Balkinization  

Tuesday, January 26, 2016

Donald Trump and the Politics of Disjunction

Gerard N. Magliocca

We've had an extended discussion on the blog about whether Barack Obama is a "reconstructive" President as described in the groundbreaking scholarship of Stephen Skowronek.  Part of the answer turns on the outcome of 2016 presidential election.  Will Obama's successor build on what he did or repudiate his legacy?  That remains to be seen.

There is another way, though, of looking at this question.  Skowronek's presidential typology says that political coalitions in decline tend to turn to outsiders who have, for lack of a better term, a reputation as a "Mr Fix-It" rather than deep connections to the party's ideology or constituencies.  Past examples include Herbert Hoover, a self-made millionaire who (though it'a hard to remember now) was widely thought of as a problem solver before he was elected.  Jimmy Carter is another example--he was an engineer by training--who was a classic outsider in 1976.  On the losing side, there was Wendell Wilkie (the GOP nominee in 1940) who had never been elected to anything and was touted for his business success.  These are the "disjunctive" presidents or presidential candidates.

The Republican Party went with this sort of strategy in 2012.  Mitt Romney was mainly known as a success in business and as a highly competent manager (of, for example, the Winter Olympics).  As Governor of Massachusetts for one term, he certainly did not come from the heartland of the GOP coalition and did not have broad government experience.  There was a plausible advantage in this, though, as he also did not carry much of the baggage that a party insider or crusader would.

Now we are getting disjunction on steroids with Donald Trump.  He is also pitching himself as "Mr Fix-It" without any significant commitment to the traditional ideology of the party or, of course, any service in office.  He is presenting this as a plus, and certain party elites are in the process of deciding that this he be better than someone closely identified with the party's ideology--Ted Cruz.  You can also contrast Trump's success with the weakness of the obvious Establishment candidate--Jeb Bush--to see how far the traditional formula for success in the GOP primary is falling short this time.

Why does this matter?  Because disjunctive candidates only do well at the end of a particular coalition, which implies that the other side represents the start of a new one.  But has that already happened with Obama's election, or will it happen after, say, President Trump has a disastrous term?

Comments:

I think you're over-analyzing based on an inadequate sample size, frankly. There are so few Presidential administrations that each is it's own thing.

Really, that's all I've got to say, don't want to be guilty myself of what I'm pointing out in you.
 

Well, it's a problem that's unavoidable when the sample size is less than 100 (if you include major party winners and losers).
 

GM: "Skowronek's presidential typology says that political coalitions in decline tend to turn to outsiders who have, for lack of a better term, a reputation as a "Mr Fix-It" rather than deep connections to the party's ideology or constituencies. Past examples include Herbert Hoover, a self-made millionaire who (though it'a hard to remember now) was widely thought of as a problem solver before he was elected."

What?

It is true that Hoover was the leader of the progressive wing of the GOP and his (mis)governance was definitely a departure from the Coolidge years of limited government, but none of the remainder of the disjunctive typology fits him. Hoover was an insider for decades before the GOP nominated him as next in line to be president.

Hoover...headed the Commission for Relief in Belgium, helping to procure food for 9 million Belgians in the aftermath of the massive encroachment of German troops. His effectiveness prompted President Woodrow Wilson to appoint Hoover head of the Food Administration, which diverted American agricultural products overseas to American troops. Hoover next served as head of the American Relief Administration, which helped post-WWI Europe feed its people. President Warren G. Harding then picked Hoover to be his secretary of commerce, as did President Calvin Coolidge after him. In this role he was the driving force behind such projects as the St. Lawrence Seaway and the Hoover Dam. When President Coolidge decided not to run for another term, Herbert Hoover was nominated as the Republican candidate in 1928.

http://www.biography.com/people/herbert-hoover-9343371#synopsis

GM: "Now we are getting disjunction on steroids with Donald Trump. He is also pitching himself as "Mr Fix-It" without any significant commitment to the traditional ideology of the party or, of course, any service in office."

Trump definitely fits the disjunctive typology, but is the GOP electorate really turning to him? The Donald has some of the lowest net favorability polling among GOP voters and is deep underwater among Indis, most of which vote Republican. Many of his supporters do not vote or do not vote regularly.

http://fivethirtyeight.com/features/donald-trump-is-really-unpopular-with-general-election-voters/

GM: "He is presenting this as a plus, and certain party elites are in the process of deciding that this he be better than someone closely identified with the party's ideology--Ted Cruz. You can also contrast Trump's success with the weakness of the obvious Establishment candidate--Jeb Bush--to see how far the traditional formula for success in the GOP primary is falling short this time."

Let's break this down.

The GOP establishment (elected representatives and the party operational and fundraising bureaucracy) is majority progressive and does not govern according to the party's stated libertarian conservative principles.

The traditional formula for success in the GOP primaries is for the establishment to coalesce around one candidate while the libertarian conservative base splinters between multiple candidates. The reverse appears to be true in 2016.

The 2016 GOP presidential candidates who do govern according to the party's stated libertarian conservative principles have high net favorability among folks who vote Republican (Cruz and Rubio). The candidates who do not, have low net approval (Bush and Kasich). (See supra link)

Trump is a NY progressive, who only has net favorable polling (albeit a relatively low one) because he is demagoguing immigration and trade to white working class voters who generally cast ballots for Republicans. If the rest of his progressive politics were well known, Trump would be underwater among GOP voters and may still end up there.

Thus, I do not see Trump as evidence that the Reagan coalition of economic libertarians, social conservatives and internationalists is splintering or no longer viable.
 

A reminder that SPAM I AM! trolls for Ted Cruz at this Blog. Republicans he disagrees fit his definition of libertarian/conservative are - drumroll - progressives.

By the way, let's start a contest:

"SCRATCH A LIBERTARIAN AND WHAT DO YOU GET?"

Followers of the symposium will understand the flaws in SPAM I AM!'s mis-histories. Libertarians are a minority, still weaning of Ayn Rand. Libertarians have transmorgrified over the years into "NEOLIBERCONTARIANS." They claim to be self made men (some women too?) defying biology. But a few scratches displays otherwise. Libertarians will have usmarching back to the late 19th century's The Gilded Age, America's best days according to SPAM I AM! Check out the symposium posts for the true histories of The Gilded Age and progressivism. Trump represents the principles of the current Republican Party's base. I await the upcoming Fox GOP debate without Trump to see how the candidates who don't fear Megyn Kelly will hold together without puppeteer Trump pulling the strings.

As to the contest, first prize is one week in the Mile High State (of mind) with SPAM I AM! and second prize is two weeks with SPAM I AM!
 

Shag:

If you do not believe in a government limited to keeping people from harming one another (libertarianism), then you could fall under multiple other ideologies, not just progressivism.

Progressivism employs a regulatory bureaucracy, a redistributionary tax code, minimum compensation mandates, a welfare state and is totalitarian in that it does not recognize natural limits on government power. If you believe in these things, you are a progressive.

Libertarians are currently a minority of a citizenry which has lived under nearly a century of progressive governance and America is no longer the Land of the Free.

This state of affairs is not unusual. Throughout most of history, human freedom has been a minority position, which is why it is one of the most precious of human commodities.
 

SPAM I AM! rants but reveals, although he's not aware of it, that he has been a beneficiary of progressivism. It doesn't take much scratching in his background to demonstrate this.
 

SPAM I AM! attacks Trump as a progressive in his shilling for Ted Cruz. Is Cruz a libertarian? Can a libertarian have a goal of world domination and remain a libertarian? As far as I am aware, Rand Paul is the only openly Republican libertarian candidate in the GOP 2016 Clown Car. Considering Paul's polling, libertarianism isn't doing that well. We all know that one of the Koch Bros. was on a losing libertarian ticket a few years back. He vowed never to run for public office again, deciding to use his inherited fortune to support his political causes. [Query: To what extent is libertarianism founded on inherited wealth?] So perhaps SPAM I AM! as a self proclaimed libertarian can address the libertarian qualities of all the GOP 2016 candidates to contrast with the progressive Trump, who strongly leads GOP Clown Car polling.

I just finished reading William J. Novak's symposium post titled "The Public Utility Idea in a Progressive Constitutionalism of Equality." This is a great read for progressives. I can imagine the contortions SPAM I AM! would have with the post, but he continues with Hayek blinders looking to the past instead of the future. Keep in mind that SPAM I AM! on several recent occasions has suggested armed revolution as an alternative to dysfunctional government/politics. There are many varieties of libertarians (as there are originalist). SPAM I AM! is at times an anarcho libertarian.

