Tag Archive for: AdministrativeState

Americans Say Federal Government Has Too Much Power

Estimated Reading Time: 2 minutes

Newly released polling data shows that a majority of Americans say the federal government has too much power.

Gallup released the poll Wednesday, which showed that 54% of Americans said the federal government is “too powerful.” The survey found that 39% said the federal government has the right amount of power while only 6% said it has too little.

In 2005, the percentage of Americans who said the federal government had too much power crossed 50% and has not dipped back down. Sometimes that number has topped 60%.

“Currently, 74% of Republicans, 32% of Democrats and 54% of independents believe the federal government has too much power,” Gallup said.

The poll also found that 53% of those surveyed said the government is “doing too many things to solve nation’s problems” while 43% said the government should be doing more.

Since Gallup began tracking the data, Americans have usually favored less government action, not more.

“There have been only three instances since 1992 in which more Americans have called for the government to do more than to do less,” Gallup said. “These were in early 1993, after Bill Clinton took office following his victory over the incumbent George H.W. Bush in an election focused on economic issues; in October 2001, weeks after the 9/11 terrorist attacks; and in 2020 during the height of the COVID-19 pandemic.”

When it comes to business regulation, Americans say the government is too involved.

“Twice as many Americans believe the government regulates business too much (46%) rather than too little (23%), and 29% say there is the right amount of regulation,” Gallup said. “For the past two years – the first two of Biden’s administration – the percentage of Americans saying there is too much regulation has exceeded the percentages measured in 2018-2020, the last three years of Trump’s administration. Similarly, more Americans thought there was too much business regulation under Barack Obama between 2009 and 2016 than under George W. Bush between 2001 and 2008.”

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This article was published by The Center Square and is reproduced with permission.

Conservatives Shouldn’t Apologize for Healthy Skepticism of Big Government

Estimated Reading Time: 3 minutes

“Conservatives need to get over their allergy to government action.”

That was the headline on an opinion column by Henry Olsen last week in The Washington Post. Olsen is not alone among conservatives in thinking so.

Across much of the right today, there’s more openness to having the government do more in the economy. Olsen observes that there are significant constituencies in America, especially blue-collar America, who appear supportive of a conservative agenda that would involve more state intervention, whether in the form of industrial policy, tariffs, or more expansive entitlement programs.

The right, Olsen wrote, cannot ignore those trends if it wants to stay electorally relevant. That necessitates moving away from what he labels “market fundamentalism.”

Winning elections is very important. But to embrace a bigger economic role for government amounts to conservatives endorsing policies that would push the United States even further in social democratic directions that would undermine America’s long-term economic and political well-being.

Here’s the fact often omitted by contemporary conservatives friendly to more government economic intervention: The American economy is already awash with interventionist policies—so much so that, according to The Heritage Foundation’s 2022 Index of Economic Freedom, overall economic liberty in America has been in decline since 2008. (The Daily Signal is the news outlet of The Heritage Foundation.)

The index ranked America as the world’s 25th-freest economy. Many of the countries listed ahead of it are European nations with strong social democratic traditions. Moreover, the index adds:

Government spending [in America] has amounted to 38.9 percent of total output (GDP) over the past three years, and budget deficits have averaged 9.0 percent of GDP. Public debt is equivalent to 127.1 percent of GDP.

That doesn’t sound like small government to me.

In fact, even with[out] the extra state spending induced by the COVID-19 pandemic, the federal government has been spending like a drunken sailor for quite some time—and using debt to do so.

Leaving aside the ruinous expenditure levels and notorious inefficiencies associated with interventionist policies, there are serious political problems associated with conservatives adopting more economically interventionist stances.

“There’s a middle ground,” Olsen asserts, “between government directing everything or nothing.” Alas, if there’s anything that 20th-century economic history shows, it is that once the state’s economic role moves beyond securing certain public goods—the rule of law, property rights, national security, public works, etc. (none of which are small endeavors)—the genie is hard to put back in the bottle.

The middle ground thus ends up not being an essentially market economy operating within a framework of the rule of law and intertwined in a robust civil society. Instead, it becomes a type of social democracy in which excessive state power is omnipresent throughout the economy.

That doesn’t mean that you eventually get a Soviet-style command economy. But you do find yourself encumbered with the rampant cronyism that infects so much of D.C. politics, and, more insidiously, what the great political philosopher Alexis de Tocqueville described in his classic “Democracy in America” as “soft despotism.”

Soft despotism is a Faustian bargain between the political class and the public. It involves “an immense protective power,” Tocqueville wrote, in assuming the prime responsibility for everyone’s happiness—provided that power remains “sole agent and judge of it.”

That power would, Tocqueville added, “resemble parental authority” and attempt to keep people “in perpetual childhood” by relieving them “from all the trouble of thinking and all the cares of living.”

That’s the deal that progressives have proposed to Americans for more than a century. And it has saddled America with social and economic disasters like President Lyndon Johnson’s Great Society, which, as the economic historian Amity Shlaes illustrates in her book “Great Society,” wreaked havoc upon black America and the white working class.

In that light, there’s no reason to think that conservatives can devise an interventionist agenda that somehow avoids all of the problems—the one-size-fits-all mentality approach, the unintended consequences, the inability to address the non-material causes often central to social dysfunctionality, et al.— inseparable from such policies.

Faith in state intervention to effect positive economic and political change has also encumbered America with a vast administrative state. It’s no secret that these federal government departments, administrative bodies, and regulatory agencies are dominated by people ranging from indifferent to hostile to conservative ideas. Why would American conservatives want to affirm (let alone augment) the administrative state’s power by adopting economically interventionist programs?

Americans deserve better than having to choose between soft and hard versions of social democracy at election time. Nor should they have to put up with economic debates being reduced to who is willing to spend more.

If anything, American conservatives need to be more allergic to government economic intervention—not less.

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This article was published by Daily Signal and is reproduced with permission.

Legislation by Any Other Name

Estimated Reading Time: 8 minutes

West Virginia v. EPA is a blockbuster ruling of great consequence to the current reign of the administrative state over the lives of Americans. It restores core foundational principles that have been ignored or trampled for far too long—namely that lawmaking power is vested in Congress and cannot be usurped by agencies engaged in off-road driving. Its holding will rein in other lawless initiatives waiting in the wings, prominent among them, the Securities and Exchange Commission’s recent implausible assertion that Congress’s grant of power in 1933 and 1934 to regulate exchanges to ensure honest markets gives it power today to impose Environmental, Social and Governance (ESG) regulations on publicly-traded companies.

How the Case Came About

This dispute about the power of the Environmental Protection Agency (EPA) was close to a decade in the making, reaching back to the Obama Administration’s 2015 adoption of a Clean Power Plan (CPP). Simply put, the question before the court was whether the EPA could deploy an obscure provision of the 1970 Clean Air Act to reconfigure what components should compose the nation’s entire electric grid. Prior to that time, the “best systems” section of the 1970 Act had only allowed EPA to set source-specific emission levels for existing coal, natural gas, and renewable energy plants. Under the Obama plan, what once had been EPA’s power to require scrubbers had now become the agency’s unilateral power to convert entire power plants from one type of energy to another—or eliminate them altogether.

The rule never went into effect because the Supreme Court issued a stay of this extraordinary power grab in early 2016. The Obama CPP was then repealed by the Trump administration in 2019 and replaced with the Affordable Clean Energy Rule (ACE) which more modestly sought to make coal-burning energy plants cleaner and more efficient. But on January 19, 2021, ACE, in turn, was struck down by the D.C. Circuit Court of Appeals on the eve of a new administration, leaving EPA wide open to put into effect a reading of “best systems” that empowered the agency to orchestrate the composition of the energy sector.

The decision—and the dissent—both open with a scuffle over standing and mootness common in environmental litigation that veers from one President’s vision to the next. The government argued that as there was no plan in place, the Court should not rule at all. Such strategic “mooting” explains how such disputes can and do drag out for years and through changes of administration. Unfortunately, this bob-and-weave embroils the courts in a protracted dance with the Executive that shuts Congress out altogether.

Accordingly, the Court applied its mooting precedents (which provide that a policy that may recur is justiciable) to halt this decade-long waltz and reach the core question of “who decides?” national energy policy. While this justiciability question could have gone either way, the Court made the right judgment call to end this dispute because neither EPA nor the Courts possess the power to determine national energy policy. Protracted litigation based on the fiction that Congress has somehow delegated this power to the EPA only lets Congress off the hook, serving the interests of no one but the activists and the lawyers. Indeed, one of the best consequences of this case is that Congress will have to decide our energy policy to more lasting effect than “plans” imposed and replaced by politicized agency bureaucrats. And that decision will be with the consent of the governed as it must be, under the Constitution.

What is a “System”?

In West Virginia, EPA explicitly proffered and vigorously defended its 2016 reading that “best systems” permits the agency to engage in macro regulation that includes determining what site- and source-specific plants will make up the energy sector. Both the majority opinion and the concurrence refused to buy this reading of the statute. In the majority’s view, EPA can only set standards within the bounds of a given energy source’s existing “system.” To the dissent, “system” means, well, the whole power industry, with which EPA can tinker like some distant autocrat orchestrating shutdowns of coal plants, and pop-ups of wind and solar farms. The dissent even argues that the EPA could “simply require[e] coal plants to become natural gas plants under this power to determine ‘best systems.’” The majority demurs, eyebrows raised, noting that the agency has never ordered anything remotely like that, and “we doubt it could.” The 1970 Section 111(d) only empowers EPA to guide States in “establishing standards of performance” for “existing source[s],” not to direct existing sources to effectively cease to exist.”

