Administrative state

Adventures in administrative law

Featured image I wrote about the problem of the administrative state in “A new old regime,” my review of Philip Hamburger’s audaciously great book Is Administrative Law Unlawful? (Plot spoiler: the answer is yes.) Even with a lot of help from my friends at the Claremont Institute, it took me a long time to understand the problem. Professor Hamburger expedited the process. The problem is the unconstitutionality, unwisdom, unaccountability, and lawlessness inherent »

Great News On Regulation from the Trump Administration

Featured image This is simply fantastic news: The Trump administration has adopted new limits on the use of “guidance documents” that federal agencies have issued on almost every conceivable subject, an action that could have sweeping implications for the government’s ability to sue companies accused of violations. Guidance documents offer the government’s interpretation of laws, and often when individuals or companies face accusations of legal violations, what they have really violated are »

Alex Acosta protects a left-wing swamp

Featured image When President Trump nominated Alex Acosta to be Secretary of Labor, we warned that his priority would be staying on the good side of the left, not advancing the administration’s conservative policy goals. We based our warning on his track record as head of the Civil Rights Division at the Justice Department, described here. Even so, I would not have predicted that Acosta, as Secretary of Labor, would allow Obama »

The Shallow End of the Deep State

Featured image I’m not sure whether I have yet written here about why I’m not wild about the newly popular term “deep state,” which has become shorthand for the longer term I and many others have been using for a long time—the “administrative state.” The two terms overlap, but are not essentially the same thing. The “administrative state” refers to the Progressive constitutionalism that consciously seeks to supplant democratic self-government with rule »

Breaking: The Memo Is Out!

Featured image The infamous Nunes memo has been released in the last hour. The House website is intermittently clogging up as you might imagine, but you can try to download it yourself here or here. On a quick first read, there is not much in it that we didn’t already know in general terms— the flyblown Steele dossier was the sole “evidence” the FBI used to obtain a FISA warrant to monitor »

The Memo Muddle: The Five Basic Excuses

Featured image It is still far from clear as of this writing just what is going to come of the drama over the Nunes memo, the FBI inspector general’s report, and the opposition memo that probably ought to be known as the Attempted Schiff Shaft. But if this all reveals large corruption, incompetence, or political malfeasance on the part of some rogue FBI officials, you can expect the basic five bureaucratic excuses »

Memo to Gov. Brown, Re: Public Pensions

Featured image It may be hard for readers to believe this—and I do advise sitting down—but Gov. Jerry Brown is—relatively speaking, mind you—about the only adult in the room in Sacramento among Democrats. If you doubt me, just wait till we have a governor named “Gavin” next year (which California richly deserves), and you’ll see what I mean. Governor Moonbeam has actually vetoed a lot of bad bills that any other liberal »

Memo to Trump, Re: Reforming The “Civil Service”

Featured image Here’s a puzzler for you: the number of civilian federal employees is actually smaller than it was when John F. Kennedy was president. This anomaly is explained by one of the smarter liberals around, John DiIulio, in his provocative book Bring Back the Bureaucrats. I say let’s not do that, but DiIulio does reveal that since government is vastly bigger than it was when Kennedy was president, there must be »

Memo to Betsy DeVos: What You’re Up Against

Featured image In the mission of offering continuing political education here at Power Line University, herewith another timeless scene from Yes, Prime Minister on how the bureaucrats regard the idea of school choice, with a side of Obamacare thrown in for good measure. Betsy DeVos might want to screen this scene:   »

Today’s Classroom Lesson: Government Art Subsidies

Featured image For at least 25 years now, conservatives have been asking why taxpayers should subsidize marginal art like “Piss Christ” through the National Endowment for the Arts and such. Periodic calls to abolish the NEA always seem to get turned back somehow in the DC swamp. But the Trump Administration just might be the people to blow off the special pleading of the “arts community” and zero out the NEA. But »

Mr. Mulvaney requests…

Featured image OMB Director Mick Mulvaney is one of the all-stars among President Trump’s cabinet level appointees. President Trump had the inspired idea to appoint him acting director of the constitutional monstrosity known as the Consumer Financial Protection Bureau when Richard Cordray departed to run for elective office. Before his departure, however, in the lawless spirit of the bureau itself, Cordray sought to name his own successor. We admired his performance facing »

With Alex Acosta history repeats itself

Featured image Bloomberg reports that Secretary of Labor Alex Acosta is “keeping a low profile in this first year in office, possibly because he has his eye on another job.” “Low profile” means keeping Barack Obama’s left-wing program in place. “Another job” means a high-level federal judgeship. “Possibly” means certainly. Here’s how Bloomberg’s Ben Penn puts it: There is widespread discussion that Acosta, a former United States Attorney and law school dean, »

What Trump (And Everyone Else) Is Up Against

Featured image We had a lively discussion last night on the Power Line VIP video chat about the “permanent government,” or “the swamp” as Trump and others call it, and how difficult it is to conquer. It reminded me that I’ve been thinking for years about teaching an entire course based on episodes of the great “Yes, Minister” and “Yes, Prime Minister” BBC series, which holds up astoundingly well after 30 years »

Populism and the administrative state

Featured image Steve Bannon’s days as an influential player may be over. If so, what is his legacy? It’s not the election of President Trump. This was down to Trump himself, as the president likes to remind us. Nor is Bannon’s legacy hanging tough on “Billy Bush weekend,” though at times this seems to be what he is most proud of. And his legacy is not blowing a safe Senate seat in »

Neutralize this

Featured image In 2015 the FCC reversed long-standing practice and policy to assert control over the Internet. The FCC’s 2015 Open Internet Order (i.e., “net neutrality” as it is in the propaganda wars) reclassifies broadband Internet access service as a Title II telecommunications service under the jurisdiction of the Communications Act of 1934. Internet service providers were now to be regulated as common carriers like Ma Bell. According to Barack Obama and »

Mulvaney meets the press

Featured image Mick Mulvaney is one of the GOP stars whom President Trump plucked from Congress to serve in his administration, in this case as Director of the Office of Management and Budget. He is an extraordinarily knowledgeable and impressive public servant. It made perfect sense when President Trump turned to him to step in as acting director of the unconstitutional monstrosity known as the Consumer Financial Protection Bureau. Holman Jenkins sketched »

Today’s News in the Administrative State

Featured image Today may go down in history as one of the crucial turning points in the reversal of the Administrative State. The Supreme Court is hearing Oil States Energy v. Greene’s Energy, where the issue of whether administrative law judges beholden to executive agencies, rather than bona fide Article III judges and juries at trial, can decide whether or not patent property rights deserve protection. The Wall Street Journal editorial page has a »