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While It Was All Just Slippin’ Away

Yesterday, the Hoover Institution hosted a conference on “A Better Way,” the House Republicans’ agenda to make America perhaps not great again but at least work again. That proved a useful focus for a panel discussion featuring yours truly (video link to come). As for ABW itself, I’m with the Boss:

Well my soul checked out missing as I sat listening

 To the hours and minutes tickin’ away

Yeah just sittin’ around waitin’ for my life to begin

While it was all just slippin’ away

The fact is that ABW is dead for the foreseeable future. Mr. Trump has severely compromised, if not single-handedly destroyed, the political force that produced this document. And while there may well be worthwhile items in the other parts of ABW, the part on the Constitution suggests that maybe we shouldn’t mourn over the corpse. The document embraces the Constitution in the same way in which the party has embraced its standard-bearer: diffidently; desperately; and opportunistically (examples to follow).

The Constitution deserves a more earnest engagement. (It’s hardly perfect but in nearly 230 years, it has never groped anyone.) I understand that a party platform is not a ConLaw seminar. I understand the need to be pragmatic and constituency-oriented. And I’m not opposed to some of the modest proposals here—improved data collection and the like. Still: if you’re seriously proposing to re-establish constitutional government—as opposed to larding up a partisan agenda with constitutional platitudes—you have to be more serious and hard-nosed. First, you have to take the Constitution seriously. Second, you have to think long-term. Third, you have to think about incentives. And fourth, you have to think structurally and institutionally, not just situationally.

The Founders thought that way. ABW doesn’t come close, in any of the four dimension: that’s this post. The next post will noodle over what a serious agenda might look like—or at least, how one might think about it.

The Constitution. Here is one ABW proposal:

Enact a judicial procedure permitting the House, the Senate, or both chambers together to receive expedited review [by the Supreme Court] of a lawsuit against the executive branch for failure to execute the law.

The legislation should instruct that “courts set aside their own court-created standing rules in cases brought by Congress, thereby preventing courts from using procedural excuses to avoid making decisions in these important separation of powers cases.”

This proposal is most charitably interpreted as an attempt to make the late Antonin Scalia rise from his grave. And even that won’t work because he knew Scripture: they didn’t listen to the prophets so they’re not going to listen to one who rises from the dead. Justice Scalia raised precisely this prospect of legislative “failure to execute” claims in his Windsor opinion and denounced it as blazingly unconstitutional. Standing is not a “procedural excuse”; it’s a constitutional Article III requirement, which even Congress cannot abrogate. And congressional standing to compel executive enforcement is a blatant violation of Article II and the “Take Care” Clause, and legislative aggrandizement of a sort that’s been held unconstitutional in every separation of powers case I can think of.

The Constitution presumes that every branch will make its own constitutional judgments and preserve its own prerogatives with its own means. Clamoring for a judicial bailout is the counsel of despair—unless, that is, you’re willing to adjust the Constitution in some pretty major ways. I’ll come back to that.

Long-Term. It is often said that constitutional rules should be made behind a veil of ignorance, for all “posterity” (to quote the Preamble). That’s a lot to ask. But even party platforms should ask: would we still favor this if the political fronts were reversed? ABW abounds with proposals that flunk that minimal test. “Congressional lawsuits to compel enforcement” is one of them. In my view half the U.S. Code should go unenforced, and a sober Republican President should see to that. Compel full enforcement of every last piece of Dodd-Frank? The ACA? Indeed.

Here is another, equally short-sighted idea:

End judicial deference to agencies under the Chevron and Auer doctrines that makes it easier for agencies to overreach the bounds of their statutory powers.

This, we are told, will “clamp down on judicial deference—without authorizing judicial activism—thus reinforcing the courts’ role as the final interpreter of regulatory statutes and regulations issued under them. This will not only strengthen the courts’ power to strike down overreaching regulations, it will strengthen Congress’s incentives to write clearer statutes and rein in federal agencies.”

