Topic: Political Philosophy

Republicans Turn Progressive

What are the philosophies of the two parties in Congress today? One of them has veered far to the left. The other one, it’s not clear what defines it. Conservative? Certainly not on spending restraint or deficit control.

Nor on federal land issues. For more than a century, federal policy was to unload western lands. The government privatized 792 million acres of land between 1781 and 1940 and transferred 470 million acres to the states.

During the 20th century, progressives favoring federal control gained the upper hand. They thought that federal management would be efficient and environmentally sound. They were wrong as discussed here and here, and for a while Republicans fought back against the progressive folly.

Today, the federal government owns 640 million acres—mainly in the West—which is 28 percent of land in the nation. Federal control continues to expand as few policymakers seem interested in countering centralization.

Rather than supporting land privatization, Republicans today are embracing the opposite according to a Wall Street Journal editorial:

Democrats on the House Natural Resources Committee voted in June to mandate permanent spending of $900 million a year for the Land and Water Conservation Fund. The LWCF was created in 1964 to “assist in preserving, developing and assuring accessibility to … outdoor recreation resources.” It is funded mainly by federal oil and gas drilling royalties.

Over the years it has become a piggy bank for government to buy more private property, especially in the American West. Some of the purchase priorities are recommended by state and local governments or conservation groups, while the feds focus on buying more of the 2.6 million acres of privately owned land that remain within national park boundaries. This serves the liberal goal of locking up more acreage for political control, and the Democratic House will likely pass it this summer.

The feds do a miserable job managing the 640 million acres they already own. The National Park Service has a maintenance backlog of $12 billion. The Forest Service spent more than $2 billion last year fighting blazes that destroyed 8.7 million acres—much of it poorly managed federal forestland.

In March President Trump signed legislation that permanently reauthorized the LWCF, which means Congress will no longer be taking a fresh look at priorities and value on an occasional basis. Making its funding permanent would compound that legislative abdication. Congress is supposed to make annual judgments about what the fund needs, and its average size over the past 15 years is about $360 million a year. Providing bureaucrats a guaranteed $900 million annually is a stipend far beyond need.

King George III or Donald Trump? Reading the Declaration of Independence in 2019

President Trump has added military flourishes to the July 4th celebrations in Washington, DC. Critics have questioned the militarization of a holiday that has traditionally foregrounded the non-martial courage of the signers of the Declaration of Independence. A group of lawyers, farmers, and merchants defied the most powerful empire in the world by producing a single sheet of paper containing a list of political grievances and a declaration of abstract philosophical principles. That document was powerful enough to channel a revolution, turn colonists into Americans, and inspire democratic movements around the world long after it was written. It has not lost that radical charge today.

But if you take the time before tomorrow’s “Bonfires and Illuminations” to read through the Declaration of Independence’s long list of abuses committed by King George III and British officials in 1776, it is impossible not to hear in those same words a ringing indictment of the Trump administration in 2019.

Here are a few of the most biting passages for modern ears:

“He [King George] has refused his Assent to Laws, the most wholesome and necessary for the public good.”

“He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.”

The complaint in 1776 was that colonial legislatures, which had become used to a relatively laissez-faire Britain regime in the mid-18th century, were increasingly frustrated by Parliament and the King overturning colonial legislation, including various currency controls as well as taxes to discourage the slave trade and the importation of convicts. The colonists saw this as a sweeping and tyrannical expansion of royal authority over against legislative authority. The King’s refusal to recognize the validity of these laws was a tacit veto, a way of bending legislatures to the King’s will on other, unrelated issues.

In the winter of 2018, Donald Trump used the threat of a veto to hold up the passage of a  budget for the federal government that had initially received overwhelming bipartisan support. While Presidential vetos of appropriations bills are not novel—the first was from John Tyler in the 1840s—they have become much more frequent since the 1960s, raising questions about a growing imbalance between the legislative power of the purse and the executive obligation to enforce laws it does not like while also respecting a legislature’s decision not to pass a law. In any case, Trump turned the 2018 spending bill into a tool for bending Congress to the executive will on an unrelated issue, building a southern border wall.

