Steve Teles on the Federalist Society and the Left

Here is one bit from what is an excellent story with good material in every paragraph:

Mr. Teles makes sure to emphasize that his sympathy with the conservative legal movement here grows out of not his policy preferences, which lean left, but his belief in the importance of a “powerfully structured” constitutional system. “I don’t think the purpose of the Constitution is to get a government so small you can drown in a bathtub,” he says. Rather, it is to ensure the government “is democratically responsible.”

Mr. Teles believes that one of the most salient projects for the newly conservative Roberts Court will be to roll back administrative-state prerogatives. That could revitalize Congress and restore the constitutional structure, vindicating two longtime goals of the conservative legal movement. But he thinks this could also end up serving certain policy ends of progressives.

For the past several decades, Mr. Teles says, many progressive victories in the economic realm have been achieved through “administrative jujitsu”—difficult-to-understand maneuvers involving taxes, fees, mandates, regulations, and administrative directives. If courts start to block technocratic liberal plans for social reform because they violate the separation of powers, the left may find it easier to mobilize for pure redistribution as an alternative. Think of postal banking instead of CFPB regulation, or a carbon tax instead of the Obama administration’s Clean Power Plan, or a reduction in the Medicare eligibility age instead of ObamaCare subsidies and exchanges.

That might be good for democratic discourse, Mr. Teles suggests. “In some ways liberalism has been deformed” by relying on administrative agencies, “as opposed to making big arguments for big, encompassing social programs.” In the short term, though, conservative courts will probably prove “radicalizing for the left.” Democrats may fully jettison Clintonism and say: “We’re going straight for socialism.” Steeply redistributive programs enacted by legislatures would be “easier to defend in court,” even a conservative court, than unaccountable bureaucratic diktats.

That is from Jason Willick at the WSJ.  I am a big fan of Steve Teles, and in fact here is my Conversation with him (and Brink Lindsey).

Comments

"To build something like the consensus constitutionalism that is ultimately necessary for our democracy to function, conservatives need more Federalist Societies and fewer bake sales. " huh???

Read the whole article, it makes sense.

Bonus trivia: do tell, is Steve Teles in favor of bringing back Lochner? https://en.wikipedia.org/wiki/Lochner_v._New_York

I'm Steve Teles, and no. :-) But I do think that there's something to the non-delegation doctrine, although I worry that it can be used selectively.

In general, I think governments have a pretty wide remit for what they legislate on. But HOW they legislate is another matter, and one where I'm open to a bit more muscular constitutional rules than most progressives are comfortable with.

I enjoy a nice brew of bitter liberal tears. Are you still crying from the election? I could use a top up.

Federalist Society executive Leonard Leo is said to prepare Trump's lists of judicial nominees. Why would Trump picking from these lists be "a bake sale?"

"Consensus constitutionalism" sounds like "living constitutionalism" which is just a euphimism for "a nakedly political supreme court." Federalist Society members tend to be originalists which means they believe the constitution is what it is. How would consensus constitutionalism be even remotely compatible with conservatism? And why would it be "ultimately necessary for our democracy to function?" That is a complete non sequitur. If you want a make-believe constitution, why not just go without a constitution at all? New Zealand does just fine without.

I suppose the orginal constitution is antithetical to the socialism that Teles believes democracy will command. With the number of dues paying Democratic Socialists skyrocketing from about 6,000 to over 45,000 a socialist future undoubtedly seems inevitable. And that is exactly why conservatives would not want alternatives to the Federalist Society and make-it-up-as-you-go constitutional interpretations.

Sorry this piece is just a lot of trendy cliches held together by illogic and reflexive anti-Trumpism.

+1. Teles (like our host, alas) really doesn't want democratic accountability.

“With the number of dues paying Democratic Socialists skyrocketing from about 6,000 to over 45,000 a socialist future undoubtedly seems inevitable.”

I’m a moderate who was happy with Reagan (except for Iran Contra, which was Obamaesque in its sneakiness) and happy with Bill Clinton (except for his philandering/sexual assaults, and lack of moral character). Bush and Obama were both inferior to Romney but were essentially moderates.

As I believe center-right and centrist politicians are the best option for our nation, I’m discouraged by the increased support for socialism among progressives and hope it’s just a fringe movement. Thankfully 45,000 doesn’t seem like very many.