At how many different levels is this wrong? It assumes that you can “clamp down on deference”—in other words, make judges look hard when they don’t want to. Wrong. It assumes (actually, it says) that courts are the “final interpreter” of statutes. Wrong: if Congress doesn’t like a judicial interpretation it can always override it by statute. It says that less deference will make Congress legislate more conscientiously. Highly doubtful: the premise of Chevron is that deference will make Congress legislate more precisely. Admittedly that’s also doubtful. (I’m no great Chevron fan.) In truth, most legislation is just an opening bid for an ongoing game, and the question is whether you want the agency or the courts to hold the trumps. This says, the courts.

Really? Going forward we will have an Obama-Clinton judiciary for decades to come. And a Republican administration, should that ever happen again, will need all the judicial deference in the world. So this proposal is either pointless or affirmatively counterproductive.

Incentives. The Framers thought in terms on institutional incentives (checks and balances, and all that). That’s what makes Madison so modern, for all his obvious errors. ABW shows no awareness of the thought. Proposal after proposal, it urges lawmakers to do what existing rules often already require—as if mere exhortation could trump legislators’ manifest incentives to do the opposite, or nothing at all.

Deep down, ABW recognizes the problem—only to walk away from it. Thus, it flags that the overwhelming portion of the federal budget (for entitlement programs and the federal debt) isn’t appropriated, as the Constitution demands. Should we then make those items subject to appropriations? Well, no: who wants to vote on Medicare or Social Security? Another $300 billion or so is appropriated annually for programs that are no longer authorized. Should we then just vote “no” on unauthorized appropriations? Well, no: we should compile a better inventory and raise points of order. Those exhortations will go unheeded for the same reason that the budget and the debt are out of control: no legislator has any incentive to do anything about it.

The same lack of realism pervades ABW’s administrative law reforms—proposals to further formalize agency rulemaking; to impose additional procedural constraints; to improve reporting requirements; and to enhance congressional oversight and judicial review.  John Dingell or Henry Waxman did not need any of these devices to ride herd on agencies; they just wielded institutional power.  In contrast, ABW proposes legal controls over matters that by their nature and by virtue of the incentive structure cannot be controlled by law.

Financial settlements between agencies and regulated industries illustrate the point. ABW wants a rule that prohibits third-party payments in such settlements, and it wants the payments to actually go to the Treasury rather than third parties or the agencies themselves, as already provided by law. I’m on board with that. But the fact is, the proceedings themselves are the problem. The agencies have incentives to bring garbage allegations, and the targets have incentives to settle them. And because the settlement value is the product of the amount and the likelihood of conviction, the phoniest allegations will come with the highest payment demands. (Witness the $14 billion demand against Deutsche Bank, which did not bother to explain just what the bank was supposed to have done wrong). At the end, both the agency and its enforcement targets have powerful incentives to settle on terms that are favorable to them. Congress may be able to change or prohibit this or that contract term, and that may be worth doing. But it can’t prevent the bargains. They’ll just be re-priced on some other margin.

The same logic applies to proposal to further formalize the rulemaking process and to subject it to congressional oversight or approval. You’d simply drive the actual decisionmaking further underground; and the agencies will always be one, two, three steps ahead of a lumbering Congress and the courts. For example, the proposed REINS Act would require congressional approval of major rules. Ignore that this idea runs directly counter to the demand for de novo judicial review: as Professor Hegel once remarked, it would be astounding to see two constitutional thoughts held together where not one thought can be found. Note instead that many agencies no longer govern by rulemaking; they govern by enforcement or by proposal, as with the EPA. Regulated industries have to plan and invest in the shadow of any proposed rule. As a result the agency gets most of what it wants without a final rule or even adjudication, especially if it makes a very aggressive opening bid. The EPA no longer cares whether that bid survives judicial review. Why should it care about congressional review?

Once you arm agencies to the teeth, they’ll misbehave. An improved weapons inspection system won’t help; you have to disarm them.

Structure and Institutions. With commendable candor ABW acknowledges that Congress has abdicated its powers; for the most part the rise of executive government wasn’t a unilateral power grab. It never asks why ambition has failed to counteract ambition—why the branch most likely to draw all powers into its impetuous vortex has proven the most feckless.

