Administrative state
July 26, 2019 — Steven Hayward
Long time readers will know that we’ve been very focused on the problem of the “administrative state,” an arcane term from political science that has in the last few years broken out big in everyday discussion. The administrative state refers to the trend, decades in the making, of transferring lawmaking power away from the legislative branch of government to permanent, unelected bureaucrats and executive agencies. The administrative state undermines a central
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July 8, 2019 — Steven Hayward
It’s a really tough time to be a liberal Progressive. One bit of evidence appears right now in The New Yorker, where Harvard Law professor Jeannie Suk Gersen worries that the Supreme Court might actually rein in the administrative state. This, she assures us, would produce a “parade of horrors” (actual quote). Let’s start with this passage: For the better part of a century, the Court has permitted Congress to delegate
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June 30, 2019 — Scott Johnson
You may not want to understand the Supreme Court’s June 27 decision essentially nixing the Trump administration’s effort to include a citizenship question on the 2020 Census. You may not want to know where the Supreme Court derives the authority to weigh in on this issue. You may rather want to know how such a fundamental question ever came to be omitted from the Census in the first place. The
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March 13, 2019 — Paul Mirengoff
Earlier this week, I noted that Secretary of Labor Alex Acosta failed, in effect, to receive a “full confidence” declaration from the White House. Sarah Sanders’ statement in this regard followed a White House meeting in which, according to what I heard, Mick Mulvaney and at least one key domestic policy adviser urged President Trump to fire Acosta. Given Acosta’s scandalous behavior in connection with the sweetheart deal he gave
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February 27, 2019 — Scott Johnson
We continue our preview of the new (Winter) issue of the Claremont Review of Books hot off the press. It went into the mail on Monday and is accessible online to to subscribers now. Buy an annual subscription including immediate online access here for the modest price of $19.95. It is an invaluable magazine for those of us who love trustworthy essays on, and reviews of books about, politics, history,
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December 25, 2018 — Paul Mirengoff
Earlier this month, the Supreme Court agreed to hear a case that might well have major implications for administrative law. The case is Kisor v. Wilkie, in which a Marine seeks retroactive benefits for his PTSD. Why is this case so important? Because, as David French explains, it turns on the deference, if any, the VA’s interpretation of the word “relevant” in the applicable federal regulations should receive. French explains
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December 7, 2018 — Paul Mirengoff
Alex Acosta’s Labor Department has authorized OSHA inspectors “to use camera-carrying drones as part of their inspections of outdoor workplaces.” So reports Bloomberg Law, linking to a May 18, 2018 DOL memorandum obtained through a Freedom of Information Act request. The memorandum requires inspectors to “obtain express consent from the employer” before using a drone, thus likely avoiding a Fourth Amendment problem. However, as prominent labor lawyer and former DOL
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November 19, 2018 — Paul Mirengoff
Last week, I had the honor of attending the swearing-in of Jeff Clark as Assistant Attorney General for the Environment and Natural Resources Division (ENRD) of the Justice Department. Jeff was sworn in by Judge Danny Boggs for whom he clerked. Matthew Whitaker and Ron Rosenstein both spoke, as did Jeff Wood who was in charge of the ENRD for 21 months while Jeff waited for the Senate to confirm
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November 13, 2018 — Paul Mirengoff
Brett Kavanaugh’s elevation to the Supreme Court created a vacancy on the U.S. Court of Appeals for the District of Columbia Circuit. I suspect that every star conservative lawyer in Washington under the age of, say, 52 had eyes on this seat. Today, President Trump nominated Neomi Rao to fill it. Rao currently serves as the Administrator of the Office of Information and Regulatory Affairs (OIRA), a Senate-confirmed job. She
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September 21, 2018 — Steven Hayward
As if we didn’t have enough explosive material flying around this week, the New York Times has just posted the following story: Rosenstein Suggested He Secretly Record Trump and Discussed 25th Amendment By Adam Goldman and Michael Schmidt WASHINGTON — The deputy attorney general, Rod J. Rosenstein, suggested last year that he secretly record President Trump in the White House to expose the chaos consuming the administration, and he discussed
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September 14, 2018 — Paul Mirengoff
Earlier this week, the Food and Drug Administration (FDA) threatened to pull e-cigarettes from shelves if manufacturers do not control “widespread” teen use. Tobacco stocks surged on the news. Shares of Altria rose more nearly 7 percent to their best day since November, 2008. Philip Morris International increased about 3 percent. British American Tobacco shares increased nearly 6 percent to their best day since December, 2008. This is no coincidence.
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September 5, 2018 — Steven Hayward
I wasn’t able to watch all of the Kavanaugh hearing, but I am prepared to give the Power Line award for best opening statement performance to Sen. Ben Sasse, who gave a great statement of the problem of the administrative state, which comprises the breakdown of the separation of powers and the dereliction of the responsibility of Congress to discharge its Article I powers properly. Democrats won’t want to take
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August 26, 2018 — John Hinderaker
Under the Constitution, the President exercises all executive authority. But we do not live under the government that is described in the Constitution. We live in a society that is dominated by the Fourth Branch of government, the unelected bureaucracy that is nowhere mentioned in the Constitution. And the Fourth Branch is increasingly declaring its independence from the elected officials to whom it ostensibly reports–that is to say, from the
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August 8, 2018 — Paul Mirengoff
I have documented the fact that Secretary of Labor Alex Acosta studiously avoids making policy and personnel decisions that might alienate leftists. Because Acosta’s predecessor, Tom Perez, made the Labor Department a central player in President Obama’s quest radically to transform America, Acosta’s unwillingness to rock the boat is a major victory for the left. The Administrative Review Board (ARB) epitomizes Acosta’s passivity. The ARB is, in effect, the Labor
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July 25, 2018 — Paul Mirengoff
On July 10 of this year, the White House issued an executive order giving agency heads the authority to select their own administrative law judges (ALJs). The Washington Post editorial board expresses concern that, under this executive order, political appointees will pick like-minded ALJs to better serve their agendas. The order threatens the independence and professionalism of those charged with overseeing thousands of administrative decisions a year, the Post’s editors
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July 19, 2018 — Paul Mirengoff
As I have documented, Secretary of Labor Alex Acosta studiously avoids making policy and personnel decisions that might alienate leftists. Inasmuch as Acosta’s predecessor, Tom Perez, made the Labor Department a central player in President Obama’s quest radically to transform America, Acosta’s unwillingness to rock the boat is scandalous. It constitutes a huge victory for the left. The Administrative Review Board (ARB) epitomizes Acosta’s passivity. The ARB is, in effect,
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May 30, 2018 — Steven Hayward
People tend to think that bureaucracy is a problem of centralization—of power concentrated in Washington, DC, or in state capitals. I think the problem of bureaucracy is more cultural than organizational or doctrinal. The culture of bureaucracy has taken root in most local governments—the unit of government supposedly closest and most responsive to the people. Like the turtles in the probably apocryphal story of Bertrand Russell, it’s bureaucracy all the
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