Topic: General

On Trump’s Higher Ed Executive Order

President Trump’s hotly anticipated executive order on college free speech—brought to a fever pitch with his comments at this year’s CPAC—is out. It’s actually kinda several orders in one, with free speech on the main stage, but college outcomes data, and a bunch of studies—including of “skin in the game”—on the sides. Here are some quick thoughts on all three parts.

Free speech

Conservatives, especially, have become disgusted with what they have seen as an increasingly aggressive, politically-correct culture on American campuses, and not without some justification. The order, as you could glean from the White House signing event, was almost certainly motivated by that. But as far as the words of the order go, it seems restricted to combatting college policies, not cultures. Free speech zones, administrators prohibiting certain speakers, etc. Crucially, it treats public and private institutions differently, understanding that public colleges are fully subject to the First Amendment, while private colleges are beholden to what they promise their customers. If they say they are going to allow the free exchange of ideas, they need to do that, but if they are forthright about their speech codes, no problem.

The danger lurks in the order’s generality. It directs multiple federal agencies to “take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry.” Sounds good, but it doesn’t spell out what that means. Could it result in agencies saying free inquiry requires intellectual “balance” among invited school speakers, or something similarly intrusive? What if all agencies have their own, differing definitions? And as Sen. Lamar Alexander (R-TN) suggested, isn’t speech protection more the bailiwick of the Department of Justice than Energy, or the National Science Foundation?

Data

The order calls for the Department of Education to create a new website and mobile app so borrowers can easily check data on their students loans, which is fine if you (wrongly) accept that the feds should be in the student loan business. Also, it requires that the College Scorecard, launched during the Obama Administration, add data on program-level, rather than just school-level, outcomes such as graduate earnings.

Data publication is one of the less dangerous things Washington does, but it still has pitfalls, especially the likelihood the data will be politically cherry-picked instead of used to inform.

Studies

A longstanding proposal, championed by many people who understand the root problems of higher education, has been for colleges to bear some cost for defaulted loans. As it stands now, most schools have little incentive to turn away federal bucks-bearing students, no matter how unlikely to complete their studies they may be. Schools get paid no matter what, meaning student aid is all upside for colleges. The “skin in the game” goal is to incentivize schools to better vet potential matriculators, or maybe do a better job educating.

Two problems. First, this blames institutions when the crux of the problem is elsewhere: Washington gives bundles of money to just about anyone who wants them, without seriously assessing their ability to handle the programs they plan to enter. It’s at the point of the initial loan where the vetting should occur, to the benefit of both the would-be borrower and the true lender: the American taxpayer. Second, politically favored schools such as community colleges would probably quickly be identified for exemption. Thankfully, as the heading of this section telegraphs, the order just calls for a study of ways to implement such a proposal.

The other areas for study are pretty innocuous, as far as federal education intervention goes. The Secretary of Education is to study and report on better ways to collect on defaulted loans, and to formulate ideas to increase college completion based on what’s worked in states and institutions.

Summary

All in all, the order’s not the worst thing we could have gotten, but there are ample causes for concern.

Is This Infrastructure Really Necessary?

The United States has “at least $232 billion in critical public transportation” needs, claims the American Public Transportation Association (APTA). Among the “critically needed” infrastructure on APTA’s list are a streetcar in downtown Los Angeles, another one in downtown Sacramento (which local voters have rejected), one in Tempe, and streetcar extensions in Tampa and Kansas City.

Get real: even ardent transit advocates admit that streetcars are stupid. The economic development benefits that supposedly come from streetcars are purely imaginary, and even if they weren’t, it would be hard to describe streetcars – whose average speed, APTA admits, is less than 7.5 miles per hour – as “critically needed.”

Much of the nation’s transit infrastructure is falling apart, and the Department of Transportation has identified $100 billion of infrastructure backlog needs. (Page l – that is, Roman numeral 50 – of the report indicates a backlog of $89.9 billion in 2012 dollars. Converting to 2019 dollars brings this up to $100 billion.) Yet APTA’s “critical needs” list includes only $24 billion worth of “state of good repair” projects. Just about all of the other “needs” listed – $142 billion worth – are new projects or extensions of existing projects.

In fact, few if any of these new projects are “needed” – they are simply transit agency wish lists. For example, it includes $6 billion for phase 2 of New York’s Second Avenue Subway, but no money for rehabilitating New York’s existing, and rapidly deteriorating, subway system. Similarly, it includes $140 million for a new transitway in Alexandria, Virginia, but no money for rehabilitating the DC area’s also rapidly deteriorating Metrorail system. (In case anyone is interested, I’ve converted APTA’s project list into a spreadsheet for easy review and calculations.)

