The regulatory state and the importance of a non-vindictive President

by on March 1, 2016 at 12:14 am in Books, Current Affairs, Law, Political Science, Uncategorized | Permalink

I hope we always will have non-vindictive Presidents in this country.  One reason is because the regulatory branch reports to the Executive.  And if you own a large company, it is virtually impossible to be in accordance with all of the regulations all of the time.  If there were a President who wished to pursue vendettas, the regulatory state would be the most direct and simplest way for him or her to do so.  The usual presumption of “innocent until proven guilty” does not hold in many regulatory matters, nor are there always the usual protections of due process.

I do know that Philip Hamburger’s book Is Administrative Law Unlawful? occasioned some critical reviews.  I certainly don’t think the title frames the argument properly and by no means do I agree with everything he said.  But these days, the notion that the regulatory state could prove dangerous to individual liberties, and not just to economic growth, needs to be taken more seriously, and he has written the “go to” book on that topic.

I wonder if this is one reason why some of the leaders in the Republican Party have been somewhat reluctant to challenge Donald Trump.  Perhaps they fear regulatory reprisal.

I also believe that many of Trump’s strongest critics — often Democrats — are ill-suited to understand or admit this side of the problem.  They have plenty of good arguments against Trump, but I haven’t heard this one yet.

Here is an excerpt from the Vermeule review of Hamburger:

One reaction to Hamburger’s book might be that it is interestingly wrong, in an unbalanced sort of way. On that view, the book could be seen as offering a kind of constitutional fiction, an oddly skewed but engagingly dystopian vision of the administrative state — one that illuminates through its very errors and distortions, like a caricature, or the works of Philip K. Dick. The book might then be located in the stream of legalist-libertarian critique of the administrative state, the line running from Dicey, through Hewart and Pound and Hayek, to Richard Epstein. That work is nothing if not interesting, if only because it is so hagridden by anxiety about administrative law.

On further inspection, though, this book is merely disheartening. No, the Federal Trade Commission isn’t much like the Star Chamber, after all. It’s irresponsible to go about making or necessarily implying such lurid comparisons, which tend to feed the tyrannophobia that bubbles unhealthily around the margins of popular culture, and that surfaces in disturbing forms on extremist blogs, in the darker corners of the internet.

Whether you agree with Vermeule or Hamburger or stand somewhere in between, the disturbing reality is that Hamburger’s perspective could become more relevant rather more quickly than many of us had expected.

Read Ben Sasse:

Statements from Trump:
***“We’re going to open up libel laws and we’re going to have people sue you like you’ve never got sued before.”
***“When the students poured into Tiananmen Square, the Chinese government almost blew it. They were vicious, they were horrible, but they put it down with strength. That shows you the power of strength. Our country is right now perceived as weak…”
***Putin, who has killed journalists and is pillaging Ukraine, is a great leader.
***The editor of National Review “should not be allowed on TV and the FCC should fine him.”
***On whether he will use executive orders to end-run Congress, as President Obama has illegally done: “I won’t refuse it. I’m going to do a lot of things.” “I mean, he’s led the way, to be honest with you.”
***“Sixty-eight percent would not leave under any circumstance. I think that means murder. It think it means anything.”
***On the internet: “I would certainly be open to closing areas” of it.
***His lawyers to people selling anti-Trump t-shirts: “Mr. Trump considers this to be a very serious matter and has authorized our legal team to take all necessary and appropriate actions to bring an immediate halt…”
***Similar threatening legal letters to competing campaigns running ads about his record.

And on it goes…

Is fear of regulatory reprisal from a Trump administration so unrealistic? I don’t think so.

1 Dmitri Helios March 1, 2016 at 12:23 am

Shorter Tyler: Never go full Trump.

That sentiment is somewhat unnecessary, however, since Trump won’t be president since he can’t beat Hillary in a general. See: Emerging Democratic Majority.

2 Heorogar March 1, 2016 at 7:17 am

Hillary will be in prison in 2017.

3 Observer March 1, 2016 at 8:14 am

discussing sentencing reform alongside her Attorney General and FBI director.

4 Mark Thorson March 1, 2016 at 12:08 pm

More likely John Oliver will be in prison.

http://www.dailymail.co.uk/news/article-3470478

5 Moreno Klaus March 1, 2016 at 10:47 am

Maybe she deserves some punishment but for instance why is Dick Cheney not in prison ?

6 TMC March 1, 2016 at 1:00 pm

He hasn’t committed any crime should be reason enough. Too bad that didn’t help the dude whose video got blamed for Benghazi.

7 Art Deco March 1, 2016 at 1:01 pm

Because the notion he committed any crimes is a red haze meme that has no reality.

8 Floccina March 1, 2016 at 10:56 am

Hillary will be in prison in 2017.

Wanna bet?

9 Josh March 1, 2016 at 8:44 am

I love how many of the “statements from trump are not in quotes”.

Anyway, I wonder if this post is “straussian”, or just naive. Of course, administrative law is vindictive. That doesn’t mean going after the personal enemies of the POTUS, but the pet enemies of whomever is administrating.

10 Art Deco March 1, 2016 at 9:23 am

That doesn’t mean going after the personal enemies of the POTUS, but the pet enemies of whomever is administrating.

Pretty much the same deal when a Democratic president is at the top and Lois Lerner is working away at the middle.

11 RobZ March 1, 2016 at 3:19 pm

Why didn’t they try to flip Lerner by offering her immunity?

12 Govco March 1, 2016 at 10:56 am

Exactly. You don’t need a vindictive president, a permissive president is enough. Then the various agencies can be vindictive, corrupt, incompetent and generally extra-legal.

Hamburger’s book is a legal argument, and based on long, loyal reading of this blog, don’t come to MR for your legal analysis or criticism.

13 Jamie_NYC March 1, 2016 at 12:19 pm

Hey, it’s fun making up quotes! Let’s have some “quotes” from Hillary Clinton:

“Ms. Clinton, who is obviously crazy, believes that “Lilacs are fine” is a proper lunch order! Asked about her relationship with Bill: “I was never… married… to that… man.”. On whether she sides with ISIS or with the American people: “What difference does that make at this point?” Asked what is her favorite source of information about the real world, she said the following: “I read a blog… don’t know the guys name, but people call him Cheap Chalupas”.

14 Dan Weber March 1, 2016 at 8:52 am

Trump is unlikely to beat Clinton. But that doesn’t mean impossible. Would you bet your house on a scheme you were 75% likely to win? You probably should not bet the country on those odds, either.

15 Bob from Ohio March 1, 2016 at 10:01 am

Conventional political calculations say no chance. Such calculations also would have said Trump has no chance at the nomination.

Have we ever seen a candidate like Trump? Convention is of little use.

16 Dan Weber March 1, 2016 at 11:24 am

A lot of people on the left, including some of the media enablers of Trump, were happy to yuk it up and encourage Trump when they thought Trump was only destroying the GOP.

But people need to realize they aren’t geniuses in an Orson Scott Card novel. Biological weapons deployed against your enemy can suddenly find themselves being transmitted around your own populace.

17 DMS March 3, 2016 at 8:25 pm

You are forgetting that ISIS is (most likely) rooting for Trump.
And what better way to help Trump by a huge — way bigger than 9-11 — action?
Don’t be naive that Clinton will obviously win.

18 Joe Blast March 1, 2016 at 6:56 pm

Do you think even if he won the popular vote that he would survive to the election? Elections can be unpredictable, everything else is just physics.

19 Pashtun March 1, 2016 at 11:08 am

Shorter Tyler: I assume that regulatory agencies do the bidding of presidents.

Based on a deep experience, that is rarely true.

20 skeptic March 1, 2016 at 12:28 am

Cologne New Year’s eve put the kibosh on linpbertarian open-borders fantasies for at least two generations. Ha!

21 JLK March 1, 2016 at 12:32 am

Nonetheless,I claim it is still easier to be a firm in the regulated state than a black man in the United States (although I have never been either). And the due process that is not always afforded to firms is also not available to people of color in the criminal system. So although Democrats might be ill-suited to appreciate the particular wrinkle in economic justice or civil liberties that Tyler flags, I think it is also fair to say the comfortable conservatives and glibertarians are not in the best position to be judge positive contributions from liberals in a this space. (NB Not to slight principled libertarian stands by AT on takings in Ferguson and Radley Balko on militarized police forces; those stand apart.)

22 Doug March 1, 2016 at 12:55 am

Non sequitur, much?

23 JLK March 1, 2016 at 1:34 am

Trump is a reactionary vindictive Know-nothing and so is a majority of the GOP electorate that is voting for him, with deleterious consequences when they hold office. Sorry if my point seemed to be a non-sequitur.

24 So Much For Subtlety March 1, 2016 at 1:39 am

Trump has spent his whole life being a mainstream Democrat. He is pro-gun control, pro-abortion, anti-capital punishment and until about two weeks ago pro-Amnesty. He has even supported single payer health care. That is, he is to the Left of Hilary but to the Right of Bernie Sanders.

To call him either reactionary or a Know-nothing is absurd. Although we can hope.

What people of color have been denied due process recently?

25 Nathan W March 1, 2016 at 9:27 am

He blows with the wind. No one knows what he would actually do as president. Except for not disavow support of the KKK, it seems.

26 prior_test1 March 1, 2016 at 10:50 am

Let’s make that statement a bit more accurate – ‘Trump has spent his whole life being a mainstream NYC Republican.’ Truly, there is something to be said for those New York values – it even makes Republicans look reasonable.

Though these days, Trump seems to feel it is time to leave that sort of thing behind him – obviously, NYC is too small a stage for him to appear on anymore.

27 Dan in Euroland March 1, 2016 at 9:20 am

JLK, what does Trump not know? Seriously as compared to the deep wisdom of the other candidates.

28 JB March 1, 2016 at 9:40 am

That is the issue, then. Compared to Rubio and Cruz, nobody is a lightweight. Compared to Hillary, nobody is dishonest.

Trump does combine the worst features of both, however.

29 CW March 1, 2016 at 11:59 am

+1 to Doug on the non-sequitur comment.

30 buck smith March 1, 2016 at 8:36 pm

Black men in US are free for last 150 years. All over africa, right now, black men and women are slaves

31 So Much For Subtlety March 1, 2016 at 12:41 am

Is fear of regulatory reprisal from a Trump administration so unrealistic? I don’t think so.

To me this looks like a lot of Left Wing people hoping that the Republicans will not treat the Left the way the Left has been treating the Republicans under Obama. Obama put the IRS on to the Tea Party and suddenly they all got audited. And the EPA. People were named and shamed for funding Tea Party groups. Fired even. So it is odd to see people hoping that there will be no retaliation.