By the Bybee [expletives deleted], Novak makes a tie-in to the situation in Flint, MI to demonstrate the public utility wisdom. Perhaps MI Gov. Rick Snyder is a libertarian, of some sort. How would SPAM I AM! react to brown drinking water? Perhaps libertarians with some wealth merely move upstream.

Dont' forget the "SCRATCH A LIBERTARIAN AND WHAT DO YOU GET?" contest.
 

Shag: "Is Cruz a libertarian?"

No, Cruz is a libertarian conservative - economic libertarian and social conservative. Pretty much the same as the GOP base.

I just finished reading William J. Novak's symposium post titled "The Public Utility Idea in a Progressive Constitutionalism of Equality." This is a great read for progressives. I can imagine the contortions SPAM I AM! would have with the post...

Here is a clue.

Novak is advocating German Zwangswirtschaft socialism, where the government declines to nationalize an industry and instead abuses its police, taxing and spending powers to direct the industry as if the government was the legal owner in order to redistribute wealth. French Marxist philosopher Andre Gorz described Zwangswirtschaft in the same terms as Novak, reducing business to public utilities.

Novak is correct to cite WWI as an employment of Zwangswirtshaft. During the first world war, Wilson's progressive government misdirected much of our economy and even nationalized the railroads, hopelessly snarling the production of goods and services. Consumers often could not even get basic goods like coal to heat their homes and apartments in the winter. The end result of this mass misdirection, combined with a punitive a redistributionary tax code and doubling the money supply to pay for the war, was the 1920 depression.

As Obamacare is demonstrating today, progressives who cannot learn from history will force the citizenry to relive it.

 

This comment has been removed by the author.
 

As Obamacare is demonstrating today, progressives who cannot learn from history will force the citizenry to relive it.

# posted by Blogger Bart DePalma : 9:10 AM


And they're "reliving" history by getting access to healthcare? That sounds "terrible".

 

I'm pretty sure that the definition of "progressive" is "someone that Bart does not like".
 

Consider SPAM I AM!'s:

"Here is a clue."

coming from someone who doesn't have a clue.

In SPAM I AM!'s description of Cruz:

"No, Cruz is a libertarian conservative - economic libertarian and social conservative. Pretty much the same as the GOP base."

where does Cruz's goal of world domination come in? Presumably Cruz and Rick Perry have discussed this at Perry's TX ranch - now what's the name of that ranch?

In due course (coarse?) we might expect a new James Bond 007 international thriller with dual villains fighting for world domination similar to the current battle between Trump and Cruz, Trump teaming with sarah Palin and Cruz with SPAM I AM! as Cruz's "mini-me." Glenn Beck's Goldfingerism would provide background for Cruz domination. This would be great for Broccoli lovers. And Marla Maples would have a brief encounter with James Bond updating her earlier claim of best sex ever.


Dont' forget the "SCRATCH A LIBERTARIAN AND WHAT DO YOU GET?" contest.

 

To get the ball rolling for the "SCRATCH A LIBERTARIAN AND WHAT DO YOU GET?" contest:

Sample answer: "No blood!"
 

By the way, "The Constitution of this", "The Constitution of that", how many constitutions are there, anyway?

We were once told that “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics”. I wish these people would take that to heart, and GENERALIZE. The Constitution didn't enact ANYBODY's idea of a just society. It's just a framework for government, not a specification of what that government is supposed to accomplish.
 

Brett, the Constitution is not a computer program and was never intended to be so. Besides, Brett, as an anarcho libertarian the rule of law is not that important to you, except when it is convenient for you.
 

As the rule of law is a limitation on what government can do, the rule of law is actually a step on the way from absolute, arbitary government, in the direction of anarchism. We would do well to restore it.
 

So anarcho is another one of your HUMPDY-DUMPTY words?
 

Brett:

Don't you know the Constitution or any other law is what a progressive decrees it to be?

I am reading Phillip Hamburger's excellent book entitled Is Administrative Law Unlawful. Professor Hamburger lays out how Roman dictators and then emperors ruled by prerogative and dispensation, decreeing the law they desired, reversing legislative law by decree or intepretation, and dispensing exceptions from the law for favored indivduals. British monarchs used the Roman precedent to exercise these powers until Parliament overthrew King James and enacted a constitution. Our Constituion denied these powers to the executive until the progressives rewrote the document to accomodate a regulatory bureaucracy with these powers.

http://www.amazon.com/Administrative-Law-Unlawful-Philip-Hamburger/dp/022611659X
 

I see Shag referencing an article: "The Public Utility Idea in a Progressive Constitutionalism of Equality."

There is mention there of a "constitutionalism." Not sure what "The Constitution of this" or "The Constitution of that" references. There is a single American Constitution text but in practice, there is as Shag suggests complications.

Just what "constitutionalism" it entails has been a debate since the days of Hamilton (insert song here) and Madison. Or, maybe I should say Burr.

[BURR]
The constitution’s a mess

[HAMILTON]
So it needs amendments

[BURR]
It’s full of contradictions

[HAMILTON]
So is independence
We have to start somewhere


http://genius.com/Lin-manuel-miranda-non-stop-lyrics

"The Constitution didn't enact ANYBODY's idea of a just society."

It enacted someone's idea of a just society, probably. Or, as close as possible given the people involved.

"not a specification of what that government is supposed to accomplish"

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

"the rule of law is actually a step on the way from absolute, arbitrary government, in the direction of anarchism"

Might depend on one's vantage point. The "rule of law" involves additional "rules" of "law," which can be a step away from anarchism. Don't know how words are used sometimes, but the term to me would suggest less government. The term "anarchism"* to me means people by agreement, not by governmental rules of law, determining things.

The rule of law does restrain government in a way, but the means often involves merely a different form of government, including restraining people's ability to do things they would otherwise be willing to do. So, shrugs.

---

* Brett comes off, and at times says as much, more as a conservative.
 

"It enacted someone's idea of a just society, probably."

Somebody's idea of a government, anyway. Maybe even their idea of a just government. I suppose somebody, somewhere, probably thought it was a just government, rather than just an endurable compromise and an improvement over the Articles of Confederation. But, of course, government is distinct from society, and only in the worst dystopias a large part of it.

"The rule of law" doesn't refer to the populace being bound by law, but instead the government being bound by it. The exercise of power being less arbitary, more rule bound. As a theoretical matter, I suppose the rule of law could compell a government otherwise inclined to leave people alone to lean on them.

As a realistic matter, people don't go into government in order to leave the public alone, so if you restrain government, you're restraining it from imposing on people, not restraining it from leaving them alone.

In virtually any real world circumstance, achieving the rule of law is a step towards anarchy.


 

Society is distinct from government, but there is a major overlap, and constitutions (including the federal one) do not just limit government. The 13th Amendment, e.g., regulates both private and public behavior. Things like protecting a right to a civil jury also significantly changes the behavior of non-governmental actors. Finally, limits on government (such as set forth in the 1A) repeatedly are seen as general goods, even if the text does not compel that result.

"The rule of law" means various things. The Oxford English Dictionary has defined "rule of law" this way: "The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes."

Again, "the government" here is being used by you as if it is some foreign body, when in our system, "We the People" are supposed to be sovereign. If "we the people" are sovereign, it follows the "rule of law" applies ultimately to the people too, not merely some government "other."

People go into government for various purposes, including to protect people from some members of the public (e.g., social workers to help victims of domestic violence) and restrain the government in various ways (e.g., limits on abortion). Government does do things, yes, but even anarchy as a system restrains somehow unless mere might is supposed to rule there. Anarchism requires an agreed upon system beforehand to only govern by agreement. This restrains too.

 

"Again, "the government" here is being used by you as if it is some foreign body,"

Well, you know what they say: "Government is just the name we give to what some of us chose to do to others of us."

When I had a lymphoma, it wasn't a foreign body, it was just as much a part of me as my kidneys or lungs, but that didn't make me enthusiastic about its presence, or obligate me to pretend it was a positive force in my life.

Joe, governments are protection rackets. Highly evolved protection rackets, I'll grant you, with extensive PR departments they call "school systems", but still protection rackets.

As you'll find out fast enough if you stop paying for the protection.

I have a very unsentimental view of government, I think having illusions about it is dangerous. At present we know of no way to do without it, but that doesn't make it a positive thing, just a horror we can't avoid.
 

"the Constitution or any other law is what a progressive decrees it to be?"

What do they do, twist the Constitution in ways like saying that the plainly accepted law at the time on what a natural born citizen is is magically changed by an unenumerated 9th Amendment right so that they can further a short term partisan goal?
 

