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Meet the New Boss

The most revealing executive action of the new administration may have been among the least reported. President Trump, by memorandum, ordered the Secretary of Commerce to “develop a plan” under which all new, retrofitted, repaired or expanded pipelines inside the United States would use U.S.-made materials and equipment “to the maximum extent possible and to the extent permitted by law.”

Cutting to the chase, the extent permitted by law is zero. The president of the United States neither has nor ought to have the authority to tell private companies making private investments where to buy their equipment or materials. He has no authority to encourage them, pressure them or bully them. The conservative response to a comparable order from President Obama would, appropriately, have been apoplexy.

One of two scenarios is possible here: Either this memorandum is a sop to his Rust Belt base that the President knows is meaningless or, worse, it is a sop to his Rust Belt base that he thinks is meaningful. In either case, we have met the new boss.  With respect to the ends of presidential power, he of course differs from the old.  With respect to the power itself, he is indistinguishable.

So the point of truth arrives: Does conservatism care about the problem of authority and how constitutionalism manages it, or is it now a philosophy defined by results? If it is the latter, Progressivism—Woodrow Wilson’s Progressivism, the kind that sees the Constitution as an outmoded series of barriers to progress and the general will, and an unleashed and plebiscitary presidency as the answer—has truly won.

This would be the triumph of the doctrine of what Michael Oakeshott called “telocracy” as opposed to “nomocracy,” a regime organized toward ends rather than rules. Telocracy, Oakeshott wrote, was “a view of the proper business of governing, and not a belief about the authority of a government.” It does not disregard the rule of law, but it subordinates the law to the attainment of ends. Telocracy is ultimately hostile to law because it is a philosophy of command. Nomocracy, by contrast, is a philosophy of liberty that is not opposed to necessary power but that recognizes the need to discipline it by subjection to rules.

Those who would excuse presidentialism in the era of Trump because his policies accord with theirs yet who excoriated it under the administration of Obama because his ends were objectionable would define conservatism by telocratic goals, disassociating it from its historic concern with authority. And they had better be prepared for what escaped progressives for eight years: The power they invoke today will be exercised by other hands, for opposite ends, tomorrow.

Consider, in this context, the double voices with which many conservatives are speaking on the Affordable Care Act. When Barack Obama announced he would unilaterally delay enforcement of the employer mandate, conservatives were rightly appalled, noting that the legislative authority of the Constitution rested with Congress. Comes now Donald Trump, who on his first day in office signed an executive order directing officials with responsibilities under the Affordable Care Act to

exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation [emphasis added] of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.

That is, of course, virtually all the act. To be sure, the President has a wider degree of latitude not to enforce laws to which he objects constitutionally, though even then the authority of a constitutional officer obliged to “take care that the laws be faithfully executed” to decline to do so is questionable.

But this executive order expresses no constitutional objections, only policy goals. One of them is the repeal of the Affordable Care Act. But the proper place for repealing it is Capitol Hill, a process currently under way, with debate on the messy questions of how to go about it, including how and when to replace the law. The idea of Congressional authority over legislation—which is that this is best the work of many and diffuse hands, close to the people—is especially true in this instance.

Then there is the matter of the border wall, which he has also directed executively, apparently under the authority of the Secure Fence Act of 2006, which authorizes, as its title suggests, a fence. To be sure, it also authorizes “infrastructure improvements,” but it is difficult to see why it proceeds to specify a fence—and to specify, further, across what sections of land it will be reinforced—if the nature of the infrastructure was left to the total discretion of the executive branch.

This is to say nothing of the nettlesome question of funds, which the administration stunningly answered by announcing the possibility of imposing a 20 percent “border tax” on imported Mexican goods. (Note to White House: This means American consumers will pay for the wall.) Then the White House retreated, saying it was part of a “buffet” of possibilities, which included tariffs. Aside from matters of national security, which this is not, the President has statutory authority to impose tariffs only to address a trade deficit, not to raise revenue, which means he has the authority in this case only if the policy fails, since the purpose of a tariff would be to discourage imports and thus collection of the revenue.

Meanwhile, White House Press Secretary Sean Spicer, in math that barely qualifies as fuzzy, explained that since $50 billion of goods comes in from Mexico, a 20 percent tax would raise $10 billion. Is it necessary to explain to the Administration of a President elected for his supposed business acumen that when an activity is taxed, less of it occurs?

As to the executive order on refugees and immigration, the President has a far greater degree of constitutional and statutory authority. But even here, there is process prescribed, and for good reason. As John McGinnis notes, a 1962 executive order requires that such directives go through the Attorney General, whose authority is delegated by regulation to the Office of Legal Counsel. That process by all accounts was ignored here in a disaster of a rollout in which political operatives were making calls from which the relevant departments—Homeland Security among them—were excluded.

To be sure, all of President Trump’s orders have contained the requisite qualifications: “to the extent permitted by law” and the like. But either he thinks that extent far exceeds any reasonable interpretation of the law or the qualifier is not intended to qualify at all.

