Reflections on the one that I attended in 2016. It was, to echo Kamala Harris's debate observation, "a really interesting thing to watch," though for different reasons.
Well I disagree. There is more that divides use than unites us. In fact if you know anything what is going on in our top universities and law schools you would know that our foundational beliefs - like free speech the very heart of our Constitution - is under attack ... mostly from the left (the Right and Republicans essentially do not exist on our present day campuses). This attack started a long time ago - when I was a young "firebrand" - led by a scholarly former German Jew (Oh the irony) none other than Herbert Marcuse. You really should look him up Matt. It will give you some historical perspective.
The Democrats moan and groan about attacks on our Constitutional structure sure. No doubt Jan 6 was a disgrace. Yet they ignore their own major attempt over the years to effectively deconstruct our Constitutional structure of "seperation of powers" and "check and balances.":
Supreme Court: Limits of Executive Power (2023 – 2024)
Relentless v Dept’of Commerece: Overturned Chevron deference. (Chevron v. Natural Resources Defense Council). The judiciary – not the agency – ultimately interprets the laws of Congress.
Loper Bright Enterprises v Raimondo: Overturned Chevron deference (Chevron v. Natural Resources Defense Council): “The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.”
Securities And Exchange Commision v. Jarskey et al: the 7th amendment applies to administrative agencies. Agency tribunals do not satisfy the 7th amendment. The issue of “non-delegation” (Article I, Sec I) not decided.
Garland v Cargill: Bump stocks by definition do not turn a semiautomatic rifle into a machine gun (as per the definition of a machine gun). As such, only Congress can outlaw bump stocks not the ATF.
Ohio v EPA: Violation of the Administrative Procedure Act.
Corner Post v. Board of Governors of the Federal Reserve System: the six-year time limit to challenge agency regulation starts when an injury or harm occurs, not when the regulation is promulgated. This potentially opens up decades old federal regs to court challenges
2021 – 2023
Alabama Association of Realtors v Department of Health and Human Services. The CDC does not have the authority to impose a nationwide eviction moratorium. Only Congress does.
National Federation of Independent Business, et al. v Department of Labor, Occupational Safety and Health Administration: Congress created OSHA to set workplace safety standards. As such a covid vaccine mandate to private business goes well beyond that and is effectively a broad public health measure. OSHA needs to stay in its lane. Only the Congress – or the states - can issue such a mandate.
Joseph R Biden, POTUS v Nebraska et al.: Does the student-debt relief program exceed the statutory authority of the U.S. Secretary of Education? Yes. Only the Congress can cancel such loans as that is an express power of the Congress (Article I, Sec VII). Actually cancelling $431 B debt is not cancelled. It is merely transferred to others. That clearly falls within the purview of Congress and not the executive.
West Virginia v EPA: EPA claims broad power to regulate green house gases. The court says Congress never authorized such broad powers (“major questions issue”) and such powers must explicitly come from the Congress and NOT the agency.
The fact is our Founders if somehow via time machine came back to the US they would not recognize the government we are now under because it is not the one they envisioned. The government we are now effectively under is that of the vision of Wilson and Goodnow: supremacy of the Administrative state. Wilson believed that the Founder's vision - including that of the "father" of the Constitution, James Madison - was obsolete and not suited to running a modern nation state. He believed it could only be run effectively by impartial "experts" isolated from the wind and furies of politics. The resulting "independent" and vast federal administrative estate was his vision and was built by FDR (with a later major assist for LBJ). Attempts to reign in this unconstitutional anomaly via the Administrative Procedure Act of 1946 or the Congressional Review Act of 1996 has been largely - until recently - unsuccessful.
Thanks for your thoughtful and thorough reply, Bruce. I'm familiar with the Chevron case, as I've edited columns about it for a trade magazine. I think you and I regard the "more in common or not" premise from different vantage points. Your take is more strictly political (and I agree that there's vast differences there); mine is more holistic--stuff like our shared love for family; our common desire for safety and dignity and economic opportunity; our wide-ranging instinct to help strangers in moments of crisis. I realize it's an unquantifiable animal we're addressing here.
Thanks Matt. I won't prolong this. This is best discussed over lunch at George's which I owe you. I would only say that historically it is amazing how much damage is done by folks who only have good intentions. "Good intentions" is not the law of the land. Our Constitution is ... for better or for worse. I would also point out if "dignity" means not hurting "any one's feelings" ("from the river to the sea " ... anyone?) you might as well chuck the First amendment.
Thanks Dan P. Yeah Willson believed if "experts" were paid well and totally isolated from political furies they would always be impartial and nonpartisan and therefore do what is right. He viewed the very structure of our Constitution as the "enemy" since it encouraged modulation and compromise and NOT what he felt a modern state needed: to get things done and get things right. Of course this eventually resulted in our vast administrative state (built by FDR) where executive agencies violate separation of powers and combine into one: executive power, judicial power and legislative power ... Madison's very definition of tyranny ... and in fact of which Eisenhower warned against (rule by expert technocrats) in his 1960 farewell address to the nation. Frankly I always wondered who was right: Madison or Wilson. Given my 15 months of being up close and personal with THE virus and seeing first hand how our so called experts behaved, I now am at peace and will go to my grave knowing the visionary Madison - the father our foundational document - was 100% correct.
I'm currently reading Walter Lippmann's "Public Opinion." I'm afraid to drift off for one paragraph, I think it is so important, and there is so much in it. He says that James Madison belived humans were by nature factionalists (he used that term or one similar in the Federalist Papers), but the whole point of the constitution was to overcome that and do something "federal" -- to bring us together. Hence, Trump's disdain for the constitution is particularly telling.
