Quotulatiousness

June 12, 2017

“They have gradually moved legislative power out of Congress and into administrative agencies — to be exercised, in more genteel ways, by persons like … themselves”

Filed under: Bureaucracy, Law, Liberty, USA — Tags: , , , — Nicholas @ 16:14

Glenn Reynolds (aka the Instapundit) on the unelected bureaucracies that have taken on more and more executive power over the lives of ordinary American citizens and their businesses:

Watching the ongoing clown show in Washington, Americans can be forgiven for asking themselves, “Why did we give this bunch of clowns so very much power over our nation and our lives?”

Well, don’t feel so bad, voters. Because you didn’t actually give them that much power. They just took it. That’s the thesis of Columbia Law Professor Philip Hamburger’s new book, The Administrative Threat, a short, punchy followup to his magisterial Is Administrative Law Unlawful? Both deal with the extraordinary — and illegitimate — power that administrative agencies have assumed in American life.

Hamburger explains that the prerogative powers once exercised by English kings, until they were circumscribed after a resulting civil war, have now been reinvented and lodged in administrative agencies, even though the United States Constitution was drafted specifically to prevent just such abuses. But today, the laws that actually affect people and businesses are seldom written by Congress; instead they are created by administrative agencies through a process of “informal rulemaking,” a process whose chief virtue is that it’s easy for the rulers to engage in, and hard for the ruled to observe or influence. Non-judicial administrative courts decide cases, and impose penalties, without a jury or an actual judge. And the protections in the Constitution and Bill of Rights (like the requirement for a judge-issued search warrant before a search) are often inapplicable.

As Hamburger writes, “Administrative power also evades many of the Constitution’s procedures, including both its legislative and judicial processes. Administrative power thereby sidesteps most of the Constitution’s procedural freedoms. Administrative power is thus all about the evasion of governance through law, including an evasion of constitutional processes and procedural rights.”

June 10, 2017

The Articles of Confederation – II: Ratification – Extra History

Filed under: France, Government, History, Liberty, Politics, USA — Tags: , , , — Nicholas @ 04:00

Published on 13 May 2017

The Continental Congress sent the Articles of Confederation to the thirteen states for ratification, but Maryland insisted on changes that Virginia rushed to oppose. Meanwhile, the American Revolutionary War raged on.

June 7, 2017

The Articles of Confederation – I: Becoming the United States – Extra History

Filed under: Britain, Government, History, Liberty, USA — Tags: , , — Nicholas @ 04:00

Published on May 6, 2017

When the thirteen colonies of North America broke away from Great Britain, they struggled to draft their first constitution. After great debate, they created the Articles of Confederation and formed the United States of America.

May 20, 2017

“Trump has always said the kinds of things that most of us learn to think the better of around our freshman year of high school”

Filed under: Media, Politics, USA — Tags: , , , — Nicholas @ 03:00

Megan McArdle on the calls to impeach or otherwise depose Il Donalduce (soft coup, anyone?):

Trump has always said the kinds of things that most of us learn to think the better of around our freshman year of high school — not just the tragic wailing about how hard everyone is on him, but also the needy self-flattery: When he isn’t claiming that he knows more about Islamic State than our nation’s generals do, he is putting similarly laudatory words in the mouths of the brilliant and impressive people who apparently constantly ring him up so they can gush like tween fangirls at a Justin Bieber concert. Does he expect people to believe these utterances? I have no idea. But the reason most people don’t say such things is that whether you expect them to or not, no one ever does.

As for the rest … the twitter rants? Check. The lack of respect for longstanding political and institutional norms? Check. The outrageous, uncalled-for attacks on anyone who gets in his way? Check-plus. All quite evident before the American public went to the polls in November. And that is the rub.

It’s one thing to remove a president who is clearly no longer the man (or woman) we elected to the office. But this is what Americans, in aggregate, pulled the lever for. Do his staffers and Congress have the right to step in and essentially undo that choice?

