February 2019

February 28, 2019 4:55PM

John Dingell and the Death of Institutional Pride in Congress

John Dingell, who represented southeastern Michigan for 59 years in the House of Representatives, died on 7th February. While I disagreed with virtually all of Rep. Dingell’s policy preferences, I very much admired the man for the institutional pride he took in Congress. It’s a quality sorely lacking in contemporary lawmakers.

Rep. Dingell was a master parliamentarian. He is famous in Washington D.C. for his steady accumulation of power as chairman of the Energy & Commerce Committee during the 1980s. Due to his efforts, Energy & Commerce presently exercises the broadest jurisdiction of any authorizing committee in Congress. 

From this perch, he regulated the regulators. His use of agency “details”—i.e., commandeering executive branch officials to assist in oversight—was legendary. His investigations were feared. Again, I disagreed with his policy preferences, but, undoubtedly, he was effective in competing with the president (and his colleagues) for control over agency policymaking.

Today, alas, the president calls the shots at regulatory agencies, largely unfettered by Congress. As described by then‐​Prof. Elena Kagan in a celebrated law review article, we live in a time of “presidential administration.”

Over the last few decades, the president has developed powerful mechanisms, including budget management and White House regulatory review, to superintend the administrative state. Yet, in the face of growing executive power, Congress declined to compete. As I explain further below, party allegiance trumps institutional pride in today’s Congresses. Most congressional Democrats looked the other way, or even cheered, when “their guy” used a “phone and pen” to circumvent Congress and unilaterally impose a deferred action immigration policy. And most congressional Republicans looked the other way, or even cheered, when “their guy” declared a “national emergency” to circumvent Congress and unilaterally build a wall. I’m confident that such obsequiousness would’ve been anathema to a Congress full of John Dingells.

What made Rep. Dingell different? He was a product of his times. Whatever else their flaws, lawmakers of his era abided certain norms that made for a more competent Congress. Under the “apprenticeship” norm, new members of Congress were expected to keep a low profile and instead devote themselves to committee work. Under the “specialization norm,” lawmakers were expected to master one to two narrow issues within their committee’s jurisdiction. To be sure, Dingell’s generation engaged in overbroad delegations of lawmaking functions to agencies, but these lawmakers at least felt a duty to counterbalance such grants by taking the time to understand the inner workings of the agencies they created and funded. The 1946 Legislative Reorganization Act, for example, requires congressional committees to exercise “continuous watchfulness” over regulatory agencies.

Moreover, lawmakers of Dingell’s era genuinely cared about Congress as an institution. To the Congresses that legislated the administrative state into existence, the president was a competitor, and oversight was a primary means for ensuring that laws were faithfully executed. To a large extent, the legislature’s oversight role was codified in various enabling statutes, which often required agencies to consult with appropriate committees before implementing proposed policies. Back then, agencies usually acknowledged and honored objections voiced by members. Congresses of yesteryear also authorized lawmakers to check regulations after they already had been issued. From the New Deal until the early 1980s, Congress legislated 295 veto provisions in 196 statutes, pertaining to every field of governmental concern. In 1983, however, the Supreme Court ruled that this sort of legislative oversight is unconstitutional.

At about the same time that the Supreme Court rejected the legislative veto, Congress began a structural change that further undermined its capacity to compete with the president. Specifically, there was a shift from committee‐​control to party‐​control over both chambers of Congress, such that, again, party affiliation currently takes priority over institutional affiliation. In large part, this centralization of power resulted from demographic shifts that homogenized the Democratic and Republican parties, primarily the decline of northeastern Republicans and southern Democrats. Another major factor contributing to this trend is the “fiscalization” of politics in Washington D.C., by which scholars mean that congressional affairs are now dominated by periodic high‐​stakes negotiations over budget deficits, debt ceilings, and government shutdowns. In these recurrent crises, congressional leadership naturally assumes a greater hand. Congressional leaders accelerated the centralization of power by slashing professional support staff at committees and Article I agencies.