Centrist, Don't you think you should be more concerned about the actions of those who are in power than those who are not?

I'm not Centrist but I'm a centrist, center-right would be more accurate. He is just looking toward the future. Someday Donald Trump will not be in power and I'd like to think the successor will not be a left-wing maniac. Two maniacs is two too many.

Fortunately 45,000 Democratic Socialists can't elect a national candidate in a country with 220 million voters, but they might be the canary in the coal mine.

Not possible. I suffer from HDS. I am condemned to think about Hillary all the time until my dying days. The next time you say something mean about Trump, I will defend him by saying something mean about Hillary. Its in my genes.

Congrats on the classic troll, both-siding Iran Contra, where there were arrests and mugshots, with what? Fill in the blank? Mood affiliation?

Yeah, the "Constitution is what it is" interpretationalism.

So, you have only the right to bear a musket, because that what the Founders intended.

And we need to amend the constitution to deal with the internet because the Founders did not have an email address.

One could more accurately say they intended state of the art rifle, of the same quality issued to government troops, because that’s what they intended, and had recent personal experience with.

But, where did you see that in the correspondence of the drafters. Shame on you for inferring their intent.

Scalia never claimed to discover their intent precisely because the intent and the wording of the text may or may not correspond with each other (something that several framers themselves noted). It's people like Breyer who believe that the "purpose" should guide judicial interpretation.

The trick here is that there's no accuracy: Actual literalism leads to the Supreme Court saying very little, as 90% of rulings are streching what the document says. What Scalia conservatives call literalism is just a polite way of saying 'Your interpretation is wrong, and mine is better'. Money is speech is not literalism. Corporations are people? Not literalism. Abortion? The only literal interpretation is confusion. Same with the second amendment. And yet, Scalia came in with rulings that just happened to match what Republicans wanted.

Every ruling is political, and we have to stare at that in the face.

The left is doing great. Please continue.

"We Are All Socialists," Newsweek 11 February 2009.

Obama took over in 2009, Democrats held 257 House seats, 60 Senate seats (after Arlen Specter switched sides), 28 governorships, and total control of 27 state legislatures.

In January 2015, the blessed GOP held 247 House seats, 54 Senate seats, 31 governorships, and control of 30 state legislatures. The only major elected office controlled by the Democrats was the White House, which, they lost in November 2016.

Schlichter June 2017: “Look Democrats, you’re doing great. After a half year of Trump and several special election moral victories – which are the best kind of victories – America is digging your vibe. Everyone loves the Democrats and their can-do message of opposition to Trump, entitlement to our money, resistance to Trump, demands for even more of our money, and dog-whistlin’ about murdering Trump and anyone else who doesn’t hate Trump or want to give Democrats our money.”

How can people respond or react to the word left when their President looks like he's Putin's puppet.

I usually react to the word Left when used by another person this way:

That person is using the word Left because he wants a pavlovian instinct to kick in so that the weakness of an argument doesn't show.

And, besides, who gets to call something left or right?

Medicare and Social Security were called Left, even communist.

When you rely on words like Left or Right, just as I used the Putin analogy above, you are trying to speak to the lizard brain, and not higher intelligence.

I also didn't like Tyler's calling opposition to Federalist's in the Title of this post as being Left. In fact, the opposition to the Federalist's on many issues are those in the Main Stream.

Don't judge by labels. Even the word Main Stream. Think.

Finally, on this Right / Left word choice, remember, if you stake your position on the Far Right, everything that's to the Left of your position is Left.

"How can people respond or react to the word left when their President looks like he's Putin's puppet." That's so 2012. Let it go already.

"Democrats may fully jettison Clintonism"

This. The sooner we rid the world of Hillary the greater our country becomes. #maga

the now enormous U.S. "administrative state" directly contradicts the Constitution and democracy principle. yawn

Nobody much cares -- especially the long stream of Congressmen, Presidents and SCOTUS Justices who created and nurtured it into dominance.

Ordinary Americans should correctly consider this situation hopeless... relative to their personal liberty and rights.

Not hopeless, just bring back Lochner, see my comment above. The revolution will come...via baked confectionery goods!

Bonus trivia: the Philippines and most of Asia is a fry culture not a baked goods culture. The gas oven I bought, from a reputable store (old story, only defective 'new' goods are sold in PH), leaks gas, a complete waste of money. I should have known, it's probably the only retail oven they sold all year.

