it.
2. I also favor the REINS Act. It would operate to cut back on the unconstitutional delegations of power to the agencies. And it shows that such delegations are not necessary for the administrative state to function. But there are two chances of members of Congress passing a statute that would force them to take responsibility for a large number of individual regulations, when they can now avoid that responsibility: slim and none.
3. Mike mentions prosecutorial discretion, which I also favor cutting back on. I agree it is hard to state a workable rule, but at the least where a statute requires action by a certain date and there is no provision allowing an exception, one should not read in an exception. Under that rule, it would appear that the delaying of the Obamacare employer mandate would be illegal.
4. Finally, I recommend taking some action to enforce the constitutional requirement that Congress make the decision to initiate a war. Mike and John refer to a conservative program, and conservatives might be thought to oppose such a beefed up requirement. But George W. Bush received authorization for both of his wars, so it is not clear that they should oppose such a requirement.
In any event, the War Powers Resolution has not been effective in limiting presidential power, and it would be useful to develop an alternative mechanism, perhaps one tied to appropriations for the military effort.