Even as a thought experiment, that’s a tough question. It becomes much tougher still when we are not in a tidy textbook, but in a messy real world where his followers, having voted for this behavior, do not recognize it as a sign of impairment. If Trump is removed now, they will see the removal not as a safeguard, but as a soft coup. And they won’t be entirely unjustified. The damage to our political culture, and its institutions, would be immeasurably grave.

I think there’s a case for removing Trump on the grounds that he is clearly not competent to execute the office — not that he has committed “high crimes and misdemeanors,” but that he simply lacks the emotional and mental capacity to do the job. But preserving the very norms he’s destroying requires that removal not be undertaken until things have reached such a state that most of his followers recognize his problems. So those of us who believe that the competence of the executive matters — that there are things worse in a president than “more of the same,” and that what we are now seeing is one of them — will simply have to hope like heck that his supporters come to the same conclusion we have before he damages much more than his own reputation, and the hopes of the people who elected him.

April 11, 2017

The return of Jane Galt

Filed under: Economics, Politics, USA — Tags: , , , , , — Nicholas @ 05:00

Megan McArdle, who used to blog as “Jane Galt”, did an Ask Me Anything on Reddit:

I’m Megan McArdle, a columnist for Bloomberg View, covering business, economics, public policy and the latest in kitchen gadgets. Ask me anything!

[…]

[–]LegalInspiration 5 points 6 hours ago*

In the short, medium, and long terms, generally speaking, would you say the US as a political and civil society is screwed? If so, how screwed would you say it is? If that’s too argumentative, maybe a more polite way to phrase it is: Do you see the gradual disruption of national unity post WWII as something that will cycle within a set of sustainable boundaries, or will the trend continue long term to the point where the US is no longer sustainable as a coherent and singular entity?

    [–]janegalt[S] 4 points 5 hours ago

    A couple of decades ago, I toyed with the idea of writing a novel where the US broke up into two countries: Liberalstan and Fundamentalistalia. Back then I thought it was a metaphor; now I’m less sure. The country feels more divided than it has in my lifetime, or that of my parents. It may be the worst it’s been since the Palmer Raids; maybe the worst since the Civil War.

    That said, to quote Adam Smith, “There’s a lot of ruin in a nation”. I think we have plenty of room to turn it around. But I think to do so, we need to think creatively about a kinder, gentler nationalism. Not the kind that says “Whee, let’s invade other countries”, but the kind that emphasizes love of country and the things we have in common–not the love we’ll grudgingly dole out after the nation has perfected itself, nor the things we’ll have in common after all those wretches in the other half of the country see the light and/or die. But love of each other right now, despite our many flaws.

    Every country needs a certain amount of myth making, and a certain amount of irrational pride in itself to hold it together. That’s particularly true for America, which can’t derive a national identity from, well, not being America. I think a lot of people imagined that tearing down all the myth making, and disparaging that irrational love of country, would turn us into good global citizens. Only it turns out that the opposite of nationalism isn’t globalism; it’s tribalism. And the tribes are gearing up to make war on each other in a way that the US hasn’t seen for a long time.

[…]

[–]TJIC1 4 points 6 hours ago

You are libertarian – but a “pragmatic” one who suggests / acknowledges that gov is necessarily going to end up in pretty much every corner of everything, and that the space of reasonable policy debate is small changes at the margin. This seems to suggest that we will never repeal FDR innovations like ignoring the 9th and 10th amendment, changing commerce clause to read “Federal gov can do whatever it wants”, etc. What’s the best we can hope for for liberty? What we have today – a modern welfare state where USG consumes 30% of economy and regulates everything from toilet flushing to proper woods to make a guitar fretboard from?

…or a welfare state where USG consumes 50% of the economy?

…or 90%?

[–]janegalt[S] 5 points 5 hours ago*

    The gap between real and ideal for libertarians is certainly wide, and I am less hopeful than I was twenty years ago that we’ll ever close it. I hate the “read whatever the government wants to do into the Constitution” jurisprudence that was required to enable the New Deal, and the fact that judges have appointed themselves to replace poets as the unacknowledged legislators of the world.

