Republican Liberty

THE PEOPLE OF HUME:

My Liberal Faith: The beginning of wisdom is neither the sum nor the end of it (Bret Stephens, August 12, 2024, Sapir)

What is a liberal faith? There are specifically political ways of addressing that question — that is, faith in a liberal order that puts the protection of individual liberty, conscience, and initiative at the center of its concerns. That’s a faith I share, even if I don’t subscribe to the more common understanding of “liberalism” as a program of big-government responses to economic and social problems.

But what I’m writing about here is something more personal: liberal without the “ism.” This is liberal as an attitude toward life; an openness to new ideas and different ways of being; a readiness to accept doubt, ambiguity, uncertainty, and contradiction; an ability to hold a conviction while occasionally allowing it to be shaken; a right to change your mind and reinvent yourself. It is the belief that, at its best, a liberal faith can be a more honest, interesting, and rewarding approach to life than alternatives based in tradition, dogma, or ideology.

THE HOLLOW, THE HOLLOW:

Propriety without Principle: The Cautionary Tale of Robert E. Lee (John F. Doherty, 8/07/24, Public Discourse)

Many critics of Lee respond that these good qualities would magnify rather than forgive the evil of his decision to turn against the Union. But Guelzo’s critique is more subtle: Lee’s flaw was that his good qualities were only superficial, not real virtues. He called slavery “evil,” but he never said more, nor was he an abolitionist. Although he never owned slaves, he became executor of his father-in-law’s estate after his death, willingly taking charge of its enslaved population. These people were to be freed within five years, according to the dead man’s will. But when the difficulty of the task wore on Lee, and three slaves tried to escape, in frustration he ordered them to be whipped—with exceptional violence—then sold farther south, never to see their families again.

Lee strove to be responsible, but probably more out of shame for his irresponsible father than from devotion to the good. He aimed for “perfection,” as Guelzo says, and fell into perfectionism—achieving the appearance of virtue rather than its substance. This faux nobility of character was reflected in the unapproachable, statuesque coldness of his manner, unintentionally implied in the epithet “the marble man” that contemporary admirers gave him.

Lee was also not especially religious. He was not confirmed in the Episcopal Church until age forty-six, when his young daughters were. He sat on vestries of Episcopalian parishes, but he rarely spoke of God, except amid the exceptionally fearsome dangers of the war. When he became president of Washington (later Washington and Lee) College, he built a chapel for it, but did not appoint a chaplain; he also limited public religious activity to occasional, closely monitored prayer meetings.

All told, it is hard to pinpoint any moral principle that guided Lee’s life.

BREAK THE ADMINISTRATIVE STATE:

How major rules are surging under the Biden administration (Clyde Wayne Crews • 07/15/2024, Competitive Enterprise Institute)

We’ve taken a look at the total numbers of significant regulations issued this year in the Biden administration as well as at the subsets of those rules affecting small business and state/local governments.

We have also pondered implications of the Congressional Review Act and the pressure it placed upon the administration to issue its costliest and most ambitious rules before late summer.

Waiting too late would render rules vulnerable to being overturned by a Congressional Review Act (CRA) resolution of disapproval should there be a change in administrations in 2025. That’s because the CRA stipulates that rules not finalized before the final 60 legislative days of the 118th Congress would be candidates for overturn.

Against this backdrop, on July 5, the day after Independence Day, the White House released the Spring edition of the twice-yearly Unified Agenda of Federal Regulatory and Deregulatory Actions depicting agency rulemaking priorities.

The new Agenda depicts 3,698 rules in the pipeline from more than 60 departments, agencies and commissions. These rules are comprised of those at the pre-rule, active (proposed and final) and long-term stages, as well as rules completed over approximately the past six months (that is, since the Fall 2023 Agenda).

Among the 3,698, there are 287 “Sec. 3(f)(1) Significant” (S3F1) rules in the new Spring Agenda.

DEMOCRACY IS A STUBBORN TASKMASTER:

The end of Chevron deference isn’t the end of regulation (KEVIN R. KOSAR, 07/09/24, The Hill)

Last week, I had coffee with a wonk who works on immigration policy, a political moderate who is trying to get Capitol Hill to have a sane, bipartisan conversation about the topic and enact reforms. It is a challenge, seeing as how legislators frequently behave as if they would prefer to campaign and fundraise on the issue rather than bargain out a deal.

