Category Archives: Current Affairs & Politics

IT IS THE PRINCIPLE OF THE THING

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It is no surprise that a nation willing to elect a Barack Obama might be willing to elect a Donald Trump. Anyone who claims to be appalled by President Obama’s government-by-executive-order should not be surprised if it turned out that Mr. Trump, who has spent his adult lifetime issuing executive orders imperiously in the private sector, cannot resist the temptation to do the same as President Obama.

Republicans should be paying attention to the fact that Mr. Trump is no fan of free trade, that his foreign-policy positions lean strongly toward the insular views of Rand Paul and Ted Cruz, that he has often voiced support for single-payer, government-controlled healthcare systems (despite his nominal criticism of ObamaCare), and that his aversion to excessive regulation appears to be based more upon the ubiquity and poor quality of our regulations than upon any objection to the executive branch’s usurpation of the role of the legislative branch. We should notice that Mr. Trump’s energetic criticism of Chief Justice Roberts is based upon Mr. Trump’s disappointment over the outcomes of some of the Roberts opinions – the fact that the wrong side won. We should notice that Mr. Trump ignores – or maybe just fails to understand – the fact that the Roberts opinions were built upon bedrock conservative judicial principles: the original meaning of the Constitution, the separation-of-powers structure (we should seek ways to validate acts of Congress, not to overrule them), and the principle that cases must be decided on the basis of the facts and the law rather than the court’s feelings about the law or the parties.

There is much to like about Mr. Trump’s opposition to political correctness, his direct and forthright criticism of people and things he does not like or admire, his “tough guy” patriotism, his general iconoclasm, even his boastful and overbearing personality. His approach is unique, but not necessarily troublesome. His personal character and the substance of his views, are what is troubling. Any Republican, and not just conservatives, should be concerned about Mr. Trump’s track record of giving most of his political contributions – and his votes – to Democrats, about his willingness to abuse the process of eminent domain as a tool of real estate development, about his decidedly un-conservative views on free trade and free markets, about the risk that he would employ the Obama technique of by-passing Congress whenever it refused to give him what he wanted, and about whether he has the strength of character to act decisively and correctly in matters involving national defense and security. We should be concerned about whether his approach to foreign policy will be as wise as it is bombastic. We should be concerned about his blustery threats to retaliate against Mexico and China and others who might not do what he wants them to do. We should be concerned that, as my fellow Texans might say, he is all hat and no cattle. We should be concerned that going from Obama to Trump would be jumping from the frying pan into the fire. An autocrat, regardless of personality, is still an autocrat.

Living in Texas, one learns that there is a form of conservatism that is more concerned with abortion, gun control, gay marriage, gender equality, and illegal-alien marauders than it is about the economy and national security. Texas conservatives tend to focus upon “values,” not principles; they may be fans of business but they have little interest in Milton Friedman or Hayek and will give you a blank stare if you mention “central planning.” The high end of Texas conservatism is the politics of the Bush dynasty, which are “compassionately” conservative (in an unenthusiastic way) and are pro-business (with such enthusiasm as to resemble crony capitalism), but are untroubled by the abuse of executive orders and federal regulations to sidestep the Congress in order to achieve economic objectives. In particular, the Bushes (especially Jeb) regularly come up with elaborate new programs to achieve conservative outcomes, while oblivious to the fact that this type of central planning and government regulation is anathema to those adhering to conservative principles of government. It is ironic that the conservatism of Mr. Trump, if he is conservative at all, is more like that of a Bush conservative than that of a Reagan or Buckley conservative.

Mr. Trump’s focus upon outcomes is hard to distinguish from the focus upon outcomes that drives his criticism of Chief Justice Roberts’s opinions: in each context, picking the preferred winners and losers is thought to be more important than following principles. Mr. Trump, like the Bushes and many other Republicans, seems oblivious to the principle that outcomes-based government is a form of corruption, an invitation to the practice of crony capitalism. Indeed, the focus upon outcomes has become ubiquitous: the simple-minded, outcomes-oriented approach of Mr. Trump is not just an indulgence of the hoi polloi, it is a strategy enthusiastically embraced by such well-known, self-described conservatives as Rush Limbaugh, Mark Levin, Ann Coulter, and Laura Ingraham.

