President Donald Trump is growing his brand in China.
David Francis reports: According to a report from the Associated Press, the Chinese government has approved nine Trump trademarks it had earlier rejected, in whole or in part. The latest development is likely to add to the growing controversy over Trump’s potential conflicts of interest, and especially charges that he could be in violation of the emolument clause of the U.S. Constitution, which is supposed to prevent a sitting president from gaining a financial benefit from foreign nations.
There are now three lawsuits alleging the president is violating the Constitution by refusing to put his assets into a blind trust; Trump has put his son in charge of managing his many business dealings. Trump’s new Washington hotel is a particular sore spot, since many visiting delegations stay there. One was filed by nearly 200 Congressional Democrats Wednesday; a joint one was filed by the attorney generals of Washington, D.C. and Maryland; and a similar suit was filed by the watchdog Citizens for Responsibility and Ethics in Washington.
Benefitting from foreign governments, whether through hotel bills or the granting of trademarks, lie at the center of all these cases. In the case of the China trademarks, records don’t show why these requests were initially rejected or why they were reconsidered. Read the rest of this entry »
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 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.” Read the rest of this entry »
USCIS, which handles immigration cases and the distribution of green cards, was found to have produced at least 19,000 green cards during the past three years that were duplicates or contained incorrect information.
During the same period, more than 200,000 green card holders reported their cards missing and an increasing number of cards were sent to incorrect addresses, posing a risk to national security.
USCIS, which handles immigration cases and the distribution of green cards, was found to have produced at least 19,000 green cards during the past three years that were duplicates or contained incorrect information, according to a new report by the Department of Homeland Security’s inspector general. Read the rest of this entry »
Do you understand what the Electoral College is? Or how it works? Or why America uses it to elect its presidents instead of just using a straight popular vote? Author, lawyer and Electoral College expert Tara Ross does, and she explains that to understand the Electoral College is to understand American democracy.
Hillsdale College President Larry P. Arnn, National Review Senior Editor Jonah Goldberg, and Professor of Political Science John Marini discuss presidential candidate Donald J. Trump‘s role in conservatism in America.
Hillsdale College’s annual Constitution Day event celebrates the signing of the United States Constitution with lectures and panel discussions about the history of the Constitution and constitutional issues facing the nation today.
Jonathan S. Tobin writes: In his speech to the nation last night on terrorism, the only subjects about which the president seemed to muster much passion was his support for more gun control and his opposition to any targeting of Muslims. The reaction to these comments has been mixed. Republican presidential candidates said that Obama was using the issue to distract the public from his failures in the war against ISIS. Yet the very act of questioning the president’s seemingly anodyne defense of a minority group is being treated in some quarters as proof in and of itself of bias.
“It needs to be stated that bias against any faith is wrong and very much in opposition to American values. But the problem here is, as Marco Rubio aptly pointed out yesterday, that there is no evidence of widespread discrimination against Muslims. “
Like the recent debate about welcoming Syrian refugees, the question of discrimination against American Muslims is being set up by liberals as not merely a question of right and wrong but of how best to counter ISIS’s claims that a clash of civilizations is taking place as well as how to undermine the terror group’s recruiting effort. Yet as much as the entire discussion seems like either an intellectual dead end or a trap for conservatives, the effort to transform fears about terrorism into a debate about Islamophobia is actually one worth discussing. Far from merely a diversion, the push to change the narrative about Paris and San Bernardino from one of Islamist hate to victimization of Muslims is key to understanding everything that is wrong with the administration’s failure to address the threat from ISIS.
“Throughout the last decade, and most spectacularly during the debate about an ultimately stillborn plan to build a mosque/Muslim community center at the site of one of the buildings destroyed during the attack on the World Trade Center, discussion of this mythical backlash got relentless play in the media.”
The president’s point is that anything that might alienate Muslims either abroad or at home is a gift to ISIS. The president argued after the Paris attacks that what happened there couldn’t happen here because — in contrast to the experience in Europe — of America’s acceptance of religious minorities. But now he takes the position that an overreaction to San Bernardino will provide ISIS with ammunition and allow it to argue that the West really is at war against all Muslims. That’s a pitch that will presumably help persuade more people to join their cause.
“That was partly the result of successful campaigns by groups that are largely sympathetic to Islamist beliefs like the Council on American-Islamic Relations (CAIR), which was founded as a political front for an effort to fundraise for Hamas terrorists to promote this cause. But liberal media outlets also embraced this theme.”
Moreover, even before San Bernardino, much of the mainstream media took it as a given that the debate about Syrian refugees proved a backlash against Muslims was under way. Americans were being judged as guilty until proven innocent of the charge of Islamophobia with the stakes in the battle being nothing less than the defense of basic American values.
It needs to be stated that bias against any faith is wrong and very much in opposition to American values. But the problem here is, as Marco Rubio aptly pointed out yesterday, that there is no evidence of widespread discrimination against Muslims. Indeed, even if we were only to focus on Donald Trump’s comments about monitoring mosques or profiling, it’s clear that what is being discussed even by someone who is less than precise in his rhetoric or his focus, are efforts to monitor Islamists fomenting terror, not an attempt to make Muslims second-class citizens. Trump is being accused of wanting to give Muslims the same blatantly illegal and unjust treatment Franklin Roosevelt meted out to Japanese-Americans during World War II. But nobody, not even Trump (who outrageously suggested today banning Muslim immigration of any kind) or Ben Carson (who has also crossed the line of decency with some unconstitutional suggestions), is suggesting anything even remotely comparable.