For those in the audience who do not know what Lochner is: it was basically a culmination of decisions from the1870's that took the position that the government could not regulate commercial transactions, as that would be a restriction on "liberty"

Lochner was a culmination of that thought, which ended during the 1930's with subsequent decisions.

Here is a description of the Lochner decision: " Lochner v. New York, 198 U.S. 45 (1905),[1] was a landmark U.S. labor law case in the US Supreme Court, holding that limits to working time violated the Fourteenth Amendment. This decision has since been overturned.[2][3][4]

A majority of five judges held that a New York law requiring that bakery employee hours had to be under 10 hours a day and 60 hours a week violated the due process clause, which in their view contained a right of "freedom of contract." They said there was "unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract." Four dissenting judges rejected this view, and Oliver Wendell Holmes's dissent in particular became one of the most famous opinions in US legal history."

If you are not today unsure of whether your toothpaste will kill you, be thankful that Lochner is no longer good law.

That's the typical Progressive lie about Lochner. For a thorough debunking of that lie, see Bernstein's "Rehabilitating Lochner."

Ha Ha. Are the drugs wearing off and are you still seeing illusions.

Lochner is what it is.

We have food and drug regulations because bakers are or are not allowed to work as many hours as they want? What is the connection?

Ray, I don't take that much interest in the so-called Federalist Society. It's membership is composed largely of DC attorneys and lobbyists who make their livelihood challenging government regulations on behalf of polluters and other such folk. I had a friend who was an early member who has since left it as he saw it as a trade association for lobbyist and admin law lawyers.

Here's an article on the financing of the "conservative" legal movement:

https://www.nytimes.com/interactive/2017/03/19/us/politics/document-ConservativeDonors-DocCloud.html

The article starts: " Tens of millions of dollars flow each year to a collection of non profit groups — from the Federalist Society to the Judicial Crisis Network — that are trying to reshape the federal and state judicial systems. Most of the money moves anonymously, other is disclosed. Here we take a look."

Look for your lobbyist and corporation here.

> "It's [sic] membership is composed largely of DC attorneys and lobbyists who make their livelihood challenging government regulations on behalf of polluters and other such folk"

Obviously incorrect, as a simple Google search would reveal. The organization has 50k+ members and a chapter at nearly every law school and major city in the country.

The numbers you cite to are not the number of lawyers. Anyone can be a member

You make a valid point. My interaction has been with DC lawyer members (looyists and admin law lawyers interact with agencies and write amici briefs for it or their firm clients) and a friend who left.

Contra: https://www.foreignaffairs.com/articles/united-states/2014-08-18/america-decay

“I don’t think the purpose of the Constitution is to get a government so small you can drown in a bathtub,” he says. Rather, it is to ensure the government “is democratically responsible.”

This comment is really quite irresponsible given that the US Constitution really does not encourage true democracy. We have a President who is picked by Electors rather than the general population and we have had five cases where the winner of the popular vote was not 'elected' president (two within my lifetime). The bicameral nature of the legislature with arcane rules also does not lead to democratic results. Of course this is what the framers of the Constitution desired as any reading of The Federalist Papers would tell you.

The U.S. Senate's "arcane parliamentary rules" are not an appendix to the Constitution and could be replaced at any time by a majority vote of that body (and should be).

The bicameral architecture as is was a compromise between advocates of representation according to population and those holding out for equal representation of each state in accordance with the Confederation's practice. It was rationalized post hoc. The mode of electing the president worked as expected precisely twice.

"For the past several decades, Mr. Teles says, many progressive victories in the economic realm have been achieved through “administrative jujitsu”—difficult-to-understand maneuvers involving taxes, fees, mandates, regulations, and administrative directives."

As if the courts are not massive administrative states...

Common law is the very definition of the administrative State.

Even explicit laws are administrated by courts, and prosecutors, and defense, and juries, all formally part of the court under common law process.

Florida passed "stand your ground".

A few days ago, a man was yelling, "threatening", a woman in a car. Her partner came out of a store and came into this conflict, and probably felt he was acting in self defense or in defense of his companion, and pushed the man threatening. The man fell down, oulled out a gun and killed the man acting to defend the woman ffprom the man.