“He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.”

The southern and middle colonies wanted to attract immigrants because of the shortage of labor and the desire to expand west. King George, however, worried that more migrants from other countries would weaken colonial dependence on Great Britain, further shifting the balance of political power to the colonial legislatures. As a result, the Royal Proclamation of 1763 prohibited settlement west of the Appalachian mountains (though it was often honored in the breach).

Furthermore, the colonies wanted rapid naturalization of immigrants through a process that often took less than a year with the goal of enabling immigrants to more quickly and legally hold title to land. The British naturalization system took longer, as much as seven years, and all but prohibited naturalization of foreign Catholics. Bear in mind that many recent immigrants to the colonies had come from the predominantly Catholic southern Germany. Traditional Protestant suspicion of Catholics as dangerous, unassimilable ‘others’ played an important role in the new British restrictions on colonial efforts to extend citizenship to immigrants.

One of the reasons why the Trump administration opposes immigration is the fear that migrants will support Democratic politicians rather than Republicans. Although it is a self-fulfilling prophecy, migration from Central America has indeed played an important role in turning formerly red states into blue or purple states, shifting the balance of partisan power. The GOP’s own retrospective report after the 2012 election called for the party to embrace comprehensive immigration reform or else risk political suicide as the declining party of white resentment in a majority-minority future.

The Auer Doctrine Suffers Pyrrhic Victory in Kisor v. Wilkie

Sometimes it’s possible to lose in name only. Consider, for example, Cato’s position in Kisor v. Wilkie, which the Supreme Court yesterday decided.

By a 5 – 4 vote, the Court upheld the Auer doctrine, or binding judicial deference to an agency’s interpretation of its own regulation. Only four Justices actually validated the Auer doctrine; Chief Justice Roberts provided the fifth vote solely out of respect for precedent. In a brief supporting the petitioner, Cato had argued that the Court should overturn Auer, so technically our position lost.

Nevertheless, the opinion of the Court “reinforced” and “expanded on” the doctrine’s limits. In Part II.B, Justice Kagan set forth several “markers” to guide lower courts regarding the boundaries of Auer deference. In practice, these limits gut the doctrine. As rightly observed by Justice Gorsuch, Auer emerges “maimed and enfeebled.” And because Auer deference has been rendered impotent, opponents of the doctrine effectively “won,” even though we officially “lost.”

So, how did the Court reduce Auer deference to a “paper tiger”? Justice Kagan set forth three big limitations.

The first is a requirement for courts to discern whether the regulatory text is ambiguous. While it might seem obvious that judges should ensure that a legal text is ambiguous before deferring to an agency’s interpretation, courts routinely skipped any meaningful textual analysis before assuming a deferential posture under the Auer framework. In an empirical study, I found that circuit courts failed to meaningfully examine the regulatory text about 35 percent of the time when they applied the Auer doctrine over a 15-year period. The upshot is that there’s a lot of room for courts to improve their craft when it comes to reviewing regulatory interpretations.

Kisor’s second limitation on Auer deference is a requirement that an agency’s regulatory interpretation reflect agency expertise. I expect that this “marker” on Auer’s domain will have the greatest influence on controversies over how to interpret an agency’s procedural regulations. After all, courts are more expert than agencies where due process is implicated. As a related aside, it bears noting that Kisor pertained to a dispute over the regulatory term “relevance” in an evidentiary context, which seemingly rests squarely in the wheelhouse of judicial expertise. Justice Kagan, however, did not draw this connection.

The third significant limitation on Auer was Kagan’s concession that binding deference is “rarely” warranted when an agency has changed its regulatory interpretation. This is huge; by itself, this call for interpretive consistency would have provided a mortal wound to the Auer doctrine. If a regulatory provision is of any consequence, and if it has existed for longer than one presidential administration, then there are vanishingly small odds that the agency’s interpretation has remained consistent. By holding that these interpretations would “rarely” achieve deference, the Court performs most of the work that goes into “enfeebling and maiming” the Auer doctrine.

