George Will's Legal Extremism

by publius

Noted climatologist George Will shifted gears to constitutional law yesterday, arguing that the Emergency Economic Stabilization Act of 2008 (EESA) (i.e., the bailout) is unconstitutional. The specific claim is that it violates the nondelegation doctrine, which holds that "legislative" acts cannot be "delegated" to other entities, particularly the executive branch.

There are at least two interesting aspects of Will's column. First, it reminds us why it's always important to understand the logical implications of Will's (and his ideological comrades') seemingly innocent legal arguments. The column sounds reasonable enough on first read. The EESA, Will argues, is too broad, and it gives the executive too much power. Fair enough.

However, the doctrine that Will wants to use to kill the EESA would have the added benefit of effectively destroying the post-New Deal administrative state. It's always the New Deal with these people.

Today, the doctrine is essentially toothless -- and hasn't been used to invalidate a statute since the New Deal. (Good short summary on the doctrine here). But for decades, the more extreme elements of the legal conservative world have been trying to revive it from the dead. As the summary above indicates, both Thomas and Rehnquist have tried -- but no such luck thus far.

It's also no surprise that Will cites law professor Gary Lawson for support. In addition to being a "founding member" of the Federalist Society, Lawson thinks the post-New Deal administrative state is unconstitutional. And that's the whole point -- it's not about the bailout, but about federal regulation more generally.

In short, this is a doctrine with extreme implications that has been pushed by the most extreme members of the conservative legal community. (And, rather wankerishly, by Cass Sunstein).

Moving on, the second interesting aspect of the column is that it illustrates the tension -- if not schizophrenia -- in conservative legal thought with respect to deference to the political branches.

On the one hand, the rise of "the movement" was inspired by the view that liberals had circumvented the legislature. People like Bork argued that, because liberals can't win things like abortion rights at the ballot box, they politicized the Constitution and imposed their preferences into its text. So this strain of conservative thought emphasizes the political process.

At the same time, however, there's a deeply anti-democratic strain running through legal conservatism as well. As illustrated by Will and Lawson, this strain wants to ignore the political branches entirely and invalidate big pieces of the regulatory state. (Thomas is the most extreme on this issue -- Roberts and Alito have been much more respectful of precedent).

In short, legal conservatives like Will can't make up their mind about whether they like the ballot box. For instance, in yesterday's column, Will offers a hypothetical about a truly absurd and vague statute (the Goodness and Niceness Act) that would delegate a lot of undefined power to the executive.

And yes, I would disagree with that statute -- but that doesn't mean it's necessarily unconstitutional. The political branches play a role here too in protecting us from such absurd statutes. We don't necessarily have to rely on courts for protection from this terrible statute. One would hope that this bill wouldn't make it very far.

Anyway, the point is that Will's example shows virtually no faith in the political process -- the glorification of which is, ironically enough, the raison d'etre of the modern conservative movement.

(Cross-posted at WashMonthly)

Comments

[Feddie]

And just when I was starting not to like Will. :)

[Brett Bellmore]

Well, yeah, the thing is that the post New Deal administrative state IS unconstitutional. Look, just because you LIKE the Leviathan, and it's widely popular, doesn't mean that Madison wrote a Constution which authorizes the Leviathan. Enumerated powers doctrine, non-delegation, they may get in the way of the sort of government you want, but that doesn't mean they aren't actually based on what the Constitution SAYS.

And growing wheat for your own consumption ain't interstate commerce, either.

We don't have the government the Constitution calls for. Either we ought to change the Constitution, or we ought to change the government, but don't think for a moment that the systematic dishonesty needed to square this circle doesn't have it's consequences. You don't have a whole legal system based on organized lies about the founding documents, and not have a legal system run by liars.

[G]

The key to Will's column is in this sentence: "The Goodness and Niceness Act does not itself regulate, it just identifies a regulator." Yes, that may well be so, Mr. Will, but the same can be said of every piece of major legislation that requires a regulator to sort out the details.

Feddie: How ironic that you would argue, "We don't have the government the Constitution calls for," since we do not have a legal system under which your arguments are valid. Stare decisis may be for suckers, but it was part of the legal system under which the country was founded. Wickard is still good law.

[G]

Whoops, I just realized that I mixed up the posters. Assume Feddie said what Brett said in order for my post to be amusing.

[Guest]

Lawson's administrative law casebook was by an order of magnitude the best book I read in law school. If anyone has gotten the impression that he is some kind of kook or hack, read that book and you will know otherwise.

[S.G.E.W.]

The theoretical "Goodness and Niceness Act" would be unconstitutional because of vagueness, not because of the nondelegation doctrine.

It seems that George Will knows as much about ConLaw as he does about climatology.

[Brett Bellmore]

If "good law" means absolutely nothing but, "You can rely on the courts to say the same thing next week.", I agree Wickard is good law. Doesn't mean it's "good" law in any other sense at all.

[seeker6079]

"In short, legal conservatives like Will can't make up their mind about whether they like the ballot box."

Because sometimes the ballot box produces a result that they do not agree with. Shorter modern American conservatism: "we believe in democracy when we win, but not when we don't".

[Bernard Yomtov]

To hear conservatives complain about excessive executive power is strange.

[LizardBreath]

To hear conservatives complain about excessive executive power is strange.

Yep. If there's anything that's clear from the Constitution and the contemporary writing of the framers, it's that they wanted a weak executive without the power to initiate wars. The conservative legal position that the Constitution should be read literally as understood by the framers except in the context of war powers is bizarre to me.

[salacious]

Brett, I await your theory of how to distinguish good law from bad law. I am particularly looking forward to your discussion of the 14th amendment ratification process, which was far more dubious than Wickard or, say, Carolene Products.