The majority recognized that EPA’s seizure of life and death control over the power plants of America is “eyebrow raising,” invoking a well-established line of precedent which rejects such self-conferred expansions of agency power. For example, in 2000, the FDA could not self-assert power to regulate tobacco. More recently, the Court ruled that the Centers for Disease Control had been given no power by Congress to regulate state housing policy and invalidated CDC’s shocking nationwide shutdown of state court evictions. The Court must enforce these guardrails, or our polity will be at the mercy of bureaucrats gone wild, as our national experience of the plague years vividly demonstrated, at incalculable and continuing cost to Americans.

The majority also explicitly invoked the Major Questions Doctrine, which counsels that Congress must decide such major law and policy questions, not agencies straying far out of their regulatory lane. In doing so, it quoted two respected scholars of the administrative state’s witty formulation: agencies only have the powers expressly given to them by Congress, and their organic statutes are not an “open book to which the agency [may] add pages and change the plot line.”

The Court’s decision to read “system” in this narrow, sensible manner rather than endorse EPA’s grandiose vision (that, by the way, no one seriously believes Congress conferred upon it in 1970), has resulted in a firestorm. Heightened rhetoric swirls around West Virginia: President Biden described the decision as “devastating,” accusing the Court of “sid[ing] with special interests that have waged a long-term campaign to strip away our right to breathe clean air.” “Supreme Court Declares War on Governing” gasped Vanity Fair. “The U.S. Supreme Court has declared war on the Earth’s Future,” keened The Guardian. Mainstream media and the climate change clerisy have accused the Supreme Court of a meanspirited, anti-environment, military attack on the planet and administrative governance. The Twittersphere is abuzz with doomsday.

Deconstructing the Dissent

The stridency that now pervades the public discourse disturbingly starts with the first words of the dissent, which incant the almost religious tenets of the Climate Change Creed, prefaced with its solemn assertion that those tenets “are no longer subject to serious doubt.”

And what are these tenets? Unequivocal, not-to-be-questioned human influence in global warming. This malign human influence brings death, coastal inundation, and erosion, severer and severer hurricanes, floods, droughts, ecosystem destruction, and disruptions in the food supply. Children born in 2022 will witness the Eastern seaboard slide into the Atlantic. This weather may “force mass migration, political crises, civil unrest, and even state failure.” By the year 3000, 4.6 million excess yearly deaths could be caused by climate change.

The Supreme Court declined to accede to “experts” flexing unilateral power to control the energy sector.

This parade of horribles serves to distract the reader from noticing that the very next sentence of Justice Kagan’s dissent is untrue. She asserts that in 1970, “Congress charged EPA with addressing those potentially catastrophic harms” by enacting Section 111 of the Clean Air Act. Nonsense. The very text of the statutory provision provides that EPA must apply best systems to “existing sources.”

Moreover, in the 1970s, the scientific consensus was that the climate was facing another ice age, with Newsweek reporting “a significant chilling of the world’s climate, with evidence accumulating ‘so massively that meteorologists are hard-pressed to keep up with it.’ … shorter growing seasons and poor crop yields, famine, and shipping lanes blocked by ice, perhaps to begin as soon as the mid-1980s. Meteorologists … were ‘almost unanimous’ in the opinion that our planet was getting colder.” Some alarmist scientists were offering up potential solutions such as melting the arctic ice cap by covering it with black soot—by human agency! So much for relying upon experts! Congress simply did not have the dissent’s apocalyptic vision in mind—at least not as to warming—in 1970. Clearing smog was Congress’ sensible and admirable goal.

Kagan’s dissent ends with a glowering scold: “The stakes here are high,” followed by: “The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening.” The dissent is right that the stakes are high, but dead wrong in its unfair accusation. The majority and concurrence have insisted that Congress must be the decisionmaker on these major questions, and that neither the Court nor an “expert” agency—nor a President with a pen and phone—can be the decider.

The majority’s quiet, reasoned insistence upon observing the foundational principles of representative government and healthy skepticism of the EPA’s lunge for power—at a time when those foundational concepts are being flouted by agencies prepared to expand far beyond their remit, could not be more important and timely.

Most important constitutional cases boil down to “Who decides.” We all know that Congress is supposed to make the law. Agencies must never make such momentous decisions. The lawmaking power is vested in Congress, and it uniquely has the tools to gather facts, engage in debate, weigh the myriad interests at stake, and then legislate—or not. And it is always accountable, along with the President in the exercise of presentment power—for the outcome. In sum, this case is about one thing, and one thing only: Consent of the governed.

It’s that simple. EPA’s own calculations of the costs of the CPP acknowledged billions in compliance costs, higher energy prices, the retirement of dozens of coal-fired plants, and the elimination of tens of thousands of jobs across economic sectors. If you are a resident of West Virginia who finds your coal-powered plant shut down, jobs lost, utility costs, and gas and food prices skyrocketing by double digits, who can you blame? If the dissent had its way, these economic displacements would be imposed by distant, unaccountable bureaucrats who, by the way, may be just as fallible as any politician as to the wisdom of a plan entailing such massive scientific, social, environmental, and economic impacts. This is why law-making should be hard and made through a combination of powers of the two politically accountable branches.

Sri Lanka

Speaking of the fallibility of experts, international news would soon abound in irony. Just two weeks after the dissent’s litany of catastrophe, news of, wait for it, “significant disruptions in the food supply … mass migration … political crises, civil unrest and … even state failure” erupted from Sri Lanka. The cause, as reported by Michael Shellenberger:

The underlying reason for the fall of Sri Lanka is that its leaders … fell under the spell of Western green elites peddling organic agriculture and “ESG,” which refers to investments made following supposedly higher Environmental, Social, and Governance criteria. Sri Lanka has a near-perfect ESG score of 98—higher than Sweden (96) and the United States (51). What does having such a high ESG score mean? In short, it meant that Sri Lanka’s two million farmers were forced to stop using fertilizers and pesticides, laying waste to its critical agricultural sector. …

The numbers are shocking.

One-third of Sri Lanka’s farmlands were dormant in 2021 due to the fertilizer ban. Over 90 percent of Sri Lanka’s farmers had used chemical fertilizers before they were banned. After they were banned, an astonishing 85 percent experienced crop losses. Rice production fell 20 percent and prices skyrocketed 50 percent in just six months. Sri Lanka had to import $450 million worth of rice despite having been self-sufficient just months earlier. The price of carrots and tomatoes rose fivefold. All this had a dramatic impact on the more than 15 million people of the country’s 22 million people who are directly or indirectly dependent on farming.

Americans should rejoice that its Supreme Court declined to accede to “experts” flexing unilateral power to control the energy sector—to be followed in short order by ESG dominion by a Wall Street regulator. Understanding that this flawed ideology directly led to the tragic humanitarian crisis in Sri Lanka is essential to the exercise of enlightened franchise by Americans refusing to submit to the wokeism that has already imposed enormous costs upon Americans. The SEC’s ESG rules suffer from the same flaws as the CPP—a lack of statutory authority, arrogation of agency power over a major—and debated—question, and enormous economic disruption that would affect nearly every aspect of the country’s economic and political future. The principles restored by the Court in West Virginia foreclose SEC’s costly ESG regulation.

The Spirit of Liberty

In 1944, as the world was engulfed in the most widespread and destructive war in history, brought on by the horrors of unchecked autocratic rule, Judge Learned Hand tried to define what comprised the spirit of liberty.

The spirit of liberty is the spirit that is not too sure that it is right; the spirit of liberty is the spirit that seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.

In other words, “Experts, bureaucrats, administrators, consider that you might be wrong!” David Mamet notes that when the experts get it wrong, it is the rest of us who pay. As he puts it, [t]he virus here is government—or at least the incompetents who advise our rulers and cannot admit the legitimacy of dissension,” an all-too-apt description of the tone and reliance upon the expertise of the West Virginia dissent. The Covid years have been a crash course in the incalculable and enduring damage caused by turning government over to experts. The humanitarian disaster in Sri Lanka is a sobering here-and-now reminder that autocratic imposition of expertise by unchecked bureaucrats comes not only at great cost to a society’s well-being and economy but also to its liberty.

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This article was published by Law & Liberty and is reproduced with permission.

America Excels at Building Bureaucracy

Estimated Reading Time: 5 minutes

A new bridge in Los Angeles is one example out of thousands.

Los Angeles recently celebrated the opening of its new Sixth Street Bridge, which connects downtown to the city’s eastern district and crosses over an industrial area and the L.A. River (drainage wash). Designed to safely accommodate pedestrians, cyclists, and vehicles, it is indeed a beautiful bridge.

Are there any negatives about the bridge? Well, not according to media coverage.

In conducting an Internet search on the bridge’s construction and opening, I could not find one negative story or remark in six pages of sources. Media outlets were uniformly ecstatic about the bridge.

But there are negatives, as there are a lot of construction projects in America. Consider:

The bridge had been projected to be completed in three years at a cost of $428 million. Unsurprisingly, it took six years and cost $588 million, or $160 million over budget.

If you’re a US taxpayer, you paid some of the cost, even if you don’t live in L.A. or California. That’s because $364 million of the funding came from the Federal Highway Bridge Program—although the bridge isn’t exactly a critical infrastructure of national importance.

Given that the average household income in the US is $90,000 in rounded numbers, this means that the $364 million in federal funding is equal to the total yearly income of about 4,000 households across the nation.

Cost overruns missed deadlines, and hide-the-pea funding has become so commonplace on public works projects that they are met with a big yawn from the media and the public. 

This reflects the bureaucratization of America, one of the most serious problems facing the nation—a problem that doesn’t get the attention it deserves but will get some in this commentary.