Today’s unsung hero is the Solicitor General of the United States, Noel Francisco. Justice Kagan didn’t come up with these “markers” on her own. Rather, she borrowed them from the SG’s brief. As I previously explained, the SG’s unusual Kisor brief asked the Court to check the Auer doctrine, even though such a reform would diminish the government’s power. During oral arguments, Justice Kagan seemed concerned about the government’s anti-Auer argument, and she questioned in passing whether the petitioner and government were sufficiently adversarial. Given these apparent reservations, I’m a bit surprise she wholesale adopted the government’s arguments. In any case, the Solicitor General deserves kudos.

Macroeconomic Forecasting Seems Pretty Hopeless

The yield on 10-year Treasury securities is currently 2.1 percent. Now look at the chart below from the Wall Street Journal showing expert predictions about what the current rate would be.

The Journal reports:

  • “Not a single respondent in January’s Wall Street Journal survey of economists predicted the yield on the 10-year Treasury note would fall below 2.5% this year.”
  • “In October, when yields on the 10-year Treasury were near their peak of around 3.2%, none of the more than 50 respondents in The Wall Street Journal’s monthly survey of economists predicted yields would dip below 2.75% by June 2019. The average forecast was 3.39%.”

Forecasts of interest rates appear pretty awful, and this is a market where vast profits are at stake so there are big incentives to get it right. I’ve noted (here and here) that economists are also lousy at predicting economic growth.

What are the policy implications? The economy is too complex and uncertain for even the best economists to predict, so politicians stand no chance. It seems unlikely that political schemes from Washington to manage and manipulate our future economy would work.

Furthermore, while businesses are forced to eat humble pie and change direction when the economy changes, the government is a rigid institution led by people who never admit their mistakes. So when politicians move economic resources around, the resources often get stuck in low-value uses for years on end.

 

Note: my critique here regards macroeconomic predictions. Microeconomic analysis is different.

Rawls vs. Nozick and Rand: The Musical Version

Following a London West End staged reading, a cast soundtrack was released last month for A Theory of Justice: The Musical. The show, composed in 2013 and performed at Oxford and the Edinburgh Fringe since then, takes as its protagonist Harvard political philosopher John Rawls, whose influential work argues for a version of modern liberalism in which the state plays a significant redistributive role. In the plot, Rawls travels through time and encounters earlier political philosophers such as Rousseau, Locke, and Hobbes. As for dramatic tension, that is provided by Rawls’ conflict with contemporary antagonists Robert Nozick, his libertarian colleague in the Harvard philosophy department famed for his work Anarchy, State, and Utopia, along with novelist-philosopher Ayn Rand, who seems to loom as large in the modern liberal imagination as ever (her character here, evoking Lola in Damn Yankees, is apparently assigned the showstopping number, and dances a dangerously persuasive tango with Nozick).  

According to coverage of the show, Nozick and Rand are portrayed as a couple. That’s absurdly at variance with the lives of those real figures, of course. But musicals, like unfortunate political theories, take liberties.

Natural Law, Gay Rights, and the State Department’s New Commission on Unalienable Rights

More on the State Department’s new Commission on Unalienable Rights, about which I wrote in this space on Friday. Aimed at providing Secretary Pompeo “with fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights,” the commission has raised several concerns. Chief among them is whether “natural law” is code, signaling that the department in future might “focus less on protecting women and LGBT people,” as put by Politico, which broke the story on Thursday afternoon. 

Giving weight to those concerns, ABC News late Friday reported that, according to a source familiar with the plans for the commission, Princeton’s Robbie George has played a prominent role in its creation. I’ve known Prof. George for some time now. He’s a first-rate scholar and advocate for religious liberty. In fact, he spoke at Cato’s 2016 conference on religious liberty, which we memorialized with our book Deep Commitments. But as co-founder of the National Organization for Marriage and a prominent voice in Catholic circles, he has long argued against the gay-rights agenda, especially same-sex marriage.

