Category Archives: Federalism

UPDATED (7/10): Kavanaugh Questions

Constitution, Federalism, Justice, Law, The Courts

Brett Kavanaugh, of the U.S. Court of Appeals for the D.C. Circuit, has been nominated to replace Justice Anthony Kennedy on the Supreme Court.

Kavanaugh comes from Administrative Law—was he good at fighting the Deep State?—was appointed and recently praised by George W. Bush, who gave us John Roberts, and George Washington University professor Jonathan Turley, who approved of Neil Gorsuch, suggests Kavanaugh is not an intellect of Gorsuch’s order.

For his part, libertarian-leaning Rep. Justin Amash (R­–Mich.) is openly unhappy. He tweets:

Kavanaugh is not another Gorsuch—not even close. Disappointing pick, particularly with respect to his 4th Amendment record. Future decisions on the constitutionality of government surveillance of Americans will be huge. We can’t afford a rubber stamp for the executive branch.

Randy Barnett, on the other hand, approves.

I don’t know that libertarians want “big fierce nominees,” but I see what Turley, an interesting thinker himself, is saying in the must-read op-ed, “Why ‘big fierce’ nominees are rare.”

An original thinker is always a good thing (and how few of those there are).

Supreme Court nominees. Most are not especially remarkable in their prior rulings or writings. They are selected largely for their ease of confirmation and other political criteria. Big fierce minds take too much time and energy to confirm, so White House teams look for jurists who ideally have never had an interesting thought or written an interesting thing in their increasingly short careers. … The last nominee was a remarkable departure from this judicial ecology rule. As I testified at his confirmation hearing, Neil Gorsuch was an intellect of the first order with a long list of insightful and provocative writings as both a judge and an author. …The history of Supreme Court nominations is largely one of planned mediocrity. The influential legal minds of a generation often are avoided for more furtive minds. … There is a difference between fierce ideology and fierce intellect. Many on the list of 25 judges stand out for commitment to conservative values but are not particularly distinguished in contributions to legal thought. Most fall closer to the mold of Samuel Alito and Clarence Thomas, as opposed to Antonin Scalia and Gorsuch.

Confirmations tend to reward young lawyers who avoid controversies to advancement on the Supreme Court.

Jonathan Turley cites Richard Posner and Robert Bork as examples of “big fierce minds,” which simply could not be countenanced on the mediocrity-necessitating SCOTUS.

Brilliant piece. Turley is brilliant.

UPDATE (7/10):

John G. Roberts Jr.? Please no.

‘What If Democrats Win Enough Seats In Congress To Override A Presidential Veto’?

Democrats, Elections, Federalism, Government, Labor, Welfare

The Conor Lamb victory in Pennsylvania raises the fear that, “When the mid-terms roll round, [Democrats] would win enough seats in Congress to override a presidential veto.”

Democrats far from the seats of power and from Nancy Pelosi’s orbit are looking to appeal to regular Americans, namely the Trump constituency.

* Duly, Lamb is “a former marine and federal prosecutor.” (Used to be the armed fores were squarely in the conservative camp.)

* Mr Lamb campaigned at rallies with unions, such as the steelworkers, the coalminers at a United Mine Workers.

* “Mr Lamb promised to protect pensions of union members as well as Social Security and Medicare benefits for all.”

* “Lamb was ‘a God-fearing, union-supporting, gun-owning, job-protecting, pension-defending, Social-Security-believing … sending-drug-dealers-to-jail Democrat,’ enthused Cecil Roberts, the union boss. The Democrats need more like him.”

MORE: “Conor Lamb has shown Democrats how to win in places they usually lose.”

The Importance Of Executive Orders In A Post-Constitutional Order

Constitution, Donald Trump, Federalism

An idea developed in my book, “The Trump revolution: The Donald’s Creative Destruction Deconstructed” (June, 2016),” rests on the importance of Executive Orders in a post-Constitutional order. Steve Bannon seemed to hold a similar view. An excerpt from Fire and Fury by Michael Wolff:

Bannon’s strategic view of government was shock and awe. In his head, he carried a set of decisive actions that would not just mark the new administration’s opening days but make it clear that nothing ever again would be the same. He had quietly assembled a list of more than 200 executive orders to issue in the first 100 days. The very first EO, in his view, had to be a crackdown on immigration. After all, it was one of Trump’s core campaign promises. Plus, Bannon knew, it was an issue that made liberals batshit mad.