    At some point as a commentator you have to decide whether to advocate for first best or eighth best policy. I’ve generally decided to advocate for what I think is politically realistic, rather than what I think is ideal. I think you need both kinds though–the compromisers need the hardline idealists to provide a sort of compass point, and the idealists need the compromisers to provide the actual movement in the right direction.

    That said, this last election was very bad for libertarian ideas, representing a rejection of both our ideas about social policy, and those about political economy. I think libertarians have a lot of hard work ahead thinking about where we can realistically make advances in the next decade or so. I wish I knew the answer to that. My best guess is: the middle class entitlement state is not going to be rolled back. There may be some room for progress on America’s incredibly inefficient regulatory state, which would be a great boon for both economic liberty, and growth. I think the GOP will try to do tax cuts, but will fail to accomplish anything significant, for much the same reasons that their health care bill failed: there’s no money, and no public appetite for a tax cut that mainly benefits the affluent-to-rich (as it will have to, because at this point, the middle class and below don’t pay significant income taxes).

    That said, we should also remember the progress that has been made on the liberty front. In 1944, FDR had the head of Montgomery Ward arrested for thwarting his war planning board; in 1952 Truman nationalized the steel mills. That stuff doesn’t happen any more, and a lot of the worst New Deal regulations have gone away. Police practices are way better than they were before Miranda and other decisions made sure that defendants knew their rights (I’m not saying they’re perfect, but they’re definitely better). And if you’re a minority or a woman, all sorts of legal discrimination has been erased over the last fifty years. Those are major victories for libertarians, and we shouldn’t think that there’s some golden age we’re falling away from. We’ve lost a few, but we’ve won a few too.

February 12, 2017

QotD: Magna Carta

Filed under: Britain, History, Law, Liberty, Quotations — Tags: , , , — Nicholas @ 01:00

It’s remarkable that the English-speaking world remembers Magna Carta. The product of a struggle between King John and his barons, it was sealed on the bank of the Thames 800 years ago, on June 15, 1215. But in a sense, the most valuable thing about Magna Carta is precisely that it is remembered. Other charters were issued across medieval Europe, but they were rapidly forgotten.

Magna Carta alone endured because the kings of England never consolidated their power fully enough to be able to ignore their subjects. The charter was a useful political weapon in this struggle against arbitrary royal power, which is why it was so often reissued, appealed to, and celebrated, not least in the United States by the Founding Fathers: The Massachusetts state seal adopted in 1775 includes a patriot holding the Great Charter. To remember is, literally, to recall to mind, to renew in thought, which is why memory, as Orwell recognized in 1984, is a great defense of liberty.

This year, Magna Carta is being acclaimed as the contract that first established the idea that law was above government. As British politician and historian Daniel Hannan has put it, from Magna Carta flowed “all the rights and freedoms that we now take for granted: uncensored newspapers, security of property, equality before the law, habeas corpus, regular elections, sanctity of contract, jury trials.” And that’s fair: The barons wanted to limit King John’s arbitrary power, and without limits there is no liberty under law.

But it does not take very much bravery now to celebrate our rights. Today, the language of rights is universal, though often hypocritical. Worse, the danger to liberty in the U.S. and Britain today is not arbitrary power of the sort exercised by King John, who offered no real theory except that he needed the money he was stealing to fight his wars in France. The danger to liberty today, ironically, comes more from arbitrary power backed up by the rights-talk that can trace its origins back to Magna Carta. Against my right to free expression stands your supposed right not to be offended. My right to property must now pay for your right to free health care. My right not to be discriminated against must give way to your right to be discriminated in favor of.

Ted R. Bromund, “Magna Carta limited government”, National Review, 2015-06-15.