""The rule of law" doesn't refer to the populace being bound by law, but instead the government being bound by it. "

As Joe points out in his cited definition, yours is a very idiosyncratic conceptualization of that term Brett.

It's interesting to see how Brett and Bart seem to undercut each other often. On the one hand they bemoan bureaucracy and regulation, on the other they bemoan capricious government. But a major source of bureaucracy and regulation are measures to rationalize and take away the discretion of government agencies.
 

Mr. W:

How again does the rule of law check the regulatory bureaucracy?

The regulatory bureaucracy takes wide latitude in interpreting its own powers under Congress's enabling statutes (most recently rewriting express statutory provisions) and then writes its own regulations. The Courts grant the bureaucracy enormous latitude in exercising these powers.
 

I have a very unsentimental view of government, I think having illusions about it is dangerous. At present we know of no way to do without it, but that doesn't make it a positive thing, just a horror we can't avoid.
# posted by Blogger Brett : 3:19 PM


There is actually a very easy way to avoid the "horror" of government. Move your ignorant delusional ass to Afghanistan.
 

Bart,

Take a standard regulation or piece of 'bureaucracy,' say detailed procurement regulations for an environmental agency in buying equipment used for an environmental clean up. The entire reason there are those pages of legalese about how to procure the equipment is that it's an attempt to bind the agency's actions-in the old days before the bad ol' progressives reformed government the guy in charge just made a capricious decision-he'd say 'oh, we'll buy that stuff from the guy in my hunt club.' But scandal after scandal over such corruption led to reform efforts, many which took the form of requiring agencies to go through long, detailed, public rule-making for the sake of oversight and transparency. Then the regulations become something that binds the agency, which courts can enforce and such.
 

I took a couple of hours to make a pot of my version of Portuguese Verdi soup and plan to hve a bowl for dinner. I thought there might in the interim be some contest entries. Instead, a good discussion is going on. But here's another sample:

"SCRATCH A LIBERTARIAN AND WHAT DO YOU GET?"

Sample answer #2: "A rendition of 'I'd rather drink muddy water than have a Clean Water Act.'"

 

To supplement Joe's point about government being us -- We, the People -- the basic meaning of the "rule of law" as the Founders understood it is actually connected to popular sovereignty through the principle of equality. Thus, John Locke:

“These are the bounds which the trust that is put in them by the society and the law of God and Nature have set to the legislative power of every commonwealth, in all forms of government. First: They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at Court, and the countryman at plough.”

Or, here's John Adams paraphrasing Locke:

“Others, again, more rationally, define a republic to signify only a government, in which all men, rich and poor, magistrates and subjects, officers and people, masters and servants, the first citizen and the last, are equally subject to the laws. This, indeed, appears to be the true and only true definition of a republic.”

Because popular sovereignty necessarily includes equality -- each person, by definition, has an equal vote -- the implementation of that sovereignty requires equal protection of the laws. The distinction is less that of anarchy and government, and more that of the treatment of individuals within the society.
 

MF's analysis reminds me of Mr. W's remark to Shag that the Guarantee Clause could be used in an alternative universe by let's say Chief Justice Kagan to support campaign finance legislation as a necessity of republicanism.

"bounds which the trust that is put in them by the society and the law of God and Nature"

Such general principles seem at any rate to have a broad reach, all forms of "government" here in a general sense, such as the ideal path of running a private association, the term not merely something applicable to members of Congress etc.

It also, MF has covered this before in his fashion, shows a way to show how equal protection was a basic constitutional principle, even before the 14A. Slavery did not tell us otherwise; it was a wrongful exception to a more general rule.
 

Mr. W: Take a standard regulation or piece of 'bureaucracy,' say detailed procurement regulations for an environmental agency in buying equipment used for an environmental clean up. The entire reason there are those pages of legalese about how to procure the equipment is that it's an attempt to bind the agency's actions-in the old days before the bad ol' progressives reformed government the guy in charge just made a capricious decision-he'd say 'oh, we'll buy that stuff from the guy in my hunt club.'

What makes you think much of anything has changed? For you Democrats, see military procurements during the Iraq and Afghan Wars, For you Republicans, see the "Stimulus."

Bureaucracies increasingly issue waivers from the rules for the politically connected.
 

Again to add to what Joe said, the Constitution does contain provisions to enforce equality, in addition to the popular sovereignty structure of the document: the ban on titles of nobility; the privileges and immunities clause; the guarantee of a republican form of government. The latter two, of course, have never really been enforced thanks to Luther v Borden, Dred Scott, and The Slaughterhouse Cases, but a Court more sympathetic to the equality inherent in republican government might recognize their importance.

It's also easy to find some, though by no means all, of the Founders extending the principle of equality to include wealth. Here, for example, is Jefferson writing to Madison:

“I am conscious that an equal division of property is impracticable. But the consequences of this enormous inequality producing so much misery to the bulk of mankind, legislators cannot invent too many devices for subdividing property, only taking care to let their subdivisions go hand in hand with the natural affections of the human mind. The descent of property of every kind therefore to all the children, or to all the brothers and sisters, or other relations in equal degree is a politic measure, and a practicable one. Another means of silently lessening the inequality of property is to exempt all from taxation below a certain point, and to tax the higher portions of property in geometrical progression as they rise.”
 

Bart, that people sometimes get around rules is not really a good reason not to have them, or conclusive that behavior wouldn't be any worse without them.
 

"MF has covered this before in his fashion, shows a way to show how equal protection was a basic constitutional principle, even before the 14A."

Eh, I see what you're saying, but I don't know how far this goes. If you're reading the Constitution as a document and want to be guided by the original understanding of the provisions when ratified (not saying this is how it should be done btw), then imo, it's really hard to say, notwithstanding the provisions highlighted by Mark here, 'see, this shows equal protection was a basic constitutional principle even before the 14th, 15th, 19th, etc' because you have to handwave provisions like the 3/5ths Clause, the Fugitive Slave Clause, the Slave Trade provisions, and that while political philosophy of the day had many fine things to say about equal treatment, and often saying it in general terms, that these things were said by people who out of the other side of their mouth defended unequal treatment of women, Natives, gays, and many others. It's hard to argue any consensus understood these doctrines to mean what the equal protection clause was understood to mean.

I should stress, that I think this is very embarrassing about our Constitution, but to me it just makes the Amendments I mentioned that much more things to celebrate, moving us closer to a less embarrassing governing document.
 

I don't think the "equality" argument extends any further than to say that was the expressed ideal for white men. Beyond that, it's up to us to, as Lincoln said, actually implement the ideals.
 

This comment has been removed by the author.
 

Slavery did not tell us otherwise; it was a wrongful exception to a more general rule.

Slavery did not tell us otherwise; it was a wrongful exception to a more general rule.

I did not handwave slavery though the reach of the slave power even there is open to debate. The provisions to me are realistically about the floor of recognition to obtain ratification. Shag recently noted he wasn't "embarassed" of how they originally handled the natural born citizenship rule. [Won't say more about THAT here.] I'm somewhat less "embarassed" here too. This doesn't take them off the hook. But, slavery wasn't going to go away == took a Civil War actually involving hundreds of thousands of deaths == without ratification and the Constitution if anything added national power or at least the potential of it to reduce its reach. The underenforcement is duly noted; the failures of the "American System" put forth by Henry Clay didn't mean there wasn't more potential to regulate the national economy either.

After twenty years, international slave trade could be barred. Interstate commerce could be regulated or even banned. It could be kept from territories or the nation's capital. "Slavery" wasn't even cited and slaves were called "persons." The provisions were seen as a violation of natural law, but unfortunately necessary. Only a subset, at least at first, saw slavery a basic good or something that was a fixed institution of society, a rightful one. Obviously, as usual, it was easier -- see Thomas Jefferson -- to cite principle than do the hard work to put it into practice. But, the material was there.

"Persons" had rights. The Constitution set forth general principles there, "persons" or "people" having rights, not some subclass. Religions were protected, not some subset. Free speech and association, including to promote a better country. And, there were other aspects of this equality protected in the document. As Mark Field notes, expressed ideals take time to be carried out, and the rights of gays, women and others show that is true with the 14A itself. The consensus there early on was much narrower than it is now. The principle of equality -- and I'm not saying the original understanding in 1787/1791 had the same reach either -- is still there for us to apply today. And, as with the original Constitution, it was not complete. More amendments were ratified; more should be.