What is most discouraging about this discussion is that it is nothing new. Every since the 9/11 attacks we have been told that Muslims were undergoing some sort of terrible backlash as the result of those crimes. Yet, as Rubio rightly points out, there has never been any statistical proof that Muslims have undergone the kind of hardships that are being alleged. To the contrary, since 2001 FBI hate crime statistics have consistently shown that Muslims suffer far less from religion-based attacks than Jews. Read the rest of this entry »
Live from the Cato Institute: Magna Carta and Modern Controversies from Multiculturalism to Political CorrectnessPosted: September 9, 2015
Featuring the author David Starkey, Author, Magna Carta: The Medieval Roots of Modern Politics, and BBC Radio and Television Presenter; with comments by Jonah Goldberg, Senior Editor, National Review and author of The Tyranny of Clichés; moderated by Marian L. Tupy, Senior Policy Analyst, Center for Liberty and Prosperity, Cato Institute.
The Magna Carta was a milestone that circumscribed the power of the sovereign for the first time in human history. In his new book, distinguished British historian and television personality David Starkey looks at the origins of the Great Charter in the 13th century, its significant early revisions, and the ways in which it has been interpreted and reinterpreted by subsequent generations.
Starkey explains how core principles of this quintessentially English document migrated to the North American colonies and eventually became the cornerstone of the U.S. Constitution. He also explores how the Magna Carta indirectly led to the enshrinement of human rights in such documents as the Bill of Rights. Please join us for a discussion of the past and current state of constitutional politics in the western world—including the assault on our freedoms by the proponents of multiculturalism and political correctness.
This event is happening now. Watch it on video live from the Cato Institute and join the conversation on Twitter with the hashtag #CatoEvents. Also follow @CatoEvents on Twitter to get future event updates, live streams, and videos from the Cato Institute.
Source: Cato Institute
Was the Constitution written in a way that was designed to protect freedom and limit the government’s size? Has it been effective in doing that? And what’s the Supreme Court’s record when it comes to protecting our rights? Robert George, Professor of Jurisprudence at Princeton University, answers these questions and more.
Another Overreach from Obama’s EPA
“A few things are going on here. One is that the president is positioning himself to ride into Paris on a white charger when world leaders convene there to negotiate a broad emissions treaty — a treaty that the U.S. Senate under Republican control is unlikely to ratify. The ratification of the treaty is not the object; the rejection of the treaty is the object, giving Democrats a low-cost opportunity to engage in moral preening on the environment and to tsk-tsk Republicans and their purportedly anti-science attitudes. The second thing that this accomplishes is that coal companies, business organizations in coal-heavy states, and their political allies — not habitual friends of the progressive wing of the Democratic party — will be obliged to spend millions or billions of dollars and countless man-hours defending themselves against the new mandate, while hedge-funders long on politically connected green-energy companies — prominent sponsors of many Democratic endeavors — will be enriched.”
“Everybody knows me to be a progressive or a liberal or lefty or whatever. I think of myself as a bleeding-heart conservative. You will not f— with my Bill of Rights, my Constitution, my guarantees of political justice for all. But does my heart bleed for those who need help and aren’t getting the justice that the country promises them and the equal opportunity the country promises? Yes. I’m a bleeding heart, but I think myself to be a total social conservative. The people who are running just don’t seem to have America on their minds, not the America I think about. When I was a kid we were in love with America. As early as I can remember, there was a civics class in my public school. And I was in love with those things that guaranteed freedom before I learned that there were people who hated me because I was Jewish. I had a Bill of Rights and a Constitution, those words out of the Declaration that protected me. And I knew about that because we had civics in class. We don’t have that much in the country anymore. So before World War II or shortly after, we were in love with America because we understood what it was about and that’s what we were in love with. I believe everybody’s patriotic today. Everybody loves America. But I don’t need their flag plans to prove it. I’d like to go back to civics lessons.”
Who said it?
Answer after the jump. Read the rest of this entry »
‘It’s the only amendment that’s obscurely written’. People should be allowed have guns if they ‘participate in a militia’, only.
Awr Hawkins writes: In a July 23 interview published in the New York Observer, actor Richard Dreyfuss said he would like to rewrite the 2nd Amendment to make it clear it applies to the militia rather than individual rights.
Dreyfuss said this after being asked, “What was the Founding Fathers’ biggest mistake” and “What article of the Constitution would you rewrite?”
Of Course They Do
Adam Taylor writes: As America stumbles its way through the early stages of Donald Trump’s unlikely and uncomfortable bid for the presidency, some here are wondering what exactly Trump says about the nation.
“Do other national cultures create men like Donald Trump?” Atlantic writer Jeffrey Goldberg asked on Twitter. “Asking for the United States.”
Goldberg probably asked that question in jest, but there may be real concern behind it. To many, Trump’s political career seems to combine three ugly undercurrents of US politics: the outsize role of money, the never-ending campaign season, and America’s embrace of reactionary celebrity figures.
So do other countries really have their own Donald Trumps? Well, yes, of course they do. When Goldberg asked his question, there was a flood of responses from foreign readers, who pointed to their own rich and rude political figures. Some comparisons don’t quite seem fair (you may dislike Dominique Strauss-Kahn or Nigel Farage, but their faults and virtues are different from Trump’s), many, many other suggestions did seem apt.
Trump is a product of American society, but he’s not unique. His mixture of murky wealth, extreme arrogance and vulgar chauvinism can be found all over the world, albeit with local spins. Here are just a handful of the world’s other Donald Trumps.
One of the best-known examples of a foreign Trump might be Silvio Berlusconi, the business magnate who was Italy’s prime minister for about nine years in total. Berlusconi, like Trump, espoused an entrepreneurial spirit but soon became better known for his misdemeanours and odd behaviour: One time, he hid behind a monument and jumped out to scare German leader Angela Merkel, shouting, “Coo-coo” (“She enjoyed it,” Berlusconi later said). Like Trump, he even has an intriguing hairstyle….(read more)
Clive Palmer, an Australian billionaire, certainly creates Trump-size headlines. He has plans to construct a replica of the Titanic. He wants to open his own “Jurassic Park.” He has accused his political opponents of being funded by the CIA. He has called Chinese officials “mongrels” (and later apologised).