February 3, 2017

The Gorsuch nomination

Filed under: Government, Law, USA — Tags: , , — Nicholas @ 04:00

In the Washington Post, Radley Balko says that the nomination of Judge Neil Gorsuch is actually a gift to the Democrats:

It always seems a bit futile to speculate about how a Supreme Court nominee will behave down the line. Conservatives are still kicking themselves over David Souter. Eisenhower called Earl Warren the biggest mistake of his career. I personally was skeptical of Sonia Sotomayor’s history as a prosecutor and her judicial record on criminal-justice issues. She has turned out to be the court’s most reliable defender of due process and the rights of the accused.

But, of course, we do need to look into nominees, and their records and personal histories are all we have. So let’s have a civil liberties-centric look at Neil Gorsuch, President Trump’s nominee to replace the late justice Antonin Scalia.

The Good: As far as I’m concerned, the most important thing to look for in a Supreme Court justice right now is a willingness to stand up to executive power. For at least the next four years (in all likelihood), the White House will be occupied by a narcissist with a proclivity for authoritarianism. We aren’t yet two weeks in to Trump’s administration, and we’re already barreling toward one or more constitutional crises. Oddly and perhaps in spite of himself, of the three names said to be on Trump’s shortlist (Gorsuch, Thomas Hardiman and William Pryor), Gorsuch appears to be the most independent and has shown the most willingness to stand up to the executive branch. […]

Gorsuch is perhaps most known for his decision in the Hobby Lobby case, in which he wrote a strong opinion denouncing the birth-control mandate in the Affordable Care Act. Whether you think that’s a plus or a minus obviously depends on whether you prioritize reproductive rights or religious freedom. But even if you’re bothered by his opinion in that case, Gorsuch’s championing of religious freedom does at least seem to be careful and principled, and not partisan toward Christianity. In Yellowbear v. Lampert, a majority of his fellow appeals court judges ruled that a federal statute required the state of Wyoming to grant a Native American prisoner access to a sweat lodge on prison grounds. Gorsuch went farther, arguing that even prisoners still retain a right to practice their religion.

Gorsuch is a critic of “overcriminalization,” or the massive and growing federal criminal and regulatory codes. I think that’s a good thing. The Volokh Conspiracy’s Ilya Somin points out that he has history of ruling that criminal laws should be read narrowly, with ambiguities resolved in favor of defendants. That, too, is a good thing.

I was also struck by Gorsuch’s acceptance speech. It was noticeably un-Trumpian. He was humble, reverent of institutions and deferential to the office for which he had just been nominated. Unlike the man who nominated him, he came off as someone devoted to the law, not someone who believes he is above it.

October 13, 2016

QotD: Libertarian constitutionalism

Filed under: Law, Liberty, Quotations, USA — Tags: , , , — Nicholas @ 01:00

Libertarian constitutional thought is a distinctly minority position among scholars and jurists, one that at first glance has little connection with either modern Supreme Court jurisprudence or the liberalism that remains dominant in the legal academy. However, libertarian ideas have more in common with mainstream constitutional thought than at first meets the eye. They have also had greater influence on it.

This article explores the connections between mainstream and libertarian constitutional thought in recent decades. On a number of important issues, modern Supreme Court doctrine and liberal constitutional thought has been significantly influenced by pre-New Deal libertarian ideas, even if the influence is often unconscious or unacknowledged. This is particularly true on issues of equal protection doctrine and modern “substantive” due process as it pertains to “noneconomic” rights. Here, both the Supreme Court and much of the mainstream academic left have repudiated early twentieth century Progressivism, which advocated across-the-board judicial deference to legislatures. They have also rejected efforts to eliminate common law and free market “baselines” for constitutional rights.

The gap between libertarian and mainstream constitutional thought is much greater on issues of federalism and property rights. Here too, however, recent decades have seen significant convergence. Over the last thirty years, the Supreme Court has begun to take federalism and property rights more seriously, and the idea that they should get strong judicial protection has attained greater intellectual respectability. Moreover, much of libertarian constitutional thought merely seeks to apply to federalism, property rights, and economic liberties, the same principles that mainstream jurists and legal scholars have applied in other areas, most notably “noneconomic” constitutional rights and separation of powers.

