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The Descent Into Quasi-Law

“Stroke of a pen . . . law of the land. Kind of cool.” That insouciant comment, made by Paul Begala when he worked in the Clinton White House, raised controversy when Begala said it back in 1998, but it hardly would today.

After all, just in the past few weeks we have discovered that President Obama plans to sign, on his own authority, an international “climate change” treaty. He calls it an executive agreement and so claims he needs no congressional approval, even though his administrators will use the treaty to impose new policies and rules binding American individuals, governments, and businesses to change their behavior on pain of federal sanction.

We also have discovered that the Obama administration has been funneling money it wrangled from legal settlements with banks—intended to help those victimized in the last mortgage bubble—to partisan organizations supporting its own political agenda.

In addition, Obama has “proclaimed” the world’s largest ocean reserve off the coast of Hawaii and created a massive federal “monument” banning economic activity from a large swath of Maine. The mainstream press has lauded these last actions as pro-environment. But loggers, fishermen, and consumers will pay the price for policies implemented without the constitutionally required debate in Congress regarding their costs and benefits.

What all these actions have in common is their contempt for constitutional forms and procedures. I use the term “contempt” to indicate, not open hostility, but rather an utter lack of concern. And this lack of concern increasingly crosses institutional and partisan lines.

Some of the President’s recent actions might be dismissed as mere “perks of the office.” Creating monuments, changing the names of mountain peaks (Mount McKinley is now Mount Denali) and such have become pseudo-prerogative actions in the United States; few among our elites care to question them. But, as with all prerogatives, those who hold these powers will seek to expand them. Under Obama the “flexibility” of the President has come to swallow up the rule of law.

Take, for example, this President’s attempts to contravene established law so as to prevent deportation of persons in this country illegally. In a series of 12 executive orders he did precisely this, exempting from deportation anyone who met a set of criteria specifically rejected by Congress. The orders eventually were stuck down by a federal appeals court—a decision upheld on account of a tie at the U.S. Supreme Court. What was truly astonishing about this naked power grab, intended to allow up to five million people in this country illegally to stay here in defiance of the clear language of properly promulgated law, was that it almost succeeded.

Even more than through direct decree, Obama has seized massive power for himself through cynical misuse of his executive, administrative power. He has directed his administrators to issue orders and regulations contradicting and/or going well beyond the intention of the laws they are sworn to uphold. Judges help as well. Chief Justice John Roberts saved Obamacare by pretending that its provision imposing a penalty on anyone daring to not purchase the dictated health insurance was merely a “tax.”

Other instances of overreach abound and multiply. Sometimes Obama loses, as with his attempt to force the Little Sisters of the Poor—an order of Catholic nuns caring for the elderly and dying—to cooperate in the provision of contraceptives and abortion-inducing drugs through their health insurer. More often he seems to be winning, as with his Education Department’s intentional misreading of Title IX of the Civil Rights Act.

The Department has taken it upon itself to vastly widen the definition of “sexual harassment” and to alter the plain meaning of Title IX’s ban on discrimination on the basis of sex to demand students’ access to bathrooms belonging to the opposite sex. Across the nation universities in particular are reversing traditional burdens of proof and truncating due process rights for those accused of sexual misconduct out of fear of Education Department investigations and reprisals. All this in response to bald claims of power without any reasonable basis in the legislation under which the Department is claiming the authority to regulate.[1]

Much of the Education Department’s power in this area does not stem from the law, or even its own regulations. Most of the changes in educational policy—and the rights of the accused on college campuses—result from directions embedded only in “Dear Colleague” letters sent by mid-level bureaucrats to universities. Even more changes owe their existence to consent decrees entered into by universities with the Department out of fear of the cost and bad publicity of a federal investigation.[2]

None of this is to say that the Obama administration is the first to stretch the powers of the presidency beyond constitutional bounds. All of his abuses have precedents in previous administrations. Moreover, the movement toward presidential power has been aided and abetted by a Congress intent on passing broad legislation “solving” problems like workplace safety through massive delegations of power, then accepting a distinctly secondary role as ombudsmen and overseers of administrative quality-control. Courts, too, have expanded executive power through their own quasi-legislative actions, demanding that new and expanded rights be made real through discretionary actions by administrative agencies.

We have seen in recent years the solidification of a regime different in character from that embodied in the language of the Constitution. Partly on account of a determination to pursue a radical agenda and partly on account of the breakdown of opposition from other branches of government and the people, we have seen a fateful shift in the operating rules of our political order. These actions, and cavalier responses to them, evince a lack of respect for constitutional forms and procedures that has become so pervasive as to undermine the rule of law. Indeed, it is not too much to say that the United States no longer is a regime of law, but one of mere quasi-law.