The similarities between the two go beyond headlines and money, however….(read more)
China is a country full of very rich people, and often these very rich people have deep political ambitions. However, it’s possible that Chen Guangbiao is the only one who can match Trump for sheer arrogance.
There are numerous examples of how big Chen’s ego is, including his audacious and doomed attempt to buy The New York Times and his insistence on singing at media events. Perhaps the best example of Chen’s ego, however, is a business card he handed to me in 2013….(read more)
While Vladimir Zhirinovsky, the loud-mouthed Russian politician who founded the Liberal Democratic Party in 1990, may lack the business credentials of Trump (his background is in the military), he has a habit of making statements that suggest a kinship with the American businessman.
For example, he suggests arming every single person in Russia so they can kill birds….(read more)
In many parts of Central and Eastern Europe, business success and political populism mingle, creating fertile grounds for local variants of Trumps. Read the rest of this entry »
“Conservatives see the Constitution as a set of rules that must be followed, while liberals see it as a box of tools that can be used to put their policies into effect.”
Fred Schwarz writes:
…Progressives (or technocrats) act as if the Constitution had a hidden clause: “The purpose of this document is to promote equality and fairness, and every part of it must be interpreted in accordance with that goal.” We’ve all heard the story about the time Learned Hand, after lunch with Oliver Wendell Holmes, said in parting, “Do justice, sir,” to which Holmes shook his head and replied, “My job is to apply the law.” This story would bewilder a modern progressive, to whom those are just two slightly different ways of saying, “Enact progressive social policy.”
“And if you have to use a chisel as a screwdriver or bang in nails with a pair of pliers, it’s no problem as long as the thing gets built.”
I wrote in a book review once that the basic distinction between Right and Left when it comes to the Constitution is “rules vs. tools”: Conservatives see the Constitution as a set of rules that must be followed, while liberals see it as a box of tools that can be used to put their policies into effect. And if you have to use a chisel as a screwdriver or bang in nails with a pair of pliers, it’s no problem as long as the thing gets built.
It’s not so much a matter of ends justifying means as of ends creating means: If a given interpretation will lead to “social justice,” that in itself makes the interpretation correct. This principle turns the 14th Amendment into a Swiss Army knife and the Commerce Clause into a roll of duct tape. Read the rest of this entry »
WASHINGTON (Reuters) – Lawrence Hurley reports: Tensions are building inside and outside the white marble facade of the U.S. Supreme Court building as the nine justices prepare to issue major rulings on gay marriage and President Barack Obama’s healthcare law by the end of the month.
Of the 11 cases left to decide, the biggest are a challenge by gay couples to state laws banning same-sex marriage and a conservative challenge to subsidies provided under the Obamacare law to help low- and middle-income people buy health insurance that could lead to millions of people losing medical coverage.
Many legal experts predict the court will legalize gay marriage nationwide by finding that the U.S. Constitution’s guarantees of equal treatment under the law and due process prohibit states from banning same-sex nuptials.
The four liberal justices are expected to support same-sex marriage, and conservative Justice Anthony Kennedy, the expected swing vote, has a history of backing gay rights.
In three key decisions since 1996, Kennedy has broadened the court’s view of equality for gays. The most recent was a 2013 case in which the court struck down a federal law denying benefits to married same-sex couples.
During oral arguments in the gay marriage case on April 28, Kennedy posed tough questions to lawyers from both sides but stressed the nobility and dignity of same-sex couples.
The healthcare decision is tougher to call. Chief Justice John Roberts, the swing vote when the court upheld Obamacare in 2012, said little during the March 4 oral argument to indicate how he will vote. Read the rest of this entry »
The Obama-tied leftist group that helped a gunman commit an act of terrorism against a conservative organization has assembled a starter kit for Islamists to attack American women who refuse to comply with Sharia law, the authoritarian doctrine that inspires Islamists and their jihadism.
It’s the summer special from the Southern Poverty Law Center (SPLC), an extremist nonprofit that lists conservative organizations that disagree with it on social issues on a catalogue of “hate groups.” A few years ago a gunman received a 25-year prison sentence for carrying out the politically-motivated shooting of the Family Research Council (FRC) headquarters after admitting that he learned about the FRC from the SPLC “hate map.” Prosecutors called it an act of terrorism and recommended a 45-year sentence.
Now the SPLC, which has conducted diversity training for the Obama Department of Justice (DOJ), is targeting female bloggers, activists and television personalities who refuse to comply with Sharia law which is rooted in the Quran. The European Court on Human rights has repeatedly ruled that Sharia is “incompatible with the fundamental principles of democracy” yet politically-connected radical Muslim groups—such as the Council on American Islamic Relations (CAIR)—keep pushing to implement it in the United States and the movement has gained steam.
Among those resisting this effort publicly are the high-profile women being targeted by the SPLC. Some of them are colleagues or friends of Judicial Watch and now they must fear for their safety simply for practicing their rights under the U.S. Constitution. The new hate list is titled Women Against Islam/The Dirty Dozen and includes illustrations and detailed information on all the women, who are branded “the core of the anti-Muslim radical right.” The new SPLC hate brochure further targets them by claiming that they’re “a dozen of the most hardline anti-Muslim women activists in America.”