Ideally, of course, there would be no retaliation. Even more ideally there would be nothing to retaliate for. But there is. And I think the Republicans, if they win, should retaliate with the full force of whatever they can get away with. If you so much as give a dollar to Planned Parenthood expect a SWAT team on your door step at 3 am demanding to see your bank statements.

Rolling over and turning the other cheek will just mean the Democrats will do it again. They have to feel the same pain. Then perhaps the two sides will agree to abide by the traditional decencies. Otherwise it is just unilateral disarmament by the Right.

Of course they may not agree to do so. They may wait their turn to make the others suffer. In which case the long running Cold Civil War will not remain Cold for much longer. Either way, it is absurd to listen to anyone from the Left worried about abuse of the state machinery for political purposes unless they condemned their own side for doing it. Who precisely did that? >crickets<

32 anon March 1, 2016 at 2:09 am

“To me this looks like a lot of Left Wing people hoping that the Republicans will not treat the Left the way the Left has been treating the Republicans under Obama.”

Would it just be the “Left Wing”? Or would it be the people Trump doesn’t like for various personal reasons regardless of political affiliation? I mean I think many of Trump’s strongest critics in the media are scum and I wouldn’t shed tears to watch them get audited or whatever, but I don’t think the Trump beat-down would necessarily fall along ideological lines.

It’d be awesome to watch though, either way. He’d at the very least talk lots of shit.

33 Nathan W March 1, 2016 at 6:16 am

“Obama put the IRS on to the Tea Party and suddenly they all got audited.”

The alternative explanation is that more right wing “charities” were actually involved in political messaging. The IRS did not hesitate to investigate Occupy Democrats as a part of the same campaign – many other left-wing “charities” were also targeted, they were just fewer in number.

“I think the Republicans, if they win, should retaliate with the full force of whatever they can get away with.”

Is that what passes for leadership these days? How could that possibly be good for anyone?

” In which case the long running Cold Civil War will not remain Cold for much longer.”

What’s with the right wing innuendo that mass violence might be necessary, arising in many outlets? Does it not strike you as likely that that would cause more problems that it would solve? Out of a civil war, most often you just get the same bullshit or worse, with a few heads changed at the top.

You’re speaking as though it’s an established fact that the left abused state machinery for political purposes. It is not an established fact. Consider the alternative explanation, as I started out with – more conservative “charities” were involved in political messaging than on the other side, and that’s why their numbers in IRS cases were somewhat higher.

I mean, I’m not naive. I took these claims very credibly when I first heard them. But I’m not at all persuaded by what I’ve read to date.

34 Heorogar March 1, 2016 at 7:24 am

The persecuted tea party groups were not applying for “charity” tax-exempt status.

You are walking, talking proof of how weak a grasp on the facts have Hillary supporters.

Hillary will be in prison in 2o17. It won’t be political reprisal. It will be (for a change since 2009) justice. .

35 Nathan W March 1, 2016 at 9:30 am

Which case are you referring to then?

Hillary’s “crimes” are trivial. It is not befitting to take down the potentially most powerful person on the planet for such trivial things. The rest of the world would assume a massive conspiracy if it ever went so far, especially considering that GWB never faced the remotest official scrutiny for starting a war based on lies.

36 Effem March 1, 2016 at 9:37 am

There are people in jail for similar crimes dealing with classified information. Justice should be blind to power.

37 Nathan W March 1, 2016 at 10:25 am

I agree with you in principle, but … .

The reality of witch-hunting and the fact that there so very very many laws on the books means that you could bring down basically anyone with sufficient will. These leads me to believe that it would be better to allow free press and public opinion to play the main role, and to let national leaders get away with little stuff. The costs should be political, not criminal, unless clear intention to commit criminal acts is undeniable. We’re talking about old fogies using new technologies – bringing her down on such charges would lead much of the world to believe that Republicans were abusing their influence over the state, a.

38 Lord Action March 1, 2016 at 10:33 am

John Deutch was eventually pardoned (by the other Clinton) for pretty similar offenses.

https://en.wikipedia.org/wiki/John_M._Deutch

39 TMC March 1, 2016 at 1:07 pm

Hillary’s “crimes” are trivial and Bush’s war of lies.

You are going full wacko today.

40 Nathan W2 March 1, 2016 at 2:03 pm

Might makes right

41 Nathan W March 1, 2016 at 10:51 pm

W2 – not even remotely what I said. Endorsing the use of free press and public opinion to shape the consequences for relatively trivial matters is not accepting that it is OK.

42 Dan Weber March 1, 2016 at 11:32 am

Clinton will only be in prison if she loses the election, the same way the state only pursued campaign funding laws against John Edwards after he turned into a joke. Of course, this doesn’t mean she will be convicted, the same way that Edwards wasn’t convicted.

It ought be the other way around, but if course it won’t. We should have been content with Edwards being forgotten in the dustbin of history, but some prosecutor thought he could earn his chops by going after him, and it didn’t matter that the case was weak because Edwards at that point had no power to blow it off.

43 So Much For Subtlety March 1, 2016 at 11:31 am

Nathan W March 1, 2016 at 6:16 am

The alternative explanation is that more right wing “charities” were actually involved in political messaging. The IRS did not hesitate to investigate Occupy Democrats as a part of the same campaign

So your justification for persecuting the Tea Party is that they also persecuted Far Left groups that could have embarrassed the Democrats? That is not a sensible explanation because they were openly engaged in political messaging. As is their right. As was the norm until that time. Political lobbying was always granted charity status up to that point.

Is that what passes for leadership these days? How could that possibly be good for anyone?

You should read what I say. It will be good if it makes the Democrats feel the pain of being targeted and hence encourages them to move away from doing it themselves. If the Right takes the high ground, the Democrats will just do it again when they get the chance.

What’s with the right wing innuendo that mass violence might be necessary, arising in many outlets?

I have no idea. Nothing to do with what I said.

You’re speaking as though it’s an established fact that the left abused state machinery for political purposes. It is not an established fact.

Yes it is. Actually. The only reason some people are not in jail is that they kept destroying their hard drives to hide the evidence.

I mean, I’m not naive. I took these claims very credibly when I first heard them. But I’m not at all persuaded by what I’ve read to date.

That must be one of the least convincing things you have ever said. No one thinks you could ever come to any other conclusion.

44 Nathan W March 1, 2016 at 11:42 am

“So your justification for persecuting the Tea Party is that they also persecuted Far Left groups”

No. I suggest that they might just have been doing their job, and that there happened to be someone more right wing charities in political activities than left wing ones.

” Nothing to do with what I said.”

No, the innuendo in no way relates to what you’ve said. You don’t strike me at all as that kind of guy.

“No one thinks you could ever come to any other conclusion.”

How many times do I have to accept new information before you believe that I can accept new information? Your statement is not credible.

45 So Much For Subtlety March 1, 2016 at 12:12 pm

Nathan W March 1, 2016 at 11:42 am

No. I suggest that they might just have been doing their job, and that there happened to be someone more right wing charities in political activities than left wing ones.

It is just a coincidence that all the targeted groups happened to help the Democrat’s re-election chances? That is an amazing co-incidence. I am sure that if Trump wins there will be a lot more co-incidences.

How many times do I have to accept new information before you believe that I can accept new information?

Once.

46 Nathan W March 1, 2016 at 12:40 pm

“all the targeted groups” – you’re ignoring that there were also many left wing ones. I understand that it’s debatable, and the fact that there were more right wing groups investigated than left wing ones is cause to take a close look, but this is not a smoking gun.

Trump, however, would like to ban media from criticizing him.

47 Sam the Sham March 1, 2016 at 8:05 am

This blog post is way old news…

Nathan, and other sane persons:

http://johnhcochrane.blogspot.com/2015/08/rule-of-law-in-regulatory-state.html (trigger warning: critical of Obama. It is partisan in tone, but it illustrates that the system is hard NOT to abuse) Trump will not be the first. Obama was not the first. The way the regulatory agencies work, it will only get worse with time. SMFS in particular: Turning the other cheek is indeed not the answer. Dismantling the institutions that legalise abuse of liberties IS the answer. Holding your side up to a higher standard than the opposition IS the answer. I don’t care to vote for anyone who promises to be just as bad and dangerous as The Left. I can imagine that the better Democrats think similarly; they don’t want anyone who promises to be just as corrupt as the Right. Nathan: It is disingenuous to claim that it is only Rightie innuendo to advocate for violence. I can link you PLENTY of recent examples of Lefties threatening and wishing death for holding contrary views. Let me know if you want me to. Those who feel like the President does not have the power implied by many: You’re reading the Constitution, not following current events.

I feel like abuse of power is a given, with the setup. I do not care to argue who started it and just how bad the other side is, since my side is indeed angelic. I’d rather limit it in the future, and Cochrane offers a few guidelines. Anything in this list you feel as lacking? Personally I feel like all laws should be passed by Congress, and regulatory bodies should be relegated to consulting, writing of laws, and assistance with enforcement.
Rule vs. Discretion?
Simple/precise or vague/complex?
Knowable rules vs. ex-post prosecutions?
Permission or rule book?
Plain text or fixers?
Enforced commonly or arbitrarily?
Right to discovery and challenge decisions.
Right to appeal.
Insulation from political process.
Speed vs. delay.
Consultation, consent of the governed.

Oh, and Harding? JILL STEIN 2016!!!!

48 Nathan W March 1, 2016 at 9:42 am

“Dismantling the institutions that legalise abuse of liberties IS the answer.”

Amen to that.

On the innuendo – yes, I definitely call out leftists when they suggest someone should be dead as well, but I’m referring to innuendo suggestive of large scale uprising, or some such thing, if the Trumpeters don’t get their way. I think this arises from the white supremacists, who think the rest of us are all pussies and can just bully and intimidate their way into getting what they want. I guess they failed to read up on modern history, and what happens to white supremacists if/when they start to become a credible threat (the Nazis lost).

49 agra brum March 1, 2016 at 3:38 pm

Explicitly political agencies claimed to be non-political, more specifically they claimed to be tax exempt non-profits. If they had a political purpose, they would not be tax exempt. The IRS looked into those clearly suspicious claims. And, at the end of the day, mostly approved the tax exempt status.

How is that a scandal?

50 Sam the Sham March 1, 2016 at 5:56 pm

I linked an essay about how it was a scandal, but I will recap.