By quasi-law I mean directives with the force of law that lack crucial characteristics of genuine law. Emanating from all three branches of government, quasi-laws create rights and duties like laws but lack essential legal attributes such as promulgation through prescribed means and provision of predictable rules rather than mere delegation of discretionary power. Citizens today may find themselves charged with violating “rules” emanating from any branch of government (including, of course the fourth, administrative branch) without understanding their content or origins, even as rulers find it increasingly difficult to enforce effective policies in the face of unpredictable conflicts with members of other branches.

Thus, the persistent breaking of constitutional rules has produced confusion, tension, and animosity among those making and following law. It also increasingly denies the people that most basic of goods provided by legitimate governments: predictable rules allowing them to go about their lives without fear of arbitrary, surprising punishment for their actions.

The roots of our descent into the rule of quasi-law are relatively deep. From Woodrow Wilson and the Progressives to Franklin Roosevelt’s New Deal, powerful political actors have attacked the “deadlock of democracy,” painting the Constitution as an impediment to expression of the people’s will. This determination to turn our Constitution into a tool of transformation, rather than a charter of limited government, crucially undermined the rule of law. The ideological choice of results over process and form that literally transformed our constitutional culture from one devoted to maintenance of a free people governing itself in its various local associations into a conflicted set of interested parties and ideological factions fighting to control the levers of federal power for their own ends.

The crucial change that has taken place has been the atrophy of Americans’ constitutional morality. This term, most fully developed by the late George Carey, refers to the felt duty of the people, and especially those in positions of political authority, to respect constraints on their power included in the written and unwritten constitutions. Having delegitimized the written Constitution’s emphasis on limited, checked, and balanced powers, and having sold the people on a conception of the national government as one properly responsible for the well-being of every individual in the nation, Progressives of various sorts have destroyed America’s traditional constitutional morality. In its place we now have a confused set of motivations and convictions in important ways opposed to the written Constitution.

Our Constitution was written for a people seeking to live decent lives within their own, largely self-governing communities. It cannot function if the unwritten constitution, as we can call it, of institutions, beliefs, and practices no longer supports a limited central government of separated powers. It would be easy to simply despair of our constitutional order and recommend a new one, seeking to cabin power through extensive, detailed statutes or administrative procedures. This has been the direction of reform for some decades. It has not born fruit for the simple reason that contempt for constitutional formalities necessarily involves contempt for legal formalities.

Only the hard work of restoring our unwritten constitution will make it possible to enforce and rebuild our constitutional order. This is not the work of a few detailed reforms, but of a decades-long struggle to reinvigorate the determination to use already existing constitutional procedures to limit power. The power of impeachment and removal, the power of the veto, and, above all, the determination to cease supporting actions, by whatever branch of government, that fail to abide by the requirements of constitutional and legal form; all these must be grasped again by citizens and public figures determined to restore the rule of law and our constitutional order.

[1] The new regulations have suffered only limited judicial setbacks along the way. For a detailed critique, see “Law Professors’ Open Letter Regarding Campus Free Speech and Sexual Assault.” Available at: https://www.lankford.senate.gov/imo/media/doc/Law-Professor-Open-Letter-May-16-2016.pdf

[2] Of course, the Department is aided by campus administrators only too happy to comply with any directive increasing their own power and supporting their own ideological programs. A useful summary of these actions is provided in the document from Senator Lankford’s office, cited in previous note.

Reader Discussion

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on September 30, 2016 at 10:16:56 am

First: Good to see you writing here. always good stuff!

1. " into a conflicted set of interested parties and ideological factions fighting to control the levers of federal power for their own ends "
One wonders if THAT is not *precisely* the aim.

2) The Progressives, clever little buggers that they are, have managed to *manage* this situation quite well and have kept their little factions within the fold by offering all manner of inducements.

3) Unfortunately, the cost has been the destruction of constitutional forms and methods.

4) "...detailed statutes or administrative procedures. This has been the direction of reform for some decades. It has not born fruit for the simple reason that contempt for constitutional formalities necessarily involves contempt for legal formalities."
And why would it, when all that is needed is some paper and ink to further threaten an already cowed administrator or business executive. Of course, the task is made easier when the administrator or executive shares the same ideological perspective and disdain for proper legal forms.

Hamburger speaks of a return to prerogative government by the Executive. He understates the case. Now, any government functionary is able to deploy the same powers.

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Image of gabe
gabe
on September 30, 2016 at 15:28:10 pm

During Obama's most recent apology tour, the one to communist Laos a couple weeks ago, he said something similar. He said America's political problems are caused by the political laziness of the American people. Which is what the blogger also says.

The difference between Obama and blogger is the partisan direction they want the people to pull--to the left or to the right.

Tocqueville wrote about how he could go riding through the wilderness and come across a newspaper publisher. And he wrote about how it was that many Americans would start the day with a couple of newspapers. This interest in politics remains with us today. Look at all of the interest in political blogs, news sites, commentary, etc found in American culture. You can't watch anything on commercial TV without political messaging in it, not even the commercials. Look at the tea party activities. Look as the voting signs on people's lawns. Americans are very politically engaged.