Political activist and commentator Pamela Geller is branded the “country’s most flamboyant and visible Muslim-basher” for, among other things “smearing and demonizing Muslims.” Blogger Ann Barnhardt is identified as one of the “most extreme Muslim-bashers in the United States” and radio talk-show host Laura Ingram made the list for saying that hundreds of millions of Muslims were delighted that 12 people were massacred by Islamic terrorists in the Paris headquarters of a satirical magazine. Read the rest of this entry »
Neutralized by Legal Setbacks, Obama Administration Appears to Stop Work on its Illegal Illegal Immigration ProgramPosted: June 8, 2015
Jerry Markon reports: A series of legal setbacks have halted the government’s intensive preparations to move forward with President Obama’s executive actions shielding millions of illegal immigrants from deportation, even as community organizations continue a rapid push to get ready for the programs, according to U.S. officials and immigrant advocacy groups.
“After Texas and 25 other states sued the administration, calling the moves unconstitutional, a federal judge in Texas in February put them on hold until the case is resolved. A federal appeals court recently upheld that injunction, with legal observers now saying the court fight could last until late in Obama’s term.”
Since a federal judge first blocked the new programs in February, the Department of Homeland Security has suspended plans to hire up to 3,100 new employees, most of whom would be
housed in an 11-story building the government has leased for $7.8 million a year in Arlington, Va. That building, in the Crystal City area, is now sittig mostly unused, DHS employees say.
“The legal battle highlights the explosive nature of the immigration debate, which has emerged as an early issue in the 2016 presidential race even as immigration legislation remains stalled in Congress.”
Yet inside and outside the Beltway, community groups are mobilizing, educating immigrants and training volunteers to help them apply for relief, even though it remains unclear whether the program will ever begin. Most recently, a foundation headed by billionaire George Soros, undaunted by the court rulings, pledged at least $8 million to that effort.
“We’re full speed ahead,” said Josh Hoyt, executive director of the Chicago-based National Partnership for New Americans, a coalition of pro-immigrant groups that have held more than 700 information sessions on the new programs and trained more than 2,000 volunteers to aid immigrants in applying for them.
Obama announced in November that up to 5 million illegal immigrants would be eligible to be shielded from deportation — including undocumented parents of U.S. citizens and legal permanent residents — as long as they met certain criteria. One of the signature initiatives of his presidency, the plan also expands a 2012 program that has deferred the deportations of more than 600,000 immigrants brought to the United States illegally as children and has granted most of them work permits.
“The fate of Obama’s executive action benefiting immigrant parents, known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, will resonate into the next administration.”
But after Texas and 25 other states sued the administration, calling the moves unconstitutional, a federal judge in Texas in February put them on hold until the case is resolved. A federal appeals court recently upheld that injunction, with legal observers now saying the court fight could last until late in Obama’s term. The 2012 program remains unaffected.
“As soon as Obama took his actions on Nov. 20, U.S. Citizenship and Immigration Services ‘immediately began efforts to implement those initiatives,’ said Marsha Catron, a DHS spokeswoman. The next day, the agency leased a 280,000-square-foot building on Crystal Drive in Crystal City to house DAPA employees, according to DHS documents sent to Congress.”
The legal battle highlights the explosive nature of the immigration debate, which has emerged as an early issue in the 2016 presidential race even as immigration legislation remains stalled in Congress. The fate of Obama’s executive action benefiting immigrant parents, known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, will resonate into the next administration. Most Republican presidential candidates have pledged to overturn Obama’s immigration actions, while leading Democratic candidate Hillary Rodham Clinton has strongly endorsed them.
“The building came fully furnished but required about $26 million in start-up costs, including $2.7 million for workstation and desktop equipment, documents show.”
As soon as Obama took his actions on Nov. 20, U.S. Citizenship and Immigration Services “immediately began efforts to implement those initiatives,’’ said Marsha Catron, a DHS spokeswoman. The next day, the agency leased a 280,000-square-foot building on Crystal Drive in Crystal City to house DAPA employees, according to DHS documents sent to Congress.
“Most recently, a foundation headed by billionaire George Soros, undaunted by the court rulings, pledged at least $8 million to that effort.”
The building came fully furnished but required about $26 million in start-up costs, including $2.7 million for workstation and desktop equipment, documents show. Those costs were to be funded with fees collected from immigrants who had applied for other government programs, and DHS says DAPA would have no impact on any existing programs. Read the rest of this entry »
Jordan Schachtel reports: Saudi Arabia’s Commission for the Promotion of Virtue and Prevention of Vice, known as “Haia” in the Wahhabi Kingdom, has arrived on Twitter under the verified username @PvGovSa.
“Haia can arrest anyone for violating Islamic customs and dietary laws, such as women smoking, couples celebrating Valentine’s Day, or either gender eating pork or consuming alcohol.”
“Abdul Rahman Al-Sanad, president of the commission, inaugurated the account and announced the formation of a higher committee for media and public relations to improve the Haia’s public image,” the Saudi Gazettereports.
The group’s initial tweet read, “In the name of Allah and Allah’s blessing kicks off the official account of the General Presidency for the Promotion of Virtue and Prevention of Vice on Twitter asking Allah to benefit by everyone.”
“Several controversial acts have embroiled the Sharia-enforcement agency over the years. In 2002, 15 young Saudi girls died from burns and smoke inhalation after the religious police prevented them from leaving their school while it was on fire.”
The religious entity patrols the streets ensuring that individuals, particularly women, are maintaining a Sharia-compliant lifestyle, which includes dressing properly (wearing a full cloak) and remaining separated from men at all times. The Haia agency is also known for enforcing Saudi Arabia’s ban on female automobile drivers. Read the rest of this entry »
[BOOKS] Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940, by Daniel R. ErnstPosted: March 4, 2015
Review of TOCQUEVILLE’S NIGHTMARE: The Administrative State Emerges in America, 1900-1940, by Daniel R. Ernst Oxford University Press, 2014
ADRIAN VERMEULE is the John H. Watson Professor of Law at Harvard Law School. He is the author or co-author of eight books on public law and legal theory, most recently The Constitution of Risk (2014).