I mentioned to her that I had been writing a lot about Congress and regulation, and that the Supreme Court’s recent rulings have added to my workload. She responded to my mention of Chevron deference by declaring, “I’m glad the ruling happened. That means if there is a Trump administration then Stephen Miller will not have as much authority to make immigration policy.”

I laughed because she is right.

The court’s rulings in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce do mean that Miller would have to be a bit more cautious in issuing regulations to reduce immigration and expel migrants. They could no longer do whatever they can pass off as a reasonable interpretation of the statute and that presume that their policies will receive judicial deference.

HOW MITCH FAILED:

The Supreme Court’s decision in Trump v. United States is solid but risky legal reasoning that reflects the failure of constitutional order (Kathleen Tipler, July 9th, 2024, LSE Blog)

As a legal scholar who has been thinking about this question of presidential immunity for a number of years, my take is different. I think the decision is a reasonable opinion. I do disagree with it, but it is not because this decision puts presidents above the law – I think the Roberts opinion left the door open for prosecution of Trump, including ones that the dissenting opinions declare impossible – nor is it because this decision is based on specious legal reasoning. I disagree because of the larger approach it takes to the constitutional order. […]

While the constitutional question facing the Supreme Court in Trump v. United States was the extent of presidential immunity, the case itself involves a former president who attempted to overturn the election that voted him out of office. If the authors of the Constitution anticipated such a situation, they thought Congress would handle it – the Constitution explicitly gives Congress the power of removing the president for “high crimes and misdemeanors.” And that’s what should have happened. But instead, because of the various ways in which our country has changed over the past 250 years, Congress failed to do so.

So, this failure by Congress, this failure of the constitutional order, puts the Supreme Court in a bind. Essentially, the Court had two options here, as they often do, given our ancient Constitution: they could stay in their lane, and limit judicial review of presidential actions (broader presidential immunity, careful and slow judicial process), or they can try to make a broken system work, step in where Congress failed, and have the judiciary review presidential actions (limited or no presidential immunity, expedited judicial process).

IT’S SUPPOSED TO BE HARD:

The Supreme Court Thinks That by Arguing More, We Can Be Less Divided (Yuval Levin, 6/28/24, The New York Times)

This decision has set off alarms for some, but it actually points the way toward a role for the courts that is less divisive — because it pushes everyone in our system, including judges and Congress, toward their proper constitutional work.

By narrowing the so-called Chevron deference, the court has reasserted its authority over the meaning of vague legislation. Doing so may press Congress to make its law-writing more definitive and call on administrative agencies to apply substantive subject-matter expertise, rather than conjure the meanings of the laws they are meant to carry out.

The Loper Bright case highlights a broader pattern. It is just one of several high-profile disputes the court has taken up this term — others touch on social media, guns and more — and the results have often been met with outrage and harsh criticism of the court.

But it’s worth seeing that it is often the very fact that we turn to courts to resolve these disputes that ratchets up tensions in our society. That is why the court seems eager to recover the constitutional system’s balance of authorities, and to help relieve those tensions.

Many of the divisive questions that reach the Supreme Court could be addressed legislatively rather than judicially. But a lawsuit offers combatants the prospect of total victory rather than unsatisfying compromise, and Congress is now often eager to hand power to administrative agencies whose edicts are inevitably appealed in court.

With its Loper decision, as with some other high-profile cases in recent years, the court is trying to change that pattern. By pushing all the individuals involved to do the particular jobs assigned to them by the Constitution, it is charting a path toward a more legislatively centered political order, in which more decisions about what the law should be are reached by haggling and bargaining rather than by expert fiat or judicial pronouncement.

The Constitution itself clearly shows a preference for this approach. But the tendency to prefer assertive judicial action is now thoroughly bipartisan, which contributes to our bitter polarization.

The revealing thing about the objections to the Court restoring constitutional order is that the complaint concerns how much harder it makes it to regulate every day life.