[ScentOfViolets]

The key to Will's column is in this sentence: "The Goodness and Niceness Act does not itself regulate, it just identifies a regulator." Yes, that may well be so, Mr. Will, but the same can be said of every piece of major legislation that requires a regulator to sort out the details.

I've been seeing more of these types of arguments coming out of the usual manufactories. Someone - was it Wittgenstein? - dismissed them with the paraphrase "Twelfth Night was not written by Shakespeare; Twelfth Night was written by a man named Shakespeare".

These seem, to me at least, to devolve to little more than "you didn't say your words right". Am I missing something? I really don't know much about this kind of stuff. But what do I know? I can barely decipher the terms of my mortgage :-)

[Seth Gordon]

Isn't the line-item veto also a cession of legislative power to the executive, one which the Supremes have declared unconstitutional? And aren't conservatives fond of it? (To be fair, George Will himself agrees that the line-item veto is unconstitutional.)

[wj]

It seems like the merits of Will's argument about the constitutionality of the act are a bit beside the point. Either it is right or wrong on its merits. Period.

To argue that it is wrong simply because, if it is right, a lot of things that publius likes would also be unconstitutional gives the impression that he actually thinks that the argument itself is valid. He just doesn't like the implications.

If there are legal grounds to refute Will's position, serve them up. If not, it might be more to the point to argue for amending the Constitution to allow those things that you think ought to be allowed.

[Johnny Canuck]

I realize that one of America's biggest problems is concern that they might not be finding sufficient issues to occupy the attention of their intellectually impressive President. Why not have him take on the task of a constitutional convention- overhaul the document from start to finish? Build in those parts of the Bill of Rights that are worthy of preservation (rather than having them as mere amendments). Add those rights appropriate for the 21st century. Clarify issues so that Justices on the US Supreme Court will find instruction in the "original" document.

On a more serious note. The genius of the British constitution was that it was largely unwritten. This allowed it to evolve much more radically from 1750 to the present. The American constitution has been largely stuck with the British government model as it was in the mid-1700's. You made the King elective and for a renewable term.

The separation of executive and legislative functions has in the British parliamentary model evolved so that the executive has, at least during the last century, been responsible for introducing all significant legislation. The complexity of government makes this ever more logical even in America so that there have been considerable complaints when Obama didn't provide complete legislative texts. (I don't know American history: did the early Presidents propose legislation?)

Anyway just something to think about. Maybe presiding over a constitutional convention would be a good job for Obama in 2017.

[ScentOfViolets]

The problem, wj, is that it splits hairs in ways that are at the same time unique and repeatable. Think about Interstate Commerce Clause, and the use to which it has been put. It strikes me that the same sort of argument that Will promotes is (or was) routinely applied to the ICC in the same sort of indiscriminate fashion.

Otherwise, you're in the position of saying restaurants should be regulated in a certain way because table salt crosses state lines . . . but the regulation of alcohol isn't.

[Gary Farber]

"The separation of executive and legislative functions has in the British parliamentary model evolved so that the executive has, at least during the last century, been responsible for introducing all significant legislation."

But the parliamentary system and the American system, for better or worse, have different theories behind them: the American system was deliberately designed and intended to make legislation difficult to pass, to keep government split into three different, and contending parts, and to prevent an executive from smoothly controlling a compliant legislature and judiciary, thus preventing the easy passage of legislation.

Now, maybe this was a wrongheaded theory, but to simply say it should be changed to the reverse of the intended design, without addressing the fact that it's deliberately designed to not be the way you advocate, is to not make the basic and essential argument.

Some might also note that the Britain hasn't done particularly better, in recent years, in protecting the civil and individual rights of citizens, than America has.

[Gary Farber]

[...] You refuse to address Cass Sunstein and just call him a wanker.

Publius is a stupid ass clown.

[...]

It's just ad hominem bullshit. I'd probably agree on the underlying substance, but Publius is too stupid to make a substantive argument.

Good to see you disagree with ad hominems, and name calling. You set an example for all of us.

[Slartibartfast]

Please ignore our former friend Chris. He is, I think, the commenter formerly known as Chris Chandler.

Plus, he usurped Jesurgislac's handle in another thread, so it's into the round file with him.

[Slartibartfast]

Again, from FDCServers.net in Chicago.

[Johnny Canuck]

Gary: "But the parliamentary system and the American system, for better or worse, have different theories behind them"

The American system was modelled after the 18th century British system. There was separation of powers in Britain. It was only over time that the British system evolved into what you see as the reverse of the 18th century model.

[Brett Bellmore]

"To argue that it is wrong simply because, if it is right, a lot of things that publius likes would also be unconstitutional gives the impression that he actually thinks that the argument itself is valid. He just doesn't like the implications."

Isn't that the essence of living constitutionalism? "To Hell with what the law actually says, let's go with what we think will work better! But let's lie about it because the proles might not agree with us."

The problem I'd point out is that interpreting a Constitution which says "X" to mean "Y" isn't, in practice, the same as having a Constitution that actually does say "Y". It's not the same, because you have to staff the sytem with people willing to read "X" and say it means "Y".

And they're not the sort of people you really want, if you want honest governance.

[cleek]

"To Hell with what the law actually says, let's go with what we think will work better! But let's lie about it because the proles might not agree with us."

welcome to the human race.

[Brett Bellmore]

While to be human is to be falible, I'm pretty certain that you're not required to actually prefer failure.

[Scott de B.]

Well, yeah, the thing is that the post New Deal administrative state IS unconstitutional.

Except that the Supreme Court, Congress, various Presidents, and the American people all feel differently. I should think that would count for something.

Now, I suppose one can take the point of view that the Constitution has some sort of unchanging Platonic essence apart from how it is actually used and interpreted, but I don't see the usefulness of such a view outside Philosophy 101. It doesn't even provide a coherent viewpoint, given that those who believe in an unchanging, primeval Constitution in practice change their views of the document based on their subjective preconceptions just like everyone else.