The police refused to charge the killer based on "stand your ground".

Was that the intended outcome under the law?

Was the man shot not entitled to act in his own defense against someone he feared? Was his mistake not simply shooting the guy threatening by yelling and invading his space?

Ultimately, the law passed by the Florida legislature will be interpreted by a few dozen faceless unelected technocrats based on prior administrative proceedings establishing standards for interpreting the law, ie, common law and other case history, and the entire court record will form part of the future interpretation of the law, which if sufficiently different from the collective intent, will require the legislature to pass new law.

If most of the voters did not intend the ultimate outcome in this case, they simply must accept the result decided by a bunch of faceless unelected government technocrats, because no law change can change the court for past action, and it's hard to change the law.

To argue the legislature can make law that is not decided ultimately by unelected faceless technocrats is absurd.

And I doubt more than 2% of the people advocating this law would have argued

"If someone yells at you and confronts you aggressively, and you touch him, you deserve to be shot and killed as a legal remedy for you refusing to be threatened and fearful."

A second example from the past week.

Instead of the administrative State of the FDA, consumer product safety agency, the EPA, a court case determine J&J should be punished with a $6 billion civil award to plaintiffs and lawyers, decided by a bunch of faceless unelected experts and a random set of people.

This is the process the libertarians opposed to the EPA, FDA, OSHA advocate as superior to legislatures enabling faceless unelected government employees to define what is allowed or required of businesses and individuals.

Thanks. Indeed common law is all but inseparable from the implementation of policy by narrow or broad administrative discretion.

God Help me, for almost the first time I (mostly) agree with Mulp

I am amused by those who think that legislation should not be accompanied by administrative interpretation.

Legislators have tough time tying their shoes.

Imagine if you had to require that, instead of setting out broad rules in broad language, they would have to write the legislation AND the regulations interpreting and enforcing it at the same time.

The mind boggles.

The other part of the fallacy here is that administrative law doesn't;t follow law or doesn't have procedures.

This comment is open for response for 60 and responses will be published in the Federal Register. Opposition to this comment may be appealed to an Administrative Law Judge, appealed to the full MR commission, and thereafter reviewed by the district or appellate courts.

60 days, I meant to say, rather than just 60. Comment period will be extended from the date of revision of this comment following publication in the Federal Register.

Bill - This is ridiculous. There is administrative interpretation and there is administrative interpretation. Do you really think Obama's Clean Power Plan, and its sweeping overhaul of US energy policy, was contemplated by Congress when they passed the Clean Air Act?

As to whether they can:

Asked and answered by the Supreme Court.

https://www.washingtonpost.com/politics/supreme-court-limits-epas-ability-to-regulate-greenhouse-gas-emissions/2014/06/23/c56fc194-f1b1-11e3-914c-1fbd0614e2d4_story.html?utm_term=.298863a25435

In case readers are unfamiliar with the decision:

"The Supreme Court on Monday mostly validated the Environmental Protection Agency’s plans to regulate major sources of greenhouse-gas emissions such as power plants and factories but said the agency had gone too far in interpreting its power.

The court’s bifurcated opinion on one hand criticized the agency for trying to rewrite provisions of the Clean Air Act. But it nevertheless granted the Obama administration and environmentalists a big victory by agreeing that there are other ways for the EPA to reach its goal of regulating the gases that contribute to global warming." See link above.

And, in case you don't know, the Republican controlled Congress has many times failed to enact laws repealing Chevron, which, in itself, is a recognition that they can only tie so many shoes:

https://www.natlawreview.com/article/senate-attempts-to-repeal-chevron-deference

There is no clause in the Constitution that grants the executive the power to do essentially legislative work because legislators have a tough time tying their shoes.

Chevron deference needs to be sent to the trash bin of history, and with Kavanaugh on SCOTUS there is a good chance that it will be.

Anon,

Look, in case you don't know, and I can see you don't, CONGRESS wrote the Administrative Procedures Act, so Congress specified how the wanted laws to be interpreted and administered after a law was enacted.

In case reader's don't know of Chevron, here is a clip from Wiki:

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a landmark case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers.[1] Chevron is the Court's clearest articulation of the doctrine of "administrative deference", to the point that the Court itself has used the phrase "Chevron deference" in more recent cases.[2] The fundamental test applied by the court, when appropriate, is deferential: "whether the agency's answer is based on a permissible construction [emphasis added] of the statute", so long as Congress has not spoken directly to the precise issue at question.