BUT WE WANTED TO AVOID THE LEGISLATURE!:

Biden’s gameplan against tech giants faces new legal dangers (Cristiano Lima-Strong and Eva Dou, July 5, 2024, Washington Post)

The Biden administration’s aggressive attempt to regulate tech and telecom giants like Google, Meta and Verizon has relied on the power of federal agencies, which have proposed sweeping rules for the internet age amid inaction in Congress.

The dynamic has granted outsize influence to enforcers at the Federal Trade Commission and Federal Communications Commission, among other agencies, who have pressed to rein in alleged misconduct by industry titans.

The strategy is now under threat after the Supreme Court curtailed agencies’ powers in a landmark ruling, overturning a decades-old legal precedent giving agencies greater leeway to interpret ambiguous federal laws. The court’s decision Loper Bright Enterprises v. Raimondo last week, striking down a principle known as the Chevron deference, has given business and industry groups ammunition to thwart tighter tech regulations proposed by the administration — imperiling some of the most significant actions ever by the U.S. government to check the world’s most powerful companies. If they succeed in slowing regulation, it could put the United States further behind its counterparts in Europe, who have moved more swiftly to set new rules.

the entire argument–that it’s so much easier to just impose laws via the Executive branch than to hash them out in the Legislature–is self-indicting.

ENDING CAPRICE:

Net Neutrality, and other FCC Initiatives Jeopardized Post-Chevron (Clay Calvert | Daniel Lyons, 7/05/24, AEIdeas)

Loper Bright is part of the Supreme Court’s broad critique of the administrative state’s power—a power perhaps best exemplified by then-President Obama’s infamous “pen and phone” strategy. Stymied by Congresses unable or unwilling to legislate, presidents from both parties increasingly used agencies to enact their policy decisions through statutory ambiguities. Chevron facilitated this end-run around the legislature by commanding courts to defer to an agency’s statutory interpretation if reasonable, even if the agency’s conclusion was not the best reading. The Major Questions Doctrine signaled the court’s discomfort with abuse of this power, and Loper Bright significantly narrows agencies’ ability to do so going forward.

Just how much agencies’ wings have been clipped is unclear. The judiciary’s job is to determine the meaning of a statute. The Court recognized that sometimes Congress intends a statute to delegate discretionary authority to an agency. And under the Skidmore doctrine, an agency’s interpretation can be persuasive evidence of a statute’s true meaning, though how persuasive depends on how convincing that interpretation is and how consistent the agency has been over time. But Loper Bright rejected Chevron’s fiction that every statutory ambiguity is a Congressional invitation for agencies to fill the gaps. Going forward, deference must be either expressed by Congress or earned by the agency, not assumed by default.

What does this mean for the FCC? The Communications Act is often difficult to read—the Supreme Court once called it a “model of ambiguity”—meaning the FCC often benefited from Chevron. In that sense, the post-Chevron era will create challenges for the agency. The recent net neutrality decision, for example, turns on the Act’s complicated distinction between “communications services” and “information services,” definitions written at the dawn of the Internet age. As I discussed earlier, one significant byproduct of Chevron was that the FCC could change its mind repeatedly about how to classify broadband—indeed, the court cited the FCC’s indecision as an example of how Chevron bred legal instability.

WHEN YOU STRIP LAW OF MEANING:

Freedom and a Funeral for Chevron Deference (Jonathan H. Adler, July 4, 2024, AIER)

In theory, Chevron was supposed to help provide greater legal certainty, both by providing judges with a clear framework and producing greater uniformity of federal law. In practice, the doctrine appeared to serve the latter purpose, in that it fostered greater agreement across federal courts and seemed to reduce the extent to which judges’ policy preferences influenced their decisions. But it did not produce stability or predictability. To the contrary, it empowered agencies to revise and reverse their statutory interpretations to align with their policy goals, and so long as no court declared that the statute was clear, they could get away with it. Chevron itself involved a Reagan Administration reversal of Carter Administration policy, and the doctrine has been used to justify agency about-faces on the meaning of regulatory laws when the White House changes hands.

Republican liberty exists to protect citizens from such arbitrary and capricious prosecution.