[Gary Farber]

Isn't that the essence of living constitutionalism? "To Hell with what the law actually says, let's go with what we think will work better! But let's lie about it because the proles might not agree with us."

IANAL, but I can answer this!

The answer is -- wait for it! -- no!

The "the essence of living constitutionalism" is the idea that one does one's best to understand how the words and intent of over two hundred years ago apply to the changed circumstances of today!

And the notion that this was how the Constitution was to be properly interpreted is inherent in the idea of a document of broad outlines, and seems to have been, you know, the intent of the founders.

[Brett Bellmore]

"Except that the Supreme Court, Congress, various Presidents, and the American people all feel differently. I should think that would count for something."

Of course it does. It means you get to win. It doesn't entitle you to have everybody pretend you should have won. Or that you won legitimately. Revel in your victory, but please have the decency to not demand that everyone celebrate it.

"Now, I suppose one can take the point of view that the Constitution has some sort of unchanging Platonic essence apart from how it is actually used and interpreted,"

Or you could take it to be some sort of text, with a formal process for changing the words, and subject to the application of rules of grammar. Go figure, you'd almost think somebody invented writing so that they could communicate meanings in a stable fashion.

[cleek]

Either we ought to change the Constitution, or we ought to change the government

better get a Plan C because neither of those things is going to happen.

[Pithlord]

I suspect you could have a workable non-delegation doctrine without overturning everything in the New Deal, just as you can occasionally invalidate federal legislation without returning everyone to the days of the Horsemen, and you can invalidate a statute (say, a Texas sodomy statue) under the rational basis test for due process without disinterring Lochner.

The slippery slopes just aren't really quite so slippery because the courts will never be totally logical when faced with unchangeable social reality.

(JC, Britain and Canada do have something of a non-delegation principle, albeit one that could always be overridden by sufficiently clear legislation. In Canada, there are limits to the judicial jurisdiction that could be delegated to an administrative agency even by a clear statute under s. 96 of the BNA Act, but probably no limits to the legislative jurisdiction that could be delegated. However, there is much you can do with a canon of construction if you know your business.)

[Pithlord]

Gary Farber,

I think there's a difference between looking at the US Constitution and saying, "It does seem to enumerate powers for the federal government and separate legislative, judicial and executive functions between the branches, but the exact contours will inevitably depend on judicial interpretation and might change from time-to-time" and saying, "Limited federal and executive power is inconvenient for creating a national welfare-warfare state, so let's pretend there is no limit on Congress's ability to legislate in state jurisdiction and to empower the executive." I could agree with the first without buying the second.

[Bernard Yomtov]

Or you could take it to be some sort of text, with a formal process for changing the words, and subject to the application of rules of grammar.

And of course no one ever disagrees about the meaning of a text.

And BTW, not even Will buys that:

Although the text does not spell it out, the Constitution's logic and structure -- particularly the separation of powers -- imply limits on the size and kind of discretion that Congress may confer on the executive branch.

Puzzling. It turns out the non-delegation doctrine is just not in the text. Its existence is merely deduced. OK, then. Will thinks Congress can delegate, but only within limits. Why EESA exceeds those limits he does not say.

That's really the problem with the column. It makes no argument whatsoever. There is the assertion that EESA is unconstitutional, because Lawson said so, and then a bunch of fulmination about government, and that's it. There is not one word of analysis of EESA, nor any statement as to what Will regards as acceptable delegation.

[Brett Bellmore]

Plan C is, we resign ourselves to being governed by dishonest people, and you resign yourselves to continually being harassed by folks saying, "But that's not what it SAYS!".

Because that's not what it says. And you've got to be dishonest to insist it means what it doesn't say.

[CorbettAL]

Or you could take it to be some sort of text, with a formal process for changing the words, and subject to the application of rules of grammar. Go figure, you'd almost think somebody invented writing so that they could communicate meanings in a stable fashion.

That's fine, but much of that grammatically correct and stable text is open to subjective interpretation. What's cruel and unusual punishment? When is search and seizure unreasonable? What are the arms we have a right to bear?

[Gary Farber]

"I could agree with the first without buying the second."

Me, too.

[GoodOleBoy]

Well, the anti-constitutionalist bent is clear in the numbers here.

For Bernard and Lizardbreath, one redeeming feature of the last administration's abuses was that they were pursuant to constitutionally enumerated powers of the federal government, not those being made up on the fly by this administration and the Congress.

Clarity is emerging on why some would prefer to see this administration fail. I never gave an endorsement to Rick Wagner's strategic business skills, but I think I know how this is going to turn out now.

[cleek]

Because that's not what it says. And you've got to be dishonest to insist it means what it doesn't say.

i'll submit to being lectured by conservatives about dishonest attitudes towards the Constitution as soon as it becomes clear that they (as a group) are as upset about the actions of a Republican President as they are about those of a Democratic President.

until then, i'll just snicker. derisively.

[Brett Bellmore]

"That's fine, but much of that grammatically correct and stable text is open to subjective interpretation."

That's fine, but we're usually not arguing over the stuff that's open to subjective interpretation. Is it "interstate commerce" if it's not interstate, and not commerce? Is a damp spot you can walk across part of the navigable waters of the US? Sustaining the Leviathan requires interpretations that are well into moonbat territory.

[Gary Farber]

"Well, the anti-constitutionalist bent is clear in the numbers here."

You don't get to identify who is and isn't pro-Constitution, as it happens. You are not more privileged in that regard than any other observer. Self-declarations that you are are worth exactly as much as anyone else's.

[GoodOleBoy]

Well, I do in my own mind and to express my opinion. Don't be so sensitive. There are plenty of statists who are perfectly willing to say they don't give a hoot about the Constitution. I dare say some show up here.

[G]

Is it "interstate commerce" if it's not interstate, and not commerce?