From the perspective of the Trumpies, Trump is the obvious choice, based upon the famous William F. Buckley imperative: nominate the best conservative who can win. For others, Trump fails to meet that standard – not because he cannot win, but because he is not a conservative. A Trump election would be a defeat for conservatism, not a victory.

CAN THE OBAMA LEGACY BE UNWOUND?

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If you want to understand the essence of the Obama White House, its historical significance, you could hardly do better than to read “Cheer Up, Obama’s Legacy Can Be Erased,” by Phil Gramm and Michael Solon, in the 12/21/15 edition of the Wall Street Journal. The writers might have intended only to cheer us all up, by showing how easy it would be to un-do the damage of the latest seven years. But, in showing us that most of that damage (other than the original iteration of ObamaCare) has been accomplished by “executive orders,” rather than by actions of our legislative branch, and in observing that every single executive order can be rescinded by a subsequent executive order, Messrs. Gramm and Solon have accomplished a more significant task. By identifying the most significant Obama executive orders, they have not just given us an agenda for the reversal of the Obama “transformation,” they have provided an alarming demonstration of just how far this President has gone in neutering Congress and dismantling our tripartite system of government, checks and balances and all. Regardless of any substantive merit to the Obama orders, those orders undermine – and threaten – our unique form of constitutional government. And if you think that opinion is held solely on the right side of the aisle, check out the ongoing tirade against legislation-by-the-presidency by the very-liberal Professor Jonathan Turley of George Washington University Law School. (Just Google “Jonathan Turley on Obama.”)

In an earlier post, this column defended the opinions of Chief Justice John Roberts, urging that he is misunderstood, that he does not pick winners and losers, that his loyalty is not to any political party or political cause, it is solely to our democracy. Specifically, this column believes that the chief, in his “pro-Obama” opinions on ObamaCare and other matters, was simply trying his best to find ways to support the acts of our legislature, regardless of whether those acts might have been unwise or ambiguous. He was honoring our democracy, our separation of powers, our treatment of Congress as the nation’s sole legislator. Would that our President shared that reverence for our system. The fact that nearly all of the President’s “accomplishments” could be so easily reversed, is the ultimate confirmation that he has grossly abused his executive powers.

Yes, there are precedents for presidential issuance of executive orders, but there is little to be gained from comparing those orders to the record of executive orders issued by FDR, Nixon, Clinton, and Bush the Younger (not to mention Lincoln), because no President before Obama gave orders that were as topically comprehensive, as abusive of authority, as dismissive of the functions of Congress, as devoid of the excuse that they were merely clarifications of statutes. Until Obama, no President had given us reason to compare his executive orders to the neutering of the Roman Senate by the emperor Augustus.

NO NEED TO NAME THIS ENEMY

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It has become commonplace, among Republican candidates for the presidency, to criticize President Obama and his administration for their almost pathological refusal to identify any violence as terrorism and to describe terrorists as “Muslim terrorists” or “Islamic terrorists” or “Islamist terrorists” even when it has become obvious that they are. One refers not only to Benghazi and San Bernardino, but to many other incidents. But it has become almost as commonplace, to the point of making it a cliché, to base such criticism upon the aphorism that one must name one’s enemy in order to defeat him.

The etymology of that aphorism seems pretty clear. It is a corruption of a quotation from “The Art of War,” by Sun Tsu: “To know your Enemy, you must become your Enemy.” Obviously, there can be a difference between becoming your enemy, and naming him. Not only that, some have pointed out that if you choose to become your enemy in order to know and defeat him, you run the risk of becoming just as wicked as your enemy. It seems self-evident that one can defeat an enemy without having either named him or become him; all you need to do is identify and locate him and then kill him.

It is likely that the “name the enemy” approach will eventually become so tired a cliché’ that it will lose whatever political appeal it might have had. But there is a deeper point to be made, beyond the wisdom of ending the debate about whether to label terrorists as Muslim or Islamic or Islamist. Even if the Obama White House were willing to appease its critics by adding the terms “Muslim terrorist,” “Islamic terrorist,” and “Islamist terrorist” to its political vocabulary, there would be no reason to expect that the White House would make any substantive changes to its policies for dealing with terror inspired or directed by ISIS, Al Qaeda, or Iran. The awful truth, alas, is that this President, though willing to talk trash to – and deliver the occasional drone strike against – terrorists in general, does not intend to defeat anyone or anything that is Muslim, regardless of whether the population or the leadership of the potential adversary practices the extreme version of Islam referred to in the West as Islamism. This is not just a matter of pandering to domestic voting blocs. It is a policy that indicates that this is a war he does not really want to win.

