- The importance of understanding causal pathways (Affirmative Action) Michelangelo Landgrave, NOL
- Legal silences Ethan Blevins, NOL
- Party politics and foreign policy in Brazil’s early history Bruno Gonçalves Rosi, NOL
- Immigration and states’ rights Rick Weber, NOL
In law, there are different silences.
When lawmakers set out to establish legal standards, they inevitably don’t address every contingency. There are spaces for flexibility, for breadth of application, for unforeseen developments, for the careful discretion required for sound law enforcement. There are always gaps.
Yet the gaps raise serious questions. Foremost among these is the problem of delegated lawmaking power. The United States Constitution vests the legislative power in a bicameral congress. Exclusively. Yet gaps, though inevitable and sometimes desirable, can result in leaks of this exclusive authority to non-legislative actors–police, prosecutors, juries, regulators, etc.
Take a classic example, when the National Industrial Recovery Act of 1933 gave the President authority to make”codes of fair competition” for slaughterhouses and other industries. That was more than a gap–that was a gulf. It’s one of only two laws that the U.S. Supreme Court has ever invalidated as an unconstitutional delegation of lawmaking authority to a non-legislative actor.
But at what point does a crack become a crevasse? During Justice Neil Gorsuch’s confirmation hearing, Senator Al Franken mocked the notion that any line should be drawn at all: “When Congress passes laws that require agencies to implement them, … those agencies turn to experts to develop those policies …. And I think that is a good thing. We want experts doing the work. What we Senators do not want to be doing is deciding … what the distance in the slats are in a baby’s crib.”
As with most statements made by politicians in confirmation hearings (or most anywhere else), Franken tilts at a straw man. But his example helps to highlight different types of legislative silence. On one hand, Franken is of course correct–a legislature needn’t and probably shouldn’t become entangled in minutiae.
But Franken fails to see that there are different kinds of silence. On the one hand, permissible gaps to be filled in by agencies and law enforcers involve conditional lawmaking where a certain legal requirement hinges on delegated fact-finding responsibilities. I’m a bit skeptical that we want Congress legislating safety standards for baby cribs, but let’s run with Franken’s example anyway. Congress might pass a law that requires crib manufacturers to ensure that crib slats do not pose a serious safety risk to occupants. It can leave an agency to determine the exact distance between crib slats requisite for child safety because the agency is making a factual determination (again, I’m not sure we need or want regulators doing this but bear with me). We’ll call this crib-slat silence.
Crib-slat silence is not an unlawful delegation of lawmaking authority. It simply commits to federal agencies the fact-finding responsibilities already inherent in the executive branch’s duty to “take care that the laws be faithfully executed.”
Crib-slat silence is different in kind from an unlawful delegation of lawmaking power. An agency is doing something quite different when it sets a safety standard for crib slats than when it establishes “codes of fair competition.” It isn’t simply a difference in the size of the silence; it’s a silence of a different kind altogether. Take, for instance, how President Roosevelt put together “codes of fair competition” under the broad power given him by the National Industrial Recovery Act. He let New York poultry butchers do it for him. Anyone with a basic understanding of public choice theory can appreciate how a business allowed to write the law that governs its competitors might go about this task.
To no one’s surprise, the codes of fair competition made life harder for minority business owners, in particular kosher butchers. Specifically, the code prohibited butchers from letting customers select the specific chicken they wanted–a part of at least some kosher practices in New York at the that time. The Schechters brothers, who ran a kosher butcher shop, were criminally indicted for letting a customer select an “unfit” chicken, among other things. The Supreme Court held this to be an unlawful delegation of lawmaking authority because the National Industrial Recovery Act didn’t just make application of a particular law contingent on executive fact-finding–it delegated the policy choices inherent in the legislative power. This type of silence we’ll call Schechter silence.
