The New York Times Has More to Worry About, Part 2

In “If the New York Times Is Worried [I’m Happy]” I quote an opinion piece by a law professor; in particular:

Justice Neil Gorsuch wrote a lengthy dissent [in Gundy v. United States] extolling the need to curb Congress’s powers to delegate to federal agencies. Surprisingly [?], two other justices, Chief Justice John Roberts and Justice Clarence Thomas, joined this radical [constitutionally correct] opinion. And while a fourth — Justice Alito — sided with the more liberal justices, he wrote separately to say that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.

So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else [who’s this “we”?].

In a sequel, “The New York Times Has More to Worry About“, I write about Justice Gorsuch’s majority opinion in United States v. Davis; this passage in particular:

Only the people’s elected representatives in Congress have the power to write new federal criminal laws.

I go on to say this:

Guess who concurred fully in the opinion? Not Roberts, Thomas, Alito, and Kavanaugh — all of whom dissented. No, Gorsuch was joined by Ginsburg, Breyer, Sotomayor, and Kagan — the “liberals” on the Court.

With Gorsuch’s opinion as precedent, the “liberals” have just opened the door to a future ruling that enforces the non-delegation doctrine. (Just what the lawprof fears.)

If it’s true that only the people’s elected representatives in Congress have the power to write new federal criminal laws, it’s equally true that only the people’s elected representatives in Congress have the power to write new laws, period. And writing new laws is just what executive-branch agencies do when they write regulations pursuant to vague congressional directives to “do good”, or words to that effect.

Yes, the writing is on the wall for the hands-off doctrine that has effectively transferred legislative (and judicial) power from Congress (and the courts) to legions of unelected bureaucrats.

John C. Eastman, writing at RealClearPolitics, underscores the significance of Alito’s seemingly miscast vote in Gundy v. United States, where he sided with the Court’s “liberals”:

[Gundy] lost because Justice Brett Kavanaugh was recused from the case, and [Justice Samuel Alito] rather than casting a vote in line with his own previously expressed views on the subject (“The principle that Congress cannot delegate away its vested powers exists to protect liberty,” [as] he noted in the American Railroads case), … concurred in the judgment against Gundy, providing the necessary fifth vote to Justice Elena Kagan’s plurality opinion upholding the delegation of authority in this particular case.

To understand how strategic a vote that was, a little inside-baseball background is required.  When a justice is recused from a case and the remaining eight justices are evenly divided, the court merely issues a one-line order noting that the judgment of the lower court “is affirmed by an equally divided” court.”  In Gundy’s case, that would mean the decision of the U.S. Court of Appeals for the Second Circuit against him would stand, and we would have nothing further about the non-delegation doctrine coming from the Supreme Court in the case.  Had Alito joined Justice Neil Gorsuch’s dissenting opinion thoroughly analyzing (and reviving) the non-delegation doctrine, that opinion would no longer have been a dissent.  But neither would it have been a majority, because of Kavanaugh’s recusal.  Instead, the court would have merely affirmed the Second Circuit’s decision by an equally divided court, and neither Kagan’s nor Gorsuch’s opinions would have seen the light of day.  Indeed, the public would not even know what the actual line-up of the justices was, as the perfunctory affirmance by an equally divided court doesn’t even list which justices were on which side of the divide, much less their reasons.

Yet Alito left no doubt where he stands on the matter.  Significantly, he did not join Kagan’s opinion (thereby making it only a plurality opinion), but concurred only in the judgment, noting that he could not say the statute lacks a “discernible standard that is adequate” to support the delegation “under the approach this Court has taken for many years.”  But he added that “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”  In a case in which Kavanaugh is not recused, there is likely to be the necessary majority to undertake the very reconsideration that Alito said he would support. Kavanaugh’s tenure on the D.C. Circuit was marked, after all, by a strong devotion to separation-of-powers principles, and there is no separation of powers principle more basic than the non-delegation doctrine.  So I say to the non-delegation doctrine, “Welcome back!”

Hear, hear!

The New York Times Has More to Worry About

A few days ago I wrote about a piece in the NYT, in which a lawprof worries that the Supreme Court might curb Congress’s unconstitutional delegation of power to executive-branch agencies. Here is a quotation from that piece, with my comments in brackets:

Justice Neil Gorsuch wrote a lengthy dissent [in Gundy v. United States] extolling the need to curb Congress’s powers to delegate to federal agencies. Surprisingly [?], two other justices, Chief Justice John Roberts and Justice Clarence Thomas, joined this radical [constitutionally correct] opinion. And while a fourth — Justice Alito — sided with the more liberal justices, he wrote separately to say that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.

So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else [who’s this “we”?].

Today, Justice Gorsuch issued the majority opinion in United States v. Davis, in which he wrote this:

Only the people’s elected representatives in Congress have the power to write new federal criminal laws.

Guess who concurred fully in the opinion? Not Roberts, Thomas, Alito, and Kavanaugh — all of whom dissented. No, Gorsuch was joined by Ginsburg, Breyer, Sotomayor, and Kagan — the “liberals” on the Court.

With Gorsuch’s opinion as precedent, the “liberals” have just opened the door to a future ruling that enforces the non-delegation doctrine. (Just what the lawprof fears.)

If it’s true that only the people’s elected representatives in Congress have the power to write new federal criminal laws, it’s equally true that only the people’s elected representatives in Congress have the power to write new laws, period. And writing new laws is just what executive-branch agencies do when they write regulations pursuant to vague congressional directives to “do good”, or words to that effect.

Yes, the writing is on the wall for the hands-off doctrine that has effectively transferred legislative (and judicial) power from Congress (and the courts) to legions of unelected bureaucrats.