Ilya Somin and David Bernstein, abstract to “The Mainstreaming of Libertarian Constitutionalism” in Law and Contemporary Problems, reposted in the Washington Post, 2015-02-20.

June 11, 2016

The fear of Il Donalduce

Filed under: Politics, USA — Tags: , , , — Nicholas @ 03:00

Lots of Americans are suddenly discovering that over the years, they’ve granted a heck of a lot of power to the executive branch that constitutionally were not supposed to be granted to the president. That probably seemed okay when the president was someone they supported, but every four to eight years there’s a gasp of realization that the powers that you thought would only be used “for good” might now fall into the hands of the Anti-Christ/Hitler/Stalin/[insert-favourite-boogeyman]. At Status 451, Simon Penner explains why, when you strike at the King you dare not miss:

As a Canadian, seeing the 2016 election from the outside, people’s reactions to Trump confuse me. Especially as someone who appreciates well-designed systems, I can’t believe people’s gross ignorance of their own nation. People are so afraid of the terrible things Trump will do that protests like this happen. And yet, the vast majority of things people are afraid of are things he can’t do. Was I the only person who paid attention in civics class?

The US was founded as a nation as a response to an uprising against an autocrat. Its founders were horrified at the potential for another such autocrat to arise, and they designed their government accordingly. There was to be a strict separation of powers, with mutually opposed groups keeping each other in check. Most importantly, the office of the executive was intentionally crippled. The president was supposed to have very little power. The founders thought that mitigating potential bad leaders was more important than empowering potential good leaders.

So if Trump can’t do these bad things, what’s the problem? Well, the theory that the country was based on is solid. But you know what they say: In theory, there’s no difference between theory and practice. In practice, there is. Perfect, beautiful ideas never survive implementation. In this case, there are no backwards arcs in the state machine.

On paper, Trump can’t do anything too bad. In practice, he can, because previous presidents have set the precedent. People like to make fun of small-c conservatives who want government out of their lives. Libertarians are a favourite scapegoat online, for similar reasons. Every time a president said “we need the power to do X”, a libertarian said “no, we can’t let you do that; your powers are restricted for a reason.” In the case of, say, Obamacare, we looked at the libertarians and said “why do you hate poor people? Why do you want them to die? Can you be so heartless? Can’t you make an exception this one time?” You should have listened to them, in detail. Once a proof of concept is committed to master, it is the new feature. “One” time never is.

Over time, various factions have engaged in special pleading. “We need this superweapon, just this one time. Can’t you see the challenge we’re facing? Are you really going to demand principles when people are suffering?” The same argument turned Rome into a dictatorship, millennia ago. When you shoot your superweapon at the king, you’d best not miss. He can pick it up from your fallen comrades.

May 20, 2016

QotD: The law and the US constitution

Filed under: Law, Politics, Quotations, USA — Tags: , , , — Nicholas @ 01:00

Laws are no longer made by a rational process of public discussion; they are made by a process of blackmail and intimidation, and they are executed in the same manner. The typical lawmaker of today is a man wholly devoid of principle — a mere counter in a grotesque and knavish game. If the right pressure could be applied to him, he would be cheerfully in favor of polygamy, astrology or cannibalism.

It is the aim of the Bill of Rights, if it has any remaining aim at all, to curb such prehensile gentry. Its function is to set a limitation upon their power to harry and oppress us to their own private profit. The Fathers, in framing it, did not have powerful minorities in mind; what they sought to hobble was simply the majority. But that is a detail. The important thing is that the Bill of Rights sets forth, in the plainest of plain language, the limits beyond which even legislatures may not go. The Supreme Court, in Marbury v. Madison, decided that it was bound to execute that intent, and for a hundred years that doctrine remained the corner-stone of American constitutional law.

H.L. Mencken, The American Mercury, 1930-05.