Schechter silence and crib-slat silence aren’t just different in terms of the relative size of the gap. Take, for instance, an example of a smaller instance of Schechter silence, where the silence is not quite so huge as “codes of fair competition,” but still has the essential quality of letting the agency make policy choices rather than find facts. The Environmental Protection Agency and the Army Corps of Engineers share regulatory responsibility over the Clean Water Act. The Army Corps has statutory authority to issue permits for polluting protected water bodies, and the EPA has statutory authority to veto those permits, even after they’ve been issued, if the EPA decides that the permitted activity will have an “unacceptable adverse effect” on the environment. The statute hasn’t delegated the authority to create a regulatory code from whole cloth, but it has delegated authority to make normative judgment calls, not just executive fact-finding. Determining whether a certain adverse effect is “unacceptable” is unavoidably subjective and calls for much more than establishing the existence of certain objective facts. “Unacceptable” involves the weighing of various competing interests–economic, environmental, etc.–and making a judgment, not based on facts, but on agency policy preferences. Note also, that the EPA can decline to veto the permit even if it does find an adverse effect to be unacceptable. Hence, while the EPA’s veto authority isn’t especially sweeping in its effect, it still is an exercise of legislative power.
On the other hand, crib-slat silence can authorize executive acts of great national significance, like tariff rates. In 1928, an importer challenged the president’s statutory authority to set tariffs as a delegation of legislative power. But the statute at issue required the president to set such rates based on a variety of factual determinations–not on what the president considered appropriate in his own judgment.
There’s yet a third silence. Rather than interstitial gaps in statutory language, this thrid silence is the vacuum where Congress has chosen not to speak at all. Sometimes, courts and agencies have mistaken this silence for crib-slat silence. That mistake can be a serious problem for the structure of sound government.
One example is the Department of Labor’s regulation of “tip pooling.” The Fair Labor Standards Act establishes federal minimum wage law. The law allows businesses to set their wages below the default minimum if the businesses use a “tip credit”–the deficit between the wage and the legal minimum is filled in with the employee’s tip money. If a business elects to use the tip credit, that business is prohibited from divvying up tip money among staff–you earn it, you keep it.
But the statute says nothing about prohibitions on tip-pooling for businesses that don’t take a tip credit. The Department of Labor didn’t like tip pooling, so it decided that the statute’s silence about tip pooling for non-tip-credit businesses was a delegation to the agency to do as it pleased. The Department of Labor promulgated a rule that extended the tip-pooling rule to all businesses, whether or not they took a tip credit. Incredibly, a federal court of appeals for the Ninth Circuit said this rule was just fine.
The silence extending outward from the edges of a statute are bookends, not blank pages. Hence, I’ll call this third silence bookend silence. The idea that an agency can simply promulgate rules to fill up this endless silence destroys our system of separated powers. After all, the clear implication of allowing the Department of Labor to fill in that silence is that the executive branch of government has a boundless and inherent law-making authority that can only be circumscribed if Congress expressly tells the executive branch “no.” This is essentially a reversal of the first two articles of the Constitution, vesting the Executive with lawmaking authority and Congress with what amounts to no more than a glorified veto. Yet this is precisely what the largest appellate court in the country allows.
There’s no doubt, of course, that the Executive does have some inherent authority to act without legislative imprimatur, in areas like foreign affairs. But those are expressly granted powers, or they’re necessarily implied. For instance, the duty to take care that the laws are faithfully executed necessarily implies the ability to hire staff, promulgate regulations for managing staff , law enforcement practices, etc. This is all quite different than filling in bookend silence, a free-floating power to extend statutory prohibitions beyond the express scope laid out by Congress, simply on the basis that Congress hadn’t said “here and no farther.”
In law as in life, silence can be a virtue. But federal agencies can turn it into a vice. That depends on the kind of silence we’re talking about. Conflation of crib-slat silence and Schechter silence or bookend silence has resulted in a flaccid judicial response to delegations of lawmaking authority. It would help if courts acknowledged distinctions between the types of silence statutes exhibit.
Some say that Donald Trump’s transactionalism in the realm of geopolitics has gotten out of hand. Tridivesh has actually been saying this for awhile now. Jacques is not pleased with the president’s decision to withdraw American troops from Syria. Of the other Notewriters, only Andre has spoken up for Trump’s withdrawal from Syria.
There are libertarians and leftists who have applauded Trump’s move, but for the most part people are dissatisfied with the way the president of the United States conducts foreign policy. There’s no logic. There’s no strategy. And the incentives don’t quite line up, either: is Trump out for the republic or himself?