The $166 billion total on APTA’s “Project Examples” list is less than the $232 billion APTA says is needed, but even if all of the difference is “state of good repair” projects, that difference plus the $24 billion on APTA’s list doesn’t add up to what the DOT says is needed to restore transit infrastructure. This shows that even APTA doesn’t take public safety and “crumbling infrastructure” seriously.

I’ve previously pointed out that the best-maintained infrastructure is funded out of user fees. For example, Federal Highway Administration data show that only 2.9 percent of toll bridges are “structurally deficient,” compared with 5.5 percent of state-owned bridges funded mainly out of gas taxes and 12.2 percent of locally-owned bridges that are funded mainly out of general tax dollars. Gas taxes are a user fee, so state bridges are better maintained than local bridges, but tolls are an even better user fee so toll-funded bridges are in the best shape.

Politicians allow infrastructure funded out of tax dollars to deteriorate because they would rather spend money on new projects than maintain old ones. APTA’s list simply confirms this: APTA is trying to entice politicians into funding all sorts of new projects rather than maintain the existing ones that are falling apart.

To justify this spending, APTA claims that transit produces $4 in economic benefits for every $1 spent. This is based on a report prepared for APTA in 2009. This report includes two kinds of benefits from transit spending.

First, when anyone spends money on anything, the recipients of that money turn around and spends it again. That’s called “indirect” or “secondary” benefits. Spending money on digging holes and filling them up would produce similar secondary spending. That doesn’t mean the government should pay people to dig holes and fill them up (although that’s really what it’s doing for many rail transit projects). For one thing, if government didn’t spend that money, there would be more money in the hands of taxpayers, who would spend it, generating just as many secondary benefits.

Second, the study counts cost savings to transit riders and other travelers, such as the savings from not having to own a car, from getting to destinations faster, or from congestion relief. But transit costs far more and travels far slower than automobiles; there is no cost or time savings from substituting expensive, slow methods of transportation for inexpensive, fast methods of transportation. Transit also does not provide a significant amount of congestion relief; in fact, large buses, streetcars, light rail, and commuter trains that have many grade crossings often do more to increase congestion than reduce it.

The study’s arguments are even less plausible today, when transit ridership is shrinking, than they were in 2009, when transit ridership had been growing. Charlotte, Los Angeles, and Portland recently spent hundreds of millions or billions on new light-rail lines or light-rail extensions, yet transit ridership in those regions dropped after the new lines opened. There is no way that can that be good for transit riders or other travelers.

APTA’s wish-list is just one more reason why Congress should only pass an infrastructure bill if it is one that is funded exclusively out of user fees. An infrastructure bill funded out of tax dollars or deficit spending would impose huge costs on taxpayers in order to build unnecessary projects that we won’t be able to afford to maintain. 

Private Satellite Firm Aids Boeing 737 Investigation

Canada privatized its air traffic control (ATC) system in 1996. Today, Nav Canada is on the leading edge of ATC innovation worldwide. With Iridium, Nav Canada co-founded Aerion in 2012, which produces satellite-based tracking of global airliner movements. This is the future of air traffic control as it promises greater safety, fewer delays, savings of fuel, and more efficient use of airspace. The U.S. ATC system is not an investor in this revolutionary project.

Our government-run ATC is falling behind the privatized systems in Canada and the United Kingdom. ATC is a high-tech business, yet we run our system as an old-fashioned and mismanaged bureaucracy within the Federal Aviation Administration (FAA).

Aerion made the news last week when it provided crucial data on the Ethiopian Airlines Boeing 737 MAX crash, which killed 157 people. CNBC reported, “Even after dozens of countries grounded Boeing’s 737 Max, the FAA did not. It was only until ‘actionable data’ arrived from Aireon that the FAA made the decision, acting Administrator Daniel Elwell told CNBC.”

And here is what the Wall Street Journal reported:

When the Federal Aviation Administration reversed course and grounded Boeing Co.’s 737 MAX jetliner, it moved partly after seeing data from a little-known aerospace newcomer that is changing the way the aviation industry tracks planes.

Aireon LLC, based in McLean, Va., was founded less than a decade ago—the brainchild of satellite maker Iridium Communications Inc. and Canada’s air-traffic managers. It collects and then distributes to partners, including air-traffic-control providers around the world, some of the operational data that passenger jets automatically send out in real time.

Using gear it has placed on satellites, Aireon gathers data such as a plane’s speed, heading, altitude and position. It gets updates every eight seconds or less. Air-traffic-control providers increasingly use the data to track planes from tarmac to tarmac—a capability only made possible with the development of sophisticated satellite networks.