Do We “Belong” to Government?

A video that played during the Democrat National Convention in 2012 includes this infamous line: “Government is the only thing we all belong to.” I used to reject as literal-minded the kind of interpretation offered by Chris Christie:

I watched [the video] and I didn’t find a whole lot noteworthy about it, except for this: the Democratic National Convention, this is what they said about what Democrats believe. They said, ‘Government is the only thing we all belong to.’

Now I want you to listen to that again. I’m gonna say it slowly. I want you to listen to it again. This is what the Democrats under Barack Obama believe: ‘Government is the only thing we all belong to.’…

[T]he Constitution doesn’t start by saying, ‘We the government,’ does it? It says, ‘We the people.’ All power and authority emanates from the people, and that power and authority, which through that document and our other laws we delegate to the government is the power and authority they have. They belong to us.

You see, that’s what we believed from the founding of our country, but Barack Obama believes something very, very different. He absolutely believes we belong to him. He believes that we are just pawns to be moved around his giant chessboard of government. He’s gonna pick the winners and the losers.

In my guile, I ascribed a different meaning to the statement: “We the people” belong to government in the same way that a Rotarian belongs to the Rotary Club, a Boy Scout belongs to the Boy Scouts, etc. That is, “we the people” are members of a huge club known as the government of the United States. “Our” membership in the club ensures that it works for “our” collective benefit.

Not that I agreed with that interpretation. What would happen to you if you stopped paying your “dues”, that is, your taxes? You wouldn’t be kicked out of the club, you’d be put in a special place that the club maintains for recalcitrant members: prison. It’s a crazy kind of club that admits new members who don’t pay dues, and who sponge off other members. I’m talking about illegal immigrants, of course.

But I was wrong, and Christie was right, as I will come to.

First, I must point out the vast difference between love of country and “belonging” to the apparatus that runs it.

There are patriots who love the United States and swear allegiance to it. But their love is love of country, not love of government. In particular, it’s love of “old America” — still alive (or fondly remembered) in many places:

Old America‘s core constituents, undeniably, were white, and they had much else in common: observance of the Judeo-Christian tradition; British and north-central European roots; hard work and self-reliance as badges of honor; family, church, and club as cultural transmitters, social anchors, and focal points for voluntary mutual aid. The inhabitants of Old America were against “entitlements” (charity was real and not accepted lightly); for punishment (as opposed to excuses about poverty, etc.); overtly religious or respectful of religion (and, in either case, generally respectful of the Ten Commandments, especially the last six of them); personally responsible (stuff happens, and it is rarely someone else’s fault); polite, respectful, and helpful to strangers (who are polite and respectful); patriotic (the U.S. was better than other countries and not beholden to international organizations, wars were fought to victory); and anti-statist (even if communitarian in a voluntary way). Living on the dole, weirdness for its own sake, open hostility to religion, habitual criminality, “shacking up,” and homosexuality were disgraceful aberrations, not “lifestyles” to be tolerated, celebrated, or privileged.

All of that has long been under attack by leftists of the kind who believe that we all “belong” to government in the way that Chris Christie understood. Government is leftists’ poor substitute for the social and cultural richness of real America. It is their religion-substitute, as well.

Hegel saw it coming:

The State subsumes family and civil society and fulfills them…. An individual’s “supreme duty is to be a member of the state”…. Members of a Hegelian State are happy even to sacrifice their lives for the State.

As Bertrand de Jouvenel puts it,

[Hegel’s] novel conception of society had momentous consequences. The idea of the common good now gets a completely different content from its former one. It is no longer a question simply of helping each individual to realize his own private good … but of achieving a social good of much less definite character…. [A]ll is changed when the rights that belong to individuals … give place to an ever more exalted morality which must needs be realized in society….

… There is now a collective being, which is of far greater importance than individuals: clearly, then, the right transcendent of sovereignty belongs to non other. It is the sovereignty of the nation which is, as has often been stressed, a very different thing from the sovereignty of the people…. [S]ociety fulfills itself as a whole only to the extent that partakers of it know themselves for members and see it in their end; from which it follows logically that those only who have attained to this knowledge are steering society toward its fulfillment. In them is all guidance and leadership; the general will coincides with their will only; theirs is the general will. [On Power: The Natural History of its Growth, Liberty Press edition (1993), pp. 54-55]

So, yes, it is true that in the left’s view we do “belong” to government. Not the government “of the people”, but the government of the administrative state championed by Woodrow Wilson:

Wilson insisted that “administration lies outside the proper sphere of politics” and that “general laws which direct these things to be done are as obviously outside of and above administration.” He likened administration to a machine that functions independent of the changing mood of its leaders. Such a line of demarcation is intended to focus responsibility for actions taken on the people or persons in charge. As Wilson put it, “public attention must be easily directed, in each case of good or bad administration, to just the man deserving of praise or blame. There is no danger in power, if only it be not irresponsible. If it be divided, dealt out in share to many, it is obscured”. Essentially, he contended that the items under the discretion of administration must be limited in scope, as to not block, nullify, obfuscate, or modify the implementation of governmental decree made by the executive branch.

Which suits leftists as long as the decrees are theirs, and do not inconvenience them too much. Leftists have this way of believing that they will survive the “revolution”, unlike their counterparts in the France of the 1790s and the Russia of Lenin and Stalin. The tragedy is that they will take the rest of us with them.


Related pages and posts:

Leftism
Leftism: A Bibliography

Liberty and Society
The Eclipse of “Old America”
Genetic Kinship and Society
“We the People” and Big Government
An Ideal World
James Burnham’s Misplaced Optimism