In this environment, Congress has had insufficient political will to reinstitute a viable mechanism for checking administrative policymaking. In 1996, Congress partially revived the legislative veto, but its scope was limited to resolutions of disapproval rather than resolutions of approval, which meant that a sitting president could use his constitutional veto power to protect regulations promulgated during his term. As a result, Congress gained veto power over only a small subset of some presidents’ regulations—basically, those rules promulgated in the final five months of an outgoing presidency, where the incoming president is from a different party. The crucial point is that the legislative veto is a shell of former self.

Obviously, norms like specialization and apprenticeship have fallen by the wayside—just look at the AOC phenomenon. Less than two months into her first term, she has basked in the political limelight and even introduced a sweeping proposal that would fundamentally overhaul the American economy. “Apprenticeship” plainly does not apply. Nor does “specialization.” In modern Congresses, members tend to be generalists when they enter, and they are content to remain generalists while they stay.

Compared to members from Dingell’s time, lawmakers today know less and have fewer resources. They also work fewer days. Effective oversight has suffered accordingly. Consider the House Natural Resources subcommittee hearing on climate change last Tuesday, which was adjourned by the minority party because too few Democrats bothered to attend. Mind you, it’s a Democrat party plank that climate change is the most pressing problem of our time. Quality of oversight isn’t any better in a cleanly divided government, where both chambers are held by the party in opposition to the president, as was demonstrated amply by the Republicans during the Obama era.

To be clear, I’m wide‐​eyed about the realities of power. I understand that Dingell wielded his authority to benefit his constituents—in particular, the Big Three automakers in Detroit. While there are those who genuinely believe that “what is good for GM is good for America,” I’d no more want Rep. John Dingell than anyone else to wield the powers of the modern president. Rather, my preference is for Congress and the president to battle to manage the administrative state—like they used to—and thereby tame the leviathan. That’s how the system is supposed to work. 

What will it take to make Congress great again? We’re going to need a few score more members like John Dingell, in both houses and on both sides of the aisle. R.I.P.

February 28, 2019 1:04PM

Zoning Reform Is For Conservatives, Too

Some conservatives seem to be getting the wrong impression, and believe zoning is a progressive issue. Although this view is somewhat understandable given that many cities and states engaged in zoning reform are politically blue, the idea that zoning is a progressive issue is wrong and couldn’t be further from the truth.

The impacts of zoning reform are frequently described in terms that appeal to the left, which may be throwing some conservatives off. However, the impacts of successful zoning reform could just as easily be described in terms that appeal to the right. For example, done correctly, zoning reform can restore property rights and basic freedoms that the US Constitution promises American citizens, freedoms that have been eroding for years.

The Constitution requires that “private property [shall not] be taken for public use without just compensation,” and as the Cato Policy Handbook explains, regulation is one way governments effectively “take” property by arbitrarily limiting their development and use. Conservatives may not realize just how far American property rights have already eroded, but no doubt a quick glance at their local zoning code will remedy that. 

The zoning code often limits such small and personal freedoms as what type of tree a person can plant in his/​her yard, whether building a shed or mother‐​in‐​law apartment is allowed, whether growing a vegetable garden or changing the color of the shutters is possible, and whether it’s acceptable to use a family farm to host weddings or other events. The zoning code may forbid a person from starting a business in their own home, may limit the type of people living in a house to only relatives, and it frequently decides the number of parking spaces a business must provide to visitors. 

In fact, almost any small freedom that conservatives would expect to be entitled to by virtue of property rights can be reduced or eliminated by local bureaucrats in conjunction with busybody neighbors via the local zoning code. Most conservatives would likely be appalled by the many petty and arbitrary limits on their freedoms that their local zoning code imposes on them. 

Finally, even if conservatives aren’t motivated by limits on their freedom, they should know that zoning hurts “their people” from Republican states by limiting their economic opportunity. For instance, zoning affects low‐​skill workers in places like Mississippi and West Virginia by limiting their ability to move to high opportunity areas, and it impacts everyone by reducing economic growth overall.