JOHN ROBERTS IS MISUNDERSTOOD

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For the many Republicans who feel betrayed by the Chief Justice’s opinions on ObamaCare and many other touchstone cases, whose impression is that Roberts is not the “conservative” they expected him to be, the article by Adam J. White in the November 11, 2015 issue of The Weekly Standard should be an eye-opener. See: http://www.weeklystandard.com/articles/judging-roberts_1063131.html?page=3

It is now commonplace, and not just among talk-radio hosts who style themselves conservatives, to hear Justice Roberts’s opinions critiqued on the basis of whether conservatives benefit from the outcomes of his decisions. It is almost as commonplace, among analysts who view themselves as being above the fray, to tackle the Roberts oeuvre by determining whether he generally adheres to the “original meaning” or “original intent” theories of statutory or constitutional interpretation. The salient feature of the White article is that it shows the failure of each of those approaches to identify the inner Roberts.

White’s point is that Roberts’s point is that there is no particular mode of statutory or constitutional interpretation that is necessarily the best. Yes, it should be obvious that the approach of picking winners and losers on the basis of identifying the more attractive or deserving winner (the Sotomayor method) is, in the end, a loser’s game. A bit more complex, and less-easily dismissed, are the two approaches currently in vogue: the “living document” approach that is generally favored by the political left, and the “original meaning” and “original intent” approaches generally favored by the political right. White’s view is that Justice Roberts makes a conscious effort to favor none of these approaches, and as a result he disappoints or confuses just about everyone.

White’s insight is that the essence of Robertsism is Separation Of Powers. The Chief Justice is a constitutionalist, but primarily in the sense that he believes the Court’s mission is to police and enforce the constitutional allocation of powers among the three branches of American government. Roberts hates it when Congress delegates too much discretion to federal agencies, by adopting laws that are too vague, too incomplete, and that thereby invest the executive branch with too much leeway to adopt regulations that go far beyond the apparent intention and scope of the law or even conflict with it – as in the notorious case of the ObamaCare statute. He is likewise offended when the President issues executive orders that represent de facto legislation and effectively by-pass Congress. He was willing to twist himself into a pretzel in order to find a way to interpret the ObamaCare statute as being constitutional, because he respects the authority of Congress – even though he might have been appalled, as a citizen, by ObamaCare. In White’s view, Roberts is not political; in his role as judge, he does not allow himself to prefer one outcome over another and he does not prefer less regulation to more regulation. He is neither a federalist nor a cheerleader for states’ rights. He reserves his cheers for democracy and is opposed to efforts to undermine the authority or the actions of Congress.

The Roberts approach carries risk. The risk in it, if not the fatal flaw, is exposed by the Obamacare fiasco, the possibility of a law that was only passed because the administration drafted it so cleverly as to mask its real intent – the very intent that Roberts professed to have discovered. In other words, the Roberts approach allows abuse, perhaps encourages it: if a White House can blow by Congress a law that is intended to mean (and can be laboriously re-written by the Supremes to mean) something quite different from what it appears to mean, the separation of powers will have been subverted, the will of the people ignored. Exactly the opposite of what Justice Roberts claims to seek.

From this observer’s conservative perspective, Roberts is the ideal Chief Justice of the United States. He carries no agenda, follows no particular school of statutory or constitutional interpretation, and does what he can to see that Congress, and only Congress, gets to make our laws. He is willing to consider original meaning, original intent, contemporary perspectives, history, and precedent. His mind is truly open, and he is indeed the “umpire” he set out to be, not a player. Would that we always had nine such justices.

THE REGULATORY STATE

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“The size and complexity of the U.S. tax code also grew dramatically in recent decades. As of 2011, it takes 70,000 pages of instructions to explain the federal tax code (McCaherty, 2014). The code has about four million words and 67,000 sections, subsections and cross-references. It’s all crystal clear if you read the instructions.” Those are excerpts from a speech delivered recently by Prof. Steven J. Davis of the U. of Chicago and Hoover Institute. What does the professor suggest? “1. Keep the regulatory system clear, simple, and easy to administer, and then live with it. 2. Keep the tax system as simple as possible. 3. Make economic policies predictable.” I think the professor has identified the problem but not solved it.