Adrian Vermeile writes: Although Dan Ernst ends his account of the emergence of the American administrative state in 1940, the true climax, at least from the lawyer’s point of view, occurs in 1932. In that year the great Chief Justice Charles Evans Hughes undertook his titanic effort to forge a charter of compromise, a treaty of peace, between the administrative state and the rule of law. The case was Crowell v. Benson, involving an agency charged with deciding workman’s compensation cases involving injured maritime workers.
“The mid-century attempt to domesticate the American administrative state, described so skillfully by Ernst, ultimately came undone, and it is a live question whether anything else has taken its place.”
Hughes’s opinion in many ways laid down lines of demarcation that were written into the Administrative Procedure Act of 1946, the great framework statute or quasi-constitution of the administrative state. It is a tribute to Hughes that his effort created an equilibrium that outlasted the turbulent years of his Chief Justiceship — despite the intervening constitutional revolution of 1937, after which the courts stopped trying to enforce narrow readings of the national government’s power over interstate commerce, and stopped trying to police statutory grants of authority from Congress to the executive (the so-called “nondelegation doctrine”).
Having paid due tribute, however, it must be said that the equilibrium Hughes brought into being is a thing of the past. The line of demarcation between administration and law, the frontier of the administrative state, has shifted markedly, with law giving way to administration across almost every margin identified in Crowell — in large part because law has abnegated its authority to administration. Ernst is not wholly clear about whether the equilibrium he identifies persists all the way into the present, doubtless because the story from 1940 to the present is not the story he is trying to tell. But to understand the significance of his book, it is important to understand that what it offers is a portrait of a particular equilibrium, one that has since vanished. The mid-century attempt to domesticate the American administrative state, described so skillfully by Ernst, ultimately came undone, and it is a live question whether anything else has taken its place.
“Ernst’s narrative is highly readable and strikes just the right balance among the historian’s love of detail, the lawyer’s need for conceptual organization, and the political theorist’s addiction to high-level principles.”
Ernst’s narrative is highly readable and strikes just the right balance among the historian’s love of detail, the lawyer’s need for conceptual organization, and the political theorist’s addiction to high-level principles. Let me begin with the level of political and constitutional theory. The high-level frame of the book is a choice or contest among possible visions of the relationship between law and administration. Traditional lawyers were afflicted by “Tocqueville’s nightmare,” a vision of a centralized administration abusing its powers and trampling on legal rights. (The nightmare persists, of course, as Philip Hamburger’s recent book shows). The main alternatives or competitors may be understood as different conceptions of “the rule of law.”
One alternative, championed by Ernst Freund, was the German idea of the Rechtsstaat — the rule-of-law state founded on clear positive enactments that would fix the metes and bounds “where the sovereign’s will prevailed and where it yielded to the will of the individual” (p. 2). The Rechtsstaat ideal, however, lost out to a different conception of the rule of law, championed by Hughes among others — a modified and updated version of Albert Venn Dicey’s ideal that subjected all official action to review by ordinary common-law courts.
“…perhaps the major expansion of the administrative state since Crowellhas come not in the areas it addressed, but in an area it said almost nothing about: agency rulemaking. Agencies may act like little courts, as in Crowell, or like little legislatures, making general rules with the force and effect of law.”
After the emergence of the administrative state, the original version of the Diceyan ideal was a non-starter. Ernst shows convincingly that even some traditional lawyers came to understand and appreciate the expertise and efficiency of relatively nonpolitical agencies, who were more professional and less liable to be overrun by patronage politics than other potential suppliers of lawmaking, such as legislative committees, and more knowledgeable and less expensive than the common-law judges and the elaborate processes of litigation. Such lawyers reinvented themselves as transactional engineers, shepherding clients through the administrative process — not “officers of the court” but “officers of the state” (6). Yet lawyers like Hughes also worked to translate or adapt Dicey’s commitments in the new environment, developing an approach that retained a crucial role for judicial review of administrative action. As Richard Fallon has observed in a different but related context, the translated Diceyan approach attempted not so much to get every given case right, but instead to provide an overall scheme of review that would suffice to keep the administrative state within the bounds of law. Read the rest of this entry »
MADISON (WITI/AP) — Gov. Scott Walker is using his inaugural address to tout his record in Wisconsin, and draw a contrast with the federal government, as he considers a run for president.
Walker said in his inaugural speech Monday that the nation’s founders looked to states, not the federal government, as the source of hope for the country. He says, “We will not let them down.”
Walker also says that “in contrast to the politicians along the Potomac, we get things done here in the Badger State.”
Walker also says in his speech that he is dedicated to reducing the size of government and building the needed infrastructure to support a thriving economy.
Below are Governor Walker’s complete remarks:
Today, I thank God for His grace; for the privilege of living in such a remarkable country; and for growing up in the greatest state in the nation. As the son of a small town pastor and a part-time secretary in Delavan, it is quite an honor to serve as your Governor. Thank you for that cherished opportunity.
I want to thank my family: Tonette—who is my rock and an amazing First Lady; our sons, Matt and Alex—who have done an outstanding job serving as our masters of ceremony here today; my parents, Llew and Pat Walker—who always set a powerful example of how to serve others; my brother, David, sister-in-law, Maria, and their girls, Isabella and Eva; and to all of my other family members—I am grateful for all of your tremendous love and devotion.
Thanks go out to all who are participants in our ceremony today. I am particularly grateful to the members of the 132nd Army Band and all of the other members of the Wisconsin National Guard—not only for your services today, but for the ongoing support of our many brave men and women who are deployed even as we speak. Our prayers go out to each and every one of you.