As Judge Kavanaugh notes in his excellent article on statutory interpretation (see 129 Harv. L. Rev. 2118, 2150), Chevron deference is entirely divorced from the Congress-passed text of the APA:

"[T]he reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." 5 U.S.C. § 706.

To be clear, that doesn't mean Chevron deference is a bad idea, but it's an entirely judge-created doctrine.

See Chevron itself re APA and the cases preceding which the court cited which led to it. Amat a concert and will attach more later

Chevron itself does not contain a single cite to the APA.

o yes it does. The criticism was that it paraphrased it Also supreme ct cases supreme relied did interpret APA and set forth rules of interpretation

Care to excerpt the cite from Chevron? I think you might be looking for a while.

Sure. 467 US 837 at 844.

The Court paraphrased the APA without citation.

Here is the text: "If Congress has explicitly left a gap for the agency to fill, there is an express delegation [p844] of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. [n12] Sometimes the legislative delegation to an agency on a particular question is implicit, rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. [n13]

We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, [n14] and the principle of deference to administrative interpretations

has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. See, e.g., National Broadcasting Co. v. United States, 319 U.S. 190; Labor Board v. Hearst Publications, Inc., 322 U.S. 111; Republic Aviation Corp. v. [ 467 U.S. 845] Labor Board, 324 U.S. 793; Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194; Labor Board v. Seven-Up Bottling Co., 344 U.S. 344.

. . . If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.

United States v. Shimer, 367 U.S. 374, 382, 383 (1961). Accord, Capital Cities Cable, Inc. v. Crisp, ante at 699-700.

In light of these well-settled principles, it is clear that the Court of Appeals misconceived the nature of its role in reviewing the regulations at issue. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. [n12] Sometimes the legislative delegation to an agency on a particular question is implicit, rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. [n13]

We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, [n14] and the principle of deference to administrative interpretations

has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. See, e.g., National Broadcasting Co. v. United States, 319 U.S. 190; Labor Board v. Hearst Publications, Inc., 322 U.S. 111; Republic Aviation Corp. v. [ 467 U.S. 845] Labor Board, 324 U.S. 793; Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194; Labor Board v. Seven-Up Bottling Co., 344 U.S. 344.

. . . If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.

United States v. Shimer, 367 U.S. 374, 382, 383 (1961). Accord, Capital Cities Cable, Inc. v. Crisp, ante at 699-700.

In light of these well-settled principles, it is clear that the Court of Appeals misconceived the nature of its role in reviewing the regulations at issue. Once it determined, after its own examination of the legislation, that Congress did not actually have an intent regarding the applicability...."

This cite reference is from a guy who does not like Chevron, but acknowledged that the Court paraphrased it in its decision. Will spring that on you if you want. (Hint: He's from GMU)

There may be a little repetition in the text due to where I am typing and pasting so please excuse.

I appreciate what I presume to be your genuine engagement, but I'm still not seeing a cite, whether paraphrased or not, to the APA. I wouldn't be surprised if some of the cited cases discuss it, but I do think it's a fairly startling aspect of Chevron that it doesn't explicitly or (in my view) even implicitly discuss a law, in place since the 40s, that says courts "shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." (Of course, under Chevron deference many "questions of law" are decided by the administrative agency rather than the courts.)

On the contrary, see Thomas Miles and Cass Sunstein, "Do Judges Make Regulatory Policy?":

"To understand this claim, it is important to return to the rationale of Chevron itself. Strikingly, the Court did not justify its two-step inquiry by reference to the language or history of the Administrative Procedure Act. Instead the Court referred to two pragmatic
points: judges lack expertise and they are not politically accountable." (p. 865)

Just as a quick additional point - Cass Sunstein, a strong supporter of Chevron deference, had this to say about the case:

"Strikingly, the Court did not discuss the language or history of the APA."

See Beyond Marbury: The Executive's Power to Say What the Law Is, 115 Yale L.J. 2580, 2586 (2006)

DB and Anon, Now that I am home and at my computer, let me further respond.

I gave DB the citation to Chevron where it paraphrased the Administrative Procedures Act as support, along with a long list of prior decisions which also relied upon the APA and judicial interpretation of statutes and allocation of powers between the branches in the context of administrative agencies.