As Danny Shoag and Peter Ganong’s work suggests, rich and poor state incomes have stopped converging as a result of restrictive zoning. In other words, Trump supporters in interior and southern states like Mississippi and West Virginia aren’t able to immigrate to high opportunity areas because the cost of housing is too high as a result of restrictive zoning, and they remain stuck in low‐​opportunity areas instead. 

zoning findings image

Republished via WSJ 

These are just a few of the reasons skeptical conservatives should reconsider their position toward zoning regulations and zoning reform. It goes without saying that conservatives shouldn’t agree with misguided proposals put forward by Democrats that include more regulation, developer mandates, additional taxes, and increased spending. But Republicans would be wrong to confuse bad proposals with the issue of zoning regulation itself, or the need for reform in general. 

February 28, 2019 10:53AM

Even Something as Great as School Choice Should Not Be Federalized

Media Name: no_child_left_behind_act.jpg

Today, Sen. Ted Cruz (R-TX) and Rep. Bradley Byrne (R-AL), in conjunction with U.S. Secretary of Education Betsy DeVos, will unveil a bill to create a $5 billion scholarship tax credit, an unprecedented federal school choice effort. An op‐​ed all three have in USA Today spells out both the good of federal school choice, and inadvertently, the potential bad which makes it too dangerous to justify.

First, the good. DeVos, Cruz, and Byrne argue, quite rightly, that “education isn’t about school systems. It is about school children.” If you recognize basic reality, you’ll know that all children and families are different—different talents, values, dreams—hence it makes no sense to say all should get uniform education. But opposing school choice is de facto endorsing the idea that education should be largely uniform. One size must fit all.

They also make another crucial point, one that is starting to elicit push‐​back from public schooling advocates who insist that public schooling and public education are synonymous. DeVos, Cruz, and Byrne write that their proposal is not “an attack on public education.” Of course it isn’t. For one, they say their proposal would allow credit‐​eligible funds to be used for public school options. More broadly, just as public assistance doesn’t mean every recipient of help must go to a government grocery store, nothing about public education implies government must supply the schools. Indeed, we’ve been moving away from things like government housing projects for decades.

Now the bad. School choice is about individualization and freedom, and almost certainly that is what DeVos, Cruz, and Byrne want. But federal initiatives are a terrible way to deliver that. The reality is that what the feds fund, even indirectly, they inevitably want to control. DeVos, Cruz, and Byrne specifically acknowledge that historical reality in federal education policy. They write, “A series of administrations on both sides of the aisle have tried to fill in the blank with more money and more control, each time expecting a different result.” Note that the primary vehicle for that control, the Elementary and Secondary Education Act, started aimed just at funding low‐​income districts. It eventually became the uber‐​controlling No Child Left Behind Act.

DeVos, Cruz, and Byrne are looking to skirt the control problem, sticking with tax credits instead of vouchers, and letting states opt in. But not only is this unconstitutional—taxes are authorized to execute specific, enumerated powers, not to lightly engineer state policy—it won’t, ultimately, prevent encroaching federal control. If enacted, the credit would spur people to demand their states participate, and as more schools benefited from federally connected scholarships all schools would be financially pressured to use them. But the federal government will have the power to decide which state programs are or are not eligible, and on what grounds. As Corey DeAngelis and others have noted, what happens when, instead of a President Trump, we have a President Sanders or Harris and they don’t like the policies of religious schools, or maybe how economics is taught? Suddenly lots of private schools and other options will be federally pressured to look very similar—shape up or credit eligibility goes away—and true choice will be curtailed.

Even the roll out of the proposal raises the specter of federal control. Though the great benefit of tax credits is they do not use government money, and hence are less prone to regulation than vouchers, DeVos, Cruz, and Byrne write that through their proposal they “are putting forward a historic investment in America’s students.” That sure sounds like the federal government is doing the funding, and what government funds it tends to control. Also, that Secretary DeVos is so prominent in the proposal release at least symbolizes not only federal intervention in education policy, but a strong connection to the executive—the dangerously regulatory—branch of the federal government.

School choice is great, and DeVos, Cruz, and Byrne recognize that. But as with so many policies, we cannot let our hearts overcome either our adherence to the rule of law—the Constitution—or make us underestimate the potentially crushing unintended consequences that the product of our pure motives may have.