This is unfair. Trump’s transactionalism comes with more press, but Obama and the guy before him were transactionalist presidents, too. Just think about Syria to begin with. Getting involved in the butchery there had no logic to it and actually went against the strategy of Obama’s “Pivot to Asia.” Still, Obama mired the republic in another brutal regional scuffle. GWB did the same thing in Iraq, too. Osama bin Laden was hiding out in Afghanistan, so Bush invaded Iraq, a country that had nothing to do with 9/11. Makes sense, right?
Maybe we’re looking at this all wrong. Maybe we should be looking at the incentives and trade-offs available to the executive branch of the American government instead of single individuals.
My contribution to reassessing American foreign policy is to look at the role that formal alliances play in chaining down the executive branch in the American system. Libertarians loathe both alliances and the executive branch, but what if one is useful for off-setting the other? Which one would you rather have? (Trade-offs are more realistic than utopias, my fellow libertarians.)
There are two general types of alliances in the world: formal and informal. Alliances have been with us since the dawn of time, too. Think of the alliances our Stone Age ancestors made, one individual at a time. Elected politicians make alliances and call them political parties. Dictators make alliances and call them bargains. You get the picture. The United States has traditionally made use of informal alliances, so Trump’s abandonment of the Kurds in Syria is really a continuation of American foreign policy and not an aberration as some hawks claim.
In fact, prior to World War II, the United States had signed just one official alliance with another polity: the Treaty of Alliance with France that lasted from 1778-80. So from the start of the Revolutionary War (which was really a secession from the British Empire rather than an actual revolution) in 1776 to America’s entrance into World War II in late 1941, the United States had joined only one alliance, and it was a short-lived alliance that would make or break the existence of the republic. (During World War I, the United States was an “affiliated partner” rather than an official ally.)
This doesn’t mean that the United States was isolationist, or non-interventionist, during this time frame. In fact, it highlights well the fact that the United States has a long history of entering into alliances of convenience, and a short history of building and then leading stable coalitions of military partners around the world. Alliances have shaped the destiny of the republic since its founding. And, more importantly, these alliances of convenience have their intellectual roots in George Washington’s foreign policy. Washington’s foreign policy even has its own name: the Washington Doctrine of Unstable Alliances. According to Washington and other elites of the founding era, the United States should freely enter into, and exit, alliances as necessary (Jefferson was a big fan of this Doctrine, too). This stands in stark contrast to the idea that the United States only soiled its virginal unilateralism once, when it was in dire peril and needed a helping hand from France to fend off an evil empire.
Washingtonian alliances throughout American history
Aside from fighting alongside the Oneida and Tuscarora during its secession from the British Empire, the United States forged alliances with Sweden, in 1801 to fight the Barbary states, and with the Choctaw, Cherokee, and some of the Creek during the ill-fated War of 1812. In fact, one of the reasons the United States got pummeled in the War of 1812 was the lack of Native allies relative to the British, who had secured alliances with at least 10 Native American polities.
The American push westward saw a plethora of shifting alliances with Native peoples, all of which tilted in eventual favor of the United States (and to the detriment of their allies).
The American foray into imperialism in the late 19th century saw alliances with several factions in Cuba and the Philippines that were more interested in extirpating Spain than thinking through an alliance with an expansion-minded United States.
In 1832 the United States entered into a Washingtonian alliance with the Dutch in order to crush some Barbary-esque states along the Sumatran coast. The alliance led to the eventual, brutal conquest of Aceh by the Dutch and a long-lasting mutual friendship between the Americans and the Dutch.
From 1886-94 the United States and its ally in the South Pacific, the Mata’afa clan of Samoa, fought Germany and its Samoan allies for control over the Samoan islands. The Boxer Rebellion in China saw the United States ally with six European states (including Austria-Hungary) and Japan, and affiliate with three more European states and several Qing dynasty governors who refused to follow their emperor’s orders.
NATO’s continued importance
Clearly, the United States has followed its first president’s foreign policy doctrine for centuries. Washington warned that his doctrine was not to be an eternal guideline, though. Indeed, the most-cited case study of the Washington Doctrine of Unstable Alliances is not the American experience in the 19th century, but the Nazi-Soviet one of the 20th, when the Germans turned on the Soviets as soon as it became expedient to do so.