But, like Thomas who had to see the holes, the opinion would not be sanctified unless there was a citation to the Administrative Procedures Act (why this holiness I do not know).

Here is an opponents, statement, as promised that refers to the Courts reference of the APA in the opinion:

"In Chevron, the Court signaled its intent to depart from the APA’s language when it paraphrased—rather than quoted—the APA’s standard of review. The Court stated that when Congress explicitly leaves a statutory gap for the agency to fill, “legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.”13 The Chevron Court’s paraphrase differs dramatically from the actual text of the APA, which provides that the reviewing court should overturn agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”14 This quote from a GMU prof no less :https://wlflegalpulse.com/2015/09/18/chevron-deference-conflicts-with-the-administrative-procedure-act/

I don't require logic or a succession of prior cases cited by the court for its interpretation of how the court should give deference to administrative agency rule making in ambiguous or changing circumstances. Some have argued that Chevron was the culmination of a succession of cases, leading up to it, which I think is a fair description: From WIKI on Chevron: "Chevron is probably the most frequently cited case in American administrative law,[5] but some scholars suggest that the decision has had little impact on the Supreme Court's jurisprudence and merely clarified the Court's existing approach.[6]"

It might be fun on a Sunday morning to engage in this as to the parentage of this baby, but I think that misses the point, which I think is most often missed by Libertarians and the like: We live in a society where technology rapidly changes and where Congress deliberately writes legislation in broad strokes because they as you know technology and circumstances change and there has to be a mechanism that accommodates those changes while still maintaining the purpose of that law.

Ever since the 70's there has been a push to throw sand in the gears of a functioning government by those opposed to a specific regulation. Frankly, I think the Supreme Court saw that it was very easy to increase the transactions costs by simply filing lawsuits against a proposed regulation, one after another. Chevron made it easier for a court to dismiss those cases. But, don't worry: the Courts are still guided by legislative history of a statute: committee reports, floor statements, failed amendments, items knocked out in conference committee--legislative history which all takes precedence over the rather weak deference in Chevron in ambiguous circumstances.

When Libertarians or the non-mainstream are out of power, it's easy to throw rocks at the window; but, once you get inside the house, and you are responsible for window repair and management of the household, you might have a different opinion.

I think this quote from the SCOTUS (Supreme Court blog) sums it up:

A defender of Chevron would point out that something like its rule is necessary for the government to solve modern problems. Congress can only ever act in fits and starts, and cannot engage in day-to-day technical judgments about, say, what kind of substances are “air pollutants” and what quantity of them is dangerous to human health. So Congress instead sets out the broad policy aims, and then empowers an administrator or cabinet secretary to carry out those aims through her agency’s expertise. Requiring more of Congress is unrealistic, and letting courts freeze the meaning of ambiguous terms like “pollutant” through judicial interpretation means that Congress’ policy goals will be frustrated when times or scientific knowledge change. The core case for Chevron thus comes from big policy statutes that broadly create or empower federal agencies with technical expertise – statutes like the Clean Air Act and Clean Water Act (EPA); the Federal Communications Act (Federal Communications Commission); the Federal Power Act and Natural Gas Act (Federal Energy Regulatory Commission); the Food, Drug, and Cosmetic Act (Food and Drug Administration); or the Occupational Safety and Health Act (Occupational Safety and Health Administration). What is particularly notable about Gorsuch’s famous forays into administrative-law jurisprudence and Chevron deference is how distant they are from these fundamental applications of the doctrine." http://www.scotusblog.com/2017/03/roots-limits-gorsuchs-views-chevron-deference/

Hard right Republicans have many times tried and failed to repeal Chevron, so what you are saying is that the 18 year old Chevon standard of review, now a precedent and established law, with a failure by a handful of Congresspersons to repeal it, should be reversed by appointing a Judge who will do it for you.

How nice.

I know quite well that Congress has developed a bad habit of ducking its constitutional responsibilities in both domestic and foreign affairs (thanks in no small part to the Progressive ideology behind the long, sordid history of the administrative state). That doesn't mean that it's the job of SCOTUS to be their activist enablers. As for precedent, the left in practice respects precedent about as much as Justice Thomas, so I look forward to Justice Thomas writing more majority opinions overturning many of those precedents.

