On Liberty Watch

Aloha

As the salutation suggests, this post is coming from Hawaii, where we have been living these last three weeks. Thanks to the wonders of Airbnb we rented a cottage in Maui near Makawao, a little cowboy town planted in what the locals refer to as the “up country”. The scenery is gorgeous; not only that, we are a short 20-minute drive to some spectacular beaches. For entertainment we take in the local sights, which among other things included going to a Luau, watching hula dancers and downing a Mai Tai or two.

Hula Dancers perfrom at a Luau on Maui

Best of all, we don’t have any television in the cottage. Which means that we are not constantly being bombarded by either the latest Trumpism or histrionics of “The Resistance”. Quite a relief since we are smack in the middle of Progressive territory. In a lot of ways, Makawao is like Greenwich Village in the 1970s, but with way more Tattoos. A couple of towns over in LaHaina there is a Tattoo parlor named Spikes that actually broadcasts radio ads with voice-overs by Dustin Hoffman and Gene Simmons (of Kiss). Still not tempting.

There are plenty of Village Voice style hand out newspapers that carry stories about the state of “The Resistance”, hushed conversations about the impending fascist state, and guys wearing ponytails that turned gray a long time ago. And if you want to give those old tie-dye jeans one more trip around the block, this is the place to do it.

Alas, even from afar, ripples from another clash between HRH Donald Trump and the Resistance managed to wash ashore onto beautiful Maui. This one came compliments of Preet Bharara, U.S. Attorney for the Southern District of New York. It appears that Mr. Bharara is under the impression that Barack Obama appointed him for life to his position as U.S. Attorney.

When, on Friday, Bharara’s superior in the DOJ asked for his resignation, he refused, demanding instead that he be fired by Trump. (A new and not entirely clever take on the you can’t fire me, I quit, gambit.) Anyway Trump promptly fired him. The only shame is that it took so long, because by his behavior Bharara conclusively demonstrated that he was, and remains, unfit to hold the office of U.S. Attorney, or any responsible office in law enforcement.

Let’s understand what is going on here. Preet Bharara’s refusal to resign was simply another round of the grandstanding that has characterized his tenure as U.S. Attorney. To be fair, grandstanding seems to be an occupational hazard that easily latches on to Attorney’s General and U.S. Attorneys in New York. The list of recent shrinking violets includes Rudy Giuliani, Elliot Spitzer and Eric Schneiderman. (Honorable mention goes to Chris Christie of New Jersey for his dishonorable conduct on this score.)

The Real Problem

There is nothing wrong about a prosecutor launching a political career. That is not the problem with Bharara’s behavior. It is that that Bharara appears to have subordinated the law and the Constitutional order to advance his political goals.

It is absolutely clear that the Trump Administration was acting lawfully when it asked for Bharara’s resignation. Article II, Section 2 of the U.S. Constitution gives the President the power to nominate officers of the government who will serve with the advice and consent of the Senate. And those officers serve at the pleasure of the President. The relevant statute 28 U.S. Code § 541 reads as follows:

(a) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.

(b) Each United States attorney shall be appointed for a term of four years. On the expiration of his term, a United States attorney shall continue to perform the duties of his office until his successor is appointed and qualifies.

(c) Each United States attorney is subject to removal by the President.

(Added Pub. L. 89–554, § 4(c), Sept. 6, 1966, 80 Stat. 617.)

Nothing in the statute says the President has to be polite. So the obvious question is: What doesn’t Preet Bharara, graduate of Harvard Law School, understand about the sentence Each United States attorney is subject to removal by the President?

If Bharara doesn’t understand what that sentence means he lacks the competence to preside over the prosecution of a parking citation. But of course, he understands it very well. Which means that while he was U.S. Attorney for the Southern District he deliberately refused a lawful order by the President. So he was insubordinate. And let’s not pretend that “asking” for a resignation is simply a request. When I was 14 my father would ask me if I wanted to mow the lawn and somehow or other I managed to figure out that he wasn’t asking a question.

So why would Preet Bharara refuse to obey a Presidential order that was unambiguously lawful, not to mention standard practice with any new Administration? Getting fired, as opposed to handing in a resignation, has zero substantive impact on the ultimate outcome. But stirring up this little drama further damages the administration of justice, which has already suffered some major hits. The wreckers include Hillary Clinton, James Comey, Loretta Lynch, Bill Clinton, Chris Christie and Barack Obama.

Well, it seems pretty obvious that Bharara decided to make himself into a (faux) hero by pretending to be a martyr for “The Resistance”. What better way to launch a political career as an elected or appointed official in the future if and when Progressives are once again ascendant.

Prosecutors and Politics

Prosecutors in the United States have tremendous power. Their job is supposed to be to serve justice. It is not to collect convictions. Nor is it to demonize or prosecute unpopular people or advance popular political causes, as did Christie, Giuliani, Spitzer, Schneiderman and Bahrara to name a few. The list is hardly exhausting.