Regulatory bodies have a multitude of tools to work with, including denial through delay. Delaying approval until after, say, Nov 11 to pick a random day, is as good as denial for the targeted nonprofits. Bonus: you can “as good as denial” your political enemies while later approving them, to make your numbers look good and innocent. Now, let’s say this did NOT in fact occur. Please honestly consider this: are all the mechanisms in place for this to occur, at least? I do not know how you can honestly say they are not. If the mechanisms for legally suppressing political enemies are in place, we have been blessed and fortunate indeed that they have not been abused yet. We don’t always have politicians and administrators as high-minded, idealistic, honest, and transparent as Clinton, Bush, and Obama… but I’d say Occam’s Razor points to this happening all the freaking time, with only the more clumsy attempts getting exposed. Because remember, this isn’t just about the President, it’s about the hundreds of administrators under the presidential bureaucratic fiefdom. Maybe just possibly one of them is petty and vindictive?

I’m a building inspector. I know how easy it is to game the system, and that’s on a local level with local accountability. I suspect accountability decreases as you scale up to national levels (look at the calls in this thread for impeaching Bush/Cheney for war crimes, Clinton for… whitewater? Perjury about Benghazi? It’s never going to happen, because they’re national figures)

I don’t know how to make it clearer that abuse of power by regulatory agencies can occur and in fact DOES occur.

Nate, SMFS, dearieme, et al: Would any of you be interested in playing a Play-by-Email game of Diplomacy or Crusader Kings or something? I find some of you on here to be highly intelligent or at least having fresh perspectives, but it’s difficult to keep up with the peanut gallery and the topic churn on here. Just a thought.

51 A.G.McDowell March 1, 2016 at 12:43 am

https://en.wikipedia.org/wiki/HRC:_State_Secrets_and_the_Rebirth_of_Hillary_Clinton#The_list suggests the presence of at least one more vindictive politician, depending on whether you believe that this is unusual, or just an overhyped example of common practice.

52 Doug March 1, 2016 at 1:05 am

If the president has so much unilateral power to bring down the hammer of Thor, then where are the bodies? Trump’s no saint, but you’re not going to convince me that no president in the post-war period has been so angelic so as never to abuse their power. There must be at least some companies or tycoons, suddenly and drastically ruined by the whim of the White House. Can you cite any examples?

I think the dog that didn’t bark comes down to two things: 1) The president exercises very limited power over the Federal Civil Service (remember when Bush was almost impeached for firing a handful of federal attorneys). 2) The courts look very very unkindly on any action even resembling political reprisal. Most of the time administrative law can easily railroad someone, but judges are going to take a much closer look if it just so happens to be the president’s enemy. As it stands I’d much more fear pissing off Lizard Squad than POTUS.

53 So Much For Subtlety March 1, 2016 at 2:40 am

That Bush would get in trouble for trying to fire some lawyers is just part of the double standards at work here. It is not a real restraint on the President’s power. It is lawfare from the Left.

After all Obama has been purging the military at an unprecedented rate. No one minds that.

54 Nathan W March 1, 2016 at 6:20 am

The president is commander in chief (which concerns me, because Trump could just fire top brass who refuse to follow illegal orders and replace them with people of low/no moral standards). The situation you mention, however, is much different than exercising the position as commander in chief, since it involved basically a corruption of the legal process. To claim a double standard, you would have to cite cases of an equivalent situation, and these situation are not at all equivalent due to the dual role of the president, which includes as commander in chief.

55 Bob March 1, 2016 at 7:11 am

Funny you should mention the US attorneys “scandal”. Bush attempted to fire 8 such attorneys in order to fill their positions with partisans more amenable to him. Clinton, however fired 93 of them upon taking office simply to reward his political backers.

Bush was ruled by congress and the media to be out of line because it was atypical to fire US attorneys in the middle of the term. Purging such positions at the start of the term was deemed to be accepted as politics as usual.

And this is the nature of reprisal culture. The statutory power of the president is eminently clear, he can fire whomever he wants from an appointed executive position. However custom prohibits him from making full use of his power. Fear that his name will be trashed in the press and his goals will be defeated in Congress have stopped many a president from utilizing his statutory powers in manners outside of custom.

This has changed. Obama de facto rewrote immigration law over the objections of Congress with mere Administrative Law and has done so on many other matters. The Republicans have also pulled the trigger on opposing the president, there are precious few goals left that Obama can possibly get through Congress. Obama stretched or broke many customs so I expect end runs around Congress will be the new normal, likewise I expect that Congress will thwart a president they oppose (which I expect Trump will be regardless of who controls the Senate and House).

Have we had Presidents abuse the administrative state? Certainly. Nixon, LBJ, and Truman all did things that would called abuses today. After Nixon there was a unified legislative intent to reign in such abuses so the powers of the presidency were curbed somewhat, but far more so the customs of the unaccountable president were abolished. This is quickly no longer the case. While some of this ebbing of custom started back with Reagan, the current situation has Obama accomplishing far more via the administrative state and he faces far fewer downsides from the legislature for so doing (they having pretty much already shot down everything he might hope to gain from them).

As far as remedy by the courts. Do not make me laugh. National Review was sued for libel five years ago by Dr. Mann. They tried to use an *expedited* court process. Having burnt millions of dollars in legal fees the courts are just about ready … to start discovery. And this is not at all uncommon. Apple and Samsung have been litigating in court for half a decade about smart phones that have not been in production for years. The Nuns suing over Obamacare have been years in the court. If you do not have deep pockets or better ideological supporters, you cannot afford to wait on the courts.

I mean seriously, what major publically traded corporation is going to say “Let’s stand by our ideological CEO while we fight for several years through the courts to overturn an arcane regulatory ruling; while our stock price tanks 80%”.

And if we are talking about a vindictive president, why exactly would judges be immune? Do you think there will be a shortage of jurists who covet appointment to appellate or higher benches? Do you suppose judges will not make their own compromises, even just delaying cases until the vindictive president leaves office?

56 Bill March 1, 2016 at 7:54 am

Bob,

Of course you know that every President appoints the local US Attorneys for a 4 year term upon assuming office with confirmation by the Senate, so your comment about Clinton firing 93 of them relies upon the stupidity of the audience who are unaware of the practice of the US attorney stepping down after a change in administration. What is unusual is not firing the US attorneys when you enter office.

As Trump would say, “I like the less educated.”

Here is a piece from MediaMatters discussing the issue of US Attorney firings. What is unusual is firing the folks you appointed.
http://mediamatters.org/research/2007/03/16/myths-and-falsehoods-in-the-us-attorney-scandal/138315 But, sometimes you make bad appointments, too.

57 MOFO March 1, 2016 at 10:02 am

Unusual =/= illegal.

58 Thomas March 1, 2016 at 11:26 am

Thanks for the media matters article, Bill. Next time just being us the Soros/DNC press release directly.

59 Bill March 1, 2016 at 2:18 pm

Thomas,

When you can’t dispute the content,

Claim it is a Soros/DNC press release when it isn’t.

As Trump said,

“I like the less educated.”

60 Bob March 1, 2016 at 11:56 am

Bill,

My point is not that Clinton did something wrong, my point is that Bush had the statutory authority to do the firing. By custom Clinton’s tactic is generally accepted. By custom, the “pleasure of the President” clause was never exercised in the manner Bush did it.

Of course, by custom the president has never tried to make a recess appointment when the Senate holds itself to be in session. Nor has the president, by custom done many of the executive actions that the Obama presidency has undertaken.

One of the big reasons for this was if the President used every scrap of power he held and to hell with custom was that this would alienate Congress and he would not be able make progress on his legislative agenda.

That constraint is pretty much a dead letter now. Obama has virtually nothing left to lose by governing with the full ambit of his statutory powers. This situation seems unlikely to change with a President Trump. Do you honestly think a President Trump is going to spend sleepless nights about how Congress will shoot down his legislative goals? Many of the restraints of custom, like altering the filibuster, passing entitlements on a bi-partisan basis, politicizing the DoJ, etc. have died in the last two decades. Where past presidents feared to tread lest they become impotent on Capitol Hill, future presidents may easily trod – new precedents have developed and polarization means that legislative cooperation is unlikely.

61 Nathan W March 1, 2016 at 12:44 pm

Which of these precedents is new?

62 jeff March 1, 2016 at 10:15 am

Joseph Nacchio

63 JSIS March 1, 2016 at 1:10 am

Then courts can step in and demolish the regulatory state. Yet another reason to vote for Trump.

Seriously, If he is so bad for Democrats then he is much much worse for Republicans,Conservatives and Libertarians and you don’t seem much worried for them. I am filing this under concern trolling.

64 Justin Kelly March 1, 2016 at 1:46 am

“The best way to get a bad law repealed is to enforce it strictly.” – Abraham Lincoln

65 Steve Sailer March 1, 2016 at 1:29 am

Some of the support for Trump comes from the growth of the culture of vindictive conformism — why Chris Rock and Jerry Seinfeld won’t play college campuses. Bright people like James D. Watson, Jason Richwine, and Brandon Eich lose their jobs for holding the wrong views.

Trump benefits from being seen as a response to the ongoing assault on freedom of thought and expression.

66 Donald Pretari March 1, 2016 at 2:08 am

I know we live in a paradoxical world, but threatening to sue people who disagree with you doesn’t quite qualify as defending freedom of speech, does it?

67 Ricardo March 1, 2016 at 2:47 am

Right, I seem to recall a time when Donald Trump started lobbying southern states to ban video poker because of concerns over gambling addiction…

Of course, Steve was careful to say that Trump “benefits from being seen…” and I think he is literally correct. Trump argues vociferously for freedom of speech for himself and others like him and gives some naive people the inaccurate impression that this is tied to a deeper principle.

68 Nathan W March 1, 2016 at 6:31 am

Trump only wants HIS speech protected. He would ban all disagreement and criticism if he had the power, which he cannot get. Just look at how his legal team gets busy chasing down altogether too many who criticize him. E.g., people who attended the “Trump University”, and who felt that they got scammed by a BS piece of paper and are now suing – he is suing them for defamation. Normally, it should be enough to win the case against them, but no, Trump goes for the throat when someone makes him look bad. That is worrying.

69 XVO March 1, 2016 at 8:39 am

“Trump only wants HIS speech protected.”

Just like the PC leftists, I like his speech better.

70 Nathan W March 1, 2016 at 9:50 am

The only speech I want banned is that which promotes violence for the matter of group identity (separate from explicit death threats to an individual, which is unambiguously illegal, although not always enforced).

You group together people who just want people to have some God damned respect, with some minority of overactive online SJW lynchmobs. They are in no way, shape or form representative of the left, or of “political correctness”.