The question for constitutionalists is whether process and authority matter. They ought to, if constitutionalism is based on the idea that policy is transient, while institutions and rules endure. The early indications are not all positive. The conservative blogger Allahpundit, for example, crowed about the executive order on Obamacare:

Remember when King Barack decreed in 2013 that he would delay enforcement of the employer mandate even though the law itself required the mandate to take effect on a specific date? Conservatives like me howled that the president has no constitutional power to delay implementation when a federal statute requires it, but O got away with it. And now turnabout is fair play. If King Barack enjoyed a particular type of authority, King Donald enjoys it too. Good work, liberals.

This is the law of the playground, the constitutional theory of “they started it.” Indeed they did. Constitutionalism ought to be the province of the grownups. It has been noted that it is amusing to see progressives rediscover the separation of powers in the age of Trump. It is not gratifying to see so many conservatives so quickly forget it.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on January 30, 2017 at 06:52:35 am

I was already alarmed. Now I am doubly alarmed squared.

Nevertheless, I am glad you are not writing about what President Clinton has done since January 20.

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Image of Phil Beaver
Phil Beaver
on January 30, 2017 at 09:23:14 am

These orders do not bother me as much as perhaps they should - because, as you say, they are replete with qualifiers (extend permitted by law, etc., ) -

Perhaps Congress (acting on the Executive proposal) were to offer tax incentives to private companies to use US good vs. foreign goods - is this government coercion?

It seems to me, if Congress were to only withhold one or two years, (whatever) of Mexico's typical amount of annual foreign-aid it receives from the U.S., this would raise the funds necessary to build the wall; and in a sense, have Mexico pay for it - re-start their foreign aid grants upon completion.

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Image of Paul Binotto
Paul Binotto
on January 30, 2017 at 10:12:04 am

The President just approved your pipeline that the previous administration held in limbo for eight years. If the President asks you to use U.S. steel in return, only a real weiner would complain. That's called the art of the deal. I'm sure oil company executives understand it even if conservatives like you don't.

Conservatives with the exception of Reagan and Gingrich are proven losers. Stop concern trolling.

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Image of boxty
boxty
on January 30, 2017 at 11:11:49 am

I suspect boxty has it right. And I feel conflicted about this policy.

Government has a history of engaging in deal-making/extortion of this kind. For a long time the Federal Energy Regulatory Commission (FERC) lacked the power to compel electric utilities to join organized markets to share the use of high-voltage transmission lines. But FERC had the power to review mergers. And, surprise, the only mergers they approved were for utilities that had "voluntarily" joined such markets. That is, arguably FERC took a power it was given for one purpose and exploited it for another.

This is the art of the deal: Government by transaction.

In contrast, I grew up with the art of the market: Government's job is to set the rules, and private actors are to make the deals. Thus I've argued for "policy unbundling," whereby government would refrain from making unrelated policy objectives contingent upon each other (e.g., "Here's money for education--but you can't get it unless you reduce your speed limits....")

At first blush, Trump's policies would seem to be the antithesis of this. But maybe not. If Weiner were correct that the Administration has no power to influence the choice of materials in a pipeline, then the memo is just an exercise in free speech, exhorting an outcome without exercising any government coercion. But if boxty is right, then there really is a kind of coercion going on here.

Of course, withholding approval for a pipeline is a kind of coercive act, too. People allege that the Obama Administration withhold approval for the Dakota Access Pipeline to cross a lake for political reasons unrelated to the merits of the case--that is, the Administration took a power it was given for one purpose and exploited it for another. And perhaps Trump is now exploiting his power to grant approval for purposes of promoting domestic economic development. Presumably pipelines would prefer Trump's coercion to Obama's. So what am I worried about?

Moreover, I must acknowledge that Obama and Trump have different strengths, and it doesn't make sense for Trump to act as if he had Obama's strengths or to ignore his own. Sure, Obama was able to command a lot of attention for his causes--but Trump is in a class of his own. Moreover, as a Republican, Trump is able to twist the arms of groups that were beyond Obama's reach. Thus, Trump was able to reduce the price of Boeing jets simply by jawboning; bingo, there's savings to the taxpayer.

Is the sum of all these interventions on behalf of the public going to be greater than the damage that Trump will do to people's confidence in fair markets? This runs counter to all my economics training--and, in incidentally, my temperament. Full disclosure: Everything about Trump makes my skin crawl, and that makes it hard for me to evaluate his policies. I sense many people had the same reaction to Obama, and thus could never give consideration to his policies regardless of content. I want to avoid falling into the same pattern.

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nobody.really
on January 30, 2017 at 12:23:12 pm

Mr. Weiner apparently is more enamored of the "theory" of nomocratic governance than its' reality.

Does not Affirmative Action, and its bastard child of " disparate impact' not evidence a teleological aim? Other instances may also be cited in the area of an *alleged* free market, i.e., DOD procurement, Housing goals / policy.
I suppose that there are "ends" and then there are *ends* - some of which the essayist finds suitable - others not.