And a special thank you as well to all of our outstanding veterans who served our country so faithfully. We salute you.
And thank you to all of the people across Wisconsin who have offered your support and prayers to my family. We are so very grateful. Read the rest of this entry »
UNENFORCEABLE i594: Washington Gun Owners Stage Mass Civil Disobedience Protest in Defiance of New Background Check LawPosted: December 13, 2014
OLYMPIA, Wash. — Thousands of gun-rights advocates are rallying outside the Capitol to protest a new expanded gun background check law in Washington state.
Saturday’s protest is called the “I Will Not Comply” rally, and those attending say they will openly exchange firearms in opposition to the state’s new voter-approved universal background check law, Initiative 594.
The law, which took effect on Dec. 4, requires background checks on all sales and transfers, including private transactions and many loans and gifts…(AP)
Reason.com‘s J.D. Tuccille reports: Tens of thousands of Connecticut gun owners chose to become overnight felons rather than comply with that state’s new gun registration law. The defiance spurred the Hartford Courant editorial board to impotently sputter about rounding up the scofflaws.
New York’s similar registration law suffers such low compliance that state officials won’t even reveal how many people have abide by the measure—a desperate secrecy ploy that the New York State Committee on Open Government says thumbs its nose at the law itself.
Now Washington state residents pissed off about i594, a ballot measure inflicting background check requirements on even private transactions, plan an exercise in mass disobedience…
The fellow getting much of the credit for organizing the rally is Gavin Seim, a former (unsuccessful) congressional candidate and passionate conservative. Seim got a lot of buzz last month when he pulled over an unmarked police car and demanded that the officer show identification. Perhaps surprisingly, Seim not only wasn’t ventilated, but the officer complied.
Seim and his allies (the Facebook event page lists Kit Lange Carroll, Sondra Seim, and Anthony P. Bosworth as co-hosts) plan a rally for the Washington State Capitol, in Olympia, on December 13 at 11am PST. That’s nine days after the law goes into effect. So far, almost 6,000 people have indicated their intention to attend and “exchange guns” without going through a background check, in defiance of the new requirements. Read the rest of this entry »
Michael Patrick Leahy writes: Conservative talkradio host Mark Levin made news Thursday when he addressed the annual conference of the American Legislative Exchange Council (ALEC), a “non-partisan membership association of state lawmakers,” and it wasn’t just because he reiterated his call for an Article V “Convention of the States” to propose new amendments to the Constitution.
On Thursday, Levin framed the Article V Convention of the States as the beginning of the process in which state legislators can reassert their constitutional power and become, in effect, the kind of check on the out-of-control federal government the framers expected the three branches of federal government they created in the Constitution would be on each other.
“Take your power back,” Levin told the enthusiastic crowd of state legislators from around the country.
Watch Levin’s entire speech here:
Critics who claim an Article V Convention could become a “Runaway Constitutional Convention” miss the point entirely, Levin said. Critics think such a convention would have no impact, as the federal government is ignoring the Constitution already and would have little reason to observe any amendments, subsequently ratified by the states, that emerged from the Convention of the States.
“So if you ask me what makes you think the federal government will follow amendments to the Constitution if it won’t follow the Constitution today, then you don’t understand this process,” Levin told the audience.
“By giving the state legislatures the ultimate say on major federal laws, on major federal regulations, on major Supreme Court decisions, should 3/5 of state legislatures act to override them within a two year period,” Levin said, ” it doesn’t much matter what Washington does or doesn’t. It matters what you do.”
“The goal is to limit the entrenchment of Washington’s ruling class,” he stated. Read the rest of this entry »
The United States Constitution says the legislative power is held by Congress, not by the president.
“…what you are not paying attention to is the fact that I just took an action to change the law.”
The White House has argued that President Obama’s executive amnesty order last week was made well within the existing law. But in remarks in Chicago tonight, President Obama went off script and admitted that in fact he unilaterally made changes to the law.
President Obama made the admission after getting heckled for several minutes by immigration protesters…. (read more)
“Listen, you know — here. Can I just say this, all right? I’ve listened to you. I heard you. I heard you. I heard you. All right? Now I have been respectful, I let you holler. All right? So let me just — nobody is removing you. I have heard you… (read more)
“Now, you’re absolutely right that there have been significant numbers of deportations. That’s true. But what you are not paying attention to is the fact that I just took an action to change the law.”
The Hong Kong pro-democracy protesters had planned to have some kind of vote yesterday on how they would go forward. But they didn’t. From the South China Morning Post, Hong Kong’s leading English-language newspaper:
Occupy Central protesters and observers yesterday backed an 11th-hour decision to scrap a poll on the way forward for the month-old sit-in, saying the move made it easier to enter into more talks with the government.
Protest leaders announced the U-turn hours before the electronic ballot was to start at 7pm and apologised for not having sufficiently discussed with demonstrators the poll’s methodology and objectives. But shelving it did not mean they had shifted their stance or intended to end the occupation, Federation of Students secretary general Alex Chow Yong-kang said.
Some protesters had said the poll was redundant. A huge banner that called for delaying the poll was hung from an Admiralty footbridge yesterday morning.
Occupy co-founder Benny Tai Yiu-ting said: “The public may feel there are problems with the movement’s organisation and leadership, and we admit that … I promise that in the future, we will give sufficient notice to and discuss with protesters before making a major formal decision.”
For me, the lesson in this story is that “democracy” is not a self-executing political panacea. Democracy has a value — a high value — as ONE element of a fair and well-ordered society. But democracy can only serve its proper function as a check on the tyranny of the state when it operates within a system of well-defined and transparent laws and institutions. It is not surprising to me that the vote called by the protesters did not happen. There was no framework of law and institutional operation within which it could happen.