It might seem hyperbolic and even kooky to say that bureaucratization is that serious, but history suggests otherwise. Bureaucracy has caused huge corporations to lose touch with customers and market trends, ultimately resulting in them going out of business. The same with nations, most notably the Soviet Union, which, due to communism, tried to micromanage an entire economy and society. It was the ultimate bureaucracy and a perfect illustration of my axiom: The more socialism, the more bureaucracy

Experts from various disciplines are puzzled as to why productivity growth has flat-lined for many years in spite of new technologies. This is a very important question because prosperity depends on productivity. The answer is that productivity is being throttled by red tape.

Bureaucracy is also a key reason why Americans are frustrated with their government and elected leaders. Layer upon layer of unaccountable and unelected apparatchiks have come between them and lawmakers, a situation made worse by the fact that most members of Congress are attorneys, who, by nature, training and experience, are comfortable with abstruse minutia.     

Equally concerning, public and private construction projects seem to take a lot longer than they did more than a century ago, in spite of such technological advances as computer-aided design, instant electronic communications, lighter and stronger materials, and more versatile and powerful construction equipment.

Take the Kinzua Bridge near my wife’s hometown of Bradford, Pa., in the northwestern part of the state.  A railroad trestle, it was built in 1882 to carry coal from Pennsylvania coal mines to Buffalo.  At 301 ft. tall, it was the highest railroad bridge in the country at the time.  Spanning the Kinzua Valley, it was 2,052 ft. long.  Originally made of iron, the bridge was built in 94 days.  Years later it was torn down and rebuilt out of steel in order to accommodate heavier trains.

To compare, it took 94 days in 1882 to build the Kinzua Bridge in Pa., versus six years in the twenty-first century to build the Sixth Street Bridge in L.A.

Or consider the Eads Bridge that crosses the Mississippi River at my hometown of St. Louis. It was the first bridge over the Mississippi at its wider section south of the Missouri River. It took seven years to build, beginning in 1867. That’s one year longer than it took to construct the Sixth Street Bridge, but the Eads Bridge, at 6,442 feet in length, had to cross a mighty river, had to be high enough for tall steamboats to pass underneath, and had to carry trains and horse carriages and wagons (and later motorized cars and trucks). Not only that, but new construction methods had to be developed as it was being built, such as learning to build a bridge with steel and inventing the pneumatic caissons required to construct footings 100 ft. below the surface of the river.

Then there is the Brooklyn Army Terminal. Its construction began in 1918 and was completed in one year. The facility, much of which still stands, covered 94 acres and consisted of two eight-story warehouses, three two-story piers, ancillary buildings, railroad tracks, cranes to move material between pier and ship, and a storage yard with a capacity of 2,200 freight cars. In all, it had 4.6 million square feet of indoor space.

What has happened over the intervening years to slow down construction projects? The easy answer is labor laws, safety regulations, and environmental regulations—all of which came into being for good reasons but have morphed into a nightmare of needless red tape. For example, it can take years to write an environmental impact statement and get government approval before construction can begin, even for something as environmentally benign as a bridge.  

A cynic—or perhaps a realist—would say that politics come into play, in that politicians can “buy” votes by building something that an interest group wants and by spreading the cost across all taxpayers. Economists refer to this as concentrated benefits and dispersed costs. Those who benefit will tend to be better organized, more vocal, and more determined than the general public that foots the bill. Of course, the beneficiaries are insensitive to costs.

However, there are other causes of bureaucracy that are even more pernicious and almost impossible to stop.

First, the natural tendency of organizations, including nation states, is to slowly become more bureaucratic as they age. Like a ship slowly accumulating barnacles, a ship of state slowly accumulates laws, regulations, and rules. As an example, when the income tax was instituted in 1913, the tax code was four pages. It grew to 1,000 pages during FDR’s New Deal, to 8,200 pages during the Second World War, and to more than 70,000 pages today.

Similar exponential growth in red tape has been produced by other federal agencies, departments, sub-departments, and sub-sub departments. States and municipalities have followed suit.

The second reason for the growth in red tape is self-interest. Every law and regulation, and every sub-section of a law or regulation, becomes the rice bowl of those in the public and private sectors who are paid, often handsomely, to interpret and administer the gobbledygook.

As an example, the IRS now has over 70,000 employees, or one for every page of the tax code.  Not included in this number are the tens of thousands of private-sector tax attorneys, accountants, administrators, financial advisors, clerks, developers of tax software systems, and others who owe their livelihood to the tax code. No doubt, many of these are small-government conservatives who rail about the growth of government.

It was frustrating during my corporate career when I had to attend expensive seminars to learn about new regulations promulgated by OSHA or some other agency. Oftentimes, the consultants holding the seminars were the former government bureaucrats who wrote the regulations. They had an incentive in their former jobs to make the regulations as indecipherable and ambiguous as possible.

Equally discouraging is the government’s spawning of regulations to address problems caused by the government. Ponderous financial regulations such as Dodd-Frank are a case in point. The Federal Reserve and the Treasury have caused financial crises by working in cahoots to print money and lower interest rates, to cover deficit spending. This in turn has fueled financial speculation, market exuberance, and malinvestments. In response, the government has promulgated regulations instead of addressing its culpability.

It’s a similar story with the government’s tuition loan programs, which have driven up the cost of college, which in turn has led the government to enact even more subsidies and regulations, which in turn have driven up costs even more.

My 1991 book on bureaucracy detailed how companies could save themselves from being destroyed by self-inflicted bureaucracy, and my consultancy helped to save several clients. There are no solutions for nation-states, however. In those, bureaucracy will run its course and slowly weaken the host, until something catastrophic happens and upends the existing order, such as devaluation, bankruptcy, revolution, or being conquered or subsumed economically by a stronger nation.

On the bright side, at least L.A. will have a pretty bridge.

 

 

EPA Now Stuck Between A Rock and A Hard Place on CO2

Estimated Reading Time: 3 minutes

EPA is stuck. What they will now do is anybody’s guess. Enjoy their dilemma!

 

There are lots of happy reports on the Supreme Court’s ruling throwing out EPA’s so-called Clean Power Plan. Some go so far as to suggest that EPA is barred from regulating power plant CO2 emissions.

It is not quite that simple and the result is rather amusing. EPA is still required to regulate CO2 under the terms of the Clean Air Act, but that Act provides no way to do that regulation. The Clean Power Plan attempted to expand an obscure minor clause in the Act to do the job but SCOTUS correctly ruled that the clause does not confer that kind of massive authority.

EPA is between a rock and a hard place. It should tell Congress that it cannot do the job and needs a new law, along the lines of the SO2 law added to the Act in 1990, curbing emissions. But such a law has zero chance of passing in the foreseeable future.

EPA is stuck. What they will now do is anybody’s guess. Enjoy their dilemma!

Here is a bit more detail on the situation.

On one hand, EPA’s legal mandate to regulate CO2 under the Clean Air Act is clear. First the (prior) Supreme Court ruled that CO2 was a “pollutant” under the Act. This is because buried in the 1990 Amendments was a clause adding causing climate change to the definition of “pollutant”. The Court accepted the government’s claim that the CO2 increase could cause climate change. The new Court could change this but is unlikely to do so.

Given CO2 is a pollutant under the Act, EPA was required to decide if it was dangerous to human well-being or not. It then produced an “endangerment finding” saying that CO2 was indeed a threat.

Given these two steps, the Act then requires EPA to regulate CO2. It has been trying to figure out how to do so ever since.

The deep problem is that the Clean Air Act specifies very specific regulatory actions, none of which work for CO2. This is because CO2 is nothing like the true pollutants that the Act was developed to regulate.

The Act’s mainline mechanism is the NAAQS (pronounced “nacks”) which stands for National Ambient Air Quality Standards. These standards specify the ambient concentration levels allowed for various pollutants. Carbon dioxide’s cousin carbon monoxide is one of these pollutants. Locations that exceed the NAAQS receive stiff penalties.

Clearly, this mechanism assumes that local levels are due to local emissions, which can be controlled to achieve and maintain compliance.

But CO2 is nothing like that. There is no way America can control the ambient CO2 level. Even if humans are causing that level (which is itself controversial), it is then based on global emissions. CO2 is not a local pollutant.

For a CO2 NAAQS EPA could either set the standard below the global level or above it. If below then all of America would be out of compliance and subject to the Act’s penalties, with no way to comply. It is very unlikely that the Court would allow these universal endless penalties.

If the CO2 NAAQS were above the present level then there would be no legal basis for EPA taking any action, since compliance was complete.

So the NAAQS mechanism simply does not work.

Another major mechanism is to control the emissions of what are called “hazardous air pollutants” or HAPS. EPA explains it this way:

“Hazardous air pollutants are those known to cause cancer and other serious health impacts.  The Clean Air Act requires the EPA to regulate toxic air pollutants, also known as air toxics, from categories of industrial facilities.”

But CO2 is nontoxic, so not a HAP. In fact, our exhaled breath contains over one hundred times the ambient level of CO2, that is over 40,000 ppm. Clearly, if ambient 400 ppm CO2 were toxic we would all be dead. It would be absurd for EPA to try to classify CO2 as a HAP. No Court would stand for it.

The only other piece of the Clean Air Act that EPA might try to use is called “New Source Performance Standards” but as the name says they only apply to new construction (or major modifications). The myriad existing fossil-fueled power plants that supply our daily juice would not be covered. Even worse if EPA drove up the cost of new gas-fired plants we would likely restart the host of retired coal-fueled plants. What a hoot that would be!