The value of the Reconstruction Amendments didn't mean basic individual rights wasn't a principle in the original Constitution. States were given a much greater role in protecting them, which didn't work out in various ways. It suggested the limitations of the old system and the need for improvements.
 

Brandeis' "states as laboratories" of democracy comes to mind with the trend of this thread. But the Constitution itself was also an experiment. Slavery existed although care was taken in the Constitution to avoid using the words "slave" or "slavery." There were many contrasting views back then. I was intrigued by Lysander Spooner's 1840s essays on how slavery was unconstitutional. But Spooner was countered by MA abolitionist Wendell Phillips. (Spooner somewhat shifted his views after the Harpers Ferry raid.) Then came the 1850 Fugitive Slave Law, its enforcement and Dred Scott, culminating in the Civil War, following which Reconstruction. The experiment of the Constitution was not fully resolved, but major changes took place, albeit at heavy human costs. The experiment continued. Progress was made. But progress can be slow and there are always, as in physics , equal and opposite reactions. Two steps forward, one step back. But progress. Consider the experiments currently with the 2016 presidential campaign, both at the federal and states levels. There was no perfect time in the past, except perhaps just prior to "original Sin." We may never reach perfection. But the experiments continue towards the goal of a "more perfect Union." We've come a long way. I was just thinking of the Tuskegee Syphilis Experiment
of some years ago in light of the water situation in Flint, MI. But we've got a long way to go. That's why the symposium is so important. We can't undo past experiments that failed. But we can try to make progress.
 

OFF TOPIC: Sandy's post on the Cruz Canadacy will soon be archived. Check Eric Posner's blog for two recent posts challenging Mike (I'm not Rappaport) Ramsey's article supporting Cruz a a "natural born Citizen."
 

Mr. W: Bart, that people sometimes get around rules is not really a good reason not to have them, or conclusive that behavior wouldn't be any worse without them.

When the bureaucracy can redefine and now rewrite the clearest of Congress's enabling statutes, make up its own regulations, prosecute or grant waivers of those regulations, adjudicate those prosecutions, then expect that the courts will grant them broad deference in all of this, this is lawlessness, not the rule of law.
 

SPAM I AM! lives in his wet dream of the past (aka The Gilded Age). Imagine the undoing of the Administrative State by skinFLINT libertarian/conservatives. Alas, Hamburger Helper can disguise bad food.
 

BD: Imagine the undoing of the Administrative State by skinFLINT libertarian/conservatives.

Let's do that and imagine instead that our elected Congress enacts the law and is constitutionally limited to enacting laws against demonstrable harm.

Most of the 178k pages of regulations in the Federal Register and roughly 1 trillion dollars in annual compliance costs would disappear.

The cost of goods and services would fall correspondingly.

GDP growth would increase by 1-2% per year and start to reach levels that could sustain full employment again.

Small business creation would start to return to normal levels, increasing competition and innovation.

If we further shifted to a simple tax code which IRS could not modify through regulation, all of these benefits would increase and tax attorneys such as yourself would have to find productive employment.
 

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#OTD in 1916 [1/28/16] President Wilson nominates Louis Brandeis to #SCOTUS. Brandeis became the first Jewish #SCOTUS justice. The Progressive overlords cackle.
 

Let's do that and imagine instead that our elected Congress enacts the law and is constitutionally limited to enacting laws against demonstrable harm.

Most of the 178k pages of regulations in the Federal Register and roughly 1 trillion dollars in annual compliance costs would disappear.

# posted by Blogger Bart DePalma : 9:29 AM


That sounds a lot like delusional bullshit.
 

SPAM I AM! in his anxiety to support his wet dream of the past attributes to himself my words. I guess going back-asswards in time without his Delorean is difficult. Of course, in due course, a Congress could do what SPAM I AM! suggests, but not likely.

Time out for the (mostly) liberal, some progressive lunch.

Meantime SPAM I AM! might want to bring back stocks and bonds to replace the current prison system.
 

BB:

Regulatory compliance costs are actually far higher and my projected savings are conservative because some of the current regulations do prevent demonstrable harms and Congress would likely enact these into law.

http://cei.org/sites/default/files/Wayne%20Crews%20-%20Ten%20Thousand%20Commandments%202014.pdf

http://www.nam.org/Data-and-Reports/Cost-of-Federal-Regulations/Federal-Regulation-Executive-Summary.pdf

https://www.sba.gov/sites/default/files/The%20Impact%20of%20Regulatory%20Costs%20on%20Small%20Firms%20(Full).pdf

Did you actually think this was all free?

 

Did you actually think this was all free?

# posted by Blogger Bart DePalma : 11:56 AM


Dumbfuck, I don't think any of it is free. I also don't like the idea of drinking water contaminated with lead. Do you mind if we get rid of all the regulations and then force you to drink all the resulting contaminated water?

 

BB:

Nothing prevents a state legislature from enacting and a state executive from enforcing a lead standards for drinking water. You do not need a regulatory bureaucracy to accomplish this or any safety law meant to prevent a demonstrable harm.
 

Blankshot, if you think that Congress will pass laws that will protect the public and cover every loophole, then pass new laws to cover any loopholes that are actually found, then pass additional laws when polluters find loopholes for the loopholes, then you have completely lost your mind.
 

BB:

As opposed to unelected regulatory agencies captured by the industries they regulate?

I will take a representative democracy every day of the week.
 

Dumbfuck, the regulatory agencies report to elected officials.
 

And erase hard drives when they don't feel like reporting...
 

BB:

Congress can require agencies issue reports and send representatives to testify before the appropriate committees, but the bureaucracy does not consult with Congress before interpreting its own mandates, decreeing regulations or providing dispensations from obeying statute and regulation for the politically connected. Often, Congress has no idea that the agency is doing these things unless it is in a report or in the Federal Register.
 

You morons know that the President is an elected official, right?
 

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BB:

The bureaucracy often works against the President's policies and then wins in court. See Bush attempting to reverse Clinton midnight regulations imposed just before he left office. There will likely be a repeat after the Obama administration.
 

"When the bureaucracy can redefine and now rewrite the clearest of Congress's enabling statutes, make up its own regulations, prosecute or grant waivers of those regulations, adjudicate those prosecutions, then expect that the courts will grant them broad deference in all of this, this is lawlessness, not the rule of law."

I read the first line there, the nonsense, repeated talking point of Bart's about 'rewriting the clearest of Congress's enabling statutes" (so clear in fact that six Supreme Court Justices, including two GOP nominees, one of which just a year prior held that the overall act was unconstitutional, disagreed with Bart's reading!), and while I should have just stopped there, decided to do a quick google about the part about 'waivers.' The first page had stories about the Obama administration's granting of waivers to 'corporations to opt out of Obamacare.' A tiny bit of digging led me to how many corporations received waivers excepting them from Section 2711 of the act. You see, many corporations had 'mini-medi' health plans that are inconsistent with the law, they got waivers to take more time to ready for compliance. Lawless, right? Well, I looked up Section 2711:

"With respect to plan years beginning prior to January 1, 2014, a group health plan and a health insurance issuer offering group or individual health insurance coverage may only establish a restricted annual limit on the dollar value of benefits for any participant or beneficiary with respect to the scope of benefits that are essential health benefits under section 1302(b) of the Patient Protection and Affordable Care Act, as determined by the Secretary. In defining the term ‘restricted annual limit’ for purposes of the preceding sentence, the Secretary shall ensure that access to needed services is made available with a minimal impact on premiums. "

Note that last part: *it's written into the law that the Secretary may define the term 'restricted annual limit' and he is guided to do so in a way that will 'ensure that access to needed services is made available with a minimal impact on premiums.' I looked it up, and that is *exactly* what happened, enforcing the requirement would have meant a sharp rise in premiums and a blow to access.

I didn't mean to have a treatiste on federal medical law, but it's worth noting how quickly and easily Bart's ballooning hyperbole can be pierced.
 

"The bureaucracy often works against the President's policies and then wins in court."

When the court determines the bureaucracy is obeying the law and the President's policies would not be, yes, that's how it should be. Weren't you just complaining about deferential courts and Executive lawlessness?


 

It's worth repeating a point I often make during these discussions: if our elected officials wanted to, they could, this afternoon reverse every regulatory rule. They don't want to. If Bart doesn't like this, he should work to elect new officials, but the fact that the people have chosen ones that don't want to do what Bart wants is certainly not tyranny of any kind.
 

The bureaucracy often works against the President's policies and then wins in court. See Bush attempting to reverse Clinton midnight regulations imposed just before he left office. There will likely be a repeat after the Obama administration.
# posted by Blogger Bart DePalma : 1:27 PM


That doesn't exactly help your case, dumbfuck.
 

