Nightcap

  1. A conservatism that’s multiethnic, middle class, and populist Ross Douthat, NY Times
  2. Most legal commentary is dumbed down and misleading Ken White Popehat
  3. A social-democratic federation in a multiethnic state Branko Milanovic, globalinequality
  4. The radical leftist origins of the “self-help” movement Jennifer Wilson, the Nation

Amy Coney Barrett is the start of the rise of the Left

The Left has long been weak. It dominates elite circles, but not much else.

Amy Coney Barrett earned her law degree from Notre Dame. The other 8 justices earned their degrees from Harvard or Yale. President Trump’s ideological shake-up of the Supreme Court bodes well for diversity, which in turn bodes well for a resurgence of the American Left in the civic, intellectual, and moral life of the republic.

The stranglehold that the two schools had on Ivy legal thought has meant that the American Right would always be stronger ideologically as well as civically and morally.

It is perhaps ironic that Donald Trump, in trying to Make America Great Again, has done just that by opening up the avenues of power to diverse modes of thought. Donald Trump’s crusade for diversity has indeed opened up elite American circles to competition. This will only strengthen the Left, as it will now have to incorporate non-professional voices into its apparatuses of power, as the Right has long done with much success.

A strong Left that is not overly reliant on elite opinion bodes well for the republic.

Nightcap

  1. The socialist manifesto Robin Hanson, Overcoming Bias
  2. Why Amy Coney Barrett should step down Laura Field, Open Society
  3. There is no expressive duty to vote Chris Freiman, 200-Proof Liberals

Nightcap

  1. Pirates, liberty, and imperialism Regina Much, Commonweal
  2. Can hierarchies be rescued? Chang Che, Los Angeles Review of Books
  3. How to restrain judicial review Ryan Doerfler (interview), Vox
  4. Twilight of the union Colin Kidd, New Statesman

Nightcap

  1. The meaning of Amy Coney Barrett Ross Douthat, NY Times
  2. What does Ruth Bader Ginsburg mean for women? Amy Wax, CRB
  3. Talking about a constitutional restoration Titus Techera, L&L
  4. Give it away (Marcel Mauss) David Graeber, Free Words

Nightcap

  1. Schumpeterian enigmas David Glasner, Uneasy Money
  2. Is John Roberts the new Anthony Kennedy? Damon Root, Reason
  3. Economics of Federalism” (pdf) Inman & Rubenfield
  4. Gray mists & ancient stones Aleksandr Solzhenitsyn, New Criterion

Nightcap

  1. The Left is hardly enamored with John Roberts Lithwick & Stern, Slate
  2. Not all the facts fit the anti-colonialist narrative Remi Adekoya, UnHerd
  3. Facing up to Woodrow Wilson’s true legacy Adekeye Adebajo, TLS
  4. American racism and India’s caste system Sunil Khilnani, New Yorker

Legal silences

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.

Nightcap

  1. Texas sues California Josh Blackman, Volokh Conspiracy
  2. Explainable governance Robin Hanson, Overcoming Bias
  3. Possessed by the past Noah Millman, Modern Age
  4. The problem of consumerism Nick Nielsen, Grand Strategy Annex

Nightcap

  1. Slavery and Anglo-American capitalism Gavin Wright, The Long Run
  2. How the law creates both wealth and inequality Adam Tooze, NYRB
  3. On immigration, Democrats should listen to Gorsuch Ian Millhiser, Vox
  4. Separatists arrested for fraud in Indonesia Arya Dipa, Jakarta Post

Nightcap

  1. Butler Shaffer has died. Rest In Peace. David Gordon, Power & Market
  2. The last gasp of the left-liberals (the courts) Noah Feldman, Bloomberg
  3. A history of the British East India Company Zareer Masani, History Today
  4. On Germany, from the 30 Years’ War to the Nazis David Goldman, CRB

Nightcap

  1. A Leftist view of the upcoming SCOTUS religion cases Ian Millhiser, Vox
  2. Are Chinese students in favor of free speech? Hernández & Zhang, New York Times
  3. Paul Volcker: The man who vanquished gold Joseph Salerno, Mises Wire
  4. John Batchelor interviews Richard Epstein on impeachment Podcast

Nightcap

  1. Argentine Nazi finds are fakes Glüsing & Wiegrefe, Spiegel
  2. China’s looming class struggle Joel Kotkin, Quillette
  3. The real costs of the war in Afghanistan Adam Wunische, New Republic
  4. Progressive purity tests and Supreme Court wish lists Damon Root, Reason

Nightcap

  1. Assessing Sotomayor’s first ten years with SCOTUS Ilya Somin, Volokh Conspiracy
  2. A case of mistaken identity Peter Miller, Views of the Kamakura
  3. Spain’s democratic decline Raphael Garcia, Inkstick
  4. An homage to Charlemagne David Crane, Spectator

Nightcap

  1. Europe’s Ancien Régime returns Jäger and David Adler, London Review of Books
  2. Monetary imperialism in French West Africa Ndongo Samba Sylla, Africa is a Country
  3. In defense of George W Bush Feaver & Inboden, War on the Rocks
  4. Justice Ginsburg on Justices Gorsuch and Kavanaugh Jonathan Adler, Volokh Conspiracy