71 Thomas March 1, 2016 at 11:29 am

These groups are absolutely representative of the left. You say that you only want to ban speech which incites violence against certain groups, but I imagine that you and I and the micro aggression community at large. would have differing standards for determining such speech.

72 So Much For Subtlety March 1, 2016 at 12:08 pm

Nathan W March 1, 2016 at 9:50 am

The only speech I want banned is that which promotes violence for the matter of group identity

You have spoken in support of Canada’s Hate Crime laws so we know this is not true. There is no reason why a Christian pastor should go to jail for saying that homosexuality is a sin – much less be banned from speaking in public – but this is the sort of thing you support.

You also habitually defend Speech Codes elsewhere.

73 Nathan W March 1, 2016 at 12:49 pm

SMFS – I never said any such thing, or endorsed support of any such thing. Why do you so endlessly misrepresent me?

74 Art Deco March 1, 2016 at 1:04 pm

Quit lying, Nathan. You’ve denied that Canada has any restrictions on political speech. Anyone who is familiar with the name “Mark Steyn” understand’s that’s nonsense.

75 Nathan W March 1, 2016 at 1:39 pm

Art – On Mark Stein –

“The Ontario Human Rights Commission refused in April 2008 to proceed, saying it lacked jurisdiction to deal with magazine content. ”

Also,

“The Canadian Human Rights Commission issued a public letter to the editor of Maclean’s magazine. In it, Jennifer Lynch said, “Mr. Steyn would have us believe that words, however hateful, should be give free reign [sic]. History has shown us that hateful words sometimes lead to hurtful actions that undermine freedom and have led to unspeakable crimes. That is why Canada and most other democracies have enacted legislation to place reasonable limits on the expression of hatred.”

Aka, he faced no legal sanction, but received a stern finger wagging. In my books, stern finger waggings are highly consistent with free speech. For example you may you your free speech to be offensive, and I use my free speech to criticize it.

Shall government agencies self censor on the matter of hate speech, even when the case does not lead to criminal proceedings?

Canada does not ban political speech. There are laws against hate speech. If the hate speech has a political dimension, that political dimension is irrelevant in determining whether it will face legal sanction under hate speech laws.

76 Art Deco March 1, 2016 at 2:06 pm

Canada does not ban political speech. There are laws against hate speech.

Nathan, we can explain this to you. We cannot comprehend it for you.

77 So Much For Subtlety March 1, 2016 at 7:19 pm

Nathan W March 1, 2016 at 1:39 pm

“The Canadian Human Rights Commission issued a public letter to the editor of Maclean’s magazine.

After millions of dollars in legal fees. And I notice that you do not see the chilling effect this has on Canadian newspapers. If it can happen to Maclean’s, it can happen to anyone.

In it, Jennifer Lynch said, “Mr. Steyn would have us believe that words, however hateful, should be give free reign [sic]. History has shown us that hateful words sometimes lead to hurtful actions that undermine freedom and have led to unspeakable crimes.

So she thinks words should be banned even if they do not lead to violence because they *might* at some point in the future lead to violence. So she seems to be destroying your case. Canada punishes speech it doesn’t like even without a credible threat of violence.

Aka, he faced no legal sanction, but received a stern finger wagging. In my books, stern finger waggings are highly consistent with free speech. For example you may you your free speech to be offensive, and I use my free speech to criticize it.

Of course he faced a legal sanction. What he did not get was a legal penalty once the HRC realized what jackass they were making of themselves and Harper won the election. Your books are interesting. So no doubt you would be fine if Trump set up a government body to oversee all speech in America with the power to levy millions of dollars in fines, to jail people and to prohibit them from ever speaking in public again, which would routinely bankrupt people by imposing massive legal bills on them – as long as it did not fine people all that often and just told them not to do it again?

Good. I volunteer to be Trump’s censor in chief. Because there is no different from the government, you know, the people who own prisons and SWAT teams, wagging their finger and some random English teacher in China doing it.

Canada does not ban political speech. There are laws against hate speech.

That is, they call their ban a ban on hate speech but it is a ban on free speech and limits the political debate. You can re-define the terms all you like but that is what it is.

Yet again you support limits on non-violent speech. Why can’t Trump do it too?

78 Nathan W March 1, 2016 at 11:12 pm

OK, in the sense that someone might consider hate speech to be political speech, it is banned, but only when you go waaaay off the deep end. Don’t believe me? I read The Rebel most days, and they get away with all manner of derogatory innuendo where a bare grain of truth (sometimes not even that) is used to engage in various spreading of hate and derogatory attitudes. The outlet is well known, but not ONCE have faced legal sanction (although the head honcho has a few times, nearly, for outright lies and defamation). I know for a FACT that a well known outlet is doing this day in, day out, every day, with no legal sanction, so I call BULLSHIT.

There’s a GINORMOUS difference between a commission that a) FIRST refuses to hear a case but b) SECOND issues a finger wagging, and Trump, who wishes to change the rules to sue anyone who speaks critically of him.

It sounds like the way you would have it, public officials should not be allowed to so much as wag their finger at people who spread hateful and derogatory attitudes towards certain groups. How could that possibly be consistent with free speech? People like you are moaning about the SJWs day in, day out, but then when someone so much as wags their finger at legitimate hate speechers, you believe it to be legitimate to shut them down entirely. And, yet, you still have the nerve to call THEM the hypocrites.

Yes, I do not doubt that you would just LOVE to be in charge of a Drumpf-led attack on free speech of your political opposites. And, yet, you call the extremists on the other side the hypocrites without acknowledging your very own outrageous hypocrisy.

79 ladderff March 1, 2016 at 8:07 am

Donald:

I guess it depends. When a very well-defined clique of people in this country deliberately create the impression that, for example, Darren Wilson was a racist thrill killer who shot Michael Brown on his knees, when for months they run the same preposterously false tale of a broken-glass rape orgy at a UVa frat—talk about vindictive! Strange times. There were millions of Americans who are presumably as much entitled to free speech as any journalist who were quite reluctant to be caught saying the wrong things about these events. Obviously there are dozens and dozens more examples.

These people should be amenable to suit, and then they should go to prison. Michael Mann should be in prison. Sabrina Rubin Erdley should be in prison. If you can excuse these things in the name of free speech, you can excuse anything.

80 carlolspln March 1, 2016 at 4:06 am

“Bright people like James D. Watson, Jason Richwine, and Brandon Eich lose their jobs for holding the wrong views”

‘Bright people’ like James Watson – who was lucky enough to pair off with the 2nd greatest scientist of the 20thC.

For his next seventy years, Watson wrote a textbook, taught [& alienated everyone he worked with] @ Harvard, & [his greatest achievement] cultivated & ran the Cold Spring Harbor Laboratory.

Nothing subsequent in his career even approached his ‘lucky dip’ on DNA structure in 1953 with Francis Crick.

James Watson was a journeyman who got lucky.

The end.

ps you’re easily gulled

81 Steve Sailer March 1, 2016 at 4:22 am

Francis Crick (who was named for Francis Galton) was lucky he didn’t survive into this era, because his views were even more crimethinkish than Watson’s:

http://isteve.blogspot.com/2008/01/francis-crick-james-watsons-partner-was.html

82 carlolspln March 1, 2016 at 4:07 pm

A slender reed, indeed.

Doesn’t take much to arouse your priapic tendencies.

83 Nathan W March 1, 2016 at 6:36 am

It wasn’t traditional science according to the scientific method, but their absolutely cutting edge knowledge in physics and chemistry was vital to their ability to know what was plausible while they shifted around puzzle pieces. Observe that they didn’t run around trying to publish a bunch of BS and get it right on the 100th try – they KNEW they were right when they stumbled across the correct structure of DNA, and immediately dedicated themselves to publishing results/models as fast as they could get them sensibly onto paper.

The role of luck was minimal, next to nothing. It was no accident that Francis and Crick discovered the structure of DNA.

(My lowest grade in uni was defending this perspective in an essay responding to “Was it “good science””. The person who graded it was a laboratory chemist with narrow views on what “good science” is.)

84 carlolspln March 1, 2016 at 3:56 pm

‘It wasn’t traditional science according to the scientific method, but their absolutely cutting edge knowledge in physics and chemistry was vital to their ability to know what was plausible while they shifted around puzzle pieces. Observe that they didn’t run around trying to publish a bunch of BS and get it right on the 100th try – they KNEW they were right when they stumbled across the correct structure of DNA, and immediately dedicated themselves to publishing results/models as fast as they could get them sensibly onto paper” [snip]

1) W&C advanced an incorrect triple helix model for DNA [before their correct one] http://www-outreach.phy.cam.ac.uk/camphy/dna/dna7_1.htm Their error was sufficiently embarrassing that Lawrence Bragg, Head of the Cavendish Laboratory, directed them not to pursue any further work on the topic.

2) Neither W nor C was a chemist; both knew next to nothing about the subject. This is why they pumped people like Erwin Chargaff [‘Chargaff Ratios’] & Jerry Donahue [keto enol isomerisation] for information. They never would have arrived at the correct structure without the latter’s help: http://www-outreach.phy.cam.ac.uk/camphy/dna/dna13_1.htm

‘The role of luck was minimal, next to nothing’

3) Your ignorance of how science works is revealing. Luck had everything to do with it, e.g., Maurice Wilkins making the now famous ‘photograph 53’ of Rosalind Franklin’s available to W&C [&, as luck would have it, she didn’t grasp the significance of her own experimental data]. Last, the working title for James Watson’s book was ‘Lucky Jim’.

85 carlolspln March 2, 2016 at 12:27 am

Nathan W March 1, 2016 at 11:38 pm

Be gone, you gibbering idiot!

86 Nathan W March 2, 2016 at 4:32 am

carlos – If meeting different points of view is troubling for you, then just don’t read what I write. It is that easy. You never have to think for yourself again. You know everything, and you know it, and never have to trouble yourself with anything that would put it into question.

87 Thor March 1, 2016 at 12:00 pm

Yeah, Watson … what a bum. He only aided in the discovery of the DNA structure that one time.

88 Urstoff March 1, 2016 at 9:26 am

Nothing says freedom of thought and expression by suing everyone and expanding the scope of libel laws.

89 asdfG March 1, 2016 at 10:24 am

It’s kind of hilarious that the alt-right has its own litany of martyrs.

90 duderino March 1, 2016 at 1:41 am

What really scares me is when there are vindictive funders in the private sector and academia! Could you imagine being Koch funded right now? There’d be tremendous pressure to negatively spin pro-borders candidates. Scary!