Mr. W: if our elected officials wanted to, they could, this afternoon reverse every regulatory rule.

That would take an electorate with knowledge of what the bureaucracy is doing, demanding reversal and electing a House majority, a Senate supermajority (or a majority willing to lift the filibuster rule), and a President to enact the legislation. You also have to take in account that Congress likes delegating its responsibilities to the bureaucracy so they do not have to make tough decisions that are likely to anger some portion of the electorate.

This combination of voter ignorance, political class complicity, and constitutional checks and balances is why Congress has not reversed this unconstitutional mess.
 

This combination of voter ignorance, political class complicity, and constitutional checks and balances is why Congress has not reversed this unconstitutional mess.
# posted by Blogger Bart DePalma : 1:57 PM


It appears that the problem is really more Bart ignorance than voter ignorance.
 

This combination of voter ignorance, political class complicity, and constitutional checks and balances

"People don't agree with me and I don't like the system"
 

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Mr. W:

In general, the electorate believes that we are over-regulated...

https://www.aei.org/publication/the-public-view-of-regulation-revisited/

...and tend to oppose individual regulations which directly impact their own lives once they become aware of them.

http://abcnews.go.com/blogs/politics/2013/11/botched-aca-rollout-hammers-obama-job-disapproval-reaches-a-career-high/

Of course, voters first have to know about the regulations which impact their lives.

Most regulations hit the businesses which employ and provide goods and services for voters. The impact on the voters is almost always indirect - reduced work hours, lost jobs, businesses failing, higher prices, or lost goods and services.

Nearly every part of our economic lives and an increasing part personal lives is impacted by regulation, but we never see the cause and effect.

A supermajority of voters know that the country has taken the wrong direction, but can't put a finger on why.

http://www.realclearpolitics.com/epolls/other/direction_of_country-902.html

This is the advantage that a faceless bureaucracy has over a dictator or king.


 

This is the advantage that a faceless bureaucracy has over a dictator or king.


# posted by Blogger Bart DePalma : 2:37 PM


So you're saying that you'd prefer a dictator? No surprise there...
 

A king or 'dictator' who could be overruled by regularly elected representatives anytime would of course be no king or dictator.

Your complaint boils down to "my fellow countrymen don't see things the way I do and as such they keep electing people who don't do what I think they should, therefore this is tyranny!"
 

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Thanks for taking this opportunity to discuss this, I appreciate with this and if you have some more information please share it with me.
Buy Term Papers online

 

Great lunch yesterday with (mostly) liberals, a few aggressives, and a great Cheesy Mac, but too much. No room for a fine glass of port.

I'm almost caught up with the symposium posts. James Gray Pope's post addresses issues of Black and White workers going back to the 17th century; a great read. And Paul Krugman's NYTimes column "Plutocrats and Prejudice" updates in the context of the current presidential campaign. Add to this Elizabeth Warren's NYTimes Op-Ed "One Way to Rebuild Our Institutions" regarding addressing economic inequality.

Further to promote the contest:

"SCRATCH A LIBERTARIAN AND WHAT DO YOU GET?"

Here's Sample Answer #3: "I hope the Affordable Care Act [don't call it Obamacare if it benefits you] covers this."

SPAM I AM! has competition. Speaking of SPAM I AM!, it seems he would replace the Administrative State with the State of Anarchy.


 

Shag: "it seems he would replace the Administrative State with the State of Anarchy."

Do you realize that you are delivering the fascist critique of liberal democracy?

This is the cherry on top of the professors' recent discussions on how to reinterpret (aka rewrite) the Constitution to better enable government theft.

These are all people who, if they ever obtained a license to practice law or served as a judge, pledged to support and defend the Constitution and the law.
 

Does SPAM I AM!'s:

"This is the cherry on top of ...."

suggest his qualifications as a soda jerk? [BB may only partially agree.]

And SPAM I AM!'s "J'accuse":

'These are all people who, if they ever obtained a license to practice law or served as a judge, pledged to support and defend the Constitution and the law."

ignores his call for armed revolution as an alternative to address political dysfunction. SPAM I AM! is licensed to practice law (I assume) in his Mile High State (of mind) and (if so) himself so pledged. Armed revolution indeed. And SPAM I AM! trolls this Blog in support of the Cruz Canadacy who in his late teens declared his goal of world domination.

 

More on Brandeis: http://www.brandeis.edu/streaming/
 

Shag:

The progressive political economy's constant and comprehensive violations of the Constitution's limitations on government power and guarantees of individual liberty are not mere "political dysfunction." Lesser violations of the British constitution by the Crown two and a half centuries ago were the basis laid out in the Declaration of Independence for our original armed revolution.

As to my personal duties, I swore an oath first as Army officer and then as an attorney to defend and support the Constitution. I take that oath very seriously, if my progressive colleagues in the legal profession do not.

As to my personal remedy preference, I have suggested amending the Constitution to reverse the progressive state, return limits on government power and restore individual liberty. Do not misrepresent my position again.
 

Do not misrepresent my position again.
# posted by Blogger Bart DePalma : 12:44 PM


Or what?

In any case, he's not misrepresenting you at all.
 

I have suggested amending the Constitution to reverse the progressive state, return limits on government power and restore individual liberty.
# posted by Blogger Bart DePalma : 12:44 PM


If the current Constitution did not limit government power in the manner that you think it should, why do you think your "constitution" would do any better? You're an imbecile. I hardly think it likely that you could accomplish what the Almighty Founders failed to do.
 

How soon SPAM I AM! has forgotten his CHICKEN LITTLE "THE SKY IS FALLING! THE SKY IS FALLING!" hyperbolic comments at this Blog on threads addressing political dysfunction and his suggested armed revolution as an alternative response. While SPAM I AM! has at some threads at this Blog in connection with a commercial venture of his proposed various amendments to the Constitution, I don't recall that his suggested armed revolution response as such an alternative was framed as an Amendment to the Constitution. In fact, back then I cautioned him on his alternative as he had taken an oath regarding the Constitution as an official in the news was then facing issues of constitutional oath violation. SPAM I AM! did not respond to that voluntary advice of caution. His "J'accuse" of others was made by SPAM I AM! in a rather hyperbolic statement of professors, presumably professors participating in the symposium at this Blog, a "J'accuse" somewhat in the nature of a group libel. Those professors do not need me to defend them. But I merely pointed to what SPAM I AM! said at this Blog in the past. SPAM I AM! responds with:

"I take that oath very seriously, if my progressive colleagues in the legal profession do not."

that somewhat extends his earlier "J'accuse" beyond the professors to a larger group in the legal profession. Consider this in the context of his opening paragraph of his latest comment:

"The progressive political economy's constant and comprehensive violations of the Constitution's limitations on government power and guarantees of individual liberty are not mere 'political dysfunction.' Lesser violations of the British constitution by the Crown two and a half centuries ago were the basis laid out in the Declaration of Independence for our original armed revolution."

Is there a no so subtle threat in the second sentence of armed revolution as a response to progressives?






 

BB: If the current Constitution did not limit government power in the manner that you think it should, why do you think your "constitution" would do any better?

Excellent question. I was actually expecting this from Brett.

Progressives exploit ambiguities in the Constitution and statute to rewrite the law through decree and interpretation.

My proposed amendments expressly forbid most of the progressive political economy, define and limit the power of interpretation, and provide more checks on the executive and especially the judiciary.

A progressive government would have to openly rewrite unambiguous law to bypass this reformed constitution. In which case, all other remedies have been exhausted and only armed revolution against an outlaw regime remains.

I pray the legal community is not that corrupt and dishonest.
 

I pray the legal community is not that corrupt and dishonest.
# posted by Blogger Bart DePalma : 3:14 PM


You're already accusing everyone who isn't you of being that corrupt and dishonest.

In any case, there is a reason that the Founders used ambiguous language. It was the only way they could get enough people to accept the document that they had produced. A document with no ambiguity, and lots of really shitty ideas (in your case), has absolutely no chance of being accepted. Claiming the you can do something like that is just blatant trolling.
 

The Administrative State includes the National Institutes of Health, the Center for Disease Control and Prevention. They are on the case invovling the spread of Zica in South America and northward into America. How reassuring it was to watch and listen to Dr. Anthony Fauci, the head of the National Institute of Allergy and infectious disease inform Americans of this disease and the steps being taken by these American Agencies in conjunction with similar authorities in Brazil and other affected nations. These Agencies step in quickly to address serious health issues pursuant to authority granted by legislation enacted by Congress and the Executive. Just a few years ago it was the ebola crises in Africa with potential spread to America. Add to this the FDA, also part of America's Administrative State. These Agencies report to Congress. But are Congressmen qualified to do the work these Agencies perform? These Agencies came about because of the work of progressives. What would libertarians/conservatives do with these Agencies if they were in power?