So there you have it. EPA bought itself CO2 as a Clean Air Act pollutant, but there is no way under the Act to regulate it. To mix metaphors, EPA is all dressed up with no place to go. The Supreme Court decision returned EPA to its regulatory dead end.

I find this ridiculous situation to be truly laughable. What were they thinking? Does the EPA Administrator understand this? Has he told the President? How about Congress?

EPA’s problem with CO2 is much deeper than the latest Supreme Court Decision. The Clean Air Act simply does not work for CO2. What will EPA do?

*****

This article was published by the Heartland Institute and is reproduced with permission.

Bureaucrats in the Dock

Estimated Reading Time: 6 minutes

On May 18 this year, in Jarkesy v. SEC, a majority of a three-judge panel of the Court of Appeals for the Fifth Circuit—an appellate court just below the Supreme Court—challenged some of the powers commonly used by the Securities and Exchange Commission (SEC) and other administrative agencies when they charge individuals or companies with wrongdoing. 

The SEC’s actions were not unusual for an administrative agency—requiring a defendant to make his case before an administrative law judge (ALJ) instead of a jury—but the court found that under the Constitution’s Seventh Amendment, George Jarkesy, Jr. was entitled to a jury trial, that many ALJs used by the SEC and other agencies were unconstitutionally independent of the president’s control, and that the authority that Congress had given the SEC to choose an ALJ instead of a jury was also unconstitutional.

The case received an unusual amount of attention in the media, largely because the SEC is a powerful agency, and the actions of administrative agencies are seldom found to be unconstitutional by courts below the Supreme Court. But another reason may be that the Fifth Circuit’s decision reflects a general concern in the judiciary about the power of administrative agencies—which many call the “administrative state”—and how they fit into our constitutional system.      

In Federalist 78, Alexander Hamilton argued that the members of the federal judiciary should have lifetime tenure—even in a republic—because the courts are intended to be the “Guardians of the Constitution.” This role, he said, will require an “uncommon portion of fortitude” when judges’ decisions upholding the Constitution conflict with the views of the more powerful elected branches. “Nothing can contribute so much,” said Hamilton, to the judiciary’s firmness and independence as “permanency in office.”

The protests that we see today in front of the Supreme Court, and even at the homes of the justices themselves, amply demonstrate the difficulties the judiciary faces as it is called upon to interpret how various policies fit within the constitutional structure the Framers wanted them to protect.

Chief Justice John Marshall, established the primacy of the Supreme Court, as Hamilton saw it, with the foundational 1803 decision of Marbury v. Madison. There, he ruled not only that the Court could declare acts of Congress unconstitutional, but also that courts could interpret the laws. These two points, never subsequently challenged, reified Hamilton’s assertion that judges were to be the “Guardians of the Constitution.”

There was little change in the structure of the government, or the respective roles of the president and Congress, until the Progressive Era, from about 1880 to 1920, when Woodrow Wilson and Theodore Roosevelt argued for major changes in the government’s structure and role in the economy. During this period, the Interstate Commerce Commission, the Food and Drug Administration, and the Federal Reserve were established to address specific issues that had arisen as the US economy grew quickly. But aside from a few tariff cases, there was little need for the judiciary to interfere in the structure or operations of the government.

That changed with the Great Depression and the New Deal, when the Supreme Court—whose members included distinguished jurists such as Louis Brandeis and Benjamin Cardozo as well as Chief Justice Charles Evans Hughes—ran head-on into the policies of FDR and the progressive Democratic Congress. This confrontation produced two instances—Panama Refining v. Ryan and Schechter Poultry v. United States—where the 1935 Court determined that acts of Congress were unconstitutional because they delegated too much legislative authority to administrative agencies in violation of the Constitution. 

Chevron became the most cited and interpreted case in administrative law, and administrative agencies reached their greatest level of authority, issuing more than 3000 rules and regulations every year after 1989.

These decisions and others caused President Franklin D. Roosevelt, after the huge Democratic Party victory in 1936, to propose a Court-packing plan. Although Court-packing itself failed, it changed the game. Every member of the 1935 Supreme Court resigned between 1936 and 1941, to be replaced by Roosevelt–appointed justices much less willing to take on the elected branches. 

From then on, the Court assumed a more accommodating posture, finding authority for the vast number of administrative agencies established in and after the New Deal. The Court’s reticence in this respect probably reached its peak in 1984, with Chevron v. Natural Resources Defense Council. There, a unanimous Court declared that “Sometimes the legislative delegation to an agency is implicit, rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation” by the agency.

Here, with what became known as “Chevron deference,” the Court was directing lower courts to accept the administrative agency’s interpretation of its statutory authority—if reasonable—and opened the door to the vast expansion of the administrative state that we see today. In short order, Chevron became the most cited and interpreted case in administrative law, and administrative agencies reached their greatest level of authority, issuing more than 3000 rules and regulations every year after 1989. 

What might be called a constitutional awakening, or at least a renewal of the Supreme Court’s interest in its role as guardian of the Constitution, may have begun in 2013, with City of Arlington v. FCC. There, in a challenge to Chevron deference, Chief Justice Roberts (joined by Justices Kennedy and Alito) wrote that  “We do not leave it to the agency to decide when it is in charge.” 

Significantly, in the same decision, the Chief Justice reiterated Hamilton’s view in Federalist 78 that the judiciary has a special role as guardian of the Constitution: it “is the obligation of the judiciary not only to confine itself to its proper role, but to ensure that the other branches do so as well.”

This was followed in 2015, by Perez v. Mortgage Bankers Association, where a majority recognized that the Administrative Procedure Act of 1946 (APA) had already required that courts—and not agencies—should be interpreting the statute. The Senate Committee considering the APA in 1946 stated: “Judicial review…is indispensable since its mere existence generally precludes the arbitrary exercise of powers or the assumption of powers not granted.” Chevron deference, accordingly, and its support for agency determination of their own authorities, now seemed to be on the way out.

An even more determined interest in protecting the constitutional structure seems to have emerged at the Supreme Court with the arrival of Justice Gorsuch in 2017. At that point, there were five justices—Chief Justice Roberts and Justices Thomas, Alito, Kennedy, and Gorsuch—with serious interests in constitutional structure, and the Court reached out to take one issue (among four others) in Gundy v. United States, then languishing in the lower courts. This case raised the claim that in enacting a 2006 statute, Congress had unconstitutionally delegated legislative authority to the Executive Branch—a violation of the so-called nondelegation doctrine.

The Supreme Court’s interest in constitutional issues related to the administrative state has not gone unnoticed, either by litigants or by judges.

As it turned out, when Gundy was argued, there were only eight justices on the bench. Justice Kennedy had resigned, and his successor, Justice Kavanaugh, had not yet been sworn in. Because the Court was split on such an important case, Justice Alito decided not to vote to challenge the reigning nondelegation approach, but he and Justice Kavanaugh later stated that they would be willing to hear another nondelegation case in the future. In any event, Justice Gorsuch wrote a powerful dissent, joined by the Chief Justice and Justice Thomas, in support of the view that the statute at issue in Gundy had unconstitutionally delegated legislative authority to the Executive Branch.

The Court’s interest in considering this issue—and in reaching down specifically to take the nondelegation question from another case—demonstrated that at least five justices were then concerned about constitutional structure, particularly the separation of powers. This is a fundamental element of the Constitution that seeks to preserve liberty by separating the entire government into three branches—a Congress to make the laws, a president to enforce or carry out the laws, and a judiciary to interpret the laws.

This raised new questions about the authority accumulated in administrative agencies, which might be called the fourth branch of government that appears nowhere in the Constitution but had been acquiring increasing power since the New Deal. Moreover, many scholars and students of government have noted that Congress has continued to hand power to administrative agencies as a way to avoid making difficult decisions itself. An important reason for restraining the growth of the administrative state would be to force Congress itself to address difficult issues through legislation.

The Supreme Court’s interest in constitutional issues related to the administrative state has not gone unnoticed, either by litigants or by judges. Without the Court’s interest in the nondelegation doctrine in Gundy, and the questions about Chevron expressed in City of Arlington and Perez, Jarkesy and his counsel might not have challenged the SEC in the Fifth Circuit, and the Fifth Circuit judges might not have gone beyond settled law. Other litigants would not have brought cases challenging Chevron and raising nondelegation issues in the current Supreme Court term. If the Court takes SEC’s appeal of the Fifth Circuit’s Jarkesy decision in its next term, we’ll get a clearer picture of how the Court views the administrative state.

The Fifth Circuit’s Jarkesy decision reflects the Supreme Court’s renewed interest in challenging the administrative state.

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This article was published by Law & Liberty and is reproduced with permission.

It Takes a Village of Bureaucrats to Implement Despotism

Estimated Reading Time: 9 minutes

The Centers for Disease Control and Prevention (CDC) is committed to a vaccine solution for COVID-19. Bureaucrats at the CDC believe you can’t be trusted to see “critical” data on COVID hospitalizations or the effectiveness of the COVID vaccine boosters; you might “misinterpret” the findings and be less inclined to get vaccinated or boosted. The NewYork Times reports, “The performance of vaccines and boosters, particularly in younger adults, is among the most glaring omissions in data the C.D.C. has made public.” Perhaps the withheld CDC data mirrors recent Israeli data, which shows, for the second booster, vanishing efficacy.

When the new FDA Commissioner Robert Califf, says his top priority is to fight “distortions and half-truths,” he wasn’t referring to misinformation coming from government bureaucrats.

By withholding information, the CDC has been complicit in the firing of thousands of Americans from their jobs, many of them health professionals. You can hardly mandate something that doesn’t work as advertised and doesn’t prevent you from infecting others.