In the case of Ethiopian Airlines Flight 302, which crashed Sunday killing 157, Aireon said it started furnishing its raw data as early as Monday to the FAA, the National Transportation Safety Board, Canadian officials and other authorities. The data would have required some time to analyze, according to an Aireon spokeswoman.

Once recipients crunched the numbers, they found similarities between the six-minute flight path of the crashed Ethiopian Airlines 737 MAX and that of a Lion Air 737 MAX that crashed, after 11 minutes, killing all 189 aboard, less than five months earlier. Canadian officials said they had finished analyzing the Aireon-provided data only by Wednesday morning. They decided to ground the jet a few hours later. President Trump announced a U.S. grounding a few hours after that.

The FAA isn’t an Aireon investor, though the two have worked together previously.

… Aireon is owned by Iridium; Nav Canada, the Canadian air-traffic-control agency; and a handful of other air-traffic-control providers, including those in Britain and Ireland. … Aireon currently offers its services to 11 air-traffic-service providers spanning 28 countries. … No U.S. airline has said it is using the system.

The Brussels Behemoth Isn’t Just a Conservative Fever-Dream

In a 2016 interview, Daniel Hannan, an MP in the European Parliament, offered the following criticism of the UK’s continued membership in the European Union:

The economic price is not just the £19bn gross (£10bn net) that we hand to Brussels every year—enough to build and equip a state-of-the-art NHS hospital every week. It also takes the form of the regulatory burden that falls on our businesses, especially smaller firms…for we pay both a democratic price and an economic price. The democratic price is that laws are handed down by institutions that no one elects… European commissioners are immune to public opinion, invulnerable to the ballot box.

His attack against over-regulation by Brussels as both an economic drag and a violation of representative democracy neatly echoes conservative and libertarian lamentations over the administrative state on this side of the pond. Far from a Madisonian republic in which the legislative branch “necessarily predominates”, the U.S. Congress has delegated sweeping grants of authority to the executive branch, thereby derogating its constitutional role as the creator of law (with apologies to Randy Barnett and his natural law fellow-travelers). Far from the canard of three “co-equal” branches, the original constitutional ambition was to establish a legislative branch and two derivative branches to respectively execute and exposit the former’s output.

Libertarians argue that excessive regulation is not only violative of democratic principles, it is economically costly to boot. Yet this is only cause for alarm, in Hannan’s case, if the EU is in fact over-regulating. Let’s look at the numbers.

The online EUR-Lex database contains comprehensive measures of EU legal output since 1990. The three principle lawmaking bodies of the EU are the Parliament, the Council, and the Commission. The first two are popularly elected, whereas the Commission is the unelected executive arm, currently headed by Jean-Claude Juncker. EUR-Lex categorizes all legal output from the Parliament and the Council as “legislative” in nature, whereas Commission output constitutes “non-legislative acts”. Each of the three entities may generate three types of output: regulations, directives, and decisions.

Every year, each of these three entities promulgates X number of new regulations, directives, and decisions, and every year Y number of regulations, directives and decisions are either repealed or expire after a sunset period. This means that it’s possible to tabulate the net number of regulations, directives and decisions emanating from each of the three legal bodies each year since 1990, and to then generate a yearly cumulative count of all extant legal acts. And that’s precisely what I’ve done:

First, some limitations on the data. I present only raw numbers, without a measure or word length or number of restrictive words. Thus, it is difficult to translate these trends into the regulatory burden they impose on the private sector. Moreover, because the data begin in 1990, any negative cumulative numbers indicate a net drop from the unknown 1990 baseline, and not the metaphysical absurdity of a negative number of laws!

Caveats duly heeded, the patterns that do emerge are worth commenting on. As we can see, the EU Parliament is the least active of the three bodies. Perhaps these infrequent legislative acts are massive in size, providing the statutory basis for the explosion of executive activity being pursued by the Commission. Whatever the explanation, the trendlines unambiguously demonstrate that the unelected “non-legislative” EU Commission is an order of magnitude more active than its “legislative” peer branches.  

    

Subsidizing Passenger Rail Makes Little Sense

A Wall Street Journal article on an upgrade to a Midwest rail line illustrates the shortcomings of pumping tax dollars into passenger rail.

Amtrak’s route from Chicago to St. Louis would seem an ideal place for the U.S. to adopt high-speed rail such as in Europe and Asia, where passenger trains can race along at 200 miles an hour. The stretch in Illinois is a straight shot across mostly flat terrain.

In fact, a fast-rail project is under way in Illinois. Yet the trains will top out at 110 mph, shaving just an hour from what is now a 5½-hour train trip.