A state requires all goods grown or manufactured in the state to be given away to residents of the state. It's not "interstate" and it's not "commerce" so it must not be regulation of "interstate commerce"!

[Gary Farber]

"I dare say some show up here."

I dare say I'll wait until someone here says they "don't give a hoot about the Constitution."

Since you dare say otherwise, presumably you can provide a link to some such comments. Otherwise someone might think you're, you know, making this up out of whole cloth and imagination.

[CorbettAL]

Is it "interstate commerce" if it's not interstate, and not commerce?

Interstate seems clear. Is commerce explicitly defined in the text?

And is the relationship of those things to the matter at hand explicitly spelled out?

[GoodOleBoy]

Subject: Line item veto

To be fond of something does not make it right or constitutional. Some people who call themselves conservative are fond of the line item veto and others are not. I would not deem anyone a conservative who thinks the line item veto authority can be legislated without an appropriate constitutional amendment.

[Brett Bellmore]

http://www.slate.com/id/2209979/>The D.C. Voting Rights Act is probably unconstitutional. Congress should pass it.

Close enough?

[GoodOleBoy]

Thanks, Brett. I'm no good at responding to Gary's specific requirements for accepting someone's point as possibly valid.

[Bernard Yomtov]

Close enough?

No.

The author of the article does not comment here, and the article itself is not "anti-Constitution."

[GoodOleBoy]

Bernard,

Where do you fit running domestic automobile manufacturing into the constitutionally enumerated powers of the federal government?

[cleek]

on the other hand (from the linked article):

Perhaps surprisingly, some conservative heavy hitters (who tend to favor textualist and originalist interpretations of the Constitution) nonetheless have come out in favor of the constitutionality of the measure. Ken Starr has argued that Article I elsewhere, in what's called the District Clause, authorizes House representation for the district by providing that "[t]he Congress shall have power … to exercise exclusive legislation in all cases whatsoever" over the District of Columbia. Professor Viet Dinh, who worked as an assistant attorney general in the Bush administration, has made similar arguments that Congress' power under this Clause is plenary, and he backs it up with his own analysis of the Framers' intent.

oops.

[Pithlord]

The view of the US's best law schools and at least half its federal judiciary is that EVERYTHING is interstate commerce. So it's not as if we are dealing with good faith issues of interpretation.

A concept may be vague or fuzzy without being completely meaningless. Was I bald at 20? No. Is Hank Paulson bald? Yes. Am I bald now? I could argue it, but my daughter says yes.

Now my daughter and I might have a good faith disagreement. But if I told her, "I'm not bald because I say I'm not and because I might have microscopic follicles on my body somewhere", I'd be engaging in post-FDR constitutional jurisprudence.

[Bernard Yomtov]

Let's see. There's something about commerce in there somewhere, I think.

[Gary Farber]

"Close enough?"

I'm unaware that an article at Slate constitutes a comment to this blog.

"I'm no good at responding to Gary's specific requirements for accepting someone's point as possibly valid."

It's not actually hard to support factual claims with cites. It is indeed hard when one simply makes stuff up out of one's imagination.

"That's fine, but we're usually not arguing over the stuff that's open to subjective interpretation."

Brett, we're not arguing about anything specific. As a rule, on these sort of topics, you avoid, in fact, specifics, and avoid citing specific claims from specific people here, and substitute vague generalities you wish to argue with by Some People Out There.

If you'd like to try actually arguing with specific claims by actual people here, that might make for more productive conversation.

[Gary Farber]

"Where do you fit running domestic automobile manufacturing into the constitutionally enumerated powers of the federal government?"

I don't know that I would, but someone might argue that "promote the general Welfare" covers it. Where is the idea of a "national road" in the Constitution, which dummy Thomas Jefferson, who obviously knew nothing about what the writers of the document intended, supported and signed the bill authorizing it?

[GoodOleBoy]

I agree that someone would argue that 'promote the general welfare' covers it. As for the 'national road', I think I could even concede that the 'commerce clause' could be invoked.

[The Crafty Trilobite]

Publius, maybe I was corrupted at an impressionable age (30) by listening to Cass Sunstein discuss the non-delegation doctrine, but methinks you dismiss the concern too blithely. Sure, Will has no call to complain, he and the movement he professes to speak for come to this with unclean hands. But we all should be upset by how much power Congress has turned over to unelected bureaucrats, and the EESA is a truly blatant example.

Remember when the EESA was going to be for buying up "toxic assets," and then Paulson turned around and announced he would use the first $350B to back loans instead? Probably a better choice, but why are we giving that choice to the Treasury Secretary? If there is anything at all to the theory that democracy and accountability make for better government, then elected officials ought not to be able to punt all the hard decisions to the bureaucrats.

If not, we should stop kidding ourselves and install a king. I nominate me.

[ScentOfViolets]

"Except that the Supreme Court, Congress, various Presidents, and the American people all feel differently. I should think that would count for something."

Of course it does. It means you get to win. It doesn't entitle you to have everybody pretend you should have won. Or that you won legitimately. Revel in your victory, but please have the decency to not demand that everyone celebrate it.

Posted by: Brett Bellmore

Brett, you're missing the point. The issue is how do we decide to do what we think is right. In this particular case, it's been decided through the traditional machinery of government, everything from court decisions to the democratic vote.

Now, if you have a way of figuring out who 'should of won', by all means, let us know. And as Gary alludes, you might try being specific.

And if you think that various court decisions, legislative actions, executive enforcement, or the plebian vote were 'illigetimate', may I ask just what you think would qualify as a legitimate process?

Iow, somehow you're 'right' and most everybody else is 'wrong', but you don't seem to be able to describe the procedure by which you were able to make this determination.

[laxel]

Whatever anyone may think of Gary Lawson's Constitutional interpretations, I think we can all agree he is an exceptional cartoonist...