Anon 7,

Let me give you a hypothetical to answer, given this and previous statements.

Let's say there is a water pollution or workplace safety statute prohibiting pollution or hazardous materials. And, let's say it was enacted in 1967.

In 2014 universities and others begin working with nano particles, some of which get into your bloodstream or lungs will kill you or make you sick.

Now, your position is that since Congress did not address nano particles, the Agency cannot interpret its statute to cover the release of nano particles from manufacturing into the air or water or into the workplace. Congress must act...or the agency can interpret its statute and what Congress intended.

Which do you think is current law? Which do you prefer or believe is required? (Hint: the agency relies upon Chevron.)

Assume arguendo that I'm your cartoon cut out of the "hard right" (though who are you to call someone "left" or
"right"?) and I'm a corporate polluter like Koch Industries that puts profits before people (Muahahaha!) and therefore have legal standing, I'd sue/defend against any executive agency that lifted a finger to take action against harmful nanoparticles, greenhouse gases, or anything else that our Congresscritters did not mention. Statutory law is supposed to be much more specific than the Constitution, so Congress must act.

As Justice Thomas has pointed out, Chevron deference violates the separation of powers by vesting executive agencies with either judicial or legislative power (or both), which is a major constitutional problem with the administrative state. As for current law, I don't doubt that in the event that no action were taken by an executive agency, some lefty interest group (a la MA v. EPA) would rush off and demand that the executive agency declare the nanoparticles to be a hazard and force the agency to enact laws, err, administrative regulations. But that was then, and now we have Gorsuch (known to be hostile to Chevron) and soon Kavanaugh on SCOTUS, so the days of current law are probably numbered.

'Koch Industries that puts profits before people'

Following the deaths of 2 teenagers in Lively Texas due to saving costs on pipeline maintenance, Koch Industries have said that they no longer put profits first.

Admittedly, fatal accidents still happen, but it has not been proven in a court of law that it is because Koch Industries put profits before people.

You forgot to mention that the Kochs donate to Mercatus and TC is their shill!

Is it possible for a government of hundreds of millions of people to be simultaneously democratically responsible and do anything of substance? It seems to me that even the most modest initiative would be shot down by vocal subgroups. Isn't the point of democratic elections to put people in office who are trusted to deliberate what the law should be among themselves and execute laws effectively without requiring public consent for each and every trivial action?

Great article.

In one sense, the Democrats are in a structural disadvantage because they have to appease disparate groups.

There are big advantages to using the administrative state for policy purposes, that frequently get overlooked even from a freedom point of view. First it means you don't need codes of law, which tend to be repugnant in common law systems like the USA. Canada and the UK tend to use administrative / Crown measures widely, including to implement socialist polices. Really the constraint there is the will of the American people. Get real, Mr Teles, if they wanted it they would have voted for Sanders! Also: Long codes of law tend to be perverted by lobbyists, so more formally "democratic" but not really. Also: you incur more policy volatility than is justified by the democratic will of the people, when you move the preferences embedded in law from the median Democrat to the median Republican, and vice versa.

Chevron and Constitutional interpretation issues are very good subjects often addressed in Technology and the Law courses.

That's my blockchain 2 cents opinion.

“is democratically responsible.”

We are not a democracy, we are a republic of states this effort is impossible. This is not an imaginary problem, the representation of voters goes from two senators from Maine or two for California.

The Senators represent the interests of their state, regardless of how many people live there.

Representing dirt, rather than people, is probably a bad idea.

The name for representing a state is republic. The name for proportional representation is called democracy.

https://reason.com/volokh/2018/01/17/the-united-states-is-both-a-republic-and

"Steeply redistributive programs enacted by legislatures would be “easier to defend in court,” even a conservative court, than unaccountable bureaucratic diktats."

Seriously doubt this. Obamacare barely survived despite being enacted by the legislature. The reality is a conservative court will most likely knock down laws it doesn't like just the same as a liberal one would.

Pro-tip: if a piece of legislation incorporates the exercise of general police power, suggest you leave the matter to state legislatures. Then you don't have to concern yourself with the complaints of originalist jurists.

States have constitutions too.

But, we don't have to get there: The Constitution provides that Congress shall have the power to regulate interstate and foreign commerce.