The establishment of NATO has forced the United States to become reciprocal in its alliances with other countries. The republic can no longer take, take, and take some more without giving something in return. This situation of mutually beneficial exchange has tempered not only the United States but everybody else in the world, too (especially in the industrialized part of the world; the part with the deadliest weapons). Free riding will most likely continue to be a problem within NATO. The United States will continue to pay more than its share to keep the alliance afloat. And that’s perfectly okay considering most of the alternatives: imperialism (far more expensive than free riding allies), ethnic cleansing, or oscillating blocs of states looking out for their own interests in a power vacuum, like the situation Europe found itself in during the bloody 20th century.
The forgotten alternative
Unstable alliances lead to an unstable world. The rise of NATO has been a boon to the world, despite its costs. If libertarians want to be taken seriously in the realm of foreign affairs, they would do well to shake off the Rothbardian shackles of isolationism/non-interventionism and embrace Madisonian federalism with a Christensenian twist. The 13 North American colonies that broke away from the British Empire were sovereign states when they banded together. The 29 members of NATO are sovereign states, too, and there’s no reason to believe that Madison’s federal blueprint can’t band them together as well.
If libertarians are comfortable embracing non-interventionism as a foreign policy doctrine, even though it has never been tried and even though it’s based on a shoddy interpretation of history, there’s no reason why they can’t instead embrace federation as their go-to alternative. Federation at least has history on its side, and it’s also got the obscure appeal that libertarians so love to ooze at public gatherings. Will 2020 be the year that libertarians shift from non-interventionism to federation?
Jair Bolsonaro has been in government for almost six months now. I believe I can proudly say that I saw this coming before many people: Bolsonaro would be the next president in Brazil. However, he might not be the best person for the job.
In my assessment, Bolsonaro is not the usual politician. As John Mearsheimer brilliantly observed, politicians lie. A lot. It should be a given: dogs bark, cats climb on trees, and politicians lie. Bolsonaro, as far as I can tell, doesn’t. And that might be part of the problem: he always speaks his mind. Nothing is concealed, even when strategy might call for that.
In the past week, Bolsonaro sent an open letter to some of his followers (not written by him) manifesting how hard it is to govern Brazil. The letter sounds like a vent for the president’s frustration: “You Either Die A Hero, Or You Live Long Enough To See Yourself Become The Villain”. But what Bolsonaro means by all that is not clear. For all sorts of reasons, corruption is a living part of Brazilian politics. Actually, of politics in general, just a little more down there. So why the president sounds surprised by that?
Some people in the press speculated that Bolsonaro plans a coup. Call that it is impossible to govern with the current congress and just close it. To be sure, that is not unthinkable, and Brazil has historical precedents for that. But that doesn’t sound like something that Bolsonaro would do. Sounds more like that he is trying to bypass Congress and govern with direct popular support.
Brazilian congress is fabulously corrupt, and Bolsonaro still enjoys great popularity. Maybe he wants to use that to press Congress for the changes Brazil needs. In any case, it is a good opportunity to remember some lessons: power corrupts and absolute power corrupts absolutely. Or, in other words, if men were angels, we wouldn’t need government. And if we were governed by angels, we wouldn’t need checks and balances. But we are not governed by angels. Therefore, checks and balances are necessary. The downside is that this makes the government slow when important changes are necessary. The temptation is to close democratic institutions and just do things the old fashion way: through a dictatorship. I don’t think that is where Brazil is going right now. But it’s important to remember that we need way more than a president. We need people who really understand and appreciate freedom. An uneducated people on these matters will always grow impatient and vote for an easy solution.