[glblank]

George Will spent the entire Bush administration talking out his backside and his writing suffered greatly. It's too bad he could not have made the same argument as against EESA when a Republican Congress gave Bush a blank check to wage war at a time of his choosing. Congress abrogated it's authority to declare war and unconstitutionally gave it to the Shrub. But Will never showed the cajones required to use the same argument he makes against EESA and flip it on Repugs and their Supreme Leader. Will may not flail and posture like Hannity, et.al but he is no different in his partisanism.

[Gary Farber]

"George Will spent the entire Bush administration talking out his backside and his writing suffered greatly."

Nonsense. He did the same thing during the Clinton administration and the Bush administration and the Reagan administration.

:-)

[Brett Bellmore]

"may I ask just what you think would qualify as a legitimate process?"

The legitimate process for changing the meaning of the Constitution is Article V.

[ScentOfViolets]

Sigh. The legitimate process of determining what is right and how to implement it, Brett. How do you know that you are 'right', and everyone else is 'wrong'? How do you resolve disputes of this nature between groups of people?

I don't think I was unclear in what I wrote.

So would you please answer those questions, in some specificity?

I don't suppose the fact that the Supreme Court has as one of it's major functions the determination of which actions, laws, etc are constitutional and which are not has any impact on this procedure, right?

[Josh G.]

There's an important point that the "strict constructionists" on this thread are overlooking.

Brett talks about the "legitimate" way to change the Constitution. Well, what makes the Constitution "legitimate" to begin with? This is a serious question. Why should the present be bound by the dead hand of the past? In property law, there are legal principles (like the rule against perpetuities) that prevent one generation from indefinitely controlling the use of assets from beyond the grave. Why shouldn't a similar principle apply here?

The Framers were, for the most part, wise and public-spirited. But they wrote the Constitution over 220 years ago in a world so different than ours as to be almost inconceivable to modern eyes. Thomas Jefferson would have been astounded to learn that it was still in use; he thought there would be a revolution (and presumably a new legal charter) every generation or two.

Why shouldn't each generation of "We the People" be able to determine our own legal structure, without having to fight a bloody war or submit to unreasonable supermajority requirements?

[Brett Bellmore]

ScentofViolets, an umpire might have the job of making the calls in a baseball game, but if he approaches it from the perspective that the team he favors must win, and starts calling strikes where the ball never even gets close to the batter, it is none the less possible to say that the umpire is crooked.

Even if he still gets his way until sacked.

And even if fans of the team he's favoring like what he's doing.

Just because my opinion that the game is rigged doesn't matter doesn't mean I'm not entitled to it, entitled to express it, or even RIGHT.

And what I'm trying to get across to you 100% results oriented, "We're right because we won, and winning is the definition of right." chumps, is that it does matter how you win.

It matters because you're never going to be free of a large number of people constantly carping about how "the Constitution doesn't SAY THAT", because it doesn't. So get used to it.

It matters because government is a consensual illusion, and the gap between what the highest law of the land says, and the government we've actually got, makes that illusion too hard for a substantial number of people to get sucked into. And some day you're going to cross a line in the sand, and discover just how much it can matter if any significant fraction of a nation's population don't concede the legitimacy of the government.

And, most importantly, it matters because if you've got a government based on lies, it has to be run by liars. You think that doesn't have it's impact on how honest our government isn't?

That's why I'm saying to you: For the moment you've got the numbers to actually USE ARTICLE V TO GET YOUR WAY. For God's sake, use it, you fools, and amend the Constitution to agree with practice. Don't let the habit of 70 years guide you, you've got a chance to win honest, and settle arguments that will otherwise never go away.

Take it!

____

Josh, good point. As I said above, governments are consensual illusions. All I can say is, consensual illusions can be self-consistent, or self-contradictory. Basing your legitimacy on a Constitution you're violating? Falls into the latter category. Has problems. Even if it's all just illusion, you've got to work with the illusion, not against it.

[cleek]

And what I'm trying to get across to you 100% results oriented, "We're right because we won, and winning is the definition of right." chumps,

A.K.A. "Brett's Army Of Strawmen, 101st Division".

and it's it cute how conservatives suddenly see the government as illegitimate, broken, and in need of an armed revolution to set it right - and they were so content with it just a few months ago! it's almost as if all these problems started on Jan 20th. but suddenly there are big Constitutional issues to work out; the very foundation of our government seems inadequate; the strawmen seem unstoppable! Representatives call for armed revolution, wingnut forums are awash in tales of patriots getting ready for the coming struggle to take back their country. a million little McVeigh-wanna-bes. talk radio eggs them on.

such patriots.

[Brett Bellmore]

I was not content with the Bush administration, of which I frequently observed that "I'd voted for the lesser evil, only to find that it wasn't as lesser as I'd expected."

But go on thinking that as long as you win, it doesn't matter how, or how much you piss off the losers in the manner of your winning. I've already got my plans for escaping the results.

[G]

Brett, here is some strict text of the Constitution for you:

1. "The judicial power of the United States shall be vested in one supreme Court, an in such inferior Courts as the Congress may from time to time ordain and establish."

2. "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and treaties made, or which shall be made, under their Authority . . ."

Now, explain again how a majority decision of the Supreme Court with which you disagree is illegitimate?

[cleek]

I was not content with the Bush administration, of which I frequently observed that "I'd voted for the lesser evil, only to find that it wasn't as lesser as I'd expected."

isn't it odd how discontent can manifest itself as continual defense of that in which you claim disappointment ?

But go on thinking that as long as you win, it doesn't matter how, or how much you piss off the losers in the manner of your winning.

who exactly are you talking to?

I've already got my plans for escaping the results.

i'll believe it when i see it.

[ScentOfViolets]

And even if fans of the team he's favoring like what he's doing.

Just because my opinion that the game is rigged doesn't matter doesn't mean I'm not entitled to it, entitled to express it, or even RIGHT.