The awesome power that prosecutors possess requires that they be held politically accountable. The justice system is not their personal playpen. Which is why U.S. attorneys serve at the pleasure of the President, who is accountable at the ballot box.

It is hard to avoid the conclusion that Preet Bharara subordinated the letter and spirit of the law he took an oath to uphold. It is also clear that Bharara’s behavior was a challenge to the Constitutional order. Moreover it has the potential to further damage our already damaged political-legal system. Anyone who doubts this should just ask the following question. If an incumbent lost an election and refused to give up his office in the aftermath, how would his behavior in any way be different than Bharara’s?

Mahalo.

JFB

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Donald Trump’s nomination of Neil Gorsuch to be the next Associate Justice of the Supreme Court is something that should cheer libertarians during a time when their hasn’t been much to cheer about. Judge Gorsuch has often been described as coming from the same mold as Antonin Scalia. But while both Scalia and Gorsuch have described themselves as originalists, Gorsuch’s sensibilities appear to be be far more libertarian than Scalia’s, whose sympathies tended to have a more of a majoritarian bent. Moreover, Gorsuch appears to part company with Scalia in an important area of Administrative law, namely the Chevron doctrine. More about Chevron later.

The hysteria generated by the nomination is impressive if for no other reason than the way it exposed left-wing gullibility. For example Salon managed to make Rolling Stone’s reporting look meticulously researched by comparison when they published and then retracted a claim that Gorsuch founded and led an organization named “Fascists Forever” while he attended an elite Jesuit prep school. The fact that the charge was taken with an ounce of seriousness, though obviously preposterous on its face, simply points to the credulousness of reporters who were only writing about fake news a couple of days ago.

It is understandable that Progressives are dismayed by the choice of Gorsuch to replace Scalia on the Court, because Gorsuch’s jurisprudence is a dagger pointed at the heart of the 100 year old Progressive Project. The underlying theory of that project is that government, staffed by the best and brightest, knows what’s best. And because government knows best, it will adopt the role of Plato’s Philosopher King and manage the lives of its citizens by controlling and limiting their choices through the regulatory mechanisms of the Administrative State.

It was then-Professor Woodrow Wilson (at Bryn Mawr 1887) who articulated the rationale for the bureaucracy that would grow into today’s beast. He argued that the complexities of modern life (remember this is in 1887) required a government by experts with large powers and unhampered discretion. The separation of powers that Madison devised to protect freedom by constraining government, was something to be scorned. It was simply an impediment to efficiency.

The huge, unaccountable and often coercive bureaucracy of the modern Administrative State is the result. Virtually every aspect of citizens’ lives is regulated various levels of bureaucracy. Obamacare, for instance, requires citizens to buy health insurance. The EPA determines how much water should be used each time a toilet is flushed. It is virtually impossible to build a bridge, road or pipeline anywhere without running into a wall of regulatory resistance. Couples without children are forced to buy health care insurance for the children they don’t have. Entry and exit into virtually every business in the country, from banking to nail salons to flower shops requires some sort of licensing by some government agency. Regulators have even shut down the occasional front-yard lemonade stand for reasons of non-compliance with some regulation.

One of the best measures of the growth of Administrative State is the size Federal Register, which contains proposed regulations from agencies, finalized rules, notices, corrections and presidential documents. The Federal Register was 2,620 pages long in 1936. By the end of 2015 it had topped 80,000 pages.

The National Association of Manufacturers estimated that the annual cost of regulations at about $2 trillion. Using a similar methodology, the Competitive Enterprise Institute estimated the annual cost at about $1.88 trillion. The Mercatus Center at George Mason University estimates that regulations that distort investment decisions have reduced average annual growth in the U.S. by 0.8% from 1977 to 2012.

These regulations are almost always marketed as regulations on businesses, but the reality is that the costs are almost always borne by consumers. Not only that, the well-connected are also accomplished at extracting economic rents through the strategic use of regulations, including the imposition of regulatory costs on their competitors. For their part, regulators are only too willing to play this game of regulatory capture because they travel back and forth between the bureaucracy and the businesses they oversee, supposedly on behalf of the people.

To make sure that the game goes on the Administrative Agencies have their own administrative courts, with the judges appointed by Agency heads. So the Agencies get to play judge, jury and prosecutor. And the (non-agency) courts have traditionally shown deference to Agency interpretations of regulations, thus closing the loop on citizens who naively believe that law-making should be done by the legislature and that the laws should mean what they say, rather than what some bureaucrat wants them to say.

That is where Judge Neil Gorsuch comes in. He has challenged the idea that the courts should show deference to government Agencies, a standard known as the Chevron doctrine, named after the Supreme Court’s ruling in Chevron v. Natural Resources Council (1984). In Chevron the Court ruled that courts must defer to an agency’s reasonable interpretation of an ambiguous statute that it administers. By 2005 that ruling had been broadened extended in NCTA v. Brand X Internet Services. In that case the Court held that courts must overrule their own interpretations about the meanings of existing laws in favor of later agency interpretations that satisfy Chevron.