That’s a long story but here’s a piece of it: to quote a famous law review article we no longer have a separation of powers but a separation of parties. The president’s party in Congress will protect the executive no matter what. In that scenario power flows to the executive. Fixing that problem requires one of two things. Either you figure out a way to re-connect legislators’ incentives to the interests of the institution. Or else, you adjust the institutional arrangements, especially including the arrangements to check the executive, to the realities of party government.

What might that look like? More in the next post.

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 October 21, 2016 at 09:49:51 am

1) The adding of the take care clause to the DAPA case was likely by Justice Scalia (none of the other justices seemed to care). I doubt he would be rolling over in his grave about this proposal. Read Scalia's Windsor opinion again: "The closest we have ever come to what the Court blesses today was our opinion in INS v. Chadha, 462 U. S. 919 (1983). But in that case, two parties to the litigation disagreed with the position of the United States and with the court below: the House and Senate, which had intervened
in the case. Because Chadha concerned the validity of a mode of congressional action—the one-house legislative veto—the House and Senate were threatened with destruction of what they claimed to be one of their institutional powers. The Executive choosing not to defend that power, we permitted the House and Senate to intervene. Nothing like that is present here." This proposal would also have the House or the Senate directly threatened in their power to create the law and could (as the executive wouldn't be defending that power) "permitted the House and Senate to intervene."

The real problem with this isnt standing, but would be the remedy, are we really going to give the Court the power of the sword to compel the executive to bring a case before the Court?

2) I totally disagree with you on your support of Chevron and Auer deference. You make a somewhat good point politically for Republicans to support deference given they are likely to lose the Courts as it appears Clinton is likely to be President. But as you said in this post, such "constitutional rules should be made behind a veil of ignorance." We should not consider the current alignment of the Courts/President/Congress in terms of political party when considering the proper rule.

Judges can be told they have to own up to the decision and decide it for themselves (whatever the outcome). Maybe they wont think about it very hard, but they will have to justify their own decision then. Court's role is to determine the current meaning of the statutes passed, obviously congress can then pass new statutes if it doesn't like that interpretation (or impeach the judge if they are not acting in good faith). I disagree as to making Congress legislate more conscientiously. They will no longer be able to blame the agencies for their own mistakes in a badly written law.

3) A lot of the problems you point to in incentives are true, but they will likely take a Constitutional Amendment to really fix. Good that it is at least being pointed out by the legislature (even if it is likely these problems will continue untill really fixed, by doing things like requiring a super majority to borrow money outside of a time of war).

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Devin Watkins
on October 21, 2016 at 09:59:14 am

Also one other problem with Chevron is it gives the President the power to "interpret" the law in some very unlikely way, then veto anything that congress tries to do to correct it. The President controls the agencies either indirectly in selecting who runs them or directly ordering them to do something. As you say "The president’s party in Congress will protect the executive no matter what." That means it's almost impossible for congress to change the meaning the President says the statute means. When Courts decide the meaning of the statute, at least congress can possibly convince the President to go along with changing the statute to correct the Courts (you dont have to convince the President to overturn himself).

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Devin Watkins
on October 21, 2016 at 10:54:44 am

A marvelous survey of the "do something" approach to political actions.

Michael Greve:

" Either you figure out a way to re-connect **legislators’ incentives** to the interests of the --institution-- . Or else, you adjust the institutional arrangements, especially including the arrangements to check the executive, to the realities of party government." [**& -- added]

"An instrument is a social organization that is fulfilling effectively the purpose for which it arose. An institution is an instrument that has taken on activities and purposes of its own, separate from and different from the purposes for which it was intended. As a consequence an institution achieves its original purposes with decreasing effectiveness. Every instrument consists of people organized in relationships to one another. As the instruments become an institution, these relationships become ends in themselves to the detriment of the ends of the whole organization."

[p.102] "The Evolution of Civilizations" by Carroll Quigley 1961; Liberty Fund reprint 1979 Still available in print.