April 16, 2016

QotD: Creeping monarchism in the United States

Filed under: Cancon, Government, Politics, Quotations, USA — Tags: , , — Nicholas @ 01:00

I’m getting weary of the monarchical comparisons, which are a bit of an insult to real monarchs. The Obama model seems to owe more to Judge Dredd, the popular comic-book figure with the power to arrest, convict, sentence and execute as he does what’s necessary to bring hope and change to a dystopian megalopolis. Likewise, President Dredd: “He is the Law, and you’d better believe it!” A contempt for the people and for constitutional and legal restraints is what ties the President’s actions on Thursday night to Eric Holder’s corrupt justice department to Lois Lerner’s corrupt revenue agency to Jonathan Gruber’s corrupt health commissariat (merely to skim the surface of the most recent additions to the unending Obama-scandals document dump).

To express common-or-garden contempt for the will of the people, Obama could have simply repealed another handful of inconvenient paragraphs from Obamacare or made Lois Lerner Attorney-General, but the form of contempt he chose is especially exquisite: “legalizing” millions of foreign law-breakers and setting them on the path to US citizenship. The chief of state has heard the voice of the people and his message to them is: “Yeah, whatever, I can always get another people. Hey, here comes five million or so right now, plus another ten million in chain-migration relatives down the road…”

He is the Law, and you’d better believe it! And, even if you don’t, what are you gonna do about it? Obama has made a bet that in the end a Republican Congress will have no more get-up-and-go than a chronic invalid dependent on armies of undocumented bedpan-cleaners. It has been suggested that Boehner should tell America’s new ConLawProf-in-Chief to go give his State of the Union somewhere else. It would be a symbolic gesture, but symbols are important. In a contemporary North American context, it is not unknown for parliament to assert itself against the head of state: the chippy separatists of Quebec’s “National Assembly”, as part of their make-believe nation-building, have denied the Queen’s viceroy the customary right to give the Speech from the Throne (the Westminster equivalent to the State of the Union) for four decades now. Down the road in Ottawa, in a particularly petulant outburst, Jean Chrétien, the Canadian Prime Minister, denied the Queen herself the opportunity to give the 2002 Speech from the Throne in the federal parliament for no other reason than that he felt she hadn’t given him a good enough seat at her mother’s funeral earlier that year. In actual monarchies, the subjects flip the finger at the sovereign all the time. Yet in a supposed republic of citizen-legislators for the people’s house to assert its authority to the head of state by telling him to take a hike on the State of the Union would be an act of lèse-majesté too appalling even to consider. It would be entirely unreasonable to expect the legislature of the American republic to defend its lawful powers — and those of the people it represents — with the assertiveness of a provincial parliament in Canada.

Mark Steyn, “Elections Matter?”, SteynOnline.com, 2014-11-22.

December 12, 2015

QotD: The economic non-issue of a “federal minimum wage”

Filed under: Cancon, Economics, Government, Quotations — Tags: , , , — Nicholas @ 01:00

… the other new strategic wrinkle was much worse in that regard: the announcement of a policy for a restored “federal minimum wage.”

Provinces set minimum wages for most employees under the Constitution, but Ottawa has an unused right to set a national minimum in private industries regulated under Part III of the Canada Labour Code. The major categories are banking, interprovincial and international transport, and broadcasting. You may be wondering how many people in these technically complicated lines of business are actually making the minimum wage. In the most recent survey of the federal labour jurisdiction (taken in 2008), the answer arrived at by Statistics Canada was: 416 people. In the entire country.

The New Democrats were pretty clearly counting on the press to foul up the story, and it obliged. Some Postmedia newspapers, for example, wrote headlines implying that the new wage floor was for “federal workers.” Economists, who mostly dislike minimum wages anyway, will probably tear into the NDP for a misleading measure that, to a close approximation, helps nobody. And it probably won’t matter much, as New Democrats go on repeating the words “federal minimum wage” for a year.

Colby Cosh, “How to ignore the NDP’s new talking points”, Maclean’s, 2014-09-18.