Weiner makes the same error that our friend and co-commenter nobody. really makes and doubtless, it is made from the same *textbook* approach to a *free* market. The textbooks tell us that such a market exists, and if however not currently perfect, had, at one time in the golden past, existed in all its glory.

Balderdash!

One need only look at typical governmental procurement authorizations / legislation. At one time, (I forget if it was the F15 or F16) it was said that EVERY State in the Union was provided a piece of the action.
Why would this be so? Was it because each state had the best technology / manufacturing capability for a specific component of this aircraft? Unlikely, I would think (I actually know this not to be the case, BTW).
Nope, it was good old fashioned Congressional bargaining. "Give me your vote, and I'll give you tire production or maintenance services for your State." Good old fashioned "dealing."

That is how major programs make their way to appropriations / funding.

OK, you say but THAT is government and they don;t count.

Well, take a look one day at how the Boeing Corporation (and Airbus) assign work to subcontractors. Caution: This cannot be done effectively without a review of the Selling Process. In short, if you buy some number of our planes, we, Boeing, will provide significant subcontract work to suppliers in your country.

Story is told of the President of Mitsubishi Heavy Industries, when meeting with Boeing Marketing / Sales team, who commented to the Boeing folks: "I don't understand. First you give us stabilizers, then rear fins, then control surfaces, now wings and fuselage. so why will we need you in the future. Pretty soon we can do it ourselves." Mitsubishi President was simply questioning the rationality of a policy that swapped sales for expertise / mfg. process capabilities.

Update: This summer when traveling to Eastern Washington for one of my golf / wine sojourns, I fully expect to see the new Mitsubishi Commericil Jet liner flying overhead as it undergoes Flight Testing regimen at Moses Lake, Washington, a facility, incidentally built and funded by the Boeing company.

So now we come to criticize The Trumpster, and attribute to him the grave sin of making a deal in order to achieve an end, a telos. Simply put, he ain't the first to do so; he will not be the last.

All one can hope for is that the *art of the deal(s)* that The Trumpster makes will be better than the deals that Obama (and The Boeing Company) made.
Question: Was the TPP a "deal free" / telos free *deal*?

Did not the Obama-ites insert into the agreement certain clauses designed to insure that "the oceans would stop rising," that the rights of labor would be secured, etc etc etc.

Ahhh! The telos of the Progressives is acceptable; the telos of achieving sufficient votes to pass a DOD appropriations for a major warfighting capability is acceptable, even if the performance of the aircraft / airframe is compromised (witness the F-35) - but the telos of the pipeline deal is not!

One could argue that the significance of the pipeline deal, while perhaps politically quite consequential were gas prices to rise in its absence, pales in significance to the effects of the *deals* done on DOD appropriations involving as they do our ability to protect, and yes, project, our national security and power.

As for me, The Trumpster does not make my skin crawl. He is reminiscent of another New York pol, Jimmy Walker - a character, prone to abuse of the language and a bit of an egoist.

So long as The Trumpster makes "good deals", I am OK with that. Of course, that would mean that unlike many of us, he is prepared to place reality above market *theory* - AND that he not do anything clearly without precedent or unconstitutional.

Let's face it, boyos, the Free market would appear to be something more respected in the breach than the observation.

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Image of gabe
gabe
on January 30, 2017 at 13:18:31 pm

The Trumpster does not make my skin crawl. He is reminiscent of ... Jimmy Walker....

Ok, I can see that. They're both a bit floppy on top.

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Image of nobody.really
nobody.really
on January 30, 2017 at 17:06:20 pm

Luvv'd it!

Hey maybe The Trumpster can add "dyn-o-mite" to "Yuuuge" - We could have some Yuuuge Dyn-o-mite of an administration!

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Image of gabe
gabe
on January 30, 2017 at 17:37:53 pm

I believe questions have been raised re: 'questions of national security' related to the Mexican wall?

And, I believe we have something of a 'trade deficit?'

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Image of bobcheeks
bobcheeks
on January 30, 2017 at 20:34:28 pm

bobcheeks:

How the heck are ya?

Long time. no hear!

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gabe
on February 03, 2017 at 16:15:46 pm

[…] wall, attempts to implement the one-in-two-out regulation restriction, and a bid to guarantee American pipelines are made with American steel. Nolette thinks attorneys general will be especially vigilant on environmental and healthcare […]

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Image of The Battle Over Trump's Executive Orders Is Just Getting Started - VICE
The Battle Over Trump's Executive Orders Is Just Getting Started - VICE
on February 03, 2017 at 18:02:53 pm

[…] wall, attempts to implement the one-in-two-out regulation restriction, and a bid to guarantee American pipelines are made with American steel. Nolette thinks attorneys general will be especially vigilant on environmental and healthcare […]

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Image of The Battle Over Trump’s Executive Orders Is Just Getting Started – Thinking Port
The Battle Over Trump’s Executive Orders Is Just Getting Started – Thinking Port

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

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