February 28, 2019 9:10AM

A Rose by Another Name Still Merits First Amendment Protection

Barronelle Stutzman owns and operates Arlene’s Flowers, where she designs floral arrangements for a variety of occasions, including weddings. Mrs. Stutzman is also a practicing Christian; she believes that marriage is a spiritual union between a man and a woman and will not create floral arrangements for same‐​sex ceremonies. For this reason, when long‐​time clients Robert Ingersoll and Curt Freed asked Mrs. Stutzman to create floral arrangements for their wedding, she respectfully declined and referred them to several nearby florists.

To be clear, Mrs. Stutzman serves everyone. She gladly created Valentine’s Day and anniversary floral arrangements for Messrs. Ingersoll and Freed for nearly a decade before this litigation, all the while knowing they were a same‐​sex couple. She just has a sincere religious objection to creating her expressive floral works for same‐​sex weddings.

Nevertheless Ingersoll and Freed sued Stutzman, which suit was later consolidated with another one brought by the state of Washington. The state trial court ruled against Arlene’s Flowers and the state supreme court affirmed, holding that floral design did not constitute First Amendment‐​protected artistic expression. Stutzman took her case to the U.S. Supreme Court, which held it pending its decision in the factually similar Masterpiece Cakeshop case last year. The Supreme Court then remanded Arlene’s Flowers v. Washington back to the Washington Supreme Court for reconsideration. As it has in previous stages of this litigation, Cato has filed an amicus brief supporting Arlene’s Flowers, urging the Washington Supreme Court to revise its earlier ruling and hold that floral design is constitutionally protected expression.

The plaintiffs here simply fail to recognize the difference between discrimination based on sexual orientation and refusing to create messages that violate one’s conscience, which is an important First Amendment right that the Supreme Court has repeatedly affirmed. Floristry, like painting, dance, or music, is art, and art is speech protected by the First Amendment. The Court declared in Wooley v. Maynard (1977) that the government can’t force people to speak, even when the message is simply a state motto, and the means of speaking is just displaying the motto on one’s license plate. The First Amendment protects “freedom of the individual mind,” which the government violates whenever it tells a person what she must or must not say. Forcing a florist to create a unique piece of art similarly intrudes on that freedom of mind.

Just last year, the U.S. Supreme Court in NIFLA v. Becerra and Janus v. AFSCME reaffirmed its commitment to striking down laws that compel speech. Justice Clarence Thomas’s concurrence in Masterpiece Cakeshop also illustrates the unique danger of forcing someone to speak against his or her conscience.

While Wooley provides important constitutional protection, it also offers an important limiting principle to that protection: Although florists, writers, singers, actors, painters, and others who create speech must have the right to decide which commissions to take and which to reject, this right does not apply to others who do not engage in protected speech. The court can rule in favor of Arlene’s Flowers on First Amendment grounds without blocking the enforcement of antidiscrimi­na­tion law against denials of service by caterers, hotels, limousine drivers, and the like.

In sum, the government should not be allowed to persecute expressive professionals for declining to create the government’s preferred messages.

February 28, 2019 8:29AM

Fed Chair High on Banking Reform for Cannabis Industry

Advocates of marijuana legalization, and owners of cannabis‐​oriented companies, received a positive boost this week when Jerome Powell, the Federal Reserve Chair, testified to Congress that providing clarity to banks dealing with the cannabis industry would be desirable:

“I think it would be great to have clarity,” Powell said from Capitol Hill. “It puts financial institutions in a very difficult place and puts the supervisors in a difficult place, too. It would be nice to have clarity on that supervisory relationship.” (CNBC)

Powell’s testimony comes as a new draft of the Secure And Fair Enforcement Banking Act of 2019 (SAFE Act) is circulating. The legislation would expand dispensary and other cannabis company access to formal banking – allowing a shift away from cash‐​based operation – and protect investors and bankers from the current potential legal consequences of providing financial services to the cannabis industry.

Expanding these legal protections will not only allow banks and investors to participate in a rapidly growing market; it might also increase pressure on the federal government to legalize – or at least de‐​schedule – marijuana.


Research assistant Erin Partin co‐​authored this blog post.