Dr. Pierre Kory explains how edicts from politicized bureaucrats have led to hospital protocols calling “for treating [COVID] with ineffective, expensive, and potentially unsafe drugs like Remdesivir.”

Ryan Cooper writes the “practice of shading the truth or telling straight-up falsehoods in service of some half-baked political end started from the first moments of the pandemic.”

University of California professor of medicine Dr. Vinay Prasad also decries the lies:

Throughout the pandemic, public-health officials have omitted uncomfortable truths, made misleading statements, and advanced demonstrably false assertions. In the information era, where what one says is easily accessible and anyone may read primary literature, these falsehoods will be increasingly recognized and severely damage the field’s credibility.

Prasad writes, “We must carefully remove the power we have granted public health, which has often been misused.”

Swinish Unconstitutional Behavior

In Vasily Grossman’s great Russian novel Life and Fate, two scientists are talking about their frustration navigating the highly politicized bureaucracy where a political error could result in being purged. Of the current bureaucrat in charge of their lab, one scientist says, “he’s not such a bad type.” Grossman, through another character, adds this teaching lesson: “By the way, do you know the difference between a good type and a bad type? A good type is someone who behaves swinishly in spite of himself!”

Generalizing the lesson, bureaucracies incentivize employees to betray the public trust. Employees may feel bad about what they do, but they do bad things, anyway.

Grossman was writing about Stalinist Russia, but his observations can be easily applied to the CDC or Fauci’s National Institute of Allergy and Infectious Diseases (NIAID).

Federal regulatory agencies and the bureaucrats running them are trampling on your rights. Columbia University Law School professor Philip Hamburger is one of the leading authorities on constitutional law. According to Hamburger, writing in his short book, The Administrative Threat, “Administrative power is a preconstitutional mode of governance— the very sort of power that constitutions were most clearly expected to prevent.” American bureaucrats are not fundamentally different from their counterparts in totalitarian societies. They are both unbounded by constitutional constraints; the only difference is in degree.

Before the Supreme Court decisions on vaccine mandates, Hamburger left no doubt about where he stood: “Rather than merely evaluate the Biden administration’s misdeeds—serious as they are—the Court should reflect upon its own wayward doctrines. Its departures from the Constitution have authorized, even normalized, the government’s departures. For this, the Court is to blame.”

Hamburger is referring to the normalization of administrative power. In The Administrative Threat, he is clear: “The Constitution establishes only regular avenues of power, and thereby blocks irregular or extralegal power. To be precise it blocks extralegal lawmaking by placing legislature powers exclusively in Congress, and it prevents extralegal adjudication by placing judicial power exclusively in the courts.”

Administrative mandates and rules are unconstitutional. “Through administrative power,” Hamburger argues, there now exists a third but “unconstitutional” way by which the “the executive purports to create legal obligation.” Administrative lawmaking is not justified as “delegated power.” Congress has no power to subdelegate its responsibilities to bureaucratic administrators. In short, administrative power, Hamburger writes, is “the very sort of power that constitutions were expected to prevent.” He warns that power wielded through government bureaucracies “binds Americans and deprives them of their liberty.”

Many citizens yield to administrative power believing we need experts, such as Fauci, to guide us. Hamburger cautions, “A person with specialized expertise will tend to overestimate the importance of that area and underestimate the significance of others. As a result, although experts can be valuable for their specialized knowledge, they cannot be usually relied upon for decisions that take a balanced view of the consequences.”

Hamburger was writing before COVID. Clearly, of the administrative agencies and bureaucrats threatening our liberties today, Dr. Fauci has led the charge. Fauci is arguably one of the most powerful unelected officials in American history.

To stem the tide of rising administrative power, Hamburger recommends that we “should bar judicial deference to agencies on questions of law or fact, as this violates due process and other constitutional limitations. Further, he recommends, “Congress should remove immunity for administrators — beginning with those who have desk jobs and agencies with a track record of violating constitutional rights.”

As Hamburger explains in his book Is Administrative Law Unlawful?, “Administrative law evades not only the law but also its institutions, processes, and rights.”

The Amorality of Bureaucracies

Among the horrifying passages in Life and Fate are those where Grossman describes in detail what went into building the gas chambers in Nazi concentration camps. Hitler, Himmler, and Eichmann didn’t pluck these horrors from thin air. Gas chambers were not among products sold in the marketplace. Thousands of actions had to be coordinated by a bureaucracy and military willing to follow insane and criminal orders. Tens of thousands of highly educated individuals had to follow orders.

Grossman has the character Obersturmbannführer Liss visit the Voss engineering works:

The Voss works had been entrusted with an important part of the order and Liss was satisfied with their work. The directors had devoted considerable thought to the project and were keeping precisely to the specifications. The mechanical engineers had improved the construction of the conveyors, and the thermal technicians had developed a more economical system for heating the ovens.

Writing in his illuminating but understated style, Grossman brings home the point that many well-educated individuals had to engage in this depraved process:

Liss refused an invitation to observe the experiments being conducted in the laboratory. He did, however, look through pages of records signed by various physiologists, chemists and biochemists. He also met the young researchers responsible for the experiments: a physiologist and a biochemist (both women), a specialist in pathological anatomy, a chemist who specialized in organic compounds with a low boiling-point, and Professor Fischer himself, the toxicologist who was in charge of the group.

Still, much more was needed. Grossman explains:

A railway track had been laid down, leading directly off the main line to the construction site. The tour of inspection began with the depots alongside the railway line. First, under an awning, was the sorting depot. This was filled with component parts of a variety of machines, tubes and pipes of every diameter, unassembled conveyor belts, fans and ventilators, ball-mills for human bones, gas and electricity meters soon to be mounted on control panels, drums of cable, cement, tip-wagons, heaps of rails, and office furniture.

Grossman continues with construction details and descriptions of people operating the camps. One such person was Private Roze, whose “job was to watch through the inspection-window; when the process was completed, he gave the order for the gas chamber to be emptied. He was also expected to check that the dentists worked efficiently and honestly.” The dentists were extracting gold dental work from those murdered:

At the end of each day one of the dentists would hand Roze a small packet containing several gold crowns. Although this represented only an insignificant fraction of the precious metal taken every day to the camp authorities, Roze had twice handed over almost a kilo of gold to his wife. This was their bright future, their dream of a peaceful old age. As a young man, Roze had been weak and timid, unable to play an active part in life’s struggle. He had never doubted that the Party had set itself one aim only: the well-being of the small and weak. He had already experienced the benefits of Hitler’s policies; life had improved immeasurably for him and his family.

The Party looked out for “the small and weak,” Roze reasoned. If Roze’s conscience was pricked, he could think, I am not a criminal; I am merely serving the “common good.” Grossman writes, “People struggling for their particular good always attempt to dress it up as a universal good. They say: my good coincides with the universal good; my good is essential not only to me but to everyone; in achieving my good, I serve the universal good.”

Complying with orders of bureaucrats to commit unimaginable atrocities, people can rationalize away their criminality. Grossman writes, “The air is full of the groans and cries of the condemned. The sky has turned black; the sun has been extinguished by the smoke of the gas ovens. And even these crimes, crimes never before seen in the Universe—even by Man on Earth—have been committed in the name of good.”

There are no gas chambers in America, and it is unlikely there will ever be. Yet, exercising extralegal power, an army of bureaucrats working for the CDC, FDA, OSHA have terrorized America, dividing Americans into the clean and unclean. As Laurie Williams writes, “An unelected government agency was allowed to classify us into ‘critical infrastructure’ and ‘nonessential,’ and confine many of us to our homes.” These bureaucrats, Williams adds, helped to teach us “to see each other as potential contagions, not potential collaborators.” These bureaucrats don’t have the terrible powers of bureaucrats in Nazi Germany or Stalinist Russia, yet I shudder to think what would happen if they were so empowered.

As with Private Roze, life is good for some who cooperate with COVID bureaucrats. Some have a vested interest in perpetuating the pandemic. Musa al-Gharbi, a sociology fellow at Columbia University, recently observed why academics and bureaucrats don’t want to let go of COVID:

A constellation of scholars, bureaucrats and pundits seem invested in COVID remaining a “crisis” indefinitely. As the political scientist Oren Cass put it, many have been granted more money, prestige and institutional power than they have ever had in the wake of the pandemic. For them, a “return to normal” would mean a return to being largely ignored and exerting marginal influence over society. It would mean losing new revenue streams they have grown accustomed to, and so on. In light of this reality, it is perfectly natural that many experts, administrators and “talking heads” would be disinclined to return to “normal” – loss aversion is a powerful cognitive bias. However, recognizing these impulses as banal (rather than nefarious) does not render them unproblematic. They can skew policymaking and expert advice towards continued invasive policies and a continued sense of panic in ways that are excessive and pernicious.

Ending Our Silence

The will of the voting public will often do little to reverse policies of unbridled bureaucracies. In his seminal Democracy in America, written in 1840, Alexis de Tocqueville explained that in Europe the basis of power was “the upper echelons of society,” whereas power in America began with individuals acting in associations, local governments and then states. Today Tocqueville wouldn’t recognize an America where power resides so significantly in an unconstitutional federal bureaucracy.

Yet, Tocqueville saw that centralization might one day lead to “administrative despotism:”

After having thus taken each individual one by one into its powerful hands, and having molded him as it pleases, the sovereign power extends its arms over the entire society; it covers the surface of society with a network of small, complicated, minute, and uniform rules, which the most original minds and the most vigorous souls cannot break through to go beyond the crowd; it does not break wills, but it softens them, bends them and directs them; it rarely forces action, but it constantly opposes your acting; it does not destroy, it prevents birth; it does not tyrannize, it hinders, it represses, it enervates, it extinguishes, it stupefies, and finally it reduces each nation to being nothing more than a flock of timid and industrious animals, of which the government is the shepherd.