November 14, 2015

The US government has morphed from being part of “us” to being “them”

Filed under: Bureaucracy, Government, History, Liberty, USA — Tags: , , , , — Nicholas @ 04:00

Charles Murray explains why so many Americans are feeling alienated from their own government:

I have been led to this position by what I believe to be a truth about where America stands: The federal government is no longer “us” but “them.” It is no longer an extension of the people through their elected representatives. It is no longer a republican bulwark against the arbitrary use of power. It has become an entity unto itself, separated from the American people and beyond the effective control of the political process. In this situation, the foundational principles of our nation come into play: The government does not command the blind allegiance of the citizenry. Government is instituted to protect our unalienable rights. The more destructive it becomes of those rights, the less it can call upon our allegiance.

I won’t try to lay out the whole case for concluding that our duty of allegiance has been radically diminished — that takes a few hundred pages. But let me summarize the ways in which the federal government has not simply become bigger and more intrusive since Bill Buckley founded National Review, but has also become “them,” and no longer an extension of “us.”

[…]

In 1937, Helvering v. Davis explicitly held that the federal government could spend money on the “general welfare,” establishing that the government’s powers were not limited to those enumerated in the Constitution. In 1938, Carolene Products did what the Ninth Amendment had been intended to prevent — it limited the rights of the American people to those that were explicitly mentioned in the Constitution and its amendments. Making matters worse, the Court also limited the circumstances under which it would protect even those explicitly named rights. In 1942, Wickard v. Filburn completed the reinterpretation of “commerce” so that the commerce clause became, in the words of federal judge Alex Kozinski, the “Hey, you can do anything you feel like” clause.

Momentous as these decisions were, they were arguably not as crucial to the evolution of the federal government from “us” to “them” as the decisions that led to the regulatory state. Until the 1930s, a body of jurisprudence known as the “nondelegation doctrine” had put strict limits on how much power Congress could delegate to the executive branch. The agencies of the executive branch obviously had to be given some latitude to interpret the text of legislation, but Congress was required to specify an “intelligible principle” whenever it passed a law that gave the executive branch a new task. In 1943, National Broadcasting Co. v. United States dispensed with that requirement, holding that it was okay for Congress to tell the Federal Communications Commission (FCC) to write regulations for allocating radio licenses “as public convenience, interest, or necessity requires” — an undefined, and hence unintelligible, principle. And so we now live in a world in which Congress passes laws with grandiose goals, loosely defined, and delegates responsibility for interpreting those goals exclusively to regulatory agencies that have no accountability to the citizenry and only limited accountability to the president of the United States.

The de facto legislative power delegated to regulatory agencies is only one aspect of their illegitimacy. Citizens who have not been hit with an accusation of a violation may not realize how Orwellian the regulatory state has become. If you run afoul of an agency such as the FCC and want to defend yourself, you don’t go to a regular court. You go to an administrative court run by the agency. You don’t get a jury. The case is decided by an administrative judge who is an employee of the agency. You do not need to be found guilty beyond a reasonable doubt, but rather by the loosest of all legal standards, a preponderance of the evidence. The regulatory agency is also free of many of the rules that constrain police and prosecutors in the normal legal system. For example, regulatory agencies are not required to show probable cause for getting a search warrant. A regulatory agency can inspect a property or place of business under broad conditions that it has set for itself.

There’s much more, but it amounts to this: Regulatory agencies, or the regulatory divisions within cabinet agencies, operate as self-contained entities that create de facto laws that Congress would never have passed on an up-or-down vote. They then act as both police and judge in enforcing the laws they have created. It amounts to an extra-legal state within the state.

I have focused on the regulatory state because it now looms so large in daily life as to have provoked a reaction that crosses political divides: American government isn’t supposed to work this way.