It seems fairly obvious that those comprising the majority membership (regardless of affiliations) of the legislative institution do not want and will not assume the burdens of the constitutionally delineated legislative functions (see, Walter Lippmann " The Good Society"). After all, what ARE "legislators' incentives?"

Is the concept of an "institutional interest" (given what institutions are) valid; or, is it not much more than a "seating order" in the uses of the powers of government?

Demagogic as it may sound, the way to Constitutionally structured government would NOT be through more legislative access to judicial processes for exercises of powers now evaded; but rather, the creation of offsetting **power in the affected public** by increased, better, quicker and more effective direct access to NEW judicial power (as has been suggested here before and will be added in a follow-up post).

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R Richard Schweitzer
on October 21, 2016 at 11:10:24 am

Follow- up:

A New Court

Perhaps someone of the competence of Michael Greve might don the mantle of Richard Armey and undertake the design of a Judicial function ancillary to (1) the oversight responsibilities of Congress; and, (2) the “defense funds” suggested by Charles Murray in his “By The People.”

Congress has the powers to create additional courts of particular jurisdiction.

There is, for example, a Court of Claims. There are bankruptcy courts (or courts “sitting” in bankruptcy).
The existing legal system is clogged with matters of the operations of the Federal Administrative State; the blockages of those remedies serve as an instrument for administrative malfunctions of multiple origins.

Congress can create a Court that, upon submissions, can supply what should be the execution of appropriate oversight by Congress – just like “base closings,” that the political process stymies. Such a Court could be given that much jurisdiction and power subject only to legislative “veto” (up or down- no revisions) within a stipulated period (120 days? or the Court’s rule is final, no appeal, equivalent to legislative remedy).

The Court’s jurisdiction shall concern the actual (and demonstratively prospective) effects of the forms and conditions of enforcements (without regard to existing judicial precedents of a general nature) in specific instances. It shall have full injunctive authority through the District Courts and may suspend or terminate any part or all of any regulations or “guidelines & interpretations” etc.. It may terminate an agency’s exercise of any and all powers, or particular powers, or set enforceable conditions for their exercise; discipline or remove agency personnel, authorities and any contracting parties.
Only Congress, within stipulated periods of time (which might be in different schedules for different determinations) can set aside (but not modify) its decisions.

This Court might be administered in circuits. Conflicts amongst circuit judgments would be resolved by Congressional action.

Most important, parties affected (even prospectively) would have immediate access; an option to by-pass “agency reviews” and the APA (heart by-pass anyone), and apply for injunctive relief.

It will take some time; care for details; but supplant some of the deficiencies in Congress’s responsibilities – and begin to throttle back rampant regulatory metastasis.

It could begin to revitalize our legal system and timely public access for private litigation.

It could be done as an amendment to the APA.

(July 29, 2015)

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R Richard Schweitzer
on October 21, 2016 at 11:12:28 am

Prof. Greve: Another excellent piece and one based upon some rather sharp observations of what we have become.

"An improved weapons inspection system won’t help; you have to disarm them."

AND

"we no longer have a separation of powers but a separation of parties"

Now that just about sums it up!!!

In both instances we have seen Madison's "institutional ambitions" replaced with Party (and, yes, personal) ambitions. Both the Executive Agencies and the Parties are heavily staffed with far too many *clever* people who will find a way to thwart any resurgent Legislative efforts (doubtful, at best, that such an attempt would be made) and will contrive to once again achieve their particular ambitions.

As R. Richard advises" Look to the motivations. It would appear that motivations trump "ambitions."

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gabe
on October 21, 2016 at 11:58:03 am

I think Greve's main point on Chevron/Auer is that you can't get rid of judicial deference given the institutional structure of administrative law, so even if you stop labeling something as "Chevron" deference, that would not solve the problem of judicial deference. I think that is right.