And what I'm trying to get across to you 100% results oriented, "We're right because we won, and winning is the definition of right." chumps, is that it does matter how you win.

Sigh. Brett, that's not what I'm saying at all. The proper analogy is that in the game, most people, including the both the teams and the fans of the losing team agree that the umpire is unbiased. People like you are in the minority claiming that everyone else is wrong, and that the umpire is 'obviously' biased.

My point is that there has to be a mechanism for deciding policy in spite of these types of disputes. You don't seem to like any of the mechanisms used so far. So what would you use in their place?

It matters because you're never going to be free of a large number of people constantly carping about how "the Constitution doesn't SAY THAT", because it doesn't. So get used to it.

And my question again is, how do you decide who is right? You can make this claim as passionately as any Idahoan militiaman. But passionate != right.

Now, can you answer these questions, or do you need me to explain them in another way?

[Brett Bellmore]

"Now, explain again how a majority decision of the Supreme Court with which you disagree is illegitimate?"

Because you're confusing power and legitimacy. As a procedural matter, Congress could pass a law ordering everybody to drink 8 glasses of water a day, and justify it as a regulation of the navigable waters of the US. They've got the power to do that. And as a procedural matter, the Supreme court could decide to uphold it on that basis. They've both done things not much less stupid.

But the fact that they have the power to do it doesn't make it legitimate. Because declaring the water in your glass to be part of the navigable waters of the US doesn't make it true. Even if everybody the Constitution puts in a position to weigh in on the matter is in on the gag, it still doesn't become true.

[Gary Farber]

"But the fact that they have the power to do it doesn't make it legitimate."

Brett, what body does make it legitimate -- that is, have legitimate standing to declare on what's constitutional and what's not -- other than your own personal opinion and that of people who agree with you?

[Bernard Yomtov]

an umpire might have the job of making the calls in a baseball game, but if he approaches it from the perspective that the team he favors must win, and starts calling strikes where the ball never even gets close to the batter, it is none the less possible to say that the umpire is crooked.

Yet umpires do in fact call balls and strikes differently, in good faith, and without allegations of dishonesty.

Why? Because their lines of sight vary, not only from umpire to umpire but from batter to batter, because many calls are close, because the definition of the strike zone is a bit vague in practice, regardless of how precise it sounds on paper.

The STRIKE ZONE is that area over home plate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the kneecap. The Strike Zone shall be determined from the batter’s stance as the batter is prepared to swing at a pitched ball.

[hairshirthedonist]

This kind of thread annoys me for its lack of clarity, so I have a few questions for whomever cares to answer them.

Is anyone here claiming that there has never been a case where the supreme court has clearly decided in conflict with the constitution? Or conversely, would anyone like to offer one or more specific cases where this has happened?

Is anyone here claiming that there is always one clear interpretation of any given part of the constitution? Or conversely, would anyone like to cite an ambiguity in the constitution?

Is anyone here claiming that there aren't parts of the constitution that allow for a range of acceptable outcomes without regard to various potential interpretations?

Is anyone here claiming that our democracy is under some imminent threat because of blatant disregard for the authority of the constitution? If so, why?

[G]

Wow Brett, that's some dangerous stuff you're putting out there. There is a difference between power and legitimate power, to be sure, but it's not illustrated by your example.

A person with a gun has the power to force a second person to, for instance, give up his wallet. That power is not "legitimate."

The government has the power to force you to pay it a percentage of your earnings every year on pain of imprisonment. That power is legitimate because of the Constitution and laws that permit it, so long as you are afforded due process and the other Constitutional guarantees along the way.

You are suggesting that if Congress passes a law with its legitimate power, it is signed by the President with his or her legitimate power, and held constitutional by the Supreme Court with its legitimate power, it can nevertheless be illegitimate based on some objective truth about the Constitution as decided by, well, you I guess.

I'm sorry that you hate our Constitution Brett, but it's the only one we have. It incorporates checks and balances, provides for due process, and generally does a pretty good job of providing a process that tries to get it right. If you don't like the outcomes, you get to vote for representatives and senators, and a President who agree with you so they can repeal the law you don't like. You do not get to sit on the side and insist that your interpretation is objective reality and everyone else is delusional. If you really do have a plan to escape, please do so. We like our Constitution and the process it provides just fine here.

[Brett Bellmore]

"Is anyone here claiming that there has never been a case where the supreme court has clearly decided in conflict with the constitution?"

Yeah, sure: The Slaughterhouse cases, where the Supreme court deliberately mooted the 14th amendment. Wickard, where the interestate commerce clause was turned into a grant of general authority over just about anything. Kelo, where the Court emptied the concept of "public use" of all meaning.

"I'm sorry that you hate our Constitution Brett,"

Nah, I'm rather fond of the Constitution, that's why I'm so mad about what's been done to it.

[G]

Well, there is a remedy under the Constitution if you disagree with the rulings of the Supreme Court: Amend the Constitution.

By the way, I agree with you that the Slaughterhouse Cases were wrongly decided, though I would not say the decision was "illegitimate." I'm content that the Court may revisit it in an appropriate case in the future.

[Pithlord]

There's an assumption here that only the Supreme Court gets to interpret the Constitution. That is wrong even as a matter of positive law. Indeed, the justification for the courts' giving little content to the non-delegation doctrine is that *Congress* is supposed to protect its Article I power. Similarly, the "progressive" position tends to be that Congress has sufficient incentives to protect state jurisdiction, so its judgments of what counts as interstate commerce should be deferred to.

That means Brett's right in refusing to accept that the Supreme Court can make the Constitution whatever it wants it to be. He may miss the point that the judges may have good institutional reasons to leave some calls to the elected branches, as they've done with war powers, most substantive due process violations, delegation and intrusions into state sovereignty.