Then in Gutierrez-Brizuela v. Lynch (2016) a unanimous panel granted an illegal alien’s petition for a review of a Board of Immigration Appeals order that denied his eligibility to apply for lawful residency. In a concurring opinion Gorsuch wrote that the Chevron standard “[permitted] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design”. He went on to call for the Supreme Court to reconsider the soundness of the Chevron doctrine. (See Ed Whelan in National Review for more detail on these and other relevant cases).

Writing in National Review, Ed Whalen summarizes these cases and goes on to argue that the Chevron rule of judicial deference is ideologically neutral. It depends, he writes, on who is running a given Agency at a given time.

I disagree with that part of his analysis.

The entire Progressive project requires a massive bureaucracy vested with substantial power and discretion to manage the Administrative State, and through it the lives of the citizens. Moreover, the Administrative State will necessarily struggle for dominance over those institutions of civil society that protect citizens’ individual freedoms. That is because the goal is efficiency in the Public Administration, not the protection of liberty that the Madisonian architecture of government demands. In the Administrative State freedom is neither real nor inherent; it is merely instrumental. Hence the hysteria by the left over Citizen’s United.

Free markets provide free choices for consumers, but they are an anathema to the command-and-control mentality of the Administrative State. Freedom of speech and assembly, and the right to the free exercise of religion means that citizens have an inherent right to those activities; those rights pre-exist government. It is the government’s responsibility to secure those rights. Legitimate government authority is limited to its enumerated powers in the Constitution. But religious institutions have a claim to a higher authority, which is why religious freedom is so important for individual freedom. It is why, for instance, government may not legally force a priest to testify about what he heard in the Confessional.

This does not sit well with secular progressives. Which is why there is on ongoing campaign to weaken religious institutions and diminish their authority by bending them to the will of the State. It is why, for instance, the Obama administration attempted to force the Little Sisters of the Poor to provide contraceptives and abortafacients against their religious objections. It is why John Podesta, as revealed in his leaked e-mails, was looking for a way to undermine the Catholic Church so as to make it a political instrument of progressives. And let’s not forget that it was Obama who dismissively referred to people who “cling to their guns and religion.”

Nor is government a neutral observer in the culture wars. It actively promotes a progressive agenda through the bureaucracy. That is why it forces bakers and photographers to participate in same sex wedding ceremonies rather than to carve out religious exceptions. Anyone who doubts this should ask why it was otherwise OK for pop singers, fashion designers and movie stars to refuse to participate in Trump’s inauguration ceremonies, but a photographer can be forced against his religious beliefs to participate in a wedding ceremony. Or, for that matter, why locker room use has become the current obsession of the left.

Anyway, back to Neil Gorsuch. In his writings he has challenged the Chevron doctrine. That doctrine has supercharged the growth of the Administrative State and the vast bureaucracy it depends on to rule. Moreover, he has made clear the importance he places on the free exercise of religion as guaranteed by the First amendment. For instance he ruled in favor of the Little Sisters of the Poor and Hobby Lobby. (A brief summary of his record on religious liberty cases is available here.) In a clash between government power and the free exercise clause, it is pretty clear where Gorsuch stands.

The modern progressive State needs a vast bureaucracy to rule. And this modern progressive bureaucracy is at war with the Constitution as it was originally written. The progressive dream (more like a nightmare to the community of the sane) of an efficient central bureaucracy to manage the country cannot be squared with the separation of powers embedded in the structure of the U.S. Constitution. The Constitution is the mechanism designed to secure the blessings of liberty promised in the Declaration of Independence. It is designed to constrain, not empower government, so that individuals can have maximum freedom to live their own lives as they see fit.

Judge Gorsuch’s defense of religious liberty, freedom of speech, for that matter the entire Bill of Rights, and his challenge to the Chevron doctrine and therefore the primacy of the bureaucracy over liberty make him a deadly threat to the progressive project. Which is why, despite his having graduated from Columbia, Harvard Law, and Oxford (for his D.Phil.), progressives will pretend that he is “out of the mainstream” and therefore not qualified to be an Associate Justice. The irony is that Judge Gorsuch is precisely the type of judge who gives every indication that he will not hesitate to rule against the Trump Administration as it seeks to increase executive power. Liberals ought to think about that; Progressives are probably too far gone.

Judge Gorsuch will become the next Associate Justice. The only question is whether or not the Democrats try to filibuster. If they do, Mitch McConnell will go for the nuclear option, using Harry Reid’s destructive precedent, and Gorsuch will be confirmed with less than 60 votes. Plenty of Republicans would like to see it happen this way, because it will make the (possible) second nomination that much easier.

While Libertarians ought to be pleased about the choice of Gorsuch, they ought to be wary of another procedural blocking point—the filibuster—falling by the wayside. We can add that possibility to the long list of destructive consequences arising from the work of Harry Reid.

JFB

P.S. The video below, well worth watching, is a discussion of Gorsuch’s nomination by Randy Barnett, the libertarian law professor from Georgetown.

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