If this is the course the commission takes, this “fresh thinking about human rights” could seriously complicate the work of the department’s Bureau of Democracy, Human Rights, and Labor, especially in countries with draconian anti-gay laws and practices. But at a theoretical level too, as noted in my earlier post, the promise this “fresh thinking” raises for correcting some of the misconceptions that afflict today’s rights talk could easily be lost by coupling natural law and religious belief. A word is in order on that matter. 

Start with this: Natural law and natural rights are not the same thing. True, natural rights emerged historically from natural law. And in the Declaration of Independence, Jefferson did speak of our rights as being “endowed by [our] Creator.” But that was a very general invocation, suited properly for “a candid World” wherein was found a variety of beliefs. Properly understood, however, especially as modern natural rights theory has evolved, our rights are not grounded in a prescriptive natural law, much less in any belief system, religious or otherwise, but in universal human reason, as John Locke and many of the Founders understood. They saw that liberty—the right to pursue happiness by our own subjective lights—was the very essence of natural rights. 

Thus, on this understanding, natural rights are not derived from natural law. On the contrary, natural law—the rules suited to securing our logically prior natural rights—is derived from those rights. In fact, if you look at the famous second paragraph of the Declaration, that’s exactly the order you’ll find. Jefferson sets forth the moral vision first, defined by our natural rights; only then does he set forth the political and legal order—the law—that is “instituted among Men” to secure those rights. 

Historically, of course, many have associated natural law with, and grounded it on, religious beliefs, and many still do, although the ancient Greeks, especially the Stoics, and Roman Law did not so ground it. But the American founding emerged from the Enlightenment—English, Scottish, and continental—and so is best understood as having eschewed an undue reliance on theological considerations—though I grant that on that historical question it’s a mixed record, despite the theory of the matter. 

As a practical matter, however, it would be far better if this commission emphasized natural rights and the nation’s founding principles rather than natural law, because the former does not carry what many today see, not without reason, as the “baggage” of the latter. I presume that we all want a world that respects liberty, including religious liberty, not one that restricts our freedoms. That is what animated us at Cato’s Center for Constitutional Studies as the same-sex cases were coming along. Thus, we filed amicus briefs with the Supreme Court defending, on equal protection grounds, the liberty of same-sex couples to marry and, after that, the liberty of bakers and others, on religious freedom grounds, to decline to participate in various ways in same-sex weddings. In both cases, the principle was the same—liberty. 

As I intimated in Friday’s post, albeit with a focus on aberrations that have arisen from modern “human rights” thinking, this commission, properly staffed and conducted, affords an opportunity to redirect our public debate to America’s first principles—and to do so on many issues. Given the state of liberty today around the world, the concerns raised so far about this commission should be seen not as something to be countered but to be embraced. There will be close calls, to be sure, and some differences. But in the end, those raising the concerns and those calling for fresh thinking should be focused on the same thing—the liberty that natural rights are all about. 

Trump Isn’t Only “Constitutional Crisis” Afflicting Congressional Oversight

Earlier this week, Vox’s Sean Illing asked 10 law professors whether President Trump’s sweeping refusal to cooperate with congressional investigators has plunged the nation into “a constitutional crisis.”  I recommend the article, and I also observe that I’m 100% on Congress’s side regarding the legitimacy of its information queries. Indeed, I’m with my colleague Gene Healy, who has rightfully Tweeted that, “#ExecutivePrivilege is something judges just made up out of penumbras and emanations of Article II.”

For this post, however, I argue that congressional oversight, per se, is in its own state of “constitutional crisis” wholly independent from Trump. Specifically, I will make two claims. First, I explain why congressional oversight always has been sub-optimal. Then, I explain why contemporary oversight is acutely awful.

Even decades ago, when Members of Congress were policy savants relative to now, congressional oversight was known as the body’s “neglected duty.” In a famous 1984 article, Professors Mathew McCubbins and Thomas Schwartz lent a conceptual framework to explain this inadequacy. Their core insight was to identify two types of congressional behavior regarding oversight. The first was the “police patrol,” which describes ongoing monitoring of the law’s execution. The second type was “fire alarm” oversight, by which the professors meant that lawmakers snap to attention only when hot-button issues become sufficiently politicized.

