Even as progressives rediscover the separation of powers and other limitations on executive action these days, many conservatives as quickly forget them [Greg Weiner, Law and Liberty]
I was a guest on BBC4 radio’s World Tonight with presenter Ritula Shah and guest Andrew Rudalevige of Bowdoin College to discuss the rapid pace of President Trump’s executive orders.
Some on the left are still blasting judges as activist for standing up to Obama administration assertions of executive power in the regulatory sphere. That might prove shortsighted considering what’s on the agenda for the next four years, or so I argue in a piece in Sunday’s Providence Journal.
I take particular exception to a Bloomberg View column in which Noah Feldman, professor at Harvard Law, assails federal district judge Amos Mazzant III for enjoining the Department of Labor’s overtime rule for mid-level employees (earlier). In a gratuitous personal jab, Feldman raises the question of “whether Mazzant sees an opportunity for judicial advancement with this anti-regulatory judgment” in light of the election results, though he offers not a particle of evidence that the judge, an Obama appointee, is angling for higher appointment under the new administration.
The problems with the overtime rule were both substantive and procedural. As I mention in the piece, “more than 145 charitable nonprofits signed a letter begging the department to allow more than a 60-day public comment period. It refused.” That letter is here (via, see Aug. 5, 2015 entry). I also mention that a court recently struck down the Department of Labor’s very bad “persuader rule” that would have regulated management-side lawyers and consultants; more on that from Daniel Fisher, the ABA Journal, and earlier.
After pointing out that many of the rulings restraining the Obama administration have been written or joined by Democratic-appointed judges, I go on to say:
Judges rule all the time against the partisan side that appointed them.
And we’ll be glad of that when the Trump executive orders and regulations begin to hit, and Republican-appointed federal judges are asked to restrain a Republican White House, as they have often done in the past.
We should be celebrating an energetic judiciary that shows a watchful spirit against the encroachments of presidential power.
“With about one month to go before he leaves office, President Barack Obama gave some exit interview-type advice to his successor Donald Trump: Don’t rely too heavily on executive orders.” [UPI on NPR interview] We already knew from his own famous 2014 proclamation that Mr. Obama has a pen and a phone, and now it seems he’s got a piquant sense of humor as well.
On a more serious note: it is sometimes suggested that Obama’s use of executive power is unexceptionably normal since he has averaged fewer executive order issuances per year than other recent presidents. But that is a thoroughly meaningless statistic, since it lumps together, say, renamings of public buildings with the imposition by fiat of broad legislation Congress has refused to pass. It’s a number that can readily be cooked, should a White House wish to do so, by taking pains to consolidate as single orders measures that otherwise would be signed individually, or by issuing directives under alternative formats such as presidential memoranda or, at the agency level, “Dear Colleague” letters. Much more about the malleability of the category in this USA Today December 2014 piece by Gregory Korte. E.g.: “President George W. Bush established the Bob Hope American Patriot Award by executive order in 2003. Obama created the Richard C. Holbrooke Award for Diplomacy by memorandum in 2012.”
Obama’s own 2014 description of his plans, and his White House’s stage-management of “We Can’t Wait” demonstrations in support of unilateral executive action, speak for themselves. P.S. Washington Post fact checker Glenn Kessler went over some of this ground in 2014.
18:24 well spent: Caleb Brown interviews Sen. Mike Lee (R-Utah) on separation of powers, criminal justice, the electoral college, executive powers and many other topics [Cato Podcast series]
“5. Issue More Guidance (and Accept the Consequences) 6. Be Less Capricious and More Transparent in ‘Waiving’ Laws 7. Stop Stealing Money from Congress.” [Adam White (Hoover), Liberty and Law]
How would one go about “tyrant-proofing” the U.S. presidency, after years in which many were happy to cheer the expansion of White House power so long as the office was held by someone *they* liked? Key point in Ben Wittes’s 3-part series at Lawfare: the hardest to tyrant-proof are not the extraordinary and covert national security powers held by the chief executive, but the everyday powers over the Department of Justice and regulatory agencies [parts one, two, three].
More: Neither Donald Trump nor his progressive opponents have shown themselves loyal to the principle of the rule of law [John McGinnis, Liberty and Law] Nature of the Presidency lends itself to authoritarianism and despite retrenchment under Coolidge and Ike, that’s been the trend for a century or more [Arnold Kling] And quoting William & Mary lawprof Neal Devins: “A President Trump could say, ‘I’m going to use the Obama playbook’ and go pretty far.” [Marc Fisher, Washington Post] And: Tyler Cowen on FDR, McCarthy, the politics of the 1930s-50s, and “our authoritarians” versus “their authoritarians.”
One incidental impact of a Trump presidency: mainstream law professors would develop a sudden, strange new respect for constitutional law concepts such as separation of powers and federalism, which tend to serve as checks on the power and ambition of the President and his backers. [Paul Horwitz, PrawfsBlawg]
In this new “Free Thoughts” podcast from Cato’s Libertarianism.org, Trevor Burrus interviews George Mason University professor Frank Buckley about his recent book, “The Once and Future King: The Rise of Crown Government in America.”
- Mess surrounding ex-Willkie partner could drag down giant credit card settlement after exposure of “burn this” emails to adverse lawyer [Alison Frankel, WSJ Moneybeat, New York Post]
- “The war against homeschooling is…not a fight to make sure children are safer/better educated” [Bethany Mandel, Acculturated, reacting to ProPublica/Slate piece raising alarms about how, e.g., 48 states don’t make parents go through background checks before being allowed to homeschool their kids] ProPublica also complains that parents with criminal records are allowed to homeschool; did they run this by the “Ban the Box” advocacy groups?
- President Jimmy Carter’s deregulatory record looks even better in retrospect [Cato podcast with Peter Van Doren, Caleb Brown]
- Ugly tactic: protesters rally at home of Judge Bunning in Kim Davis case [River City News, Kentucky; links to some other instances]
- “Obama celebrates Labor Day by making it more expensive to hire employees”; executive order requires federal contractors to provide paid sick leave [W$J, Sean Higgins/Washington Examiner (“offering paid leave is already the norm among the vast majority of federal contractors”)]
- “FBI, DEA and others will now have to get a warrant to use stingrays” [ArsTechnica]
- After the prosecutorial abuses: “John Doe Reform Bill Moves to Assembly” [Right Wisconsin]