I suggest that most of the problems of government are structural. The reason people don't get up and pull in the direction that partisans on either side want is because the proposals they put forth are irrational and unworkable. The proposed solutions of the left and right do not address the sources of the structural problems. They ask that we do more for whichever party, which is tantamount to "just more of the same," or to continuing doing it the wrong way but doing it the wrong way harder (yeah, that should work).

It's a game to get more political power for the partisans. I don't play that game. Talk about specific structural problems and people might listen. Meanwhile, just continue trying to enlist our support by calling us lazy. That will work as well for you as it does for Obama.

Sorry if this is a bit harsh, but I'm really tired of this nonsense. We are not lazy. A little naive, some of us, maybe. A little misled, I'm sure. A bit fed up, definitely. But we are not lazy.

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Image of Scott Amorian
Scott Amorian
on September 30, 2016 at 16:36:25 pm

There are indications of an "interesting" philosophy in this essay.

1. legislation (here labeled "laws") creates rights and
duties; which may be better understood
as **creates "rights (entitlements, etc.) by imposing
obligations (duties).**

"By quasi-law I mean directives with the force of law that lack crucial characteristics of genuine law. Emanating from all three branches of government, quasi-laws create rights and duties like laws but lack essential **legal attributes** . . . "

2. A legislative process may confer legal attributes (not
merely the label, but the status, of LAW) upon
*policy.*

"legal attributes such as promulgation through prescribed means and provision of predictable rules rather than mere delegation of discretionary power. "

Legislation is Rules of Policy which by formal procedures are given "the force of LAW. While the LAW changes or modifies only as a society evolves, The Rules are not immutable as changes within the society are sought by particular interests with particular motives.

On reflection, what are “policies?”

Are they not almost exclusively prescriptions by some for the conduct of others?

Of course some are personal. But most of those commonly referred to are “public” in their intentions.

In this essay we are looking at the establishment of policy by "another some."

The issue seems to be that these "other some" are not constrained by procedures that **may** constrain other (legislative) bodies of "some," rather than the issue that once a society accepts (1) that "some" may (within Constitutional limits) establish policy, but (2) then abandons those limiting principles upon those "some," to further accept the extension (by those "some") of the establishment of policy to yet others.

It is sometimes called the "Delegation of Legislative Authority." Still, the crucial issue begins with the **acceptance** of the abandonment of limiting principles on the establishment of policy.

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Image of R Richard Schweitzer
R Richard Schweitzer
on September 30, 2016 at 23:24:52 pm

That is not the least bit "harsh."

What you are noting is the completion of the changes in the functions of "Parties" from facilities for the expressions of public determinations (opinions/desires/objectives) by an electorate into instruments of a "political class" for gaining powers of delegation over the coercive forces of government.

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Image of R Richard Schweitzer
R Richard Schweitzer
on October 02, 2016 at 15:01:04 pm

http://ilciuc.com

The Descent Into Quasi-Law - Online Library of Law & Liberty

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http://ilciuc.com
on October 02, 2016 at 19:10:38 pm

Regrettably, that *acceptance* is exuberantly embraced by many - both in and out of government!

My Gawd!!!!! We have become a nation of busybody goody-two-shoes which we now call "politics."

Thank goodness, I have a very nice bottle of Walla Walla syrah decanting to lessen my unquietude.

take care

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Image of gabe
gabe
on October 03, 2016 at 10:00:20 am

This is a very good statement of the problem with the expanded use of executive orders beyond all recognition. One important point: the same view of executive power used by Obama to support his actions can be used by a Republican president to impose a view of the law that Democrats would find unsettling. Environmental laws? Ignore the clear meaning of statute to issue executive orders not to enforce those laws. Civil rights laws? Let's by executive order exempt businesses, colleges and universities, etc. from following those laws. The list is endless. The fact is that executive overreach can be practiced by presidents of all political stripes.

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Image of Jean Valmont
Jean Valmont
on October 03, 2016 at 16:29:26 pm

This is not virgin territory - the observation that the executive has steadily expanded it powers for decades, under presidents of both parties, is now a commonplace of American constitutional thought. Neither is the prescription here very original or inspiring: "a decades-long struggle to reinvigorate the determination to use already existing constitutional procedures to limit power".

Decades? Rubbish. The momentum now is entirely with "crown government", to coin F. H. Buckley's apt phrase; the executive has been growing in power and stature for at least five decades, and there is no sign whatsoever that it will be significantly reduced or checked. The idea that Mr. Madison's broken-down gimcrackery can be made to work properly if we all just concentrate really hard for fifty or seventy years is simply preposterous.

The only way the trajectory of the American principate will alter is catastrophic failure or violent shock. Lke Tacitus, you are only wallowing in nostalgia for a long-dead republic. You may pine for the constitution of the age of Rutherford Hayes, gentlemen. You may dream - by all means dream away, gentlemen. But don't suppose that you're going to put it back the way you want it: our elective monarchy will either break to pieces of its own internal inconsistencies, or it will outlive you all. Probably both.

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Max

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.