The despotism of which Tocqueville warned is dawning. Overcoming it may seem hopeless, but the power of bureaucratic despots depends on the power we give them. Perhaps thousands of scientists working for the CDC and NIAID know they are enabling the lies of their bureaucratic leaders. Among them may be those who remain silent and do their jobs, as did Grossman’s scientists, chemists, thermal technicians, and mechanical engineers. Some will find their courage. When we find our voice and say enough is enough, perhaps Congress will restrain bureaucracies according to the recommendations of Hamburger. Some states are already acting to rein in the power of their state health bureaucracies.

Of Stalin’s crimes, Grossman shows how silence was an enabler of lies and horrors: “We remained silent in 1937 when thousands of innocent people were executed. Or rather some of us—the best of us—remained silent. Others applauded noisily. And we remained silent during the horrors of general collectivization.” Is that what the battle for freedom has come to, that the “best of us” remain silent?

As we find our voices, the pendulum of power will shift back in a Tocquevillian direction. In America today, a decentralization movement is growing, advocating greater local control. Continued erosion of public trust in federal agencies and government experts will hasten that movement. 

While we wait for others to wake up, Grossman believes we can choose “everyday human kindness.” “Ordinary people bear love in their hearts,” he wrote. “are naturally full of love and pity for any living thing. At the end of the day’s work they prefer the warmth of the hearth to a bonfire in the public square.” Kindness, Grossman adds, “is what is most truly human in a human being. It is what sets man apart, the highest achievement of his soul. No, it says, life is not evil!”

Life is not evil, but bureaucracies often are cruel. America is regressing back to the early seventeenth century, Hamburger observes, in the manner of King James of England who governed via edicts from his Star Chamber. Of administrative power, Hamburger warns, “It is difficult to think of a more serious civil liberties problem for the twenty-first century.”

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This article was published by AIER, American Institute for Economic Research and is reprinted with permission.

The Supreme Court Confronts the Administrative State

Estimated Reading Time: 5 minutes

It could be a coincidence—or it could foretell a historic Supreme Court term. The Court has now accepted two cases for this term that could threaten the essential legal underpinnings of the federal administrative state.

The first is American Hospital Association v. Becerra, in which the plaintiff questions the Chevron doctrine—a rule fashioned by the Supreme Court itself in 1984 that requires lower federal courts to defer to administrative agencies’ interpretation of their delegated authorities, where the statute is ambiguous and the agency’s decision is “reasonable.” Under this rubric, lower federal courts have given administrative agencies wide leeway to interpret the scope of their authority. 

The second case, which has received less attention, is West Virginia v. Environmental Protection Agency, in which the state is challenging EPA’s authority to impose restrictions on the emission of greenhouse gases under the Clean Air Act. West Virginia has a number of objections to the EPA’s actions, but one of them raises a constitutional issue known as the nondelegation doctrine, which was last invoked by the Supreme Court in 1935. This holds that under the Constitution’s separation of powers, Congress may not delegate any of its legislative authority to agencies of the executive branch. Accordingly, if Congress gave so much discretion to the EPA in the Clean Air Act that the agency could create what was in effect a new law—without congressional authorization—the Act would violate the nondelegation doctrine.

Thus, while Chevron has largely been used to expand the authorities of administrative agencies over time—with the courts providing generous readings for agencies’ claims of authority under ambiguous laws—the nondelegation doctrine has the potential to narrow the range of administrative activity by requiring Congress to enact more tightly drawn legislation. If the Court should weaken or eliminate Chevron, and re-invigorate the nondelegation doctrine, it would mean—in a single term—a significant narrowing of administrative state authority and an historic shift in the Court’s jurisprudence away from precedents initially established in and after the New Deal.

Prior cases have laid the groundwork for changing the Court’s view of both doctrines.

Taking Chevron first, many commentators have noted that the lower federal courts have been generous in accepting claims by administrative agencies that their statutory authority is ambiguous and their interpretation of that authority is reasonable. As the Wall Street Journal has pointed out “By one estimate, appellate courts agree with an agency’s judgment that a statute is ambiguous 70% of the time, and then 94% of the time uphold [the agency’s] interpretation.” The result has been a continuing expansion of the powers of administrative agencies, and an invitation to Congress to enact ambiguous laws. This in turn has enabled Congress to avoid making difficult legislative decisions by granting unspecified powers to administrative agencies.

The first serious crack in the Chevron wall came in the 2013 case City of Arlington v. FCC. There, Chief Justice Roberts, together with Justices Alito and Kennedy, dissented from a majority opinion in support of Chevron written by Justice Scalia.

This in itself was a major change in the Court’s attitude toward Chevron, but it was followed in 2015 by Perez v. Mortgage Bankers Association, in which Justice Scalia—long the Court’s strongest supporter of Chevron—formally recognized that the Administrative Procedure Act (APA) requires the reviewing court—and not the administrative agency—to interpret the meaning of a statute. In other words, the courts, and not the agencies, are the final arbiters of an agency’s authority. As the Chief Justice said in City of Arlington, “We do not leave it to the agency to decide when it is in charge.”

Now the Court has the Becerra case before it, with the possibility of weakening or even eliminating the Chevron doctrine by re-asserting the authority of the federal courts under the APA. The issue is whether Health and Human Services (HHS) has the power under Medicare to alter the reimbursement rates that hospitals receive for outpatient drugs. The applicable law specifies two reimbursement methods—hospital acquisition costs and average drug prices—but HHS claims that it has authority to “adjust” reimbursement rates as necessary despite the language of the statute.

Although the district court agreed with the American Hospital Association, the DC Court of Appeals overruled the lower court and found that HHS was entitled to deference under Chevron that would allow it to vary the reimbursement for hospitals.

The Supreme Court has a range of possible responses. One, of course, is to agree with the DC Circuit, but that seems unlikely. Four justices must agree to take a case, so four justices already think the DC Circuit’s decision is questionable. On the other hand, following the APA, the Court might want to place its weight behind a district court that enforced the specific language of the statute. This would weaken Chevron. Further, the Court might want to restate or re-emphasize what the Chief Justice said in City of Arlington, “We do not leave it to the agency to decide when it is in charge.” A statement like this could put an end to Chevron.

What the Court says this term on either Chevron or the nondelegation doctrine, or both, could reverberate for years to come when courts consider the scope of statutes that confer authority on the agencies of the administrative state.

West Virginia v. EPA could also be decided on several grounds, but many on the left have expressed concern that the Court might invoke the nondelegation doctrine to overturn the DC Circuit’s decision. Because this doctrine grows out of the constitutional separation of powers, many constitutional scholars believe that the Court should step in when Congress seems to have given the agencies the power to make new rules binding on the private sector instead of merely interpreting what Congress has enacted.

In 2018, the Court took a case—Gundy v US—solely for its nondelegation implications. But at the time of argument, because Justice Kavanaugh had not yet been sworn in, there was no majority opinion. Now, with a bench of nine, a majority opinion is possible.

To be sure, West Virginia could be decided on non-constitutional grounds. The case arose out of the Clean Power Plan (CPP), pressed by President Obama in 2015. The plan, ultimately adopted by EPA, was intended to use the Clean Air Act as a vehicle for reducing carbon emissions by coal and gas-powered electric generating plants, even though Congress had never specifically given it that authority for stationary plants. Eventually, under new leadership in the Trump administration, EPA decided that it did not have the authority it was asserting in the CCP and rescinded the plan in 2019.  However, in January 2021, the DC Circuit issued a 2-1 decision vacating the rescission of the CPP and holding that the EPA did in fact have the authority to issue the CPP, and even to do more than the CPP had mandated.

West Virginia and several other states appealed that decision and the Supreme Court granted certiorari to review the DC Circuit’s opinion.

Thus, there are a number of possible positions the Supreme Court could take. It could of course find that the EPA had authority to pursue the Clean Power Plan, but this is unlikely. The Court had already issued a temporary stay on CCP implementation in 2016, after 27 states appealed. To issue that stay, at least four justices had to agree that the regulation exceeded the EPA’s statutory authority, and the Court’s composition is more conservative today than it was in 2016.

Congress has never rewritten the Clean Air Act to address concerns about climate change and greenhouse gases; the law was enacted before climate change was an issue. Today’s Court could look carefully at the EPA’s statutory authority and decide simply to overrule the DC Circuit’s opinion.

The Court also could use this case, and the DC Circuit’s broad view of EPA’s authority under the Clean Air Act, as an example of a statute that unconstitutionally delegates legislative authority to an administrative agency, reviving the nondelegation doctrine for the first time since 1935.

What the Court says this term on either Chevron or the nondelegation doctrine, or both, could reverberate for years to come when courts consider the scope of statutes that confer authority on the agencies of the administrative state.

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This article was published in Law & Liberty and is reprinted with permission.

Climate Tyrants’ New Tactics

Estimated Reading Time: 7 minutes

Chief Justice John Marshall’s observation, “[t]hat the power to tax involves the power to destroy,” has become part of American political lore. Marshall understood that the state’s revenue-extracting power can be weaponized—even against those who have committed no crime. We are now seeing a corollary to that notion in finance, with fossil fuel companies as the target. It turns out the government may not need to tax your company into oblivion if it can isolate you from all sources of commercial financing.

