Originalism is a theory of constitutional interpretation, it is not—nor can it be—a constitutional theory in itself.
The latest issue of the National Review has an article by Berkeley law prof John Yoo that invites serious thought and discussion—very serious thought. Here’s the gist:
In the Reagan era, conservatives stood for a “unitary executive” and White House control over administrative agencies (administered through OMB’s OIRA); and for judicial deference to administrative agencies (Chevron deference became near-totemic). Congress was the enemy—the engine of government run amok. Conservatives, John Yoo says, should now “mov[e] beyond” those commitments. What he’s actually urging is a broad-scale reversal: Ditch judicial deference. Re-examine INS v. Chadha, which declared the legislative veto unconstitutional (and which conservatives at the time celebrated as a rousing victory). Re-embrace Lochner—the epitome of “the idea of natural rights that actually informed the Framing.” And, get the institutional landscape right:
Conservatives have correctly shared the Founders’ fear of excessive lawmaking, but they have focused on the wrong source: Congress. They should shift their aim to the administrative agencies, which are the greatest threat to our liberties today.
In plaintext (and John Yoo makes it very plain): apart from opposition to made-up due process or equal protection rights, just about everything Antonin Scalia (let alone the late Bob Bork) taught us was, or is now, wrong. All that, from a highly credential conservative, FedSoc hero, and diehard defender of presidential power (at least in foreign affairs)
I’m with Professor Yoo on most of the issues. And I, like, totally support his wake-up call. However (and I’m sure John would agree), an alarm bell is not a program, only a call to develop such a program. That’ll take very considerable effort, comparable to the energy conservatives invested in creating the program they’re now being asked to reconstruct. Start with a few down-to-earth difficulties:
- House Republicans have championed the REINS Act, which would require congressional approval of “major” agency regulations. It’s an endrun around Chadha; it’s constitutional; and it fits John Yoo’s agenda—up to a point: while increasing congressional control over agencies, it would wipe out judicial control over major agency regs. Technically, the act preserves APA review. But is a court really going to say that Congress mis-interpreted its own statute, or that its approval was “arbitrary and capricious”? (It may well have been; but then it’s the business of Congress to be arbitrary and capricious.) Between congressional and judicial review, which is it to be?
- As I write and you read, EPA is constructing a global warming regime of unprecedented proportions—not because the Supreme Court deferred to the agency but because it didn’t and told EPA, more or less, that it had to regulate greenhouse gases. And the agency that’s going to town on that ruling (Massachusetts v. EPA) isn’t some headless Fourth Branch outfit: it operates at the feet and the commands of the President. Are we really against judicial deference, and for a “unitary” executive and presidential government?
- Much government lawlessness has to do, not with excessive regulation but with a failure to enforce laws that are on the books: immigration law, NCLB, the Controlled Substances Act, Obamacare. What’s the remedy—mandamus actions? More to the point, should there even be a remedy, judicial or otherwise? Come 2017, should President Jeb Bush restore the rule of law by enforcing, at long last, the requirements of Obamacare, the Dodd Frank Act, NCLB, etc.? Or, considering those laws, would it be better if the President’s duty—the “faithful execution” of the laws—were understood to encompass the power to shirk?
The questions may well have answers. I just don’t know what they are.
John Yoo’s plea for rethinking is obviously and explicitly prompted by situational, political concerns: the old conservative program is no match for the Obama administration. Most constitutional thought is prompted by such concerns. But a constitutional program can’t be purely tactical—not because you want to be high-minded, but because you must be strategic. First, a constitutional program will take a lot of time to implement; and over that time, political alignments will shift. Thus, you can commit to a program only if it promises to stop your enemies and, moreover, can’t do much harm in their hands in the foreseeable future. Second, neither federal courts nor for that matter the public will pay much heed to purely tactical maneuvers: any credible program will have to look plausibly constitutional.
The conservative legal program of the 1980s illustrates the dynamics. Of course, it was political: “Deference” was a way of stopping Skelly Wright’s and David Bazelon’s D.C. Circuit. “Originalism” was designed to stop William Brennan. And the “unitary executive” was an artful way of saying that Ronald Reagan meant to bring the regulatory enthusiasms of the 1970s to an end. However, the program was not purely short-term and situational. It was difficult then to imagine political circumstances under which it would not be conducive to limited-government ends. And a great deal of intellectual and organizational energy went into the program both before and after its critical period. The judges who turned the ho-hum Chevron decision into a foundational canon (then-Judge Scalia, Ken Starr, et al.) had thought about administrative law for a very long time; they were ready. Originalism, which is supposed to hold all of this together, did not originate in the academy but in, of all places, the Department of Justice—which, one can safely say, was less interested in hermeneutic theory than in Roe v. Wade. However, conservatives invested enormous intellectual effort in transforming originalism into a winning constitutional program, and equal organizational effort in making it stick.
John Yoo thinks, and says, that that program has failed. If he’s right, the task at hand isn’t to overturn this, that, or the other case or doctrine; it’s to re-think the foundations and to unite conservatives behind some other credible program that promises to hold up.
What a wonderful world that would be.