The smartest lawyers and statesmen in the rebel colonies worked for many months to draft the Constitution of the United States before it was finally implemented. Doing this created the framework of laws and institutions in which democracy operated as only one dynamic part of a system that was crafted after extremely careful deliberation by some of the wisest men who have ever considered these issues. The Framers of the US Constitution did their work after putting in place a temporary structure — the Articles of Confederation — to ensure a stable environment for long enough to work out the permanent “political operating system” for their country. They did not do their work in the heated stress and passion of an armed rebellion against the Crown. They first made an imperfect compromise in the Articles of Confederation to buy themselves the time they knew it would take to work out a truly well-ordered system. My advice to the protesters: study history.
“For me, the lesson in this story is that “democracy” is not a self-executing political panacea. Democracy has a value — a high value — as ONE element of a fair and well-ordered society.”
The problem, of course, is that there is no time for study. The pro-democracy protesters have been improvising and responding to the largely pro-Beijing government’s actions from the beginning. They are working from a base that is fueled by legitimate passion for liberty and fear of tyranny, but without a well-established leadership operating within a widely-recognized and accepted organizational structure.
“But democracy can only serve its proper function as a check on the tyranny of the state when it operates within a system of well-defined and transparent laws and institutions.”
In any conflict, all things being equal, the side with the more easily achieved strategic goal and the larger number of tactical options will prevail. For better or worse, in this situation, the side with both of these advantages is the pro-establishment side. For the pro-Beijing Hong Kong government, the strategic “victory condition” is maintaining the status quo, and they have a broad range of tactical options along the spectrum of patiently waiting out the protesters on one end to forcefully removing them on the other. I fear the pro-democracy side may not really realize this or, if they do, can think of no tactical response other than “keep doing what we’re doing.” Without regard to the merits of either side’s goals, this makes the pro-democracy side’s strategic and tactical position very weak. Unless they realize this and adjust their strategy and tactics accordingly, the outcome for them does not look good.
“In any conflict, all things being equal, the side with the more easily achieved strategic goal and the larger number of tactical options will prevail. For better or worse, in this situation, the side with both of these advantages is the pro-establishment side.”
This grim picture is playing itself out in a situation where the largest number of the anti-establishment protesters are high school and college students, without strong and experienced leadership that has been tested over time, and without any organizational infrastructure to support the building of strategic or tactical consensus. Unless this situation changes, it looks increasingly unlikely that the pro-democracy movement will put itself into a situation where it can achieve a real “victory.” If their only tool is a “passion for democracy,” they cannot prevail.
You’ve Been Served: Foundation for Individual Rights in Education Mails First Amendment Warning to More Than 300 CollegesPosted: September 19, 2014
PHILADELPHIA, Sept. 17, 2014—In a national certified mailing sent today, the Foundation for Individual Rights in Education (FIRE) warns the leaders of more than 300 of our nation’s largest and most prestigious public colleges and universities that they risk First Amendment lawsuits by continuing to maintain speech codes that violate student and faculty rights. The letters are being mailed from the main post office near Independence Hall in Philadelphia today to mark the 227th anniversary of the signing of the U.S. Constitution.
“FIRE prefers to secure students’ and faculty members’ free speech rights by working cooperatively with colleges and universities. However, FIRE will not hesitate to turn to the courts when necessary.”
“58 percent of our nation’s public colleges and universities restrict student and faculty speech with blatantly unconstitutional policies, and 38 percent more enforce policies that are too easily abused to silence campus speech,” said Will Creeley, FIRE’s Director of Legal and Public Advocacy. “In July, FIRE launched our Stand Up For Speech Litigation Project by announcing four lawsuits against institutions that have violated student and faculty First Amendment rights. Now we’re putting public colleges and universities across the country on notice—and inviting them to work with FIRE to fix flawed policies before they’re challenged in court.”
“Throughout our 15 years defending student and faculty rights, FIRE has consistently coordinated successful First Amendment challenges against unconstitutional speech codes.”
The Madison Paradox and Obama’s Constitution Day Stealth Comment: Referring to Our Constitutional Rights as ‘Privileges’Posted: September 18, 2014
Maybe James Madison was right. Maybe the Bill of Rights wasn’t just unnecessary, it was a bad idea, destined to be viewed in the distant future exactly the wrong way
For United Liberty, Jason Pye catches Obama’s shaded wording, and writes a welcome blast of corrective historical clarity. Though I can’t resist including my own comments in the margins, the piece stands as testament to the power of word choices. Pye writes:
…In his presidential proclamation marking Constitution Day, President Barack Obama offered some insight into how he views the Bill of Rights. “Our Constitution reflects the values we cherish as a people and the ideals we strive for as a society,” Obama said in the release. “It secures the privileges we enjoy as citizens, but also demands participation, responsibility, and service to our country and to one another.”
“It secures the
rights privileges we enjoy as citizens, but also demands participation, responsibility, and service to our country and to one another.”
Given that this White House is known for its expansive view of executive power, the assertion that the rights guaranteed and protected under the Bill of Rights, the fact that President Obama views these fundamental liberties to be “privileges” isn’t too terribly surprising. After all, President Obama treats the legislative branch — which, again, is supposed to be a co-equal branch of the federal government — as an afterthought as it arbitrarily changes statues and even refuses to enforce laws.
But words matter. To say the rights secured by the Constitution are “privileges” implies that they can be revoked. Let’s put this another way: a high school-aged kid is given the privilege of taking their father’s car out to go hang out with friends, that is until they abuse it by getting caught speeding or into a car accident. The disappointed father would, no doubt, take away the privilege.
Rights and liberties, however, are based on a solid foundation. They can’t be taken away by some paternalistic president. The view of the framers was that the rights protected under the Bill of Rights existed before the formation of the federal government under the Constitution. In short, they were natural rights.