91 anon March 1, 2016 at 1:58 am

So..just what is happening to the victims of the PC pograms? Now, we just need Trump to go after the right people. How will it feel for the persecutors to get a taste of that medicine. I hate to admit it, but I’d enjoy watching it.

I hope you are not on the list, Tyler.

92 Donald Pretari March 1, 2016 at 2:20 am

“…regulatory state could prove dangerous to individual liberties…” It seems clear to me that we should be worried about this possibility. What’s the argument against it? Being worried doesn’t demand automatic abolition.

93 Alain March 1, 2016 at 3:30 am

We should ask Martin Shkreli about the regulatory state and executive and prosecutorial discretion.

94 another anon March 1, 2016 at 4:38 am

The reaction to Shkreli was pretty populist.

95 Alain March 1, 2016 at 11:34 am

Had the same thing happened during a Trump presidency to some little shitlib the media and the Internet would have been insistent that the shitlib’s unrelated actions caused the governmental overreach that threatens the shitlibs liberty.

But in this case, since the values being displayed fit with the liberal mindset, it is clear that his modification of prices had *nothing* to do with his current predicament.

96 Ricardo March 1, 2016 at 9:59 am

Prosecutorial discretion, by definition, means there is enough evidence to justify taking a case to a grand jury but a prosecutor decides not to for some reason. He was already tied up in civil litigation against the investors he allegedly burned and was also accused of harassing the family of one of his former employees. What exact reason do you have in mind for why federal prosecutors should look the other way when it comes to evidence of white collar crimes he may have committed?

97 Moreno Klaus March 1, 2016 at 10:50 am

Shkreli means fraud/theft in albanian 😉

98 Moreno Klaus March 1, 2016 at 3:36 am

He will do the same as every US president: every regime that is not aligned with US interests goes down, usually for some bullshit propaganda reason… so after Syria (not yet sure of the outcome)… it will be Iran. He is strong enough to defeat Clinton? Its difficult to say, both candidates have a lot things that can be turned againsts them…. the Clinton’s emails and Bill, the quasi-fraudalent business way of Trump…

99 Heorogar March 1, 2016 at 7:37 am

Hillary will be in prison in 2017. She’s on the loose based on her exalted position in the aristocracy and the president’s criminal refusal to enforce the law.

100 Observer March 1, 2016 at 8:17 am

Denial is a river in Egypt, buddy.

101 Rock Lobster March 1, 2016 at 9:47 am

Denali is a mountain in Alaska.

102 msgkings March 1, 2016 at 12:39 pm

You denail on dehead

103 another anon March 1, 2016 at 4:43 am

I am afraid the rabble have seen so much of our “Constitution-abusing Socialist Kenyan President” that they beieve their pocket Constitutions are already in shreds.

Another way right wing madness has paved the way for Trump.

104 So Much For Subtlety March 1, 2016 at 5:11 am

So you think that Obama’s abuse of the constitution – as well as the intolerance of his supporters – is the faulty of the Right? That is an interesting approach. Why do you believe that?

The Right can smell victory and some of them are thinking about pay back for every speaker driven off every campus, for every administrative fiat in direct defiance of custom and law, and for full exercise of the powers of Congress now little things like the filibuster have been destroyed. I don’t think that is their fault. People who don’t play nice don’t get played nicely with.

105 anon March 1, 2016 at 5:15 am

I might be willing to accept that Obama bent some edges, but in largely boring and unimportant ways.

The bends become “the sky is falling” because that is what the RWNJ network does, with input or without.

https://twitter.com/ObsoleteDogma/status/704521396270075906

106 A Definite Beta Guy March 1, 2016 at 7:27 am

I suppose that’s why his Executive Actions are in front of the Supreme Court. Because it’s all boring and doesn’t matter.

107 anon March 1, 2016 at 7:36 am

Immigration? Yes, still boring. By that I mean the court can rule either way and it won’t matter much.

108 anon March 1, 2016 at 5:18 am

BTW, Obama said college students should not be coddled, but you seamlessly blend the opposite into your complaints about Obama.

Lack of mental self control.

109 A Definite Beta Guy March 1, 2016 at 7:26 am

Is this like his original position “against” gay marriage?

110 anon March 1, 2016 at 7:33 am

Another empty issue. What’s wrong with you?

111 A Definite Beta Guy March 1, 2016 at 7:40 am

That’s not an answer. Do you also think he actually supports a 2nd Amendment Right to bear arms? Because he appointed Sotomayor, and she voted against it. My bull**** meter is going off.

Or is that another irrelevant issue for you? Let me guess, break up the banks is #1 for you?

112 anon March 1, 2016 at 7:49 am

Wait, your question about gay marriage was really about gun control? My RWNJ meter is going off.

And Obama has straight up that he supports the right to bear arms. It is just standard RWNJ theater that being anti-AK47 is being “takes all our guns.”

113 Nathan W March 1, 2016 at 11:55 pm

ADBG – probably if Obama could unilaterally rewrite the constitution without facing political costs, it would not include a second amendment.

But the not uncommon view that he’s on the verge of trying to steal everyone’s guns is a sort of irrational hysteria inconsistent with the fact that he plain and simply does not have the authority to do so, and that no court or legislative body would side with him were he ever to try to do so (which he would never actually try to do anyways, because it would start a violent uprising).

114 Nathan W March 1, 2016 at 6:46 am

If there weren’t a certain class of people who bent every discussion of race, gender and sexual orientation towards an effort to paint these groups as genetically or morally inferior, perhaps the SJW phenomenon would not exist.

Chronologically, first in time we have the problem of people who twist every discussion on those issues into derogatory hate speech, second in time we have SJWs who, for this fact, end up stupidly and naively trying to basically ban all rational discussion of them.

I.e., the root cause is racists, sexists and homophobes, not the people who wish to limit the speech of these types.

115 A Definite Beta Guy March 1, 2016 at 7:56 am

True. Social Justice movements arise as a response to perceived social injustice. However, Social Justice movements appear to be most active on college campuses. Campuses aren’t exactly dens of racism.

By historical analogy, Communism was also a reaction to failures in Capitalism. That doesn’t make Communism a good idea, either.

116 ladderff March 1, 2016 at 9:27 am

Beta Guy:

Social Justice movements arise as a response to the opportunity to smash things and seize power and money.

117 anon March 1, 2016 at 9:34 am

Yeah, freeing slaves as a financial burden.

118 Nathan W March 1, 2016 at 9:54 am

ADBG – I think the analogy is a propos.

119 Nathan W March 1, 2016 at 6:39 am

The “dictator” has issued fewer executive orders per term than any president in over 100 years.

There is not reasoning with these people. Propaganda and misleading innuendo seems to work on a lot of people.

120 anon March 1, 2016 at 7:15 am

Successive waves of thinking Republicans have abandoned the Party as it sifted to a sad game of anti-intellectualism and profit. The last men standing are those in on the scam, or the truly feckless. No wonder a solid or sane candidate cannot get traction.

How many of the successive waves of “why I’m leaving the party” notices were prescient? Sadly, too many.

But hey, as the feckless say “RINO! don’t need ’em”

121 Art Deco March 1, 2016 at 9:19 am

Successive waves of thinking Republicans have abandoned the Party

Name five.

122 anon March 1, 2016 at 9:33 am

The quoted string “why i left the republican party” has “about 60,300 results” on Google, so that’s more than four.

Someone should keep a list of the best essays. Of the recent ones, I’d go with Ben Bernanke’s.

123 libert March 1, 2016 at 10:38 am

Michael Bloomberg
Lincoln Chafee
Bruce Bartlett
Elizabeth Warren
Charlie Crist
Arlen Specter
Gary Johnson
Ron Reagan (Jr.)
Jim Jeffords

124 Art Deco March 1, 2016 at 1:24 pm

Michael Bloomberg, Lincoln Chafee, Bruce Bartlett, Elizabeth Warren, Charlie Crist, Arlen Specter, Gary Johnson, Ron Reagan (Jr.), Jim Jeffords

Ronald Reagan the Younger was never a Republican to begin with and Fauxcohontas Warren had no public career as a Republican nor has she offered an accounting of herself more credible than her fanciful pedigree.

Michael Bloomberg changed his enrollment to Republican because it would grease his path to be Rudolph Giuliani’s successor.

Lincoln Chaffee is a mediocrity who built a career trading on his father’s name; his father was an enrolled Republican and his social and financial networks were in that ambo; Chaffee fils spent his time in Congress as a headache for party whips. When it was convenient for him to change parties, he did.

Arlen Specter was another opportunist (quondam Democrat and publicity hound, by the way) who changed parties when he was facing certain defeat in a primary. Charlie Crist actually was bounced in a primary. The last five years of his life have been a testament to how people are willing to abase themselves to hold onto public office. Jim Jeffords was another problem child for party whips who left the Republican caucus when he didn’t get some dairy industry bon bon he wanted.

Bruce Bartlett got canned by the National Center for Policy Analysis for deceiving his superiors about what he was doing with his time-off from other duties. That agency employs professional economists who’ve had or are retired from faculty positions as well as some people whose book is ideological marketing. Bartlett was one of the latter and got the idea in his head that he should write polemical material on company time, which, the Center’s director told him, is not their book. He’s tried to build a career for himself since as a martyr / truth-teller.

Which leaves you with Gary Johnson, who fancies the Libertarian Party is worth his time.

This crew is your idea of ‘thinking Republicans’?

125 libert March 1, 2016 at 7:05 pm

None of them are true Scotsmen either.

126 Nathan W March 1, 2016 at 9:58 am

It’s really too bad. A sensible conservative voice in the room is always valuable, but man oh man have a lot of these folks gone off the deep end.

127 Bob from Ohio March 1, 2016 at 10:14 am

The GOP has highs of US House members, governors and state legislators since before the Great Depression. Plus control of the US Senate

These “waves” of “thinking Republicans” are not having much of an impact.

128 A Definite Beta Guy March 1, 2016 at 7:32 am

Quantity is an irrelevant measure. Here’s an Executive Order to give Federal Employees a half-day on Christmas Eve. No one gives a crap about that: https://www.whitehouse.gov/the-press-office/2015/12/11/executive-order-half-day-closing-executive-departments-and-agencies

129 Moreno Klaus March 1, 2016 at 10:52 am

uuuuuuuh… giving a half-day on Christmas Eve? He is a neo-nazi-fascist-socialist-muslim clearly!

130 Nathan W March 1, 2016 at 11:45 am

You forget to mention the part about being half monkey.

131 dearieme March 1, 2016 at 5:08 am

“I hope we always will have non-vindictive Presidents in this country”: what, like FDR or Jackson?