Even before Chevron, courts gave agencies great latitude to intepret ambiguos terms in a way that advances sensible policy outcomes. Most terms in the Clean Air Act, for instance, have absolutely no meaning, and are there to give agencies policy discretion: BACT, LAER, BSER etc. I couldn't see courts interpreting those terms de novo under any realistic scenario.

Moreover, I think Chevron is particularly well suited to a world in which statutes provide a taget rich environment for citizen suits. The premise is that agencies should have some breathing room to interpret statutes in a way that advances sensible policy outcomes, when the statute provides breathing room to the agency. Chevron provides policy space. You can see that in the Chevron decision itself. Without Chevron's policy space, you'd probably have to fall back on some form of purposivism, which would result in more, not less, silly regulation.

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Jimmy
on October 21, 2016 at 12:36:33 pm

I think you give a fairly accurate picture of the *effects* of Chevron AND to a certain extent the purpose or intent. You are, at least I think, spot-on with respect to the Court doing de novo review of all those "silly" regulations and it may be that the" breathing space" of greater significance is the space provided to the Court by not having to completely clutter the docket with these never-ending reviews.

I think R. Richard's proposal below presents a potential means of solving the "clutter / breathing space" issue WHILE simultaneously removing judicial responsibility (theoretically, of course) from the Executive and placing *ultimate* legislative responsibility (oversight only, perhaps) back with the Legislative. Both results would appear to be consistent with our intended structural foundation.

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gabe
on October 21, 2016 at 12:52:45 pm

Richard:

I rather like this.
One question:

"Only Congress, within stipulated periods of time (which might be in different schedules for different determinations) can set aside (but not modify) its decisions."

Define "set aside"

do you mean by crafting / passing legislation to effectively overturn this court's decision (would seem perfectly legal) or by simply saying: "Your decision is unacceptable" (this would appear to be beyond Congress' power and a an infringement of the Judicial Power).

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gabe
on October 21, 2016 at 19:03:44 pm

And now a very sensible analysis of what is really at issue with Chevron: Governance

The article is by Steven Hayward over at Weekly Standard ( about three pages but worth it).

http://www.weeklystandard.com/crisis-of-the-conservative-house-divided/article/2005000

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gabe
on October 22, 2016 at 04:26:16 am

The problem is the President shouldnt have any "policy space" that is meant to be with congress where there can be compromises.

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Devin Watkins
on October 22, 2016 at 04:31:29 am

Only problem is that Congress already did something like that (although applied to the agencies) and the Court ruled it unconstitutional in INS v. Chadha.

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Devin Watkins
on October 22, 2016 at 16:28:50 pm

The July 27, 2015 Michael Greve archives of this site and the other occasions for suggesting the "New Court" are all derivative of discussions of the Administrative State. The suggestion is a minimal outline of some wider range of thinking.

Answers to the points you raise will come below; but first, the focus of a "New Court" on the Administrative State.

History indicates that all forms of government act upon the governed (with or without their consent) through administrators. ALL three branches of our federal government "govern" (conduct their chosen [if not delineated] functions) through administrators who comprise the Administrative State. Legislators do so through devolutions of powers. The Executive as the "manager of managers." The Judiciary through control of subjective determinations of means to objective ends of administrators actions. All of the theoretically "separated" powers are *expressed* through "Administration." Thus, we see the conflation of legislative, executive and judicial function in administrative activities.

The point of the suggestion is to provide the "governed" with a facility (New Court) to separate the legislative powers that supposedly exist as delegations of the powers of the governed from the effects of that conflation - unless the legislators (by affirmative action) determine otherwise.

In that context, the New Court would be part of the uses of administrative procedures which are still under the jurisdiction of the legislature, not the judiciary.

Now, to define "set aside;"

" Such a Court could be given that much jurisdiction and power subject only to legislative “veto” (up or down- no revisions) within a stipulated period (120 days? or the Court’s rule is final, no appeal, equivalent to legislative remedy)."

This would not be established as a "Judicial Power," but as a "Judicial Function;" similar to a superior administrative procedures court - with initial jurisdiction.

Lots of details, but something more permanent and more definitive than a " Commission."

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R Richard Schweitzer

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.