Now I think they've gone too far, and I think there is a tendency in political discourse to pretend that because the SCOTUS has OK'd something, it must therefore be constituitonal. But when I think of Kelo, I have to say that the courts seem ill-suited to decide what "public use" should be. If Kelo didn't involve a personal residence, no one would find it troubling.

[russell]

Here is how I read Will's argument:

The EESA was insufficiently specific in telling the executive how it could spend the money it gave them.

That's a pretty reasonable statement on it's face. Based on that statement, one could argue that the EESA was a poorly written law.

What I'm not seeing is how it delegates legislative authority to the executive.

And just to echo comments made by Bernard, cleek, and others, before anyone wants to talk to me about the New Deal being unconstitutional, I'd like their opinion on Cheney's "fourth branch of government" and the doctrine of the Unitary Executive.

Not for nothing, but anyone who identifies themselves as a conservative at this point in time has ground to make up before they can be taken seriously on questions of constitutional interpretation.

That may be unfair but it is what it is. Somebody voted for the last crew and it sure as hell wasn't me.

In any case, since Will has failed to do so, if anyone would like to enlighten me on what, exactly, in the EESA is specifically unconstitutional, as opposed to merely dumb, I'm all ears.

[Brett Bellmore]

"I'd like their opinion on Cheney's "fourth branch of government" and the doctrine of the Unitary Executive."

1. The Vice President is neither fish nor fowl, being the President's replacement, and hence of the Executive branch, but his only actual powers and duties being legislative. I don't think this has any significant implications, though.

2. The unitary executive merely means that we have one President, who all executive branch authority belongs to. It does nothing to add to the scope of that executive authority, though. The founders clearly set out to create a strong legislature form of government, and modern Presidents exercise a LOT more power than they have any real constitutional claim to. Mainly because Congress fears to reclaim their power because they'd get responsiblity back with it...

[Fledermaus]

But when I think of Kelo I have to say that the courts seem ill-suited to decide what "public use" should be.

But it was the local legislature (city council, i think) who decieded that that particular use was in the public interest. You're not saying that unelected unaccountable activist judges should be overruling the will of the people are you? Have Washington judges imposing their values on small town New England?

More seriously, you and Brett seem to believe that there is a single, concrete and unchanging answer for every constitutional question, when that just isn't the case. Even such strict constructionists like Scalia and Thomas deliberatly ignore the actual text of the 11th amendment (for example).

The USSC's decisions are legitmate simply by virtue of them having been made by the court. Don't like it? Well how many Army divisions do you command, pal?

[Fledermaus]

Further, I just checked Art 1 sec 8 (powers) and 9 (prohibitions) and no where in that scared, unambiguous and holy text does it say Congress cannot delegate powers to anyone it likes. Oh I'm sure there is a court opinion somewhere that says so, but you've already declaired that a court decision is not legitimate unless based on the text of the constitution, not some subjective interpretation.

So, where does the constitution prohibit Congress from delegating powers?

[Brett Bellmore]

"But it was the local legislature (city council, i think) who decieded that that particular use was in the public interest."

And there we have the critical leap, the point where what the 5th amendment actually says gets tossed. It doesn't say "public interest", it says "public use. If the city had forced the sale of that land to itself, for it to use for a public purpose, we might argue the wisdom of that, but it would be within the limits of the 5th amendment. But it didn't. It forced one private party to sell to another private party. And that is not eminent domain as the 5th amendment contemplates it.

"More seriously, you and Brett seem to believe that there is a single, concrete and unchanging answer for every constitutional question, when that just isn't the case."

Not at all. What I believe is that, while there are unquestionably areas where the Constitution is vauge, and reasonable men can differ, there are also areas which are crystal clear, where unreasonable men have chosen to differ anyway, because what it clearly says isn't convenient to them.

[russell]

I'm still not following the central point of Will's argument.

What authority, right, or privilege has Congress incorrectly delegated away by passing the EESA?

For reference, here is the text of the bill. I've read some of it, and so far it seems to be fairly clear about what it is authorizing the Secretary of the Treasury to do, and what the goals of the effort are.

I've read Will's piece a couple of times, and he simply asserts that some kind of unwarranted delegation has occurred. He doesn't explain what it is.

So what is it?

[Pithlord]

Fledermaus,

Reread what I said. It was exactly the opposite of what you are attributing to me.

[Pithlord]

Brett,

I think you are wrong about "public use". Public use has often included use by private enterprise -- railways and utilities in particular.

[Pithlord]

As for the source of the non-delegation principle in the text, no one has ever argued that implications are impermissible. Article I is constitutionally entrenched. That means it can't be altered by Congressional whim. That in turn implies there must be some limit to delegation.

[G]

And there we have the critical leap, the point where what the 5th amendment actually says gets tossed. It doesn't say "public interest", it says "public use.

"nor shall private property be taken for public use, without just compensation."

If you are correct that Kelo was not a taking "for public use," then the takings clause of the Fifth Amendment is not implicated at all. It only concerns compensation if there is a taking for public use. Takings for a public purpose or for private use presumably could happen without just compensation.

[Brett Bellmore]

"I think you are wrong about "public use". Public use has often included use by private enterprise -- railways and utilities in particular."

Driving has always involved some amount of reckless speeding. Doesn't make 70mph in a residential area legal. The Constitution doesn't prohibit certain things on the theory that the government would never want to do them, it does so on the theory that the government probably WILL sometimes want to do them, but shouldn't. The same people who gave us the First amendment gave us the Alien and Sedition laws, you realize.

Unfortunately, because the courts are part of the government, nominated and confirmed by the very people whose compliance with the Constitution they're supposed to be enforcing, the government frequently gets away with things it's not supposed to be doing. (A severe design flaw, hope we can do something about it next time around.)

Heck, I shudder to think what I could get away with, if I nominated and confirmed the people who decided whether I was following the rules. The miracle is that the courts EVER say no.