There are additional Agencies that are part of the Administrative State, most of which function fairly well, although not necessarily perfectly. These Agencies deal with matters that cross state and national borders, primarily for the benefit and protection of Americans. The Administrative State can be improved, made more efficient. That should be the task at hand in a more complicated world as the populations of America and the world continue to grow. In 1787 the population in America was about 4 million. Today the population is approaching 350 million. The elected branches could not handle their duties without the Administrative State.
 

Shag:

No one is outlawing the executive branch performing executive acts like disease or border control. Under the separation of powers, NIH, CDC and the rest of the bureaucracy would not have any legislative or judicial powers.

Congress is eminently qualified to legislate. That is their sole function and what we elect them to do.
 

"no ambiguity"

Whatever that means. See, e.g., Mr. W v. BP debating what word means.
 

"no ambiguity"

Whatever that means. See, e.g., Mr. W v. BP debating what word means.
# posted by Blogger Joe : 4:36 PM


Yes, expecting Blankshot to use the commonly held definitions of words is always problematic.
 

And Congress did legislate by enacting bills that became law constituting the Administrative State. The powers of such Agencies are spelled out in such legislation, augmented by the Administrative Procedures Act, developing regulations including certain enforcement authority that may have quasi judicial duties.

Is SPAM I AM! now suggesting the Administrative State is fine? What aspects of the Administrative State would he have a Republican Congress attempt to undo? Maybe SPAM I AM! could work this into a new work of friction: "Back to The Gilded Age, America's Best days!"
 

I just finished reading Cynthia Estlund's symposium post so I am up to date. I checked the list of participants and there are more posts to come, and I look forward to them. The term "neolibertarian" is used several times in Estlund's post. Perhaps so called "libertarians" carry a "free-rider" gene.
 

FYI for Shag et. al.:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2488724

Prof. Kagan also wrote on this issue (long article):

http://harvardlawreview.org/wp-content/uploads/pdfs/vol114_kagan.pdf

Also an interesting look at the history of bureaucracy:

http://bostonreview.net/books-ideas/mike-konczal-government-bureaucracy
 

Joe, good links. Thanks. I had read Vermeule's review of Phillip Hamburger's book much earlier. That explains my earlier comment on the problems with Hamburger Helper. Also, Vermeule had earlier extensive essays on the Administrative State. Justice Kagan's essay is indeed quite lengthy but I may take a crack at it at some point. I downloaded the Boston Review article to read later today.

What would the health and safety of America be like without the Administrative State? Of course we have the non-regulated supplements industry (thanks to sen. Hatch) that perhaps libertarians rely upon as a counter to Obamacare.
 

Joe:

Thanks for the links.

My research has included a number of these books. They fall into two categories:

(1) Very useful histories which offer exceptions proving the rule they are attempting to disprove - the progressive "administrative state" (a regulatory bureaucracy with legislative and judicial powers) was an import of German "state socialism."

(2) Arguments that progressive judicial rewrites of the Constitution to accommodate the regulatory bureaucracy somehow prove that the regulatory bureaucracy was part of our constitutional scheme rather than a direct assault upon it. Pure spin. This would have been a surprise to the fathers of progressivism like Woodrow Wilson who argued for years that the Constitution was the largest impediment to enacting progressive policies.
 

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Shag:

The main reason I purchased Is Administrative Law Unlawful is because of Hamburger's outstanding research of Roman, English and German law to trace the origins of the dictatorial powers of the regulatory bureaucracy. Vermeule admits that he has no expertise in the history of the Roman, English and German law which makes up the vast majority of Hamburger's treatise. Rather than address this research, Vermeule summarily dismisses it over the first couple pages of his essay.

Vermeule seems to be puzzled about Hamburger's use of various terms. Given that Hamburger spends the beginning of his book defining his terms, often in excruciating legal detail, I have to wonder if Vermeule has even read the book or is willfully misrepresenting it. For example, Hamburger quite clearly uses the term "unlawful" to refer to the creation of law outside the legislature when Anglo American constitutions have granted that power solely to Parliament and Congress. This is not something the reader has to deduce. It is the central thesis of the book and the subject of the title.

In response to Hamburger's propositions, Vermeule offers the hoary argument used by progressive courts to justify the regulatory bureaucracy over the past century - Congress is not delegating real legislative power to the regulatory bureaucracy, just the quasi-legislative power to fill in the blanks left by Congress's enabling statute. Anyone who is at all familiar with the imposition of Obamacare knows this is patent nonsense. From the delegations in several dozen pages of the Obamacare enabling statute, the regulatory bureaucracy has produced several thousand pages of regulation reworking the entire health insurance industry, often rewriting, reinterpreting or waiving express provisions of the enabling statute on the way.

Vermeule's criticism of Hamburger's suggested solution has a great deal of validity, though. We cannot expect a progressive judiciary to voluntarily roll back its rewrites of the Constitution legalizing the regulatory state. Indeed, Vermeule cannot even conceive of a political economy without a regulatory bureaucracy and progressive judges likely share this same point of view.

Reform requires a major revision of the Constitution to reverse a system the Founders never conceived of.
 

SPAM I AM! perhaps abides by the adage "When in Rome, do as the Romans do." But we are not in Rome. While history has value, times changd there over the centuries. SPAM I AM! seems to apply this adage to The Gilded Age of the late 19th century as America's best days. But it's been over a century since those Robber Baron days and times changed. Change will continue. How much freedom was there in those Roman days? How much freedom was there in The Gilded Age with the financial and political power of the Robber Barons. SPAM I AM! repeats his crapola of thousands of pages of regulations. SPAM I AM!'s history is outdated crapola. There is much the Founders never conceived of. Let me count the ways: a national bank? Freedom for slaves? Citizenship and rights for former slaves? (Perhaps others can add to the list of what the Founders never conceived of.

SPAM I AM! seems so enraged by Vermeule's review of Hamburger's Helplessness that perhaps he should contact SSRN for publication of his views on Vermeule's review.

SPAM I AM1's anguish is quite apparent from his four (4) consecutive Comment Deleted. I thought there was a 3-strike rule. In any event, SPAM I AM! has once again struck out.
 

Shag:

There is very little that is new with the human condition. What Hamburger details over 600+ pages is that the modern regularly bureaucracy is exercising many of the same exact powers as the Roman dictators and emperors, then the English Kings who followed. Those who consider history to be discarded as "outdated" are doomed to repeat it.

The wealthy and large businesses exercise FAR more power over the citizenry today through the progressive political economy than they ever could during the Industrial Revolution.

Indeed, the very idea of "robber barons" was largely progressive propaganda. These men became wealthy by offering new goods and services to consumers at sometimes dramatically reduced prices. The main proponents for the anti-trust laws of the day were their less innovative and more expensive competitors.
 

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I think the last link might be the most important since it provides a down to earth snapshot of administrative law in a historical context for a general reader akin to Jill Lepore's writings, to cite someone who took part in a review of Prof. Levinson's book. It would be interesting to know what Mark Field thought of that book given his own interests.
 

Joe, I just finished reading the last link, which is a short 6 pages in printer friendly download, and I second your comment. With SPAM I AM! there always seems to be a missing link with his neanderthal histrionics. The article focuses on the bureaucracy, administrative state going back to the beginnings post-1787 Constitution. The article even has an interesting take on the role of the post office and privacy.

Why back in those Roman days that Hamburger relies upon, there was yet to be marinara or other tomato based gravies or polenta. But those Romans provided water systems that Flint, MI could have used instead of that provided on the Snyde by a libertarian gov.

Mr. W might read the article to replenish his never empty quiver.

By the Bybee [expletives deleted], I just learned of GOP "Small hands" Trump jokes. Back in the 2008 campaign I used to refer to John McCain as having short arms and his wife having deep pockets. Now how can I best vary this to give a bump to the Cruz Canadacy?
 

Haven't read it (the book or the review). Sorry.
 

"Excellent question. I was actually expecting this from Brett."

I've been under the weather, viral bronchitis.

That's why my own proposals lean heavily on changing how the judiciary is selected; As long as federal office holders select the judges who decide if what they do is constitutional, any constitutional limitations on their power can't stand for long.
 