It has become an article of faith among climate activists that it is not enough for ethical investors to voluntarily divest themselves from hydrocarbon holdings. Governments and central banks must intervene in capital markets to eventually drive such companies out of business. This strategy is not new—previous generations of activists sought to restrict capital to firms that produce military hardware, nuclear power, cigarettes, firearms, and other politically disfavored products. But never before has government policy so forcefully been part of the plan.

In that spirit, the Senate Banking Committee held a hearing last year, titled “Protecting the Financial System from Risks Associated with Climate Change,” where members of the committee and witnesses were asked what the Federal Reserve was doing to save our planet from hydrocarbon-fueled climate disaster. One witness invited by the committee’s minority, however, had a different view. Economist John Cochrane of the Hoover Institution pushed back on the hearing’s premise that the federal government needs to be “protecting the financial system” from climate risks, suggesting that what climate policy advocates actually had in mind was to “steer funds to fashionable but unprofitable investments and away from unfashionable ones” via “regulatory subterfuge rather than above-board legislation or transparent environmental agency rule-making.”

Many policies favored by climate activists are out of line with prudent policymaking. Worse, they may arrogate entirely new powers to the agencies involved. In his congressional testimony, Cochrane pointed out that the Network of Central Banks and Supervisors for Greening the Financial System—which the Federal Reserve recently joined—has a stated goal to “mobilize mainstream finance to support the transition toward a sustainable economy.” But that is not how financial regulation works. Agencies like the Fed don’t get to pick the policy goals that their leadership happens to like, pressuring private parties to immanentize those outcomes. The Fed has a specific statutory mandate regarding unemployment and inflation—it does not have plenary authority over the entire U.S. economy.

Fortunately, more people are recognizing that the Fed is about to get dangerously out of its depth on climate policy. For instance, in November, Joshua Kleinfeld of Northwestern Pritzker School of Law and Christina Parajon Skinner of Wharton wrote in National Review of the effort to transform the Federal Reserve into a climate regulator: “It is democratically illegitimate for the Fed to engage in freelance activism. The Fed has no legal right to do so.” In a 2021 Vanderbilt Law Review article, Skinner pointed out that the allegedly pressing nature of a societal problem doesn’t magically expand the legal powers of a given government entity. She explained, “despite the substantive importance of climate change, the U.S. Federal Reserve presently has relatively limited legal authority to address that problem head-on,” concluding that “many aspects of climate change sit outside the Fed’s legal remit today.”

It would be a mistake in any case for the Federal Reserve Act to bestow on the Fed the expansive powers some think it needs to address climate change. The American Enterprise Institute’s Ben Zycher has discussed this in detail, emphasizing that the expertise one would need to do this prudently is entirely lacking at the Federal Reserve—and other agencies. Moreover, this problem could not be solved by convening a conference of professionals with doctorates in atmospheric physics. The uncertainties inherent in multi-decade climatological forecasts are not amenable to the supposed financial risk mitigation strategies that proponents want the Fed to employ.

Policymakers would be called on to make assumptions, not just about greenhouse gas levels or changes in the global energy mix, but also about detailed—and contested—scientific issues like the dynamics of cloud formation and regional climate oscillations. How will a given content of aerosols in the upper atmosphere combine with a La Niña event 20 years from now, to influence the value of corporate bonds sold to finance energy infrastructure five years ago? Will warmer winters and melting permafrost in Siberia threaten Citibank’s balance sheet? Will the greening effect of more carbon dioxide in the atmosphere benefit developing nations by helping increase food production? No one knows for sure, but banks are already being pressured to cancel loans based on the assumptions of a handful of non-expert regulators.

Just because climate change is the hottest topic in progressive policy circles today doesn’t mean that other issues won’t command similar attention in the future, as anti-nuclear and anti-firearms campaigns have in the past.

Advocates of climate finance regulation might retort that they don’t need to be sure about things like the average air temperature on Earth in 2100. We already face more immediate risks that will affect the economy and banks’ solvency. Therefore, regulatory institutions like the Federal Reserve should attempt to steer capital flows away from carbon-intensive investments to deal with those immediate risks. That’s true—but only because climate activists themselves have intentionally created and amplified those risks.

When the Securities and Exchange Commission (SEC) issued its first guidance on how public companies should disclose potential climate-related risks in 2010, it identified four sets of circumstances under which firms might be expected to have a disclosure requirement. They were 1) the impact of legislation and regulation, 2) the impact of treaties, 3) the “indirect consequences of regulation or business trends,” and 4) the physical impacts of climate change. In other words, any actual changes to weather patterns, sea levels, or natural disasters were an afterthought to the real financial threat to shareholders: government policy aimed at intentionally sabotaging hydrocarbon energy investments.

Thus, climate activists have managed to work both ends of the field. They publicly attack companies for being involved with oil and gas production, lobby for punitive policies to disadvantage those companies, and then turn around and label those efforts as a “climate risk” that corporations must disclose—and be further targeted by government policy. None of this has anything to do with climate change itself. No stakeholders are being saved from hurricanes or floods by any of this activity. It is a purely political attack on a legal industry that produces the vast majority of the energy that powers the United States and the world. Yet the proponents of this strategy claim that they are “protecting shareholder value” and reducing financial risks to investors. As my Competitive Enterprise Institute colleague Marlo Lewis recently wrote, the real point of all of this is not to identify banks’ climate risks but to intensify fossil fuel companies’ legal and political risks. It’s a self-fulfilling shell game.

This all leads observers to wonder which other industries will see similar attacks in the future. Just because climate change is the hottest topic in progressive policy circles today doesn’t mean that other issues won’t command similar attention in the future, as anti-nuclear and anti-firearms campaigns have in the past.

Unfortunately, we need not even make the case for a slippery slope; federal officials have already done exactly the same thing to other industries. In the mid-2010s, the Obama administration undertook a coordinated enforcement effort called “Operation Choke Point” to delegitimize and de-bank legal businesses that the administration had deemed politically incorrect, choking off their access to capital and financial services. Under the guise of protecting banks from the reputational risk of being associated with unsavory clients, federal officials warned banks that they should reconsider doing business with companies that offered everything from dating services and collectible coins to firearms and payday loans. Not surprisingly, many firms in such a heavily regulated industry took the hint and dropped those suddenly-controversial clients.

When the details of Operation Choke Point became widely known, it met widespread public blowback and was eventually discontinued. But the fact that senior officials within the Department of Justice, Federal Deposit Insurance Corporation (FDIC), and the Office of the Comptroller of the Currency (OCC) all thought this was a reasonable approach to enforcement is alarming. It also raises the question: Why did they go about it in such a non-transparent way? If the businesses in question were so problematic, why not simply pass new laws that disciplined them for their alleged transgressions?

The answer, of course, is that any such public effort would have been unpopular and very unlikely to be approved by Congress. Most Americans don’t think that the small businesses targeted by Operation Choke Point should be exiled from polite society–but the progressive-left bureaucrats in the Obama administration did. Moreover, if Congress had decided to criminalize certain previously legal financial transactions, payday lenders and gun stores would have been entitled to due process in an Article III court. But that is not what the Choke Point architects wanted. They preferred a system of vague and unaccountable “regulatory dark matter,” whereby government lawyers threaten private parties with enforcement actions via guidance documents, letters, and blog posts. It is easier to pressure a regulated firm to cut off another business from services than it is to prove in a court of law that the business in question has actually done anything wrong. The effort to expel oil and gas producers from the financial system is following a similar playbook.

Finally, we must consider the long-term political impact of financial agencies like the Fed, SEC, FDIC, and OCC expanding their portfolios to include topics like climate change and risks like those targeted by Operation Choke Point. As University of Alabama law professor Julia Hill wrote in the Georgia Law Review in 2020, “because reputation risk is largely subjective, regulators can use it to further political agendas apart from bank safety and soundness.” That politicization, she goes on, “undermines faith in the regulatory system and correspondingly erodes trust in banks.” Brian Knight of the Mercatus Center has warned about turning financial agencies into “universal regulators,” noting that it is “dangerous for our system of government to have administrative agencies, rather than our elected representatives in Congress, setting policies to address important social problems.”

Leadership at these agencies can step back from the brink and confine their enforcement to the powers actually granted by Congress, but if they do not, a future Congress will need to nudge them back into their corners.

Furthermore, financial regulators’ freelance initiatives on social and environmental policy might not survive a federal court challenge. Consider a similar recent case of agency overreach. Last July, the Supreme Court struck down the Centers for Disease Control and Prevention’s (CDC) eviction moratorium, with the majority writing, “It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts,” and adding that, “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” Would-be climate finance czars might hear similar admonishments soon.

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This article was published by Law & Liberty and is reproduced with permission.

Extortionary Governance

Estimated Reading Time: 8 minutes

The United States seeks to secure the rule of law, on which our freedom and prosperity depend, through written constitutions enforced by an independent judiciary. Although governments will sometimes get away with ultra vires acts, we rely on constitutional checks and balances to prevent serious usurpations of power. If Philip Hamburger is right, however, constitutional violations by the federal government have become so pervasive, oppressive, and readily tolerated that we Americans risk becoming incapable of self-government.

In 2014, Hamburger published a massive historical and analytical study arguing that modern administrative law is really a revival of the prerogative power once exercised by English monarchs. The English successfully fought to replace this power with constitutional law, under which statutes are adopted by an independent legislature and enforced by independent courts. Our Founders fortified the barriers against arbitrary rule with written constitutions that provide for judicial review of actions by the executive and the legislature alike. But Hamburger argued that we are now largely ruled by unelected and unaccountable bureaucrats who exercise a form of administrative power that “systematically steps outside the Constitution’s structures, thereby creating an entire anti-constitutional regime.”