- To love is no easy task (America is just fine) Rachel Vorona Cote, New Republic
- Chronic vomiting (medical marijuana) Christopher Andrews, OUPblog
- The Neanderthal renaissance Rebecca Wragg Sykes, Aeon
- A mild defense of Andrew Johnson (the American president) RealClearHistory
- Trump’s wall and the legal perils of “emergency powers” Ilya Somin, Volokh Conspiracy
- Can Trump spin a wall from nothing? Michael Kruse, Politico
- In defence of conservative Marxism Chris Dillow, Stumbling & Mumbling
- We must stand strong against the men who would be kings Charles Cooke, National Review
- Checks and Balances Jonathan Adler, Volokh Conspiracy
- Trump’s relationship with Fox News starts to show cracks Rebecca Morin, Politico
- Italy versus the EU (again) Alberto Mingardi, EconLog
- How technology and masturbation tamed the sexual revolution Ross Douthat, New York Times
- How to democratize the US Supreme Court Henry Farrell, Crooked Timber
- How to democratize the US Supreme Court Samuel Moyn, Boston Review
- How to democratize the American political system Corey Robin, Jacobin
- The Hébertists, or Exaggerators, went to the guillotine in March of 1794 Wikipedia
It turns out that SCOTUS appointments have had a long history of dividing American society. An excerpt:
9. Roger Taney (1836-64). Taney rose up the political ranks as Andrew Jackson’s right-hand man. Jackson tried to get him on the Supreme Court in 1835 but his nomination was rejected by anti-Jacksonian Whigs in the Senate. After the Whigs were swept away in the 1836 election campaign, Jackson renominated Taney, but this time for the position of Chief Justice, and he was confirmed 21-15 after a bitter debate in the Senate. The Taney court is responsible for the Dred Scott case that tore the fledgling republic apart, and for helping Jackson abolish the national bank. Taney and Lincoln clashed often, too, as Taney ruled that Lincoln’s suspension of habeas corpus was unconstitutional, but Taney never did go home during the Civil War and served out his term as Chief Justice until his death in 1864. He holds the second-longest tenure of any Chief Justice.
Please, read the rest, and try to remember: this divisiveness is a feature of the system, not a bug.
India of 1947 had battled decades of colonialism to embrace self-rule. Whatever divisions seeped through party ranks, coalesced – and how beautifully – to fight for the right the people to a democracy. Having a common enemy helped. Compounded by the ability of the political leaders of that time to weave magic through words, connecting the plights of the millions to the queen-ship of one propelled movements across the breadth of the Indian subcontinent. While much has been said of the academic prowess as well as the oratory skills of the Founders, it was their ability to connect across barriers of identity that ultimately pushed the wheel. How dearly they protected their freedom of speech, expression and press is perhaps telling of the importance they assigned to being connected with those they had chosen to represent. How is it then that a deeply flawed election system and disjointed lines of public communication yielded one of the biggest civil disobedience movements the world had ever seen?
In terms of representation and reach, India 2018 is better abled than India 1947. And yet, it fell upon the unelected shoulders of four men and one woman to correct a deeply violent, colonial and bigoted law. The right to sexual identity was granted by five cis heterosexual individuals; the ones in need of representation reduced to being mere petitioners. India celebrated breaking off one more shackle, the Judiciary reveled in being the harbinger of liberal values to the Indian legal system yet one more time and the Parliament, as always, stayed mum. It is not that either of the institutions have embraced staunch anti/pro liberal positions. The Indian judiciary has its share of misogynists much like the Parliament. Misogyny is not illegal. But what is illegal is the Parliament’s distance from her electorate. Even if one were to contend that a majority of India does not support homosexuality, the increasing momentum of the movement should have propelled an informed debate within and without the Parliament. Instead, the government chose to not object to the petitions filed in favor of decriminalizing homosexuality as if that is the extent of the responsibility they owe to the LGBTQ community of the country. The distance between a judicial decriminalization of homosexuality and one done through a legislative device is the distance between a populist democracy and a representative one. The counter-majoritarian difficulty seems almost trivial when democratic institutions lose their representative character.
The biggest reason behind the rising legitimacy of an essentially non-democratic institution as the Judiciary is not a power grab by the Supreme Court judges. Howsoever activist they might get, the requirement of giving a reasoned decision tempers their emotions. The Indian Parliament, on the other hand, has come to rely on this increasing politicization of the judiciary to avoid political battles that might require concessions from their mostly unreasoned manifestos. The result is a lack of deliberation that is disturbingly dismal for a democracy as huge as India. The requirements of representation have come to be restricted to a periodical holding of elections. Members of Parliament are neither Burkean agents nor Pateman’s representatives. They are a political class unto themselves working towards a steady demise of the largest democracy in the world.