Bannon could push through his agenda for a simple reason: because nobody in the administration really had a job. Priebus, as chief of staff, had to organize meetings, hire staff, and oversee the individual offices in the Executive-branch departments. But Bannon, Kushner, and Ivanka Trump had no specific responsibilities — they did what they wanted. And for Bannon, the will to get big things done was how big things got done. “Chaos was Steve’s strategy,” said Walsh.

On Friday, January 27 — only his eighth day in office — Trump signed an executive order issuing a sweeping exclusion of many Muslims from the United States. In his mania to seize the day, with almost no one in the federal government having seen it or even been aware of it, Bannon had succeeded in pushing through an executive order that overhauled U.S. immigration policy while bypassing the very agencies and personnel responsible for enforcing it.

The result was an emotional outpouring of horror and indignation from liberal media, terror in immigrant communities, tumultuous protests at major airports, confusion throughout the government, and, in the White House, an inundation of opprobrium from friends and family. What have you done? You have to undo this! You’re finished before you even start! But Bannon was satisfied. He could not have hoped to draw a more vivid line between Trump’s America and that of liberals. Almost the entire White House staff demanded to know: Why did we do this on a Friday, when it would hit the airports hardest and bring out the most protesters?

“Errr … that’s why,” said Bannon. “So the snowflakes would show up at the airports and riot.” That was the way to crush the liberals: Make them crazy and drag them to the left.

MORE.

We Live & Labor Under An Illiberal Administrative State. Is It Constitutional?

Constitution, Federalism, Government, libertarianism, Republicans

Libertarians have a healthy contempt for government agencies and department, most of which are not mentioned—and were not intended—by the Constitution. Republicans are responsible for the creation of quite a number of wealth-consuming, freedoms-gobbling agencies. Belatedly, they’ve discovered just how deeply crooked and dangerous is the Federal Bureau of Investigation, a fact Republicans were less inclined to admit under Genghis Bush.

So does the Constitution authorize all of the many law-making departments under which we labor? Over to Laurence M. Vance on “The Constitution versus the Executive-Branch Departments“:

It is apparent from reading Articles I and II of the Constitution that six of the current executive-branch departments have no constitutional justification whatsoever for their existence, four of them are apparently authorized by the Constitution, three of them might possibly be authorized by the Constitution, two of them should be combined with one of the other departments, and one is missing.

The Post Office Department that existed from 1792 until it became just the Postal Service in 1971 is clearly authorized by the Constitution in Article I, Section 8, Paragraph 7, where Congress is given the power “to establish Post Offices and post Roads.” It certainly makes more sense to have a Post Office Department than some of the other cabinet-level departments that are clearly unconstitutional.

The departments of Veterans Affairs and Homeland Security should both be subsumed under the Department of Defense, since that is what they relate to. We had military veterans for 200 years before the Department of Veterans Affairs was created in 1989. There is no reason that legitimate functions of this department could not be handled within the Department of Defense, instead of a bloated federal bureaucracy that is second in size only to the Department of Defense itself.

The same is true of the Department of Homeland Security. In only 10 short years it has grown to become the third-largest federal department. What is the point of having a Homeland Security Department if we already have a Defense Department? Any legitimate functions of the Department of Homeland Security (and they would certainly not include FEMA or the TSA), could and should be part of the Department of Defense.

There are three executive-branch departments whose constitutionality is dubious at best.

The only possible constitutional justification for the Department of Commerce is two mentions in Article I of the Constitution of Congress regulating commerce (Section 8, Paragraph 3 and Section 9, Paragraph 6). But if a cabinet-level department is needed to do that, then what did the government do without a Department of Commerce until 1903? The truth is that the government had no need of a Commerce Department until it started regulating commerce in an unconstitutional way beginning with the establishment of the Interstate Commerce Commission in 1887.

The Department of Transportation can only barely justify its existence by appealing to the previously mentioned phrase in Article I of the Constitution giving Congress the power “to establish Post Offices and post Roads.” But that means that the Department of Transportation should be limited to just “post Roads,” not mass transit and aviation. And of course, establishing “post Roads” could be done under the auspices of a Post Office Department.