Well I disagree. There is more that divides use than unites us. In fact if you know anything what is going on in our top universities and law schools you would know that our foundational beliefs - like free speech the very heart of our Constitution - is under attack ... mostly from the left (the Right and Republicans essentially do not exist on our present day campuses). This attack started a long time ago - when I was a young "firebrand" - led by a scholarly former German Jew (Oh the irony) none other than Herbert Marcuse. You really should look him up Matt. It will give you some historical perspective.
The Democrats moan and groan about attacks on our Constitutional structure sure. No doubt Jan 6 was a disgrace. Yet they ignore their own major attempt over the years to effectively deconstruct our Constitutional structure of "seperation of powers" and "check and balances.":
Supreme Court: Limits of Executive Power (2023 – 2024)
Relentless v Dept’of Commerece: Overturned Chevron deference. (Chevron v. Natural Resources Defense Council). The judiciary – not the agency – ultimately interprets the laws of Congress.
Loper Bright Enterprises v Raimondo: Overturned Chevron deference (Chevron v. Natural Resources Defense Council): “The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.”
Securities And Exchange Commision v. Jarskey et al: the 7th amendment applies to administrative agencies. Agency tribunals do not satisfy the 7th amendment. The issue of “non-delegation” (Article I, Sec I) not decided.
Garland v Cargill: Bump stocks by definition do not turn a semiautomatic rifle into a machine gun (as per the definition of a machine gun). As such, only Congress can outlaw bump stocks not the ATF.
Ohio v EPA: Violation of the Administrative Procedure Act.
Corner Post v. Board of Governors of the Federal Reserve System: the six-year time limit to challenge agency regulation starts when an injury or harm occurs, not when the regulation is promulgated. This potentially opens up decades old federal regs to court challenges
2021 – 2023
Alabama Association of Realtors v Department of Health and Human Services. The CDC does not have the authority to impose a nationwide eviction moratorium. Only Congress does.
National Federation of Independent Business, et al. v Department of Labor, Occupational Safety and Health Administration: Congress created OSHA to set workplace safety standards. As such a covid vaccine mandate to private business goes well beyond that and is effectively a broad public health measure. OSHA needs to stay in its lane. Only the Congress – or the states - can issue such a mandate.
Joseph R Biden, POTUS v Nebraska et al.: Does the student-debt relief program exceed the statutory authority of the U.S. Secretary of Education? Yes. Only the Congress can cancel such loans as that is an express power of the Congress (Article I, Sec VII). Actually cancelling $431 B debt is not cancelled. It is merely transferred to others. That clearly falls within the purview of Congress and not the executive.
West Virginia v EPA: EPA claims broad power to regulate green house gases. The court says Congress never authorized such broad powers (“major questions issue”) and such powers must explicitly come from the Congress and NOT the agency.
The fact is our Founders if somehow via time machine came back to the US they would not recognize the government we are now under because it is not the one they envisioned. The government we are now effectively under is that of the vision of Wilson and Goodnow: supremacy of the Administrative state. Wilson believed that the Founder's vision - including that of the "father" of the Constitution, James Madison - was obsolete and not suited to running a modern nation state. He believed it could only be run effectively by impartial "experts" isolated from the wind and furies of politics. The resulting "independent" and vast federal administrative estate was his vision and was built by FDR (with a later major assist for LBJ). Attempts to reign in this unconstitutional anomaly via the Administrative Procedure Act of 1946 or the Congressional Review Act of 1996 has been largely - until recently - unsuccessful.
:
Thanks for your thoughtful and thorough reply, Bruce. I'm familiar with the Chevron case, as I've edited columns about it for a trade magazine. I think you and I regard the "more in common or not" premise from different vantage points. Your take is more strictly political (and I agree that there's vast differences there); mine is more holistic--stuff like our shared love for family; our common desire for safety and dignity and economic opportunity; our wide-ranging instinct to help strangers in moments of crisis. I realize it's an unquantifiable animal we're addressing here.
Thanks Matt. I won't prolong this. This is best discussed over lunch at George's which I owe you. I would only say that historically it is amazing how much damage is done by folks who only have good intentions. "Good intentions" is not the law of the land. Our Constitution is ... for better or for worse. I would also point out if "dignity" means not hurting "any one's feelings" ("from the river to the sea " ... anyone?) you might as well chuck the First amendment.
Nice to see the list compiled like this all in one place, thank you.
"....only be run effectively by impartial "experts" isolated from the wind and furies of politics."
If only they were impartial.
Thanks Dan P. Yeah Willson believed if "experts" were paid well and totally isolated from political furies they would always be impartial and nonpartisan and therefore do what is right. He viewed the very structure of our Constitution as the "enemy" since it encouraged modulation and compromise and NOT what he felt a modern state needed: to get things done and get things right. Of course this eventually resulted in our vast administrative state (built by FDR) where executive agencies violate separation of powers and combine into one: executive power, judicial power and legislative power ... Madison's very definition of tyranny ... and in fact of which Eisenhower warned against (rule by expert technocrats) in his 1960 farewell address to the nation. Frankly I always wondered who was right: Madison or Wilson. Given my 15 months of being up close and personal with THE virus and seeing first hand how our so called experts behaved, I now am at peace and will go to my grave knowing the visionary Madison - the father our foundational document - was 100% correct.
I'm currently reading Walter Lippmann's "Public Opinion." I'm afraid to drift off for one paragraph, I think it is so important, and there is so much in it. He says that James Madison belived humans were by nature factionalists (he used that term or one similar in the Federalist Papers), but the whole point of the constitution was to overcome that and do something "federal" -- to bring us together. Hence, Trump's disdain for the constitution is particularly telling.
Much needed perspective here! Thank you Matt. I agree with all you’ve said.