Just hypothetically speaking: what would an organized, coherent, non self-contradictory, progressive view of the constitution look like?

AB,

I once took a constitutional law course, expecting that there was some logical development of a document with very broad terms. But, then you realize that Constitutional history only makes sense when you look at American history. So, during one period of American history when America was going through industrialization, Courts discovered "economic liberty" in the Constitution, making it difficult to constrain private economic behavior. Similarly, separate but equal interpretation arose during a period of racial segregation. Those who say they are originalists often don't take separation of church and state seriously, nor do they accept free speech when it challenges their views, or their views on control of one's own body. The best way to view the Constitution, based on Constitutional history, is to view it as it has evolved in the context of American history. That's the only way some things make sense.

What's progressive today may be normal tomorrow. Think unemployment insurance, social security, medicare, rights for certain members of society, etc.

>Democrats may fully jettison Clintonism and say: “We’re going straight for socialism.”

Gee. Ya think??

It may well turn out that the greatest repercussion of the President Donald Trump Era (how does that phrase sound to you, boys??) is that the Dems are forced to announce that they have have never, ever been anything other than third-tier socialists... and they are quadrupling down on that, baby!!!

Not a great article, although there is something to the idea that reducing administrative judgments will put more responsibility on Congress. But then this Teles identifies "Obamacare subsidies and exchanges" with this admin state, but it is not that. It came from avery hard to pass Congressional bill pushed by Obama, unsupported by a single Republican in Congress, even though Obama gave away such things as the public option to appease GOP senators, only to have them stab him in the back and vote against it anyway. There are details due to admin agencies, but the bit picture on this one was passed by Congress and signed into law by Obama, even as Trump is whittling it back to give us a system worse than either ACA or the previous system. Sorry, but Teles fail on this really bigissue.

Do you respect Howard Stern’s penis?

I think you are forgetting a good bit of Obamacare. Things congress wanted to do - like reform payments and ultimately decrease monetary outlays were push into administrative bodies like IPAB. Rather than have a transparent legislative debate about what do with Medicare cost growth, Congress punted it to an executive committee.

Or take insurance subsidies. Congress adopted technocratic rules that would require substantial administrative oversight to make happen where money came in from some insurances and went out to others. Somehow, they have insisted that if payments out exceeded payments in then they would still be made from general revenue in spite of not having a line item in an actual budget. Again rather than make a political case for subsidizing major insurers, it was all hid behind technocratic smoke and mirrors that only the politically engaged can follow.

The CLASS act was a similar hall of smoke and mirrors. Rather than having a real debate about funding long term care, and how much that would cost we got a giant fudge that helped the ACA get better CBO scoring ... and it was left solely to the executive to pull the plug on the entire thing.

Obamacare was fraudulent bill where any unpalatable portion of the act was buried in a complicated mechanism that was definitely "not a tax" nor redistribution ... but ultimately was intended to function similarly.

This was not done to appease Republicans, it was all done to give cover to vulnerable Democrats. Notably Baucus, Conrad, and Lincoln all voted against the public option (and none of them returned to the Senate, regardless). Democrats were not willing have forthright bills that spelled out how many billion would be taken from one set of people & expenditures and given to another set.

This is exactly what Teles is talking about. If you want universal insurance paid for by a levy on the healthy and wealthy; then advocate for that and vote on that itself. Not some complex kludge with all details "TBD" by administrative agencies.

Yes, but do you respect Howard Stern’s penis?

I'm broadly sympathetic to this argument but it is naive to assume the Court won't strike down purely redistributive progressive legislation. The more likely course is weakening of both the kludgeocracy (good) and the ability to pass progressive legislation through expansion of negative rights through the first amendment (the vehicle through which Lochner era rights may be vindicated again)

Do you respect Howard Stern’s penis?

“I don’t think the purpose of the Constitution is to get a government so small you can drown in a bathtub,” he says. Rather, it is to ensure the government “is democratically responsible.”

Since the government, as structured by the Constitution, does not in fact ensure such accountability this strikes me as a naive point of view.

Same old song, throwing themselves on their swords. Why don't progressives learn from experience? The welfare state manufactures poor, ignorant and violent people. The taxpayers are in revolt. The unions and progressives have killed the goose that laid the golden eggs. The gravy train has left the station... no pun intended. Trying to destroy the middle class family just to confiscate their property will not work.

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