Republican Liberty

THE CONSTITUTION SEPARATES POWERS:

No, Overruling Chevron Won’t Turn Judges into Policymakers (Thomas A. Berry, 7/03/24, Cato)

First, a quick recap of the (now overruled) Chevron doctrine. In Chevron v. NRDC (1984), the Supreme Court announced a new “two‐​step” framework for resolving disputes over the scope of an agency’s statutory authority. Under this standard, a court must first consider “the question whether Congress has directly spoken to the precise question at issue.” This first question should be “the end of the matter” if “the intent of Congress is clear,” because courts “must give effect to the unambiguously expressed intent of Congress.” At this stage, courts must employ “the traditional tools of statutory construction” to ascertain whether “Congress had an intention on the precise question at issue.”

It was the second step that would make Chevron a landmark case. If a court finds that “Congress has not directly addressed the precise question at issue,” then under Chevron the agency’s interpretation can become determinative. In this situation, Chevron instructed that a court should “not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.” Instead, courts should ask “whether the agency’s answer is based on a permissible construction of the statute.” If the answer is yes, Chevron required that the court defer to the agency’s interpretation.

It is this second step that Loper Bright eliminated. The premise underlying Loper Bright is that the second Chevron step is incoherent because there is always a single best reading of a statute. “In an agency case as in any other, … there is a best reading all the same—‘the reading the court would have reached’ if no agency were involved.” As the majority put it, “statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning.” And if that is so, then it “makes no sense to speak of a ‘permissible’ interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible.”

Throughout the Loper Bright majority opinion, the court reiterated that Chevron was about who decides legal questions, not policy questions. “It is reasonable to assume that Congress intends to leave policymaking to political actors. But resolution of statutory ambiguities involves legal interpretation.”

HOW UNMOORED ADMINISTRATIVE LAW IS FROM THE CONSTITUTION:

Facts Matter: CFPB Attempts to Use a Blog Post to Rewrite a 46-year-old Payments Statute (WESTON LOYD, 5/30/24, CBA)

Remarkably, the CFPB asks the court to rewrite the plain language of the Electronic Fund Transfer Act, and effectively reverse decades of settled law. By issuing the blog post, the CFPB presumably would apply this new “rule” to the industry at large.

Key Findings

The Electronic Fund Transfer Act and the implementing regulation, CFPB’s Regulation E, clearly excludes Wire Transfers.

Yet the CFPB now asserts that wire transfers initiated via electronic means are covered under Regulation E (rendering Regulation E’s exclusion meaningless).

The CFPB’s new interpretation of Regulation E would reverse decades of court decisions as well as the CFPB and Federal Reserve’s own prior regulatory filings.

Attempting to stretch electronic payments laws beyond their bounds is not a viable solution to address scams and fraud. Scams and fraud are serious, interdisciplinary problems. The financial services industry is working with stakeholders across other private sector industries, but need the CFPB and other agencies to commit to collaborating thoughtfully and earnestly in order to reduce the risks consumers face from scams and fraud.

THE SECOND RULE OF TEXTUAL CONSTRUCTION…:

The Supreme Court’s January 6 Decision Was a Win for Progressive Protesters, Too (Jeremy Schulman, 6/30/24, MoJo)

In an amicus brief filed before the case was argued, a group of right-wing lawmakers made the rather ominous point that progressive protesters disrupt government events frequently. The Biden administration, they noted, hadn’t used the obstruction law to prosecute anti-Israel protesters who “occupied Capitol buildings to advocate for Congress to back a ceasefire in Gaza” or demonstrators who “interrupted Representative Jim Jordan’s House Judiciary
Committee field hearing” in a New York federal building. Nor, the lawmakers noted, had the Trump administration attempted to use this law against “the scores of protestors arrested for interfering” with Brett Kavanaugh’s Supreme Court confirmation hearings in the Senate.

Those protests were in no way comparable to the travesty of January 6. But that isn’t the issue. What that amicus brief makes clear is that if the DOJ’s interpretation of the obstruction law had been upheld, there would have been little stopping a future Trump administration from wielding its 20-year prison terms against political dissidents. Thankfully, the Supreme Court just made that a lot harder.

…words mean things.

THE rEPUBLIC IS, IN FACT, OLD:

The Administrative State Is Put Back in Its Constitutional Place (THE EDITORS, June 28, 2024, National Review)

Scarcely anything was more central to the people who framed our Constitution than the separation of powers. John Adams, in the Massachusetts Constitution of 1780, wrote that it was designed “to the end it may be a government of laws, and not of men.” It was a topic upon which the men who gathered at Philadelphia in 1787 were effectively unanimous, having already incorporated it in the constitutions of their several states. Even more so than federalism, individual rights, or enumerated and limited powers, it was the separation of lawmaking, law-enforcing, and law-interpreting powers that they saw as the safeguard against the erosion of all the other elements of the constitutional system. And at the tip of the spear of the law, they placed the jury system, giving a share of the judicial power to ordinary citizens.