SPAM I AM!'s:

"Indeed, the very idea of 'robber barons' 'was largely progressive propaganda. These men became wealthy by offering new goods and services to consumers at sometimes dramatically reduced prices. The main proponents for the anti-trust laws of the day were their less innovative and more expensive competitors."

is obvious KOCH-sucking up.

Ted Cruz told an Iowa audience a "How cold was it?" joke: "It was so cold, I saw a Democrat with his hands in his own pockets."

But that vaudeville chestnut doesn't work with Trump's small hands. Maybe another chestnut "Who's got pockets?"

Brett's being in bed with bronchitis recalls another old chestnut that I won't repeat. But I trust Brett has Obamacare to provide coverage despite pre-existing conditions, another blessing of the Administrative State.


 

Based on his appearances this morning on Sunday political talk shows, the Cruz Canadacy (aka Snidely Whiplash) is, ironically, "going south."
 

The Konzcal article joe linked is, as Shaq notes, excellent and I think particularly, and also predictably devastating to Bart's mythology and hyperbole. I say predictably because one need not have access to the admittedly impressive historical research the article notes to know that bureaucracy has always been with us, but one just has to have some common sense and basic knowledge of history. Of course managing land claims or running the war department or the post office or the Freedman's Bureau or Civil War pension claims entailed a vigorous bureaucracy that had to have some discretion in executing Congress' directives.

Bart's hyperbole about tyranny and dictators is the highest nonsense. People fear tyranny and dictators because they have no say in their own rule, but our regularly elected officials could cancel every agency decision this evening if they wanted to. The fact that they don't want to and that the voters have never fired for them not doing so is not tyranny unless 'tyranny' be whatever Bart doesn't like (which of course is a mindset that betrays his own tyrannical leanings).

Bart has always had trouble with the idea that in a diverse democracy people can disagree with him on what provisions mean and how they should be applied and the disagreement can be reasonable and based in something other than treachery. It's a black and white world for Bart, and one that is simply so. If you encase yourself in a bubble perhaps you can keep such a fantastically simplistic world view going. But what's incredible to me is that we've seen time and time again here where Bart's worldview leads to a bias which then leads to him being spectacularly and demonstrably wrong about things. These poll numbers are great for McCain or his brazenly confident predictions of a Romney Presidency come to mind, but also consider how flatly he was shown to be wrong about the 'natural born citizen' issue. He himself concedes his first argument was flatly wrong (his second argument that the 9th Amendment contains a rule equalizing language in the rest of the Constitution is, if anything equally embarassing and enough to make even a caricatured Living Constitutionalist progressive blush), an argument he put forward with supreme confidence. Was his now admittedly wrong reading the stuff of treason? Of course not. People can read things in ways that others can disagree with, including one's own future self!, in a reasonable disagreement without it being such a hyperbolic struggle.

It's unfashionable, and rightly so since it contains the very hyperbole I condemn in Bart, to invoke Nazis in arguments. But for the longest time I've been struck by how similar Bart's rhetorical approach is to the Nazis. They loved to put things in overly hyperbolic, exaggeratedly stark and provocative ways. Those that disagree are oath breaking traitors, their opponents are always involved in the worst and grossest of evils, foundationally ruining the country. And that's Bart to a 'T.' His writings seem to actually aim for propaganda rather than discussion.
 

Of course I say 'first' and 'second' arguments for convenience; if you re-read those threads you'll find Bart casting about with about half a dozen possible 'saving' theories for his Canadian candidate. Illustrative of the very thing he says he decries in 'progressives,' Constitutionally rationalizing a short term partisan goal, casting about until you hopefully find some interpretive trick that 'does the trick' for what you wanted to do in the first place.
 

Mr. W: he Konzcal article joe linked is, as Shaq notes, excellent and I think particularly, and also predictably devastating to Bart's mythology and hyperbole. I say predictably because one need not have access to the admittedly impressive historical research the article notes to know that bureaucracy has always been with us, but one just has to have some common sense and basic knowledge of history.

We are not discussing the generic bureaucracy necessary to execute executive actions in any government larger than a tribe. We are discussing a regulatory bureaucracy with legislative, judicial and dispensation powers.

We are not discussing executive discretion attempting to execute the laws of Congress which sometimes exceeded executive power. We are discussing Congress delegating legislative and judicial power to a regulatory bureaucracy by design.

Congress first established the federal regulatory bureaucracy by creating the ICC through by the Interstate Commerce Act of 1887.
 

SPAM I AM! in responding to Mr. w informs on what "We are not discussing ... " [twice] in his usual HUMPTY-DUMPTY fashion, then going on to tell us what we are discussing. SPAM I AM! is not the judge and jury of the discussion. SPAM I AM! displays his ignorance of history of the Administrative State in America, which developed over time, incrementally, as the need (i.e., changes, like steam engines blowing up frequently, killing and maiming many) was recognized by Congress.
 

We are not discussing
# posted by Blogger Bart DePalma : 3:56 PM


We are discussing. You are spewing bullshit.

 

Shag:

Frankly, I am beyond tired of the dissembling, spin and out right lying about the nature of progressivism.

The fathers of progressivism were extremely clear in their writings and speeches that they wanted to adopt the German authoritarian regulatory bureaucracy to direct the economy and that the Constitution's separation and limitation of powers stood in their way.

When confronted with that black and white history, the great grand children of progressivism offer demonstrably false arguments like executive discretion or overreach in nineteenth century land claims or the Freedman's bureau demonstrates that the regulatory bureaucracy is American as apple pie or the fact that progressive courts rewriting the Constitution to accommodate the regulatory bureaucracy means that this system of absolute power was always constitutional.

I have provided both you and Mr. W with multiple primary sources to educate yourselves. So long as you decline to do so, I will continue to correct you.

Now you can respond with your usual name calling.
 

So long as you decline to do so, I will continue to correct you.

# posted by Blogger Bart DePalma : 9:53 P


LOL You get destroyed in here day after day. The fact that you keep coming back for beating after beating is why I can only assume that you are an imbecile.

These poll numbers are GREAT news for John McCain!!

Have fun pimping for Trump, you ignorant piece of shit.
 

This morning my breakfast reading was skimming through the current issue of Consumer Reports. What caught my (good) eye was a short article titled "Peeling Back the 'Natural' Label." This is a follow up to an earlier CR article and survey and the FDA's recent thinking about defining "natural" with respect to matters within it Administrative State role of protecting the health and safety of Americans. I had earlier at this or another thread at this Blog commented on the BREAKING NEWS of the FDA's thinking to contrast with the Article II presidential qualification of "natural born Citizen." The FDA came about early in the 20th century whereas the Article II provision(s) came about in 1787 (and perhaps modified by the first sentence of Section 1 of the 14th A ratified in the late 1860s). We are confronted with the possibility of this qualification issue with the 2016 Cruz Canadacy. Since the newer FDA is taking a look at defining "natural," perhaps it is time for the Court to consider the meaning of "natural born Citizen."

SPAM I AM!'s response to recent comments on the Administrative State:

"I have provided both you and Mr. W with multiple primary sources to educate yourselves."

demonstrates his lack of knowledge of what constitutes "primary sources."

By the Bybee [expletives deleted], consider this role of the Court in connection with the Administrative State: Once upon a time, the Court would have to address all appeals. But in recognition of the tremendous growth of the nation since the 1787 Article III, finally in the first half of the 20th century the Cert procedure was established, to alleviate this massive burden upon the Court (somewhat similar to the massive burden on Congress due to its lack of time and expertise to implement laws enacted by it). So the Court can cherry-pick 75-90 cases a year to focus on, including politically some say, with much longer decisions, concurring opinions and dissents, after considering briefs not only of the parties but a YUGE number of Amici briefs from multiple interest groups. And sometimes the Court takes on a case involving the Administrative State. In effect it is Congress and the Court that benefit from the Administrative State, as neither has the time or the expertise to micro manage Agencies that constitute the Administrative State. Much has changed since the Founders, Framers and Ratifiers. The Legislative and Judicial branches have eased their burdens by fostering the Administrative State.

Perhaps libertarians would prefer bottled Flint, MI water. It could be arranged.
 

"or will it happen after, say, President Trump has a disastrous term"

let's not find out

The other side of Shag's comment as to appeals is that the Supreme Court at first only was given jurisdiction to take a limited number of state cases, e.g., to use Wikipedia phrasing of the Judiciary Act of 1789: "state courts holding invalid any statute or treaty of the United States; or holding valid any state law or practice that was challenged as being inconsistent with the federal constitution, treaties, or laws; or rejecting any claim made by a party under a provision of the federal constitution, treaties, or laws." Today, e.g., the Supreme Court can take cases when state courts hold their own laws as invalid under the federal Constitution.