The Common Law system, as established and developed in England, used to be taught in our law schools as one of the two primary forms of legal system, the other being the Civil Code system, which evolved from Roman civil law and Christian canon law and, centuries later, got traction in France, Spain, and elsewhere outside the British Empire. The two systems took different paths of development:

  • The Common Law system tried to stick to root documents (the Magna Carta, the U.S. Constitution) and to perceived societal norms and ethics, as interpreted and applied over time by the judiciary, and it did not pursue solutions to anything other than the particular case or controversy at hand. The English and the Americans felt that no one could anticipate every possible conflict or dispute that might arise in the course of human events.
  • The Civil Code system was rules, rules, and more rules, an attempt to anticipate and plan for everything. For all practical purposes, central planning and the Civil Code system are synonymous. Unlike the Common Law system, which was developed by the judiciary, the Civil Code system was developed by the legislature (or by the monarch, emperor, or Pope or other head of state or religion). For a fuller presentation on this topic, see: https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html

The Civil Code system is based upon the conceit that smart, high-minded people can anticipate all possible problems and disputes and can write specific rules and regulations that will appropriately address and resolve them. The American Founding Fathers, like the English and their other colonies, did not share that conceit.

The Common Law system is compatible with free markets and minimal regulation of individual and corporate behavior. The Civil Code system is more compatible with a highly-regulated, centrally-planned economy and civil society. Rome presented the original Civil Code system. As was well-understood by the Romans (and by Gibbon), most “barbarians” regarded a surrender to Rome as a forfeiture of a large share of their individual liberties, a deal accepted by those who felt the material benefits of the Roman umbrella seemed more attractive than a free life in a less-developed territory outside the boundaries of the empire.  That type of trade-off is still operative, two millennia later.

It is no coincidence that the last nations that still emphasize individual and market freedoms are those that adopted a Common Law legal system, while the countries that impose more economic or social limitations can be fairly described as Civil Code countries – whether nominally capitalistic (e.g., China, Russia) or unremittingly controlling and repressive (e.g., North Korea, Iran), and whether labeled democratic, leftist, socialist, communist, or fascist. All authoritarian regimes, regardless of style or label, are essentially centrally-planned, Civil Code regimes. Authoritarians issue rules, they do not wait for judicial verdicts. Cynics have explained the phenomenon by pointing out that it is simpler to corrupt a politician than to corrupt a judge, and that regulations, which spell out the winners and losers in specific situations rather than following root principles, are often purchased by special interests. In all events, the central-planning, Civil Code model invites corruption.

As Hayek showed, the regulatory reach of central planning can only expand, never contract, as its proponents believe that the solution to every problem that is not solved by existing rules is to adopt more rules. The more advanced the establishment of the planning model, the more difficult and unlikely the un-winding.

America’s transition to a regulatory state has not been a matter of party politics, though it is generally identified with the Democratic Party. The Tax Reform Act of 1986, which briefly moved us back in the direction of the de-regulated, Common-Law model, was a bi-partisan law under which we switched to a nearly-flat tax and eliminated many special-interest deductions, credits, and other expressions of crony capitalism and social engineering. But it was a Republican President, George H. W. Bush, who initiated the dismantling of the TRA, and though the coup de grace was delivered by the Clinton administration, Republicans have shown themselves to be almost as addicted to over-regulation as Democrats. With the exception of the TRA, the country has been engaged since 1933 in an uninterrupted transformation into a Civil Code nation, and the process cannot be blamed solely upon the Obama regime. Long before 2009, the Internal Revenue Code and the Code of Federal Regulations were unworkable, virtually unintelligible exercises in central planning.

For all practical purposes, America is no longer a Common Law nation. It is simplistic and unrealistic for Americans to complain about excessive, complex, unclear, or unwise regulations. Short of a willful reversion to the Common Law system, we are never going to put the central- planning genie back into the bottle. You cannot just say, Let’s have better regulations. You cannot end the regulatory state by advocating smarter regulations (as does Cass Sunstein, President Obama’s former “Regulatory Czar”),  or by advocating clearer, simpler, and easier-to-administer regulations (as does Prof. Davis) . Not going to happen. Once you start playing on Prof. Sunstein’s home field, you have already lost the game.