This system has always had its critics. The framers of the Confederate constitution of 1861 watered it down in their own version. Woodrow Wilson and other Prussian-inspired intellectuals thought it was old-fashioned, inefficient, and an obstacle to rule by modern experts. Wilson’s heirs to this day defend the bureaucratic administrative state, which interprets its own laws, runs its own courts, and is insulated from removal by the executive.

ALWAYS AND EVER FREEDOM VS SECURITY:

Order and the American Culture of Liberty (JOHN C. PINHEIRO, JUNE 27, 2024, Religion & Liberty)

There is an insightful exchange in the 2003 film Master and Commander: The Far Side of the World between Capt. Jack Aubrey (Russell Crowe) and his friend Dr. Stephen Maturin (Paul Bettany). Aubrey is all about discipline and order, while the doctor’s inclination is toward mercy and liberty. In a heated debate over the proper balance between liberty and order aboard a wartime naval ship, Captain Aubrey finally yells in exasperation: “Men must be governed! Often not wisely, I will grant you, but governed nonetheless.” The doctor dismissively responds that this is “the excuse of every tyrant in history, from Nero to Bonaparte.”

Royal Navy frigates no doubt require a greater degree of order and illiberality than diverse, commercial republics. But the debate between these fictional characters touches on a point of real dispute, particularly right now on the American right: What is the proper balance between liberty and order most consistent with human dignity and the pursuit of the common good?

During my two decades as a history professor, I found that the most effective way to help students manage the complexity of the grand sweep of American history was to cast it as what Russell Kirk calls, in The Roots of American Order, “that healthful tension between order and freedom.” This tension over how to balance individual freedom with the common good has proved an enduring feature of the American project. This American order requires a subsidiary role for a limited central government and is predicated on a vibrant civil society where the primacy of a culture of liberty demands that prudence be applied to human affairs.

To talk about liberty does not negate the need for order nor does it imply that one is unconcerned about it. Order is the precondition for liberty, but liberty is the aim.

Consider a different frame: the eternal political conflict is between the contradictory impulses for freedom and for security. Republican liberty seeks to resolve it by requiring that orderly limits be adopted in participatory fashion and apply universally.

THE DESIRABILITY OF YOUR POLITICAL END DOES NOT CREATE A CONSTITUTIONAL MEANS:

The Neo-Brandeisians Are Half Right (Kevin Frazier, 6/13/24, Law & Liberty))

American firms pay upwards of $300 billion a year to comply with the latest rules and regulations. Some firms, though, pay far more than others. The extent of the disparities in compliance costs by the size of the firm requires thinking through how firms actually go about complying with the latest government mandate. More than 90 percent of compliance costs are tied to labor. An accurate assessment of a regulation’s compliance costs, then, should turn on analysis of the labor hours and wages required to toe the new line. Based on that framework, economists estimate firms with around 500 employees incur nearly 50 percent more in compliance costs than smaller firms (fewer than 50 employees), but they also pay almost 20 percent more than large firms (more than 500 employees). By taking a labor-focused approach to analyzing regulations, this disparity might be lessened. This approach should also cause Neo-Brandeisians to pause before rushing ahead with regulations meant to bring down corporate giants that, once implemented, only serve to entrench and expand their bigness.

A more expansive administrative state benefits big businesses that can afford to capture staffers and submit comment after comment in rulemaking processes. A look back at the informal meetings held by EPA staffers from 1994 to 2009 reveals that industry groups were almost always the other attendees—in comparison to public interest outfits, industry groups tallied 170 times more informal communications with the agency. In addition to holding a near monopoly over staffers’ time, industry groups fill up an agency’s record in the rulemaking process by submitting the vast majority of comments during notice and comment periods. When the EPA sought input from the public on an air pollutants rule, industry groups filled the information void—submitting more than 80 percent of the comments received by the agency.

Increased regulation and, consequently, a larger administrative state undermines the democratic ideals that Neo-Brandeisians allegedly seek to advance. Congress alone, per Alexander Hamilton, must “prescribe[] the rules by which the duties and rights of every citizen are to be regulated.” Though Congress is far from a perfect institution—it’s the institution the Framers intended to wield legislative power because its members are directly accountable to the people. Administrative agencies, in stark contrast, cannot claim to operate with the elective consent of the people.

What’s the point of encouraging people to vote and lowering barriers to the ballot if the people’s representatives are simply going to hand their legislative powers to unaccountable bureaucrats?

YOU’RE ENTITLED TO LOSE THE ARGUMENT:

Cultivating Moderation in an Age of Extremism: Aurelian Craiutu joins Ben Klutsey to discuss the state of liberalism today and the neglected virtue of moderation (BEN KLUTSEY, MAY 31, 2024, Discourse)

KLUTSEY: Now, you use José Ortega y Gasset’s view of liberalism, which he describes as “the supreme form of generosity.” Can you unpack this definition?