132 Bob from Ohio March 1, 2016 at 10:15 am

LBJ and Nixon too.

133 Floccina March 1, 2016 at 11:46 am

+1

134 rayward March 1, 2016 at 6:37 am

Of course, the opposite could be true, that weak government risks support for liberal democracy and facilitates the demagogue, someone like Mr. Trump, stepping into the breach, the case being made by Francis Fukuyama (what he refers to as “repatrimonialization”). According to Fukuyama, America’s dilemma is not that its central government is too powerful, but that it has grown too weak: America now harbors a sprawling public sector without having a strong, competent, modern state with autonomous bureaucracies. The weak bureaucracies, in turn, allow government to be captured by moneyed elites. Those who benefit from weak government promote the idea that strong government risks liberty, while many well-intended academics offer their support.

135 chuck martel March 1, 2016 at 6:45 am

An intellectual fistfight between Fukuyama and de Jouvenel would be a first round knock out by the Frenchman.

136 Steve Sailer March 1, 2016 at 7:27 am

“repatrimonialization”

Oh boy …

Fukuyama got lucky once coining a phrase, but he really doesn’t have a gift for terminology.

137 Floccina March 1, 2016 at 11:53 am

Not too small but wrongly configured. IMHO you should not have, as we do, the Fed Government spending almost 1/2 of the money on health care and have health care regulated at the state level. Or the fed gov. guarantee loans and provide finical aid for state colleges. There is an incentive to bring federal money into the state, and that encourages state regulators to not correctly balance costs with other concerns.

138 chuck martel March 1, 2016 at 6:39 am

Without a doubt, everyone on this thread has read Bertrand de Jouvenel’s On Power. Maybe it’s time to read it again.

139 Moreno Klaus March 1, 2016 at 10:53 am

Read who?

140 Nathan W March 1, 2016 at 6:50 am

Trump’s “the wall just got ten feet higher” comment suggest a rather vindictive persona. It will take very strong people to stand up to him if he is elected president (unlikely).

Is a man who says the following fit for presidency? “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK? It’s, like, incredible.” – what else does he think his supporters would let him get away with?

141 dearieme March 1, 2016 at 7:41 am

Call me an old fogey, but I’d say that that was a figure of speech.

142 Ray Lopez March 1, 2016 at 8:35 am

Trump is harmless. There’s degrees of fascist, and Trump is a very mild version of fascist. The analogy is “Metaxas” in Greece during the 1930s–he tried to emulate Mussolini and Hitler but was more or less of a laughing stock (though I’m sure he did scare people, as Trump is doing now). For example, his propaganda was that he was the world’s smartest man…

Surprised that P. Hamburger is a journalist and not a lawyer. It seems the definitive work on this topic is here:

Stephen Breyer, a U.S. Supreme Court Justice since 1994, divides the history of administrative law in the United States into six discrete periods, according to his book, Administrative Law & Regulatory Policy (3d Ed., 1992):
English antecedents & the American experience to 1875
1875 – 1930: the rise of regulation & the traditional model of administrative law
The New Deal
1945 – 1965: the Administrative Procedure Act & the maturation of the traditional model of administrative law
1965 – 1985: critique and transformation of the administrative process
1985 – ?: retreat or consolidation

143 ladderff March 1, 2016 at 7:44 am

I hope he comes after you first.

144 Nathan W March 1, 2016 at 10:06 am

Right, and that’s why Trumpeters obtain such broad respect. Caveman-like calls for retribution against those who dare to express opinions against them.

Yesterday some white supremacists were asking for my address … so they could send me a Trump “Make America Great Again” hat, supposedly.

Funny how people who sympathize with groups known for their willingness to use violence call people pussies for disagreeing with them. Did you see the video of all the Klanners who got beat up at one of their own rallies? I agree that the attackers should face legal sanction, since vigilante justice is never OK. But sometimes it almost is, so long as it is clear that legal sanction must also apply.

145 Thomas March 1, 2016 at 11:40 am

In one post you criticize those who sympathized with groups who commit violence and then proceed to sympathize with a group which committed violence. This is the level of intellectual honesty on the left, this is what makes Hillary Clinton decide to hide her emails and lie about Benghazi and make $100,000 off of cattle futures. She knows to whom she is speaking.

146 Nathan W March 1, 2016 at 11:46 am

I unambiguously said that the group which used violence should meet legal sanction.

Using violence to deter violence has a long standing history. Peaceful methods should be preferred.

147 Brett Dunbar March 1, 2016 at 7:05 am

Star Chamber is fairly interesting. Under the Stuarts it became an abusive instrument of arbitrary state power. However it had worked pretty well when set up and had addressed a genuine problem. The medieval English state had a number of great magnates who were pretty much above the law. They could bribe or intimidate jurors judges and witnesses with impunity. The Star Chamber was a court staffed by members of the government too poweru

148 Brett Dunbar March 1, 2016 at 7:20 am

(Continued) powerful to intimidate and able to hear evidence in secret. At first it worked fairly well the trials were limited to over-mighty subjects who were generally actually guilty. Under the Tudors it was regarded as one of the most just and efficient Courts. It however became an instrument of arbitrary royal power and was abolished by the Long Parliament just before the Civil War.

149 Ray Lopez March 1, 2016 at 8:38 am

That’s interesting. Reminds me of what they’ve said about the EU Parliament and the EU Bureaucrats answering to the same in Brussels–supposedly they are less ‘bureaucratic’ and more ‘free market’ than their national counterparts (or so The Economist has said years ago).

150 Keith March 1, 2016 at 7:53 am

“I hope we always will have non-vindictive Presidents in this country.” Are you really that stupid to think we don’t have one now?

Trump may bloviate, but narcissists like Obama and Clinton are the real abusers of the regulatory state for vindictive purposes. You’d have to be a fool not to realize that.

As for Trump he’d be too transparent to use the government to secretly screw people, and liberal bureaucrats just don’t like him enough to kid themselves and do his nefarious bidding.

151 Nathan W March 1, 2016 at 10:09 am

Who needs government mechanisms when you can just send along the home address of the wrong-thinkers or criticizers to the Klanners?

152 Thomas March 1, 2016 at 11:43 am

Nathan the current movement which proposes violence against political enemies is squarely on the left and is actively supported by academia and the president. You see white supremacist bogeymen everywhere, yet you frequently post here in intellectual support of Maoist BLM and SJW.

153 Nathan W March 1, 2016 at 11:49 am

Name one.

I’ve never once said a word in defense of BLM and any time I’ve mentioned SJWs is was to condemn their lynchings.

Why are you so intent on completely misrepresenting anything I say?

154 Nathan W March 1, 2016 at 11:53 am

Three black youth, two of which Muslim and one Christian, with no connections to gangs and no criminal record shot execution-style: http://www.cnn.com/2016/02/28/us/fort-wayne-execution-style-killings/

Honestly. Which type of person/group do you think is responsible? BLM? Obama? Sanders? Clinton? The marijuana legalization movement? The people who committed those murders, who do you think they support for the presidency?

155 So Much For Subtlety March 1, 2016 at 12:03 pm

Nathan W March 1, 2016 at 11:53 am

with no connections to gangs

When I open that link it has a thing on the side bar that says this is gang related.

Which type of person/group do you think is responsible?

Not the KKK. Which more or less does not exist. So it is a bizarre conspiracy theory on your part to suggest anyone was going to leak anyone else’s address to them. On the other hand the Left did leak George Zimmerman’s address and called for violence against him. Spike Lee tried to but got the wrong house. Why do you need to accuse your political enemies of doing what your political allies do?

The people who committed those murders, who do you think they support for the presidency?

Felons overwhelmingly support the Democrats.

156 Nathan W March 1, 2016 at 1:00 pm

I stand corrected. I just linked the first Google hit. The details of the story have been filled in since I read about it the other day. I do that anytime I’m corrected. But you never do. But you accuse me of always misrepresenting things.

Why fault me for failing to present information I didn’t know about? What is wrong with criticizing either side for doing the wrong thing. Here’s the deal. You simply do not understand that I have zero political affiliation in the United States and regard the Democrats and Republicans as roughly equally corrupt. I have said so perhaps a dozen or more times on this board, but you summarily ignore anything I say other than anything you can somehow twist to paint me into some irrational leftist extremist corner. Most people would call that trolling, but I think somehow in your head you actually see it that way.

157 So Much For Subtlety March 1, 2016 at 7:11 pm

Nathan W March 1, 2016 at 1:00 pm

I stand corrected. I just linked the first Google hit.

So your off topic smear of the Republicans was a random off topic smear of the Republicans that you did not bother to read? That is some defense there.

Why fault me for failing to present information I didn’t know about?

There are so many things you should know but you don’t. Not your fault I suppose. Modern education. But it is your fault when you do know better but you smear people anyway. Like raising the KKK in this discussion. You know nothing but somehow you insist on linking it to the Republicans anyway. And you never learn. No matter how many times you are corrected, you steam ahead regardless.

You simply do not understand that I have zero political affiliation in the United States and regard the Democrats and Republicans as roughly equally corrupt.

That is the PR. The reality is different. You comment on US politics persistently every day. Your actual posts align perfectly with the Hard Left. You can claim this all you like but it is not true.

You wouldn’t get called an irrational leftist extremist if you did not keep doing irrational leftist extremist things – like bring up the KKK and accuse the Republicans of running death squads. That is pretty irrational and extreme and left wing. It is also unbelievably offensive. But needless to say you have never met anyone on the Right so you don’t care. It is not like they are people or anything.

158 Nathan W March 2, 2016 at 12:06 am

SMFS- “Your actual posts align perfectly with the Hard Left.”

Like … what? You are truly out to lunch. Name ONE “hard left” thing I’ve ever said.

“like bring up the KKK and accuse the Republicans of running death squads”

a) KKK supports Trump. Trump has not distanced himself from them, and refuses to so much as wag a finger at them, despite this support. That is not irrelevant. b) I never accused “Republicans of running death squads”, I suggested that the people who are willing to do so are more likely to vote Republican. Indeed, many Republicans have the strength of character to unambiguously distance themselves from such things.

Your black and white modes of thinking are not conducive to rational discussion. If i do not say black, you call me white. There is such a thing as grey. Most of political reality exists in grey, something that you are unable to grasp for the fact of your black and white thinking.