February 27, 2019 5:39PM

Trump Administration Proposes to Check Itself in Remarkable Kisor Brief

On Monday, the Solicitor General filed an extraordinary brief in Kisor v. Wilkie, a case in which the Supreme Court is reconsidering “Auer deference,” or binding judicial respect for an agency’s interpretation of its own regulation. The brief is remarkable, perhaps even unprecedented, because it reflects the evident desire of the president to cede significant power to another branch of government.

Under Auer’s canonical formulation, an agency’s regulatory interpretation is “controlling unless plainly erroneous or inconsistent with the regulation.” The problem is that, in practice, Auer allows agencies to bind the public with putatively nonbinding advisories, and thereby evade procedural safeguards.

Astonishingly, the government’s brief recognizes the harms engendered by Auer. In a forthright section titled “Overly broad deference to agency interpretations can have harmful practical consequences,” the Solicitor General concedes that “[Auer] deference can discourage agencies from engaging in notice‐​and‐​comment rulemaking.” More importantly, the government proposes to mitigate these concerns by narrowing the doctrine.

To this end, the brief argues that Auer deference is appropriate only if the regulatory text involves a “genuine ambiguity.” While this may seem obvious, reasonable minds often disagree about “how clear is clear?” The Solicitor General intimates that courts have been too quick to defer–that is, they’ve been too easily satisfied the regulatory text is ambiguous–when the brief claims that “[a] rigorous application of the tools of construction would obviate any need for [Auer] deference in many cases.” Here, the government borrowed from the late Justice Scalia, who made the same point about judicial deference to an agency’s statutory interpretations.

Even if the regulatory text is genuinely ambiguous, the government argues that “the agency’s interpretation should be given [Auer] deference only if certain threshold requirements are satisfied.”

First, the Solicitor General argues that controlling deference should be “limited to interpretations that are not inconsistent with the agency’s prior views.” This is already a tremendous concession, but the government goes further. “Even when there is no express inconsistency,” the brief continues, “[Auer] deference should not apply when the agency adopts a novel interpretation that disrupts settled expectations.” By arguing that binding deference is inappropriate where it offends “settled interests,” the Solicitor General goes a long way towards reviving the defunct “Alaska Hunters doctrine,” which required agencies to undertake notice‐​and‐​comment rulemakings whenever they changed a regulatory interpretation in a manner that affected the reliance interests of regulated parties. In Perez v. MBA, the Supreme Court rejected the Alaska Hunters doctrine, but the government appears to be trying to revive it in Kisor.

Second, the brief argues that “a reviewing court [] should not apply [Auer] deference if a particular interpretive dispute does not implicate the agency’s expertise.”

Finally, the Solicitor General advises that “[Auer] deference is unwarranted [if] a proffered interpretation was given by field officials or other low‐​level employees who cannot be said to speak for the agency.”

Together, these three conditions—but particularly the requirement for interpretive consistency—would go far to cure the ills of Auer. The government, however, stopped short of calling for an outright repeal of the doctrine. Nor did the brief call for the Court to account for the administrative procedure behind the agency’s interpretation. For administrative law nerds, this means that the government seeks an Auer framework with robust “steps” one and two, but no step zero. 

Of course, I’d prefer if the Court rejected Auer deference wholesale, and the Cato Institute has filed a brief in Kisor supporting the overruling of Auer. Notwithstanding my preference to jettison the doctrine, I’m favorably impressed by the government’s brief. To my eyes, it represents a wise abnegation of presidential power. 

Theoretically, the Solicitor General is supposed to represent the interests of the United States, not the executive branch, per se. And, in practice, it retains a healthy degree of independence from political meddling. At the same time, the office is aware of the institutional interests of its political bosses, and, historically, the Solicitor General rarely has adopted legal positions out of line with those that protect or advance presidential authority. The upshot is that it’s virtually certain that the Trump administration was the impetus for the anti‐​executive reasoning in the government’s Kisor brief.

For this, the administration deserves credit. To riff off a famous biblical passage, it is easier to thread a camel through the eye of a needle than it is for the president to give up power. Yet that’s precisely what the Solicitor General proposes to do in its Kisor brief. By arguing for a limited Auer doctrine, the government argues for limits on its own power. Specifically, the executive branch seeks to transfer interpretive policymaking authority from itself to the judicial branch.