September 10, 2015

QotD: “Bookless” liberalism

Filed under: Media, Politics, Quotations, USA — Tags: , — Nicholas @ 01:00

The enduring strength of both conservatism and libertarianism as intellectual movements is that they acknowledge that they are, in fact, intellectual movements. We not only know what we believe, we know why we believe it. But while liberals know what they believe, they have a hard time explaining why they believe it. That’s because, as E. J. Dionne, Martin Peretz, and other liberals have written, they’ve turned their backs on their own intellectual history. Liberals, in Peretz’s memorable phrase, are “bookless,” so they follow an ideology without knowing why it upholds and cherishes its ideas. As a result, they don’t know when, or how, to subordinate their ideology to larger concerns (and when you cease to be aware that you have an ideology, it doesn’t make you a pragmatist; it makes you a dogmatist).

Driven by feelings more than fact, they seek rationalizations. Or as William Voegeli puts it in his book Never Enough, liberalism has lost its ability to articulate a “limiting principle” to the size, cost, and ambition of government. Indeed, as we saw during the oral arguments before the Supreme Court over Obamacare, this administration is incapable of articulating any principled limit to the apparently infinite powers of the Commerce Clause and the living Constitution.

There’s perhaps no better proof that liberals are terrified of admitting their own ideological aspirations than the effort to mint fresh clichés to preserve the integrity of old ones. That’s the apparent goal of the group No Labels, whose official motto is “Put the Labels Aside. Do What’s Best for America.” (Or at least that’s one of them; for a group that doesn’t like labels, they sure have a lot of mottoes.)

Jonah Goldberg, excerpt from The Tyranny of Clichés, published by National Review, 2012-04-22.

August 28, 2015

Google and the (bullshit) European “right to be forgotten”

Filed under: Europe, Law, Liberty, Media, USA — Tags: , , , , , — Nicholas @ 03:00

Techdirt‘s Mike Masnick points and laughs at a self-described consumerist organization’s attempt to force Google to apply EU law to the rest of the world, by way of an FTC complaint:

If you want an understanding of my general philosophy on business and economics, it’s that companies should focus on serving their customers better. That’s it. It’s a very customer-centric view of capitalism. I think companies that screw over their customers and users will have it come back to bite them, and thus it’s a better strategy for everyone if companies focus on providing good products and services to consumers, without screwing them over. And, I’m super supportive of organizations that focus on holding companies’ feet to the fire when they fail to live up to that promise. Consumerist (owned by Consumer Reports) is really fantastic at this kind of thing, for example. Consumer Watchdog, on the other hand, despite its name, appears to have very little to do with actually protecting consumers’ interests. Instead, it seems like some crazy people who absolutely hate Google, and pretend that they’re “protecting” consumers from Google by attacking the company at every opportunity. If Consumer Watchdog actually had relevant points, that might be useful, but nearly every attack on Google is so ridiculous that all it does is make Consumer Watchdog look like a complete joke and undermine whatever credibility the organization might have.

In the past, we’ve covered an anti-Google video that company put out that contained so many factual errors that it was a complete joke (and was later revealed as nothing more than a stunt to sell some books). Then there was the attempt to argue that Gmail was an illegal wiretap. It’s hard to take the organization seriously when it does that kind of thing.

Its latest, however, takes the crazy to new levels. John Simpson, Consumer Watchdog’s resident “old man yells at cloud” impersonator, recently filed a complaint with the FTC against Google. In it, he not only argues that Google should offer the “Right to be Forgotten” in the US, but says that the failure to do that is an “unfair and deceptive practice.” Really.

As you know by now, since an EU court ruling last year, Google has been forced to enable a right to be forgotten in the EU, in which it will “delink” certain results from the searches on certain names, if the people argue that the links are no longer “relevant.” Some in the EU have been pressing Google to make that “right to be forgotten” global — which Google refuses to do, noting that it would violate the First Amendment in the US and would allow the most restrictive, anti-free speech regime in the world to censor the global internet.

But, apparently John Simpson likes censorship and supporting free speech-destroying regimes. Because he argues Google must allow such censorship in the US. How could Google’s refusal to implement “right to be forgotten” possibly be “deceptive”? Well, in Simpson’s world, it’s because Google presents itself as “being deeply committed to privacy” but then doesn’t abide by a global right to be forgotten. Really.

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