Hamburger’s new book, Purchasing Submission, describes a departure from the Constitution that is even worse. While administrative law may be “anti-constitutional,” it is typically applied with at least a simulacrum of the formal protections offered by the Constitution’s prescribed mode of making and enforcing law. When our rulers require us to surrender our legal rights as a condition of receiving benefits from the government, even this protection is lost.

It is true, of course, that most conditions on the receipt of benefits are manifestly innocuous and perfectly constitutional, as when government employees agree to show up at work and do their assigned tasks as a condition of receiving a salary. With this paradigm in mind, one might think that government should be just as free as anyone else to put additional conditions in its employment contracts, or on any benefit or privilege, it offers to those who are free to decline the offer. Private firms, for example, frequently and justifiably require their employees to curb their tongues, on and off the job, and governments often have good reasons for doing the same.

The Supreme Court has declined to accept “consent” as a universal solvent with which government can eliminate barriers to regulation. It has identified some “unconstitutional conditions,” such as conditioning some government jobs on some forms of political silence or conformity. But the Court has notoriously never offered a satisfactory explanation of the difference between permissible and impermissible conditions. That failure has generated a large academic literature that reflects the difficulty of devising a doctrinal solution to the problem.

Purchasing Submission offers insightful discussions of this topic, especially with respect to regulations that are imposed indirectly through state and private actors. One federal agency, for example, requires colleges and universities, as a condition of receiving federal grants, to police the speech of their students and faculties in ways that the government could not do directly. These institutions are required to impose prior restraints on speech by requiring every researcher (not just recipients of federal grant money) to obtain a license before talking to “human subjects.” Before the Trump administration changed the policy, another agency effectively required colleges to try students accused of sexual misconduct (including “unwelcome” speech) in kangaroo courts that lacked anything resembling the due process of law.

Administrative Rule

Hamburger’s greatest contribution to the literature may be his analysis of government’s use of conditions (including threats that are withdrawn on condition of compliance) to alter the Constitution’s allocation of power. Apart from violating specific individual rights, the government uses conditions on benefits as a tool for imposing regulations that the legislature has not adopted and frequently would not enact into law. For example, Congress conditioned a portion of the funding it offered the states for highway construction on their setting the legal drinking age at a minimum of twenty-one. More egregiously, the Federal Trade Commission frequently brings administrative proceedings against telecommunication companies for breaches of data security that do not violate any statutory or common law standard. Typically, the agency then uses the threat of regulatory harassment to extort from the company a consent decree that establishes a new security standard and waives the firm’s right to judicial review.

Many varieties of such techniques, including abusive threats to withhold permits and licenses, evade the Constitution’s vesting of the legislative and judicial powers in Congress and the federal courts respectively. Hamburger considers them unconstitutional for that reason. This reallocation of power is supposedly necessary to meet the demands of a citizenry that has no interest in crippling the government with an outmoded straitjacket on its regulatory flexibility. If so, it should be done through a constitutional amendment. But Hamburger is dubious about the need, suggesting instead that genuinely necessary regulations, and those that really do have broad political support, could be enacted in real laws enforced by real courts.

Hamburger rejects the conventional assumption that the Constitution allows the government to do whatever the Supreme Court endorses or tolerates. But he also recognizes that there is not much chance of enforcing the Constitution without the Court’s help. Accordingly, he points wherever he can to judicial precedents and comments that at least partially support his positions. And he suggests that many of the constitutional violations he identifies have not been ratified so much as overlooked by the Court. So he sees hope for progress.

I am largely persuaded by Hamburger’s diagnosis of the constitutional disease, which includes corruption of the republican spirit in a people that accustoms itself to governance by institutionalized bribery and extortion instead of by law. I wish he had provided more examples of the practices he condemns, and that he had more clearly defined the overlapping categories of unconstitutional conditions and “worrisome” or “disturbing” conditions. More importantly, I agree that the nation could make substantial progress in restoring the constitutional order without disabling government from adopting regulations that truly are needed and wanted by the public. Although the book does not present a detailed reform program, I also agree that such progress is very unlikely to occur except through the mechanism of judicial review.

Unless the Court acts with unexpected boldness, we will have more evidence suggesting that our system of constitutional self-government is experiencing the relentless progress of a terminal illness.

The Supreme Court’s Original Sin

How much relief can we realistically hope for? Not much, if the past is any guide. Four decades ago, a vigorous reform movement arose from frustration with the politicized adventurism of the Warren and Burger Courts, which showed little respect for the original meaning of the Constitution and statutes, or for the Court’s own precedents. This movement has labored ever since to make fidelity to the written law respectable, and to encourage the appointment of sound-minded jurists. Four administrations beginning with President Reagan’s have accepted these goals as their own. Reagan elevated William Rehnquist to the chief justiceship, and he and his Republican successors have appointed ten new Justices. Members of this group have now constituted a majority of the Court continuously for over thirty years. Although most of these individuals have resisted major new departures from the Constitution, the principle of originalism has enjoyed little consistent support. The Rehnquist and Roberts Courts have sometimes cut back on unconstitutional excesses from the past, but mostly in tiny increments that have had little practical impact.

The dearth of real progress may be illustrated by a phenomenon to which the Court has given quite a bit of attention: conditional grants to the states. Alexander Hamilton argued that Congress derives a free-standing power to spend money from the reference to the general welfare in the following provision of the Constitution: “The Congress shall have Power to lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” This clause specifies the purposes for which Congress may tax the people. That specification does not imply a power to spend for the general welfare any more than it implies the power to regulate for the general welfare.

As Madison insistedrepeatedly and irrefutably, treating the Taxation Clause as a grant of substantive regulatory or spending power effectively renders meaningless the enumeration of Congress’ limited substantive powers. Congress is certainly authorized to spend money, but only as a necessary and proper incident of the exercise of its enumerated powers. Otherwise, by substituting the carrot of money for the stick of direct commands, Congress could effectively exercise what we call the police power.

Hamburger thinks that Madison was right, as I do. The Supreme Court, however, issued a peremptory ipse dixit adopting Hamilton’s interpretation in 1936. This had little practical effect at first because the Court soon licensed Congress to regulate almost everything in human life. With next to no judicial limits on direct regulation, Congress had little need to use its judicially invented spending power to evade the Constitution’s limited enumeration of legislative powers.

Prospects for Redemption

Congress eventually became unsatisfied even with the unconstitutionally sweeping power that the Supreme Court had given it. Although free to exercise what amounts to the police power directly, or by purchasing compliance from regulated parties, Congress frequently finds it more convenient to launder its impositions through the state governments. In 1987’s South Dakota v. Dole, the Court summarized the limits on this use of the spending power, which are notable for their modesty. Hamburger stresses the Court’s statement that Congress may only spend money in pursuit of “the general welfare,” a constraint that even Hamilton accepted. But this limitation has never been enforced, and the Court itself admitted that it has extended so much deference to Congress that there may be no judicially enforceable restriction at all.

Five years later, in New York v. United States, the Court reviewed a statute that ordered the states either to adopt regulations for disposing of low-level radioactive waste generated within their borders or to take ownership of the waste or to become liable for all damages suffered by the owner as a result of the state’s refusal to take ownership. The Court properly held that Congress has no authority to force a state to do any of these things, and thus could not offer a “choice” that amounted to “your money or your life.” But this ruling was bound to have limited practical effect because the Court upheld other provisions that authorized sanctions on states that did not comply with the federal regulatory program. Those sanctions were based in part on Congress’ limitless power to tax and spend. They were also based in part on the legislature’s unfettered discretion to grant compliant states exemptions from the Court’s dormant commerce policy, a policy that unconstitutionally suppresses the states’ concurrent authority to regulate interstate commerce.

In 2012, NFIB v. Sebelius invalidated a law that threatened the states with the loss of all Medicaid subsidies unless they agreed to expand coverage in return for some new subsidies. A majority concluded that the size of the threatened loss was large enough to constitute unconstitutional coercion. This may appear to be a promising step toward curtailing federal extortion, but I am not sure it is legally sound. In dissent, Justice Ginsburg argued that Congress was free to repeal the entire Medicaid program and then replace it with a new program of subsidies conditioned on acceptance of both the previous and expanded coverage. Why should Congress be forbidden to accomplish in one step what it could certainly accomplish in two? Chief Justice Roberts responded by speculating that it would not be “that easy” politically to make the change in two steps. So Congress violated the Constitution by taking the politically easier path to a constitutionally permissible goal?

The Supreme Court could probably initiate meaningful constitutional reform if it corrected its 1936 mistake about the spending power, though the effects would be limited unless it also cut back significantly on its extravagant interpretation of Congress’ regulatory power. While we’re waiting, might the Court start enforcing a “general welfare” restriction by defining and invalidating impermissible pork-barrel spending? Not an appetizing prospect for the Justices, I suspect. Or perhaps the Court will police a line between inducement and coercion, as seven Justices purported to do in the Medicaid expansion case. Maybe. But Roberts’s lame response to Ginsburg’s legal argument in Sebelius, and his success at inducing Justices Breyer and Kagan to join his opinion on this issue, suggests that this case is not a harbinger of meaningful reform.

Hamburger’s diagnosis of the purchased-submission malady will enhance every reader’s understanding of this debilitating political and judicial pathology. The friends of constitutional government should hope that his book will help the Supreme Court to administer some effective medicine. Maybe that will happen this term in a case involving judicial deference to administrative agencies or a case involving the extent of congressional power to delegate legislative power to administrative agencies. But unless the Court acts with unexpected boldness, we will instead have more evidence suggesting that our system of constitutional self-government is experiencing the relentless progress of a terminal illness.