In fact, James Madison believed that a list of specific rights was unnecessary.
Though we celebrate the ratification of the Bill of Rights, I can’t help but interrupt to expand on Jason Pye‘s oversimplification — Madison didn’t believe that a list of specific rights was unnecessary, Madison and others believed listing individual rights would set a dangerous precedent. As illustrated in my half-remembered reading of Joseph J. Ellis’ “Founding Brothers” the dissenters wisely understood that making a special top-ten list of rights could lead to a troubling misperception that individual rights are limited, reducible to a specific list. Which could then be used to mislead future generations into accepting false limits.
It’s federal powers that are finite, narrow, and limited. So limited you could number them. (enumerated powers) Individual rights, as conceived by the founders–aren’t limited, they’re virtually infinite. Not reducible to a list. Enshrining some of them in a list would lead to, well, exactly the misunderstanding that persists to this day. The argument resisting an enumerated “Bill of Rights” wasn’t perfect, but it had merit. It showed foresight.
Jason Pye continues:
Thankfully, George Mason and others, to ensure ratification, convinced Madison to come up with proposals, ten of which were passed by Congress and approved by at least three-fifths of the states. Read the rest of this entry »
Sarah Palin Switches Sides, Supercharges Democratic Campaign Fundraising Efforts with Thrilling ‘Impeach Obama’ Democrat HelperPosted: July 12, 2014
In a surprising move, Sarah Palin joins forces with Democratic fundraisers to help boost campaign contributions, and increase Democrat voter turnout
“…The Constitution provides the remedy for a president who commits “high crimes and misdemeanors.” It’s impeachment…
To be clear, “high crimes and misdemeanors” are not necessarily ordinary criminal offenses. Our Framers used the term to signify a dereliction of duty, and the first duty of the president is to enforce our laws and preserve, protect, and defend our Constitution. Read the rest of this entry »
Jonah Goldberg‘s comments remind me that during the heated partisan debates about the IRS harassment scandal, the most basic question was often lost, or not even addressed: Why is the IRS in the business of regulating speech in the first place?
With its enormous police powers, self-protecting bureaucratic instincts, nearly a century of mission creep, pro-government political bias, and vast coercive powers, allowing the IRS to regulate speech is an obvious conflict of interests.
Harry Reid Wants to ‘Amend the First Amendment in Much the Same Way as the Iceberg Amended the Titanic’Posted: May 19, 2014
On May 15, Senate Majority Leader Harry Reid (D-NV) announced the Senate Judiciary Committee will hold a hearing on June 3 on amending the U.S. Constitution to limit political speech. If ultimately adopted, it would mark the first time in American history that a constitutional amendment rescinded a freedom listed as among the fundamental rights of the American people.
[For a more detailed exploration of this topic I recommend listening to NRO’s Charles Cooke and Kevin D. Williamson’s discussion, in their May 15th edition of Mad Dogs & Englishmen. (the ‘Titanic’ headline comes directly from a Cooke comment, about 1:14 minutes in) Also see Charles Cooke’s May 17th NRO article Harry’s Dirty Amendment.]
The proposed amendment was introduced by Sen. Tom Udall (D-CO) as S.J.R. 19 and if ratified would become the Twenty-Eighth Amendment. It provides in part that “Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect [to] the Federal elections … [and] State elections.” Read the rest of this entry »
For The Daily Caller, Robby Soave reports: Two students are suing the University of Hawaii for violating their First Amendment rights after administrator prevented them from distributing copies of the U.S. Constitution — demonstrating a frightening lack of knowledge about the very legal document they were attempting to censor.
“It’s not about your rights…”
— Ellen Kusano, director of Student Affairs
Students Merritt Burch and Anthony Vizzone, members of the Young Americans for Liberty chapter at UH-Hilo, were prevented from handing out copies of the Constitution at a recruitment event in January. A week later, they were again informed by a censorship-minded administrator that their First Amendment-protected activities were in violation of school policy.
The students were told that they could only distribute literature from within UH-Hilo’s “free speech zone,” a small, muddy, frequently-flooded area on the edge of campus.
Administrators further clarified their level of respect for students’ free speech rights, making comments like, “This isn’t really the ’60s anymore,” and “people can’t really protest like that anymore,” according to the Foundation for Individual Rights in Education.
The First Amendment has not been modified since the 1960s, however, and robustly protects the rights of students at public universities to hold non-disruptive protests, speak their mind and distribute literature. Read the rest of this entry »
“…I think that’s what should be the rule, that it should be legislatures rather than judges who draw the line on what is permissible.”
For National Review Online, Tim Cavanaugh writes: Retired Supreme Court Justice John Paul Stevens supports gutting the Second Amendment in order to remove any limit on government infringements on the right of self-defense.
In his new book Six Amendments: How and Why We Should Change the Constitution, Stevens — who generally favored maximum government power during his 35-year tenure on the high court — proposes, among other things, changing the language of the Second Amendment to the U.S. Constitution so that the amendment would read, “ . . . the right of the people to keep and bear arms [when serving in the militia] shall not be infringed.”
[Order Justice John Paul Stevens’s book Six Amendments: How and Why We Should Change the Constitution from Amazon]
New York Post front page for Thursday, April 10, 2014
Note: Hollywood’s — Rolling Stone’s — liberal ignorance is on display, as well as Julia’s exposed ass and side-boob. Julia’s cheeky “Constitution” tattoo? Good thing it’s not a real one! That John Hancock signature? Isn’t on the Constitution. It’s on the Declaration of Independence. John Hancock didn’t sign the Constitution. It’s only one of the most famous documents in the history of western civilization, so, you know, no big deal.
Great work, Rolling Stone. Bravo! They deserve all the hazing they’re getting.