CRAIUTU: I’ve always been intrigued by this definition of Ortega, which appears in his book, “La rebelión de las masas,” which is a great book (but published in 1929, so almost 100 years ago). I think that it gives justice to the essence of liberalism, which is a liberal democratic regime. The institutions of representative government give the opposition, those who disagree with us—those who are in power and those who are against power—to argue, to present arguments, to coexist.

Those who have power do not throw the others in prison just because there’s disagreement or different views on what the good society might be. They create conditions for publicity, for exchange of ideas. That is the form of generosity: that, when you have power, you allow the weaker part to contribute to the public debate. You don’t want to stifle that. You want to learn from it, and you allow other voices to voice their opinions.

Also because you think that you never are in possession of the whole truth. Totalitarian regimes are those in which there is a monopoly of truth. One party, one group, one person has the monopoly of truth. In a liberal regime, nobody has the monopoly of truth. There is no single central committee where the truth is located. That is the form of generosity: that people share a public space and the freedoms and the institutions to search in common for the truth, justice and reason. That’s a form of generosity that is liberal.

INDIVIDUAL LIBERTY IS AN OXYMORON:

Only a Sith Deals in Absolutes (Ernst Roets, May 12, 2024, European Conservative)

[Charles] Taylor’s remarkable book Sources of the Self was published in 1989—sixteen years before Revenge of the Sith. The book deals with the history of modern identity and the way we think about who we are. Even though Taylor does not claim to champion either liberalism or conservatism, he cautions throughout about the risk of modern disengagement. The disengaged self is an individual who has lost contact with his community, culture, and tradition, predominantly under the pretext of being an independent individual.

Taylor claims to endorse a certain version of the modern conception of freedom, while also expressing concern that a certain—we might even say, mainstream—strand of the modern conception of freedom is in important ways becoming unendurable from a philosophical perspective. The modern conception of freedom has become, in Taylor’s words, a “deeply confused” one. This is because it is built on two cornerstones that cannot be reconciled with one another.

The first is that the modern conception of freedom is primarily driven by a (new) conception of what constitutes the good. Where the traditional Western view teaches that freedom is bound up with the recognition of the common good within the context of the community, the modern view teaches that freedom is the result of liberation of the individual. It teaches, thus, that freedom of individual choice is the ultimate good that must be pursued. The second idea that underpins the modern conception of freedom is that it is ‘good’ to repudiate qualitative distinctions and to reject constitutive goods as such. The notion here is that it is not desirable for anyone to decide on anyone else’s behalf what constitutes the good, as this is something to be decided by every individual for themselves.

The problem here is that the former is in itself a qualitative distinction of what constitutes the good, while the latter claims that one should not work with qualitative distinctions of what constitutes the good. If the former is true, the latter cannot be true, and if the latter is true, the former cannot be true. Put differently, if it is indeed true that individual choice is the highest form of the good, then one cannot simultaneously claim that qualitative distinctions on what constitutes the good should be done away with. And if it is indeed true that qualitative distinctions on what constitutes the good should be done away with, then one cannot simultaneously claim that individual choice is the highest form of the good.

Or, to put it even more bluntly, to claim that every individual should decide for himself what constitutes the good, is not reconcilable with the idea that individual freedom is indeed the ultimate good. The liberal claim that individual freedom is the ultimate good is the logical equivalent of Obi-Wan’s claim that only a Sith deals in absolutes.

Of course, it is precisely because liberalism requires that our law-making be participatory and that all laws apply universally that it is neither absolutist nor individualist. Indeed, it is rather disinterested in individual freedom.

CONSERVATISM SEEKS TO CONSERVE LIBERALISM:

On Liberal Centrism Thomas D. Howes, 3/15/24, Vital Center)

Liberal centrism, as I defend it here, is not so much an ideology as an approach. It is “liberal” in the old sense that connotates both liberty and generosity. This was how it was used by Adam Smith when he wrote of a “liberal plan” for the economy, and by George Washington when he referred to America’s “liberal policy” of religious liberty. Centrism, moreover, is inseparable from liberalism. Among other things, it is an attitude in the context of disagreement that looks for solutions that everyone can at least live with. Thus, according to this conception of liberal centrism, “liberal” and “centrist” are mutually reenforcing terms. To be centrist is to be liberal, and to be liberal is to be centrist. And there have been plenty of self-described liberals and centrists who see themselves in this way.

The United States is a model context for what I call liberal centrism because it was founded with an emphasis on the basic equality of people, and governance by consent. Moreover, its form of governance, with its separation of powers, checks and balances, and rule of law, provides time-tested tools for resolving conflict peacefully and fairly, and in a way that everyone can live with.

Liberal centrism, in sum, is an approach to politics that is attentive to the health of a political community comprised of equals, and thus it is attentive to respect for the implicit and explicit rules that govern our political relationships.