The Department of the Interior is mainly concerned with federal lands. It now includes agencies such as the Bureau of Land Management, the National Park Service, the U.S. Fish and Wildlife Service, the U.S. Geological Survey, and the Bureau of Reclamation — the largest wholesaler of water in the country and the second-largest producer of hydroelectric power. But if ever we needed a Department of the Interior it was when the United States acquired the Northwest Territory (present-day Ohio, Indiana, Illinois, Michigan, Wisconsin, and part of Minnesota) after the Revolutionary War and purchased Louisiana from France (all or part of 15 current U.S. states).

And since there is no reason for the U.S. government to own more than 25 percent of all the land in the United States (with ownership exceeding 50 percent in some states), and no constitutional authority for the government to have anything to do with fish and wildlife or supplying water and power, it would be more constitutional to have one of the Department of the Interior’s agencies — the Bureau of Indian Affairs — elevated to cabinet-level status and most of the other functions of the department eliminated. But of course, the State Department could handle U.S. relations with the Indian tribes without having a separate bureau or department.

The Department of Defense can be justified by appealing to several paragraphs in Article I, Section 8 of the Constitution. Paragraph 11 gives Congress the power “to declare War.” Paragraph 12 gives Congress the power “to raise and support Armies.” Paragraph 13 gives Congress power “to provide and maintain a Navy.” Paragraph 14 authorizes Congress “to make Rules for the Government and Regulation of the land and naval Forces.” Paragraphs 15 and 16 authorize Congress to call forth, organize, arm, and discipline the Militia. What cannot be justified by the Constitution is a Department of Offense, which is what the Defense Department has become. All nondefense spending (foreign wars, foreign bases, foreign occupations, foreign interventions) should be eliminated and the department shrunk in size.

The Department of Justice seems reasonable, since the federal crimes of counterfeiting, piracy, and treason are mentioned in the Constitution. However, given that Congress didn’t see the need for a Justice Department until 1870, that most federal crimes should just be state crimes, that the abuses of the FBI and federal prosecutors are well known, and that the Justice Department agencies of the DEA and the ATF shouldn’t even exist, the Justice Department should be scaled back considerably.

The Department of State seems to be the most logical department for a government to have. It was the first federal department established under the Constitution. Article 2, Section 2, Paragraph 2 of the Constitution mentions making treaties with, and sending ambassadors to, other countries. The Department of State is one of the smallest executive-branch departments. However, it could be much smaller if U.S. foreign policy was not so interventionist.

The Department of the Treasury can also be justified by appealing to several paragraphs in Article I, Section 8 of the Constitution. Paragraph 1 gives Congress the power “To lay and collect Taxes, Duties, Imposts and Excises.” Paragraph 2 authorizes the Congress “To borrow Money on the credit of the United States.” Paragraph 5 gives Congress the power “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.” And then there is Section 9, Paragraph 7: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” What cannot be justified by the Constitution is Congress’s creating the Federal Reserve System. Any legitimate functions of the Fed should be handled by the Treasury Department. The main problem with the Treasury Department, of course, is that it includes the IRS. Abolish it and the Treasury Department would be much more acceptable.

The departments of Agriculture, Education, Energy, Health and Human Services, Housing and Urban Development, and Labor cannot be justified in any way by the Constitution. Where in the Constitution is the federal government authorized to have anything to do with agriculture, education, energy, health, housing, or labor? Much of the welfare state is maintained by these departments. The Department of Agriculture is responsible for WIC, SNAP (food stamps), and farm subsidies. The Department of Health and Human Services handles Social Security, Medicare, and Medicaid. The Department of Housing and Urban Development facilitates wealth redistribution by providing various kinds of housing assistance.

All of that means that if the Constitution is going to be followed, of the 15 cabinet-level executive-branch departments, only 7 can be justified in some way by the Constitution, and there really need to be only 4, or 5 if the Department of the Post Office is restored.

The problem is a simple one: Few previous congressional candidates or current members of Congress from either party have any desire to follow the Constitution in every respect or even the majority of the time.

Republicans are the worst because they talk about the Constitution the most. They have talked about eliminating the Department of Education since the days of Ronald Reagan, but they have never done anything but raise its budget. They criticize welfare, but won’t touch the biggest welfare programs in the federal budget — Social Security, Medicare, and Medicaid. They condemn Obamacare (the Patient Protection and Affordable Care Act), but accept Bushcare (the Medicare Prescription Drug, Improvement, and Modernization Act).

The U.S. government is a monstrosity. From a libertarian perspective, the Constitution is an imperfect document. However, if the federal government actually followed its own Constitution, it would be a tremendous improvement over the bloated, expensive, intrusive, and authoritative government we have now.