After it’s finished, at a cost of about $2 billion, the state figures the share of people who travel between the two cities by rail could rise just a few percentage points.

Behind such modest gains, for hundreds of millions of dollars spent, lie some of the reasons high-speed train travel remains an elusive goal in the U.S.

Laying dedicated track is expensive but relying on existing track owned by freight rail firms limits speed and on-time performance. The latter approach also undermines the freight rail system, which is an efficient and powerful engine of the U.S. economy.

Illinois didn’t have the money, or the right-of-way, to lay tracks that would be exclusively for a high-speed service. So its fast passenger trains will have to share the track with lumbering freight trains.

“To build the kind of infrastructure that is stand-alone—that is, just for high-speed passenger rail—it is just absurdly expensive and just takes years and years and years to get through the permitting and environmental process,” said Randy Blankenhorn, who was Illinois’s transportation secretary until this year.

“Land acquisition alone [would] take half a decade,” he said. “If we were to have said from the beginning, right off the bat go to 200-mile-an-hour service, we’d still be in the implementing and design phase.”

Illinois settled for weaving improvements along the route and rebuilding an existing single-track line that is owned by freight railroads. In effect, it chose higher-speed rail rather than actual high-speed.

… The Illinois rail project has consisted of making major improvements to the route on which Amtrak provides service. Work started in September 2010 and was supposed to finish in seven years. A federal mandate requiring trains to have an automatic mechanism to prevent certain accidents helped push back the timeline.

It has been a monumental undertaking that required dealing with railroad companies, cities and landowners, said John Oimoen, deputy director of railroads in the state transportation department. More than 300 road crossings had to have separate agreements covering upgrades or closures.

By late 2015, agency officials feared the project was dead, simply because so many deals needed to be negotiated before a deadline to spend the federal grant. The agency ultimately assigned its highway real-estate department to help finish the project.

Upgrading road crossings often meant rebuilding them, from drainage pipes up, to smooth passage for faster trains. Two extra signal arms were added to many crossings to keep drivers from going around them.

Another problem is federal micromanagement. Anything involving federal subsidies includes layers of regulations, which adds costs and delays.

[Illinois] also faced years of delays in getting new rail cars. Nippon Sharyo of Nagoya, Japan, landed a contract in 2012. Because the federal grant that funded the work required cars to be built in the U.S. from U.S.-made parts, the Japanese company expanded a 460,000-square-foot factory in Rochelle, Ill., and rebuilt its supplier network.

The company struggled to adapt designs and failed U.S. crashworthiness tests. In 2017 it withdrew from the contract and later closed the plant, meaning a side benefit Illinois hoped for—local jobs assembling rail cars—fizzled. The work moved to a Siemens AG facility in California.

Amtrak is plagued by lousy customer service. Trains do not run frequently and they have a poor on-time record.

Heidi Verticchio takes the train a few times a week between her home in Carlinville, Ill., north of St. Louis, and Bloomington-Normal, where she directs a speech and hearing clinic for Illinois State University. Because the trains don’t run frequently enough, she often has to drive the 120 miles when she needs more flexibility.

A higher speed won’t mean Ms. Verticchio will be taking the train more often. She estimates it might cut 10 to 15 minutes from her ride.

“It’s not going to make any difference,” she said.

Most of the Chicago-St. Louis train corridor remains a single track. Freight railroads Union Pacific and Canadian National own most of the route. They coordinate all traffic, including passenger trains.

In the year that ended with November, according to an Amtrak report, Canadian National caused 1,672 minutes of delay per 10,000 Amtrak train-miles logged on the route. Union Pacific caused 1,036 minutes of delay per 10,000 Amtrak train-miles, Amtrak said. Both exceeded Amtrak’s target of 900.

The report attributed about two-thirds of the delays to “freight-train interference.” It found that 73% of rail passengers arrived on time, but for those who faced delays, these averaged 45 minutes.

Finally, U.S. passenger rail is run by the government There is more private-sector involvement abroad, which is a better approach. So I agree with Puentes that the Florida and Texas projects bear watching.

Robert Puentes, president of the Eno Center for Transportation in Washington, notes that the U.S. has used just one approach to passenger rail since the 1970s, Amtrak. The government-owned corporation was cobbled together from remnants of major railroads’ passenger services. It is funded through fares and state and federal subsidies.

European rail networks feature a mix of government and business owners and operators. Mr. Puentes said new investor-owned passenger rail ventures in Florida and Texas bear watching.

More on Amtrak here.

Romance of the Rails can be ordered here.

Even Something as Great as School Choice Should Not Be Federalized

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.

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.

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