Quite obviously, the “police patrol” method is superior because, if it is done faithfully, then such supervision could head off the crises that lead to “fire alarms.” Nevertheless, the “fire alarm” approach takes less work, and it reaps more political currency in the form of attention. Due to these incentives, Congress has underinvested in oversight for as long as legislators have delegated power to execute the law.

In this manner, oversight was shortchanged in Congress during the first three quarters of the Twentieth Century. Back then, however, a decentralized power structure within the legislature provided a counter-incentive for the use of preferable “police patrol” techniques. As I explained in a prior post, Members of that period cared about policy because policy chops were necessary to succeed in Congress. At that time, committees and subcommittees competed with the president to manage administrative agencies, and, as with life generally, competitors do their homework.

Starting in the 1980s, however, power in Congress shifted from committees to party leadership. Many factors were at play in causing this change. Crucially, congressional leaders, such as Reps. Tip O’Neil and Newt Gingrich, altered the rules to facilitate centralization. The modernization of mass media played another important role, in that it allowed to party leadership to push a national message. Finally, recurrent impasses with the president over spending and budgets—known as the “fiscalization” of politics—facilitated the centralization of power by creating the necessity for high-level negotiations, which, naturally, would be conducted by congressional leaders and thereby enhanced their power accordingly.

Due to this shift, partisan affinity now trumps institutional prerogative, such that one party loses interest in oversight whenever “their guy” occupies the White House. Also due to the shift to centralized power, Members of Congress know less about policy-making because there’s little incentive to have such knowledge. Each of these factors works to undermine the occasion and performance of “police patrol” superintendence of the administrative state.

Yet the current contretemps between Congress and the Trump administration reveals that the legislature’s oversight function has withered further, such that “fire alarm” investigations, too, are falling by the wayside. To be precise, they’ve altered from an inferior form of oversight (relative to “police patrols”) to a worthless form.

Historically, “fire alarm” oversight pertained to catastrophes or governing scandals. In either case, the investigatory lodestar was reform. That is, congressional investigations traditionally sought to discern how something bad happened, and then how to try to make sure it doesn’t happen again. Even investigations that don’t easily fit this usual framework—such as Watergate—shared a nexus with governmental reform. Nixon’s excesses inspired institutional responses, including the 1974 Budget and Impoundment Control Act and the 1977 Legislative Reorganization Act.

As I survey the current landscape of fire-alarm investigations, I see a qualitatively different application in the present day. When it comes to resource allocation for oversight, I can think of any number of “fire alarms” to sound, including:

  • The reported possibility of war (!!) with Iran;
  • The president’s declaration every other day of a fake “national emergency” to get what he wants without Congress getting in the way; and,
  • The EPA sneaking a major New Source Review regulation into the (unrelated) revision of an Obama-era climate rule.

Despite these—and many more—worthy targets for serious congressional oversight by opponents of the Trump administration, House leadership is pouring resources into getting Trump’s tax returns and relitigating the Mueller Report. I find Trump as off-putting and dangerous as anyone, but these strike me as the silliest possible subjects for oversight.

On the one hand, I think these investigations don’t inform anyone. Who doesn’t think Trump would fire subordinates—and then Tweet about it—to head off an investigation? And who doesn’t think Trump exaggerates his wealth all the time? Notwithstanding these qualities, which are baked into Trump’s brand, the American people elected him president, alas. The upshot is that I’m not convinced that these investigations bring much new to the table.

More importantly, I fail to see any prospect for reform. Neither of these investigations bears any relationship to a specific policy outcome. It’s all about Trump, the man, and none about Trump, the policymaker. Nor am I sanguine about the prospect that these investigations ultimately could inspire institutional reforms the way that Watergate did. Well into the third year of this presidency, I have not once seen the democrats reach out to Never-Trumpers to explore curbing the power of the office. Instead, the majority in the House seems to want only to damage Trump politically, and otherwise maintain the president’s power for when their party takes control.

In sum, I wholeheartedly support Congress’s right to information from President Trump, but I also bemoan its present use of that right.

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