The Supreme Court still does not take the full breadth of possible cases and the same applies to lower federal courts in certain cases. A law in the 1990s restricted federal habeas appeals. And, though the 7th Amendment takes things down to $20, there is a floor for diversity suits in federal courts. It's quite possible to have state courts decide a lot more with federal trial courts, e.g., only used for federal criminal trials and other limited matters. Not to give Brett any ideas.
 

"Congress delegating legislative and judicial power to a regulatory bureaucracy by design"

And they did this with things like the Land Act, are you seriously going to try to argue the General Land Office wasn't deciding matters in a judicial manner? Their decisions, like those of today's administrative agencies, were appealed to the district and then circuit courts. The same could be said of the handling of Civil War pension cases and some of the Freedman Bureau's activities. It's you that are being blind to the evidence of the past.

"this system of absolute power"

See, this is what I'm talking about. Given that you have to concede that our regularly elected officials could overturn any or all agency regulations this evening if they wanted your use of the word 'absolute power' displays either an incredible ignorance of the words in that term or an incorrigible desire to use the most provocative language available typical of pure, intended propaganda.
 

Shaq

Consider that when Bart sees an agency empowered by regularly elected officials who can at any time overturn the actions of the agency go through a detailed and transparent policy formulation to define the word 'natural' he cries dictatorship and tyranny, but when he runs into a roadblock to his currently desired partisan candidate he retreats into the murky and unknown depths of the 9th Amendment claiming to find there a heretofore unnoticed, unstated provision of the Constitution, incongruent with many other explicitly stated provisions of the same document, to argue that his candidate is eligible. Which one of those sounds like the greater threat to democracy? Wow, right?
 

As I had hoped, Sarah Palin did for Trump what she did for John McCain. Yes, Trump was sandwiched in Iowa by two (2) Cubans, creating a new Cuban sandwish: "THE LOSER!" Lots of ham, hubris, humiliation and slather on the mayo. Press hard on Cuban roll. Optional: White bread.

Ted Cruz's Cuban father, a supporter of the rebel Castro, fled Batista's Cuba for TX and Marco Rubio's parents also fled Batista's Cuba for FL (although Marco as an astute politician had suggested they fled Castro's Cuba). Cruz's father found God to pave the way for the Cruz Canadacy in evangelical Iowa. Huckabee, Santorum, now Cruz.
 

Mr. W:

The executive exceeding its powers is fundamentally different from Congress granting the regulatiry bureaucracy absolute power and the judiciary defering to this delegation and the decrees of the bureaucracy.

Absolute power means consolidating legislative, executive and judicial power under the executive. The regulatory bureaucracy exercises absolute power.
 

Mr. W:

The legislsture theoretically had the power to reverse delegations of absolute power in imperial Rome, Nazi Germany and Soviet Russia, but that did not make these systems any less dictatorial.
 

The legislsture theoretically had the power to reverse delegations of absolute power in imperial Rome, Nazi Germany and Soviet Russia, but that did not make these systems any less dictatorial.
# posted by Blogger Bart DePalma : 11:07 AM


Dumbfuck, that process is not "theoretical" in the United States.
 

Perhaps SPAM I AM! in his imperial Rome, Nazi Germany, Soviet Russia hyperbolic comparatives to America's Administrative State forgot his raves for Hamburger's Roman history in his treat-tease on the Administrative State, as opposed to the actual history at the founding and as america grew from 4 million to approaching 350 million. The American experiment with the Founding differed significantly from imperial Rome, etc.

The NY Daily News on Trump: "DEAD CLOWN WALKING" shows true NY values (contra the Cruz Canadacy). Perhaps in NH Trump will respond to Iowa by capturing the white "revengelicals" vote.
 

Folks:

The regulatory bureaucracy does not exist because voters demand it. As I noted above, a majority of voters think we are over-regulated.

When the regulatory bureaucracy operates largely out of the view of the voters and Congress, elected representatives like handing off tough issues to the bureaucracy, and elected progressive minorities can use the checks, balances and filibuster to stop even the mildest regulatory reform (which the Democrats have done since 2011 by blocking legislation requiring economically significant regulations to be submitted to Congress and Obama has done with veto threats of any reversal of his regulatory tidal wave), the likelihood of Congress reversing the regulatory bureaucracy or even a single regulation is little more than theoretical and not much more than in imperial Rome, Nazi Germany or Soviet Russia.

 

Shag:

If imitation is the purest form of flattery, Team Cruz is sending love poems to Team Obama.

The Cruz campaign is using the same high-tech micro voter targeting and mass volunteer operation that the Obama campaign used to win its elections.

The Democrat press is just beginning to get a clue.

http://www.bloomberg.com/politics/articles/2016-02-02/how-ted-cruz-engineered-his-iowa-triumph
 

As I noted above, a majority of voters think we are over-regulated.

# posted by Blogger Bart DePalma : 12:31 PM


These poll numbers are GREAT news for John McCain!!

Dumbfuck, if they feel we are over-regulated then they should vote for people who will remove the regulations. That is the system that we have. It is NOT tyranny. Stop your fucking whining.
 

For those who think that referring to the regulatory bureaucracy as a dictatorship or noting that it wields absolute power is somehow over-the-top hyperbole, here is an educational cartoon:

https://www.facebook.com/blaine.cooper23/videos/552415594854617/
 

here is an educational cartoon:

# posted by Blogger Bart DePalma : 1:00 PM


Blankshot, I'm sure it surprises no one that your education consists of cartoons. In fact, Wile E Coyote appears to be your role model.
 

Folks:

SPAM I AM! apparently has problems with representative form of government, particularly at the federal level.

SPAM I AM! apparently has problems with the role of the Supreme Court.

These are at the core of SPAM I AM!'s problems with the Administrative State, which developed early on under the system of government provided by the Constitution.

What is SPAM I AM!'s possible alternative to his concept of political dysfunction? Armed revolution.

Sheer hyperbolic Goebbels-dy-duke.
 

Regulations are overturned all the time in the United States. Every time a new President is elected they waste little time in changing the regulations of the previous administration. Of course Congress doesn't overrule the regulations of a sitting President much, that would require overriding their veto. But that's the checks and balances our Founders designed. Additionally, it's very common for our courts to overturn agency regulations. That's why it's absurd to talk about dictatorship and tyranny and comparisons to Nazi Germany.
 

Mr. W: "Regulations are overturned all the time in the United States. Every time a new President is elected they waste little time in changing the regulations of the previous administration. Of course Congress doesn't overrule the regulations of a sitting President much, that would require overriding their veto."

If by change, you mean expand both quantity and reach, then you would be correct.

You are further proving my points concerning absolute executive power aka dictatorship.

But that's the checks and balances our Founders designed.

You mean apart from Article I's grant of all legislative power to Congress and Article III's grant of all judicial power to the Courts?
 

You are further proving my points concerning absolute executive power aka dictatorship.

# posted by Blogger Bart DePalma : 3:28 PM


He is doing nothing of the sort, you imbecile. In fact, he has repeatedly refuted the crazy bullshit that you keep posting.
 

"If by change, you mean expand both quantity and reach, then you would be correct."

So all the deregulation efforts of, say, the Reagan Administration expanded both the quantity and reach of federal regulation? Just the other day you were giving Reagan credit for some of those efforts, does that mean you were applauding the expansion of both the quantity and reach of federal regulation?

"You mean apart from Article I's grant of all legislative power to Congress and Article III's grant of all judicial power to the Courts?"

Since Congress and the Courts can overturn the bureaucracy I see no violation of such grants.
 

O Canada! Our home and native land!
True patriot love in all thy sons command.
With glowing hearts we see thee rise,
The True North strong and free!
From far and wide, O Canada,
We stand on guard for thee.
God keep our land, glorious and free!
O Canada, we stand on guard for thee;
O Canada, we stand on guard for thee.

... just kidding. He's an American natural born citizen. Not my cup of tea, but let's focus on what's important. Anyway, apparently Rubio (I'm #3!) will win. As seen by the President on the HBO show "Brink."

 

"TRUSSTED!" - the response to the Cruz Canadacy. What's important is mooting the issue.
 

Most of the students blindly choosing the online writing services to buy essays online. They are not aware of best essay writing service. The Essay writing service reviews helping such students.
 

"DISGUSTED!" - another response to the Cruz Canadacy.
 

Mooting is okay but some took it too seriously.
 

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