159 Phil March 1, 2016 at 7:54 am

I agree that this is a legitimate fear

but this seems to be working off the premise that regulatory reprisal hasn’t been a fact of life for at least the past several administrations, or that the other candidates don’t pose similar risks

just to pick 1 candidate, do biographical accounts of Hillary suggests that she scores low on a scale of ‘vindictiveness’

the troubling reality of life is that politics probably select for people who score high on scales of vindictiveness

————————————–

the real question of which President will be able to abuse the regulatory state the least is which President will be watched the closest, it seems like that a President Trump will be scrutinized the hardest by the media,

so if you truly want to avoid regulatory abuse, he should probably be your guy

160 TuringTest March 1, 2016 at 8:07 am

So Trump is the next Nixon?

161 anon March 1, 2016 at 8:55 am

Some new form of Ross Perot.

162 msgkings March 1, 2016 at 12:48 pm

Perot was Lincoln compared to this clown. Think Berlusconi, but dumber and worse at business.

163 Art Deco March 1, 2016 at 8:16 am

If there were a President who wished to pursue vendettas, the regulatory state would be the most direct and simplest way for him or her to do so.

We have that already. The victims are people you don’t care about and the perpetrators are minions of a man you and David Brooks say you’ll miss.

164 rayward March 1, 2016 at 8:17 am

I explain Rick Scott’s election (twice!) as governor of Florida this way: with his experience stealing hundreds of millions from the federal government while CEO of a large hospital company, Florida’s voters decided to elect him governor, believing that he could put the experience to work for Florida and steal a few billion from the federal government. It’s meant as irony, but maybe not. Trump’s most successful stump speech includes this gem: “My whole life I’ve been greedy, greedy, greedy. I’ve grabbed all the money I could get, I’m so greedy. But now I want to be greedy for the United States.” Trump is Scott. I expect Trump to carry Florida by a large margin. There’s even a rumor that Trump may consider Scott for VP. Won’t happen because Trump is Scott – he doesn’t need two of himself.

165 Art Deco March 1, 2016 at 9:17 am

I explain Rick Scott’s election (twice!) as governor of Florida this way:

OK, partisan Democrats trade in malicious fictions to help them get through the day. This should be of interest to us just why?

166 Floccina March 1, 2016 at 12:01 pm

Governors and congressmen brag about getting more money from the Fed Gov. That is like bragging about steeling and shows that the voters are the problem. So why not the Rich Scott logic?

167 Derek March 1, 2016 at 9:02 am

Another reason to vote for Trump. A preference cascade is happening.

1. The CIA would refuse to do something against the law!

2. The left is showing interest in the first amendment!

3. McConnell said he would use the Senate powers to oppose and impede!

4. Now serious people are wondering about the regulatory state. I do understand that it takes a bit of time to come up to speed after falling off the hay wagon.

So what next? The US having to pay a reasonable rate of interest on the trillions owed, forcing fiscal discipline as interest costs dwarf any other line item in the budget?

There is no end to the potential goodness of a Trump presidency.

168 XVO March 1, 2016 at 9:21 am

+1

169 The Anti-Gnostic March 1, 2016 at 9:45 am

Shift of Overton window instead of shouting down reasonable debate, USG putting interests of its own citizens before the rest of the world’s citizens, dogs and cats living together.

170 Dan in Euroland March 1, 2016 at 10:03 am

Trump is so bad he is good for everyone.

171 Tim March 1, 2016 at 9:46 am

Good point on Dems not being able to argue the case about vindictive regulation.

Nixon had to go to China, Reagan had to trust Gorbachev, Clinton had to slash welfare.

Without any analysis to the truth of the claim, Sanders’ recent spin that he was slow on VA abuses was because he assumed it was just GOP anti-government rhetoric certainly resonated with this squishy lefty.

I hear Edward Wilson all the time – paleolithic emotion (see any thread here that partisans have a partisan POV on), medieval institutions (how do we efficiently and effectively govern ourselves when ourselves is an increasingly-linked 7.5 billion), God-like technology (nukes immediately, anthropogenic climate change imminently, whatever’s next).

172 Floccina March 1, 2016 at 10:41 am

It is not just Trump, Bernie likes to talk about putting people in jail how vindictive is that? I do not condone fraud but it is easy for a not very bad person to get caught up in selling mortgages and default swaps.

173 Floccina March 1, 2016 at 10:55 am

Also Cruz wants to make sand glow and Hillary is on the jailing executives with Bernie. Rubio wants to loose vengence on ISIS etc.

Gary Johnson the only rational choice. Forgive and forget.

174 Nathan W March 1, 2016 at 11:57 am

I don’t think Sanders is interested in street level dealers or someone who gets accidentally caught up in a fraudulent representation of the value of a mortgage-backed security.

175 Floccina March 1, 2016 at 12:05 pm

Nathan W. so it is Ok to be vindictive if your target is rich people? Maybe the folks at the lower levels were the worst morally, I think it is impossible to tell.

176 Nathan W March 1, 2016 at 1:09 pm

No. If bankers committed crimes and defrauded people they should go to jail – no witch hunts. If guilty of intentionally misrepresenting valuations to the tune of millions or hundreds of millions of dollars (proving intentionality would be very hard)They should serve longer sentences than people who commit minor property crimes. That’s not vindictive, that’s asking to uphold the principle of proportionality in criminal justice. At some stage, one would think there should be a role for negligence, for example if you earned $50 million in salary while being provably grossly negligent and the taxpayer ended up footing the bill for your negligence, that the taxpayer might in some cases have a right to recoup that loss by suing for compensation.

I really don’t know if Sanders views it in a vindictive manner. My belief is that his thinking on the matter is roughly similar to what I just said. But maybe he’s secretly really vindictive and just hides it with superhero undercover deviousness.

The basic reality is this: white collar people (here, bankers, financiers) are more involved in setting rules, etc., and therefore can get away with a lot, whereas common thieves have no organized political representation and therefore often do major time for crimes which cause much less damage to far fewer people than many greater quasi-intentional losses inflicted upon people and for which a banker will receive a stern finger wagging and a raise. I don’t feel vindictive about it, and I don’t think Sanders does either, but that is not justice.

177 Floccina March 1, 2016 at 2:27 pm

“It is an outrage that not one major Wall Street executive has gone to jail for causing the near collapse of the economy. The failure to prosecute the crooks on Wall Street for their illegal and reckless behavior is a clear indictment of our broken criminal justice system,” Mr. Sanders said in a statement.
From: http://www.washingtontimes.com/news/2015/oct/6/bernie-sanders-wants-wall-street-execs-jailed-2008/

Sounds pretty vindictive to me.

It is probably not even true that Wall Street executives caused the near collapse of the economy, but rather Ben Bernake caused the near collapse of the economy because he was a rookie in a very difficult position and he was there for too cautious. (see here http://www.themoneyillusion.com/?p=19957 and here http://www.themoneyillusion.com/?p=31514) Remember the concepts of beyond a reasonable doubt and innocent until proven guilty.

Bernie Madoff was guilty beyond a reasonable all the rest I doubt it and clearly Bernie Sanders knows that (or at least should) more than I do. He is just being vindictive.

Mistakes were made.

178 Nathan W March 2, 2016 at 12:14 am

I think “mistakes were made” is broadly accurate. I also whole heartedly agree with emphasizing the “innocent until proven guilty” aspect of things here. But SOME people knew exactly what they were doing. Proof is hard to find when no one is investigating – instead, golden handshakes abounded in a context of widespread negligence (e.g., prudent top level risk analysts were not favoured).

I guess if it seems vindictive to you, I can see how it might come across that way, and I absolutely believe that such views exist with respect to banking (definitely more on the left than on the right), but it just doesn’t come across that way to me for Sanders. Agree to disagree i guess …

179 Multitudes March 1, 2016 at 11:09 am

“I hope we always will have non-vindictive Presidents in this country.” I love when Tyler plays Rumpelstiltskin. Hey wake up! You’ve had a nice 7 year nap: https://www.google.com/?gws_rd=ssl#q=Obama+vindictive

Anybody who loves Obama should love Trump. The two are indistinguishable in so many ways. Which should be comforting. The Republic has withstood Obama and his unprecedented corruption, incompetence, and megalomania. Surviving Trump should be a cakewalk.

180 Joseph Hertzlinger March 1, 2016 at 12:06 pm

Last time we had a President disliked by the Press and who had an enemies list, he wound up nearly impeached and had to resign.

The real question isn’t what Trump will do. The real question is what Trump supporters will do. Will they regard an impeachment as underhanded? Will they try voting down “traitors”? Will the split between the libertarian Right and the authoritarian Right give the Left a free hand?

181 Simonini March 1, 2016 at 12:10 pm

This is the first argument against Trump that has actually made me reconsider voting for him instead of hardening my resolve. But I think the immigration benefits are worth putting up with a vindictive executive, and if people on the other side of the aisle experience some vindictiveness for once maybe they will be a little more willing to restrict arbitrary regulatory power in the future.

182 Chris S March 1, 2016 at 12:17 pm

I, for one, welcome our new Drumpfian overlords.

183 JLV March 1, 2016 at 12:28 pm

Posit the existence of left-wing and right-wing parties which can enact policies through a) the administrative state or b) the legislative process. Path a) is possible whenever a party controls the presidency, but path b) is only possible through assent of the other party.

This means that if an opposition party chooses to foreclose path b) for the party that controls the executive, they are choosing path a.

Question: do supporters of the opposition party get to complain about it after the fact?

184 Jon March 1, 2016 at 2:00 pm

The checks on the regulatory state are the press, the Congress and the courts. A president and his party want to win elections; too many scandals don’t help.

While this is far from perfect and a vindictive president or governor or bureaucrat can do a lot of damage; the lack of a regulatory apparatus would create a much worse situation.

This situation is no different from the problem faced by citizens dealing with police. While it is true the final disposition of a crime is decided by the courts; an accused individual can suffer a lot of damage before the trial starts. Just ask anyone who has lost their job after being arrested or has had their home ransacked, their dog killed, or god forbid a family member shot.

185 Andy March 2, 2016 at 1:25 pm

“The checks on the regulatory state are the press, the Congress and the courts.”
Who can argue with that kind of bright eyed optimism?

186 Jeffrey Deutsch March 3, 2016 at 3:53 pm

So…it can’t happen here and the cops are doing it just as much?

187 Foseti March 1, 2016 at 2:04 pm

“Is fear of regulatory reprisal from a Trump administration so unrealistic? I don’t think so.”

It’s not only unrealistic, but it betrays a breathtaking lack of understanding of how the regulatory process actually works.

