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Administrative Agencies Have Assumed Extraordinary, Illegitimate Power in American Life

You didn’t give these clowns power. They just grabbed it.

Glenn Harlan Reynolds writes: 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 Threata 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.” Read the rest of this entry »

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THERE WENT THE JUDGE: Cibolo Creek Ranch Owner Recalls Scalia’s Last Hours

Scalia was just the latest newsworthy guest to visit the celebrity hideaway that covers 30,000 acres near the Chinati Mountains. Mick Jagger, Julia Roberts and Tommy Lee Jones have also partaken of its scenic vistas and luxury accomodations.

MARFA — John MacCormack reports: A first-time guest to the Cibolo Creek Ranch, U.S. Supreme Court Justice Antonin Scalia was animated and engaged during dinner Friday night, as one of three dozen invitees to an event that had nothing to do with law or politics, according to the ranch owner.

Just hours later, he would be found dead of sapparent natural causes, which media outlets were reporting Sunday was a heart attack.

“He was seated near me and I had a chance to observe him. He was very entertaining. But about 9 p.m. he said, ‘it’s been a long day and a long week, I want to get some sleep,” recalled Houston businessman John Poindexter, who owns the 30,000-acre luxury ranch.

When Poindexter tried to awaken Scalia about 8:30 the next morning, the judge’s door was locked and he did not answer. Three hours later, Poindexter returned after an outing, with a friend of Scalia who had come from Washington with him.

“We discovered the judge in bed, a pillow over his head. His bed clothes were unwrinkled,” said Poindexter.

“He was lying very restfully. It looked like he had not quite awakened from a nap,” he said.Scalia,79, did not have a pulse and his body was cold, and after consulting with a doctor at a hospital in Alpine, Poindexter concluded resuscitation would have been futile, He then contacted federal authorities, at first encountering a series of answering services because he was calling on a weekend.

[Read the full story here, at San Antonio Express-News]

“Ultimately they became available and handled it superbly. They flew in by helicopter. They told me to secure the ranch, which I did until this morning,” he said. Read the rest of this entry »


BREAKING: Fifth Circuit Court of Appeals Court Rules with 26 States Challenging Obama’s Executive Immigration Action

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The U.S. Fifth Circuit Court of Appeals ruled in favor of 26 states challenging President Barack Obama’s executive action on immigration on Tuesday, Texas Governor Greg Abbott said.

The three-judge panel ruled that the executive action, which would grant an estimated 4.7 million undocumented immigrants relief from deportation, should stay on hold while the states work to overturn it.

[Reuters]


150 Years Ago Today: Abraham Lincoln’s Second Inaugural Address, March 4, 1989

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Weeks of wet weather preceding Lincoln’s second inauguration had caused Pennsylvania Avenue to become a sea of mud and standing water. Thousands of spectators stood in thick mud at the Capitol grounds to hear the President. As he stood on the East Portico to take the executive oath, the completed Capitol dome over the President’s head was a physical reminder of the resolve of his Administration throughout the years of civil war. Chief Justice Salmon Chase administered the oath of office. In little more than a month, the President would be assassinated.

Fellow-Countrymen:

At this second appearing to take the oath of the Presidential office there is less occasion for an extended address than there was at the first. Then a statement somewhat in detail of a course to be pursued seemed fitting and proper. Now, at the expiration of four years, during which public lincolndeclarations have been constantly called forth on every point and phase of the great contest which still absorbs the attention and engrosses the energies of the nation, little that is new could be presented. The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself, and it is, I trust, reasonably satisfactory and encouraging to all. With high hope for the future, no prediction in regard to it is ventured.

On the occasion corresponding to this four years ago all thoughts were anxiously directed to an impending civil war. All dreaded it, all sought to avert it. While the inaugural address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war—seeking to dissolve the Union and divide effects by negotiation. Both parties deprecated war, but one of them would make war rather than let the nation survive, and the other would accept war rather than let it perish, and the war came.

One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God’s assistance in wringing their bread from the sweat of other men’s faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes. “Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.” If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”  Read the rest of this entry »


Judge Strikes Down Ohio Law Criminalizing False Political Speech: Amicus Curiae Brief Filed on Behalf of the Plaintiff by P.J. O’Rourke

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Over at The CornerIan Tuttle has two items concerning an Ohio free speech court ruling:

An Ohio federal judge landed a blow for free-speech advocates on Thursday, striking down a law that gave the state government the right to regulate political speech it deemed false.

New Hampshire Voters Head To The Polls For State's Primary

Under the law, it was illegal to “post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” According to U.S. District Court judge Timothy Black’s decision: “We do not want the government (i.e., the Ohio Elections Commission) deciding what is political truth – for fear that the government might persecute those who criticize it. Instead, in a democracy, the voters should decide.”

Politico reports the details of the suit here.Lunch with PJ O'Rourke

National Review Online

Then there’s this:

P. J. O’Rourke’s Defense of Truthiness – O’Rourke’s brief here

noted [above] U.S. District Court judge Timothy Black’s ruling yesterday striking down an Ohio law that allowed the state election commission to censor “false” political speech.

The judge’s decision is a good one, but the best reading in the case is an amicus curiae brief filed on behalf of the plaintiff — by none other than right-wing humorist P.J. O’Rourke. “The case concerns amici,” he writes, “because the law at issue undermines the First Amendment’s protection of the serious business of making politics funny.” Read the rest of this entry »