For some, the Solicitor General’s brief demonstrates dangerous “anti‐​administrativism” at the highest levels of government. I’ve a more positive take (though, admittedly, I’m an “anti‐​administrativist”). Thanks to overbroad congressional delegations and judicial deference doctrines, the president has accumulated unhealthy domination over domestic policymaking, via his control of the administrative state. We live in a time of “presidential administration,” as put by then‐​professor Elena Kagan. In this current political environment, where the legislature and judiciary aren’t competing to the extent they should, one of the primary limitations on presidential power is internal—that is, the duty to “take care that he laws be faithfully executed.” In this spirit, the Solicitor General’s brief recognizes that Auer deference undermines procedural safeguards set forth in the Administrative Procedure Act, and, therefore, recommends limiting the doctrine’s domain.

Obviously, the Trump administration rarely abides this internal check; the wall funding imbroglio represents a powerful example to the contrary. But when this presidency does the right thing, as with the Kisor brief, then kudos are in order.

February 27, 2019 5:22PM

Media Misses: Worrisome International Flashpoints

It is no secret that Americans tend to focus more on domestic news stories than on the coverage of international affairs. Media priorities also reflect the perception that, unless the United States is about to enter a major war or is already mired in one, readers and viewers care primarily about issues at home. Unfortunately, that situation can cause Americans to be blindsided by dangerous overseas developments. 

While recent coverage has focused on such issues as the fight over President Trump’s border wall and Michael Cohen’s testimony before the House Oversight Committee, two worrisome foreign crises are brewing. One is a clash between Pakistani and Indian warplanes that led to the loss of two Indian aircraft, and the capture of one pilot. It was the most serious military incident between the two countries since their full‐​scale war in 1971. The escalation of tensions involving two nuclear‐​armed powers is—or at least should be—a matter of grave concern to the entire world.

Yet most American media outlets seem to be paying, at most, modest attention. For example, the top five items in the February 27 “Post Most”—the Washington’s Post daily summary of the most popular and important articles in its pages—were about Cohen’s impending testimony. The armed clash between India and Pakistan was only the sixth item listed. Such treatment suggests questionable priorities by both the Post’s editors and readers.

The other international flashpoint is the alarming deterioration of relations between Taiwan and Mainland China. As I discuss in a new article in China-U.S. Focus, that situation has been worsening for the past two years. The latest incident is an effort by Taiwanese hardliners under the banner of the Formosa Alliance to push President Tsai Ing-wen’s government to hold a referendum on formal independence. Chinese leaders have made it clear on several occasions that any move toward the goal of independence is unacceptable and would cross a clear red line. Even some long‐​time pro‐​Taiwan partisans are cautioning Tsai not to go down that path.

Zealous pro‐​independence activists are risking a catastrophe. Although it is increasingly uncertain whether the status quo of Taiwan’s de facto independence can be sustained over the long‐​term, prudent political actors would at least try to perpetuate that situation as long as possible. Taiwan enjoys a wide range of benefits from its current status, despite the frustration of not having official international recognition from more than a handful of countries—all of them small. The Taiwanese people have built an economic powerhouse, and the island is a robust liberal democracy. A referendum on formal independence, in defiance of Beijing’s warnings, would put all of those benefits in danger.

As bad as a major fight between India and Pakistan would be, there is one important difference between that scenario and a war between China and Taiwan. The United States has no direct risk exposure to an India‐​Pakistan conflict. However, Washington does have an implied commitment to defend Taiwan. Even the language of the Taiwan Relations Act, which Congress passed when Jimmy Carter’s administration decided to switch diplomatic relations from Taipei to Beijing in 1979, suggests that the United States would not stand by idly if the Chinese government sought to coerce the island. And U.S. officials since the passage of the TRA have repeatedly implied—or even stated outright—that there is a security commitment to Taiwan.

At the very least, both the news media and the general public need to pay more attention to such serious international developments. It is easy to become mesmerized by domestic policy disputes and emotional politics, but some foreign crises can have a major adverse impact on this country. The alarming events in South Asia and the Taiwan Strait should be on every American’s radar.