All regulations depends on the bureaucracy and the bureaucracy is 99.9% against Trump. To spell out how absurd this theory is, Trump would need to get people who want to do this stuff through the Senate confirmation process and installed as the heads of agencies, have these people overcome the full force of the un-fireable federal bureaucracy and get the bureaucrats to actually write these regulations, have the bureaucrats actually enforce the regs as Trump would want (bureaucrats always get the first shot at interpreting their own regs), and have the courts uphold such interpretations.

This sort of thing is possible for Democratic presidents (see the IRS), but it’s not possible for any Republican, especially Trump.

The above set of events is obviously not happening. The spoils system died a long time ago and power was vested in the regulatory state almost 100 years ago, perhaps it’s time to update your ideas about how government works accordingly.

188 GMC March 1, 2016 at 2:14 pm

The implied subtext is that our Presidents to date have not been vindictive and in particular have not been vindictive in their use of the regulatory State. I doubt that assumption. It is possible that Tyler simply means that Presidents to date have been more concerned with concealing their use of the regulatory State than leveraging their use of the regulatory State, in which case I think I would mostly agree.

However, a quick perusal of news items for “IRS 501(c)(3) conservative” or “George W. Bush politicized Department of Justice” will provide ideologically varied examples of Presidents’ use of the regulatory state to assault their perceived enemies.

189 Dulimbai March 1, 2016 at 3:11 pm

So why don’t you fear Trump’s reprisal? A Trump presidency might not be kind to GMU.

190 Nathan W March 2, 2016 at 12:16 am

Three cheers for tenure!

191 JK Brown March 1, 2016 at 6:29 pm

“Is fear of regulatory reprisal from a Trump administration so unrealistic?”

It is interesting all this denial about the Obama administration that is coming out in relation to Tump. There is actual evidence of reprisals by the current administration, such as the IRS targeting Tea Party groups, Ben Carson also tells of a sudden audit after he spoke out. There are others, but the beauty of bureaucratic reprisals is that you can’t complain or the decision is sure to go against you and also suddenly there are new inspections and investigations from other agencies.

Now the beauty of the reprisals when a Democrat is President is that things don’t have to have a trail back to the White House. The politicals take “independent” actions. And even the SES/GS will take actions given their Democratic Party leanings.

And here’s where Trump isn’t a threat…..Trump doesn’t have a cadre of ideological minions who will be running the agencies. Nor will he have the support of the career civil service. A President can order, but it takes minions to take the action. Oh, and historically, Republicans have a acted with honor and resigned when the President was ordering reprisals. Sure, the big event was 40 years ago, but it happened.

So let’s use some of that much vaunted critical thinking….who is a greater risk of Presidential reprisals, the guy who has no ideological followers and who doesn’t have a long history manipulating the agencies. Or the woman who has been a creature of Washington for decades, has a history of going after people, has a cadre of political minions to put in charge of the agencies and whose ideology is the same as a good portion of the career civil service, especially those who are in DC SES and GS management positions?

192 Nathan W March 2, 2016 at 12:21 am

I’m not naive regarding abuse of power. But don’t forget that anonymous citizens also have the right to submit accusations to the IRS, and independent political operatives can scour the land for signs of dirt on their political enemies – orders to not have to come from up high for political people to end up targeted. Prior to the previous election in Canada, audits of environmental groups and left wing NGOs abounded, whereas there were virtually no reports of similar things happening to the left. While new legislation seemed quite explicitly designed to facilitate this sort of targeting of environmental groups, my personal belief was that the situation was not driven by top-down conspiracies, but rather by large numbers of independent political operatives submitting anonymous complaints about their hated groups.

In observing a seemingly political dimension of an investigation or audit, this possibility must always be kept in mind unless there is a smoking gun.

193 Nathan W March 2, 2016 at 12:34 am

Correction: “virtually no reports of similar things happening to the RIGHT”.

The legislation I speak of was supposed to target foreign intrusion into Canadian politics, yet Koch’s hundreds of thousands of dollars per year to the Fraser Institute never received attention, while the fact of large numbers of small donations to Canadian environmental charities was deemed a threat to Canadian sovereignty

194 Ian Maitland March 2, 2016 at 7:54 am

I have skimmed some of Vermeule’s work in the past. I don’t think he is as stupid, arrogant, sneering, and lazy as he sounds here.

195 Andy March 2, 2016 at 12:24 pm

“The regulatory state and the importance of a non-vindictive President”

Every human can be vindictive. To think that one party or candidate is more or less vindictive based on what the public sees or hears in the media is naive. Not only is revenge a dish that is best served cold, it is not served in plain sight.

196 stan March 3, 2016 at 3:09 pm

We’ve already got a vindictive federal govt. What the heck would you call it when IRS agents are sent out to grill people about the books they read and the prayers they say?

What else would you call the current EPA?

What else do you call what was done to Joe the Plumber?

197 Jeffrey Deutsch March 3, 2016 at 6:05 pm

Hmmm…this has been a long time coming. As Thomas Sowell pointed out in his 1980 classic Knowledge and Decisions, government agencies get out of hand by:

* Being virtually immune to unfriendly feedback, since top civil servants are tough to fire (as are political appointees as long as the president continues to support them), and

* Handing out lots of money in subsidies, contracts and the like…with strings attached, of course.

In America, you can’t tax a firm, say, $1,000 and then fine them an additional $500 for displeasing you. You can, however, tax them $1,500 and then give them $500 of it back for pleasing you. Legally, there’s a big difference. Morally too: “Hey, if you want the government off your back, just get your hand out of the government’s pocket!”

Never mind that the industry as a whole is now in a prisoner’s dilemma/race to the bottom. An individual firm that refuses is not as well off as it was before the government got into the subsidy business, because its competitors are now flush with Uncle Sam’s cash. So economically it’s all the same, and the bureaucracy has long figured out how to circumvent constitutional safeguards, get just what it wants and make ostensibly private organizations arms of the State.

As Sowell pointed out even before the U.S. Department of Education came into being, once Harvard gets a whole lot of Federal dollars Yale cannot survive as a competitor unless it, too, sells out. So this isn’t a matter of “fair exchange of service for money” because universities as a whole — or other entire industries for that matter — aren’t decision-making units.

* Being able to run individuals and firms through expensive, embarrassing, time-consuming, stressful and ultimately risky processes. The courts are at least as good as administrative agencies for that sort of thing (not that they can’t work in tandem). People are strongly tempted to knuckle under to outrageous demands — up to and including confessing to serious crimes they never committed — because fighting for their rights may just cost too much in money, reputation, time, stress, etc…and they could still lose in the end. (The late compliance attorney and Missouri State Auditor Thomas Schweich said that even if you have an iron-clad, open-and-shut case — not only are you right but you can also conclusively prove it — there’s at least a 20% chance a jury ends up ruling against you. A jury, mind you, not an agency of politically motivated folks who have you in their sights.)

As Sowell also pointed out, this may be why business executives have long had a reputation for political cowardice. People who think that businesspeople passive in politics are poltroons may not realize the extent of the audits, inspections, investigations, hearings and even full-fledged legal cases that government officials can run them through. Even if they win, they lose.

We all know about CYA, and business managers and others doing things that only make sense under the omnipresent threat of being sued.

“Transactions costs” aren’t just odds and ends like postage or phone bills.

In this way, the agencies and courts not only impose unjust and sometimes arbitrary punishment, they also force other organizations to do it themselves in turn.

You want a sexy example? The campus rape crisis. (For what I’m about to say, I’ve got plenty of citations and documentation available on request.)

Let’s assume there is a campus rape crisis. Let’s also assume — which I for one agree with — that whether or not “1 in 5” or the number du jour of college women are actually raped or sexually assaulted, it’s not as rare as most people have thought. Let’s finally assume — which I know is true as sure as the sun rises in the east — that colleges and universities, in the name of looking good, have swept cases under the carpet (especially for athletes, fraternity brothers and sons of wealthy donors) and thrown rape victims under the bus.

Student activists, like End Rape On Campus and Know Your IX, have galvanized both political leaders, like Senator Kirsten Gillibrand, Vice President Joe Biden and President Barack Obama, and the people at the Department of Education’s Office for Civil Rights (OCR), including Assistant Secretary for Civil Rights Russlynn Ali and her successors.

The latter have not only made our schools sit up, pay attention and actually take sexual harassment, sexual assault and rape seriously and punish those found responsible. They have also micromanaged how the schools do it.

Among other things, over the last five years or so OCR has, through “Dear Colleague” letters that supposedly don’t have the force of law, effectively forced colleges and universities to:

* Use the “preponderance of the evidence” standard. That means any time they believe it’s ≥ 50.01% likely the accused did it, they’re required to find him (or her) responsible. And for sexual assault and rape, that means a very long suspension at least and generally expulsion.

* Use the “single investigator” model, in which an individual investigator speaks separately with the complainant, the respondent and any witnesses and then compiles a report and recommendation. The idea is not to risk re-traumatizing a victim by making her be in the same room with, let alone interact with, her rapist. That means cross-examination, even through a neutral hearing board chair, is generally not possible. And this for just the kind of situation where credibility is especially important!

In practice, respondents have complained that the investigator did not contact witnesses that they named…of course, only after the horse had left the barn, since they weren’t all together in the same hearing room and hence the respondents couldn’t know at the time that the witnesses were never questioned.

Respondents have also complained that they did not have an opportunity to respond to or even see all the specific evidence against them; sometimes statements are other evidence were just summarized for the respondents…but the investigators made their decisions based on all the evidence including some the respondents couldn’t see and thus couldn’t respond to.

* Allow double jeopardy. Now equal rights themselves are often good: If the respondent has a right to, say, object to certain kinds of evidence, so should the complainant.

But “equal appeal rights” mean that even when the process has found the accused not responsible, the accuser can have a second bite at the apple.

You may be wondering: If the Dear Colleague letters don’t have the force of law, why do colleges “obey” them? Here’s a hint: They “only” apply to those schools receiving Federal funding!

Very few don’t (and by the way, that also means students can’t even use their Federal student loans and other Federal financial aid at those colleges), and those exceptions prove the rule.

Law or no law, colleges in general — like most of us, really — don’t dare risk antagonizing the folks who sign the checks that keep their lights on. So they not only dutifully enact OCR’s “suggestions” and “clarifications,” but they also feel strong pressure in individual cases to err on the side of convicting the accused, even by cutting corners and flouting their own rules sometimes. (OCR has more than once demanded a college actually go back and reinvestigate prior cases.) So far at least, OCR has shown vastly more interest in convicting and expelling rapists than in preserving due process and making sure innocent accused don’t get unfairly kicked out of college and branded as rapists.

Bottom line: Plenty of room throughout the system for vindictiveness and abuse of power. It especially thrives in crusades and moral panics.

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