Part of the reason for that miracle is that the courts get called on it sometimes, instead of everybody just agreeing to say that if the courts say it's ok, it must be.

[Fledermaus]

Article I is constitutionally entrenched. That means it can't be altered by Congressional whim. That in turn implies there must be some limit to delegation.

But you're reading a prohibition into the constitution that just isn't there, otherwise it would be listed explicity in section 9.

I'm actually with you that the taking in Kelo was not a public use or public purpose if I had to decide. But that's just you and me and we don't have the power to enforce our understanding on anyone - least of all supreme court judges.

The judiciary has always deferred to the legislature when it comes to defining nebulous terms like "public use" or "interstate commerce" it's like trying to get a law thrown out on a rational basis test, it's just not going to happen.

Although I wasn't saying you have to agree with every USSC decision because it is legitmate. Just that if you disagree there ain't much to be done about it except whine about how judges won't rule they way we want them to.

Although I'm open to other ways of going about things if anyone has any ideas

[Pithlord]

Fledermaus, I think the majority was *right* in Kelo. I don't see how a judge can second-guess the elected officials about "public use", as opposed to "just compensation."

Brett, the point is that expropriating rights-of-way so that railway and power lines can be built is about as uncontroversial as it gets. If the rule were that "public use" means "public ownership", then you could never privatize a post office.

[Pithlord]

Is there a point in arguing with SCOTUS precedents?

I think so. First, some such precedents get reversed and even become anti-precedents to later generations -- see Lochner, Plessy, etc.

Second, the Constitution does not just belong to the courts. It is perfectly acceptable to make a political argument that something is unconstitutional, notwithstanding that the Courts have upheld it. Indeed, to the extent the courts justify their abstention by deference to the political process, they are asking for it.

[bc]

The theoretical "Goodness and Niceness Act" would be unconstitutional because of vagueness, not because of the nondelegation doctrine.

Unconstitutional as well, but how does delegating to the executive the power to determine what is "nice and good" constitute an "intelligible principle"?

The view of the US's best law schools and at least half its federal judiciary is that EVERYTHING is interstate commerce. So it's not as if we are dealing with good faith issues of interpretation.

I think you need to distinguish between analyzing SCOTUS decisions vs. what the text actually says or reasonably means.

and it's it cute how conservatives suddenly see the government as illegitimate, broken, and in need of an armed revolution to set it right - and they were so content with it just a few months ago!

Uh,and how cute is EESA?

Not for nothing, but anyone who identifies themselves as a conservative at this point in time has ground to make up before they can be taken seriously on questions of constitutional interpretation.

Dang! And I so wanted to be taken seriously . . .

But on your other point, Russell, thank you for finally pointing out that this bill actually has a text. The text seems to have been lost in this discussion.

What authority, right, or privilege has Congress incorrectly delegated away by passing the EESA?

I question whether other New Deal acts had grants of discretion this broad. Frex, I recall that the SSA appoints an "administrator" to "administrate" what Congress set up fairly specifically (e.g. disability benefits). In contrast, we have this in the TARP provision:

The Secretary is authorized to take such actions as the Secretary deems necessary to carry out the authorities in this Act,

and those authorities are . . .

AUTHORITY.—The Secretary is authorized to establish the Troubled Asset Relief Program (or ‘‘TARP’’) to purchase, and to make and fund commitments to purchase, troubled assets from any financial institution, on such terms and conditions as are determined by the Secretary, and in accordance with this Act and the policies and procedures developed and published by the Secretary.

And those troubled assets are:

[mortgages and related securities] and any other financial instrument that the Secretary, after consultation with the Chairman of the Board of Governors of the Federal Reserve System, determines the purchase of which is necessary to promote financial market stability, but only upon transmittal of such determination, in writing, to the appropriate committees of Congress

So the Secretary can essentially buy whatever he wants so long as he transmits it in writing to Congress if he thinks, in his sole discretion, it will help the market.

I don't think there is anything remotely similar in the New Deal acts, but I defer to Publius to point out similar language. Absent such similar language, I think it is disingenuous to fault George Will's main argument or to turn his argument into "all New Deal laws must be wiped out." He specifically noted that the New Deal laws have been upheld and cites the current SCOTUS standard ("an intelligible principle" and must "clearly delineate" a policy) and states that even under that standard EESA flunks the standard.

It's been 15 years since I took admin law. I invite Publius to enlighten us on how EESA passes that standard because I'm just not seeing it. Maybe the Secretary's "guidelines" can save the act in a practical sense, but I don't see how that saves the act's vague language and unfettered discretion.

BTW, My kids would LOVE similar language authorizing them to spend their allowance.

[russell]

Dang! And I so wanted to be taken seriously

The last administration tried selling us, among other novelties, the doctrine that the VPOTUS represented a previously undiscovered fourth branch of government, and the idea that Congress could place no limit on the actions of the President during a time of war, and possibly at other times.

These generated little to no groundswell of outrage from the conservative vox populi.

Likewise, the timing of conservatives' concern for prudent limits on executive authority is curiously aligned with the advent of Obama's tenure.

So I take what y'all say on the topic with a grain of salt. If the cap fits, you should expect to find yourselves wearing it.

So the Secretary can essentially buy whatever he wants so long as he transmits it in writing to Congress if he thinks, in his sole discretion, it will help the market.

I think that's a pretty reasonable reading of the text, with the caveat that he can only buy $700 billion worth or so.

I call it dumb@ssery. What I don't call it is unconstitutional.

The Secretary of the Treasury was given a budget, an agenda, and a very, very broad amount of discretion in how to pursue that agenda.

Folly, maybe. How is it UNCONSTITUTIONAL?

What power or authority ascribed to Congress and Congress alone by the Constitution was delegated away?

What is the specific point of objection on Constitutional grounds?

[russell]

* crickets *