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The Threat of Administrative Agencies

Yuval Levin recently wrote TheFractured Republic, an intelligent look at the state of political discontent, and a recommended read.  He recently wrote Hillary Is an Embodiment of the Left’s Disdain for Democracy with coauthor Ramesh Ponnuru in National Review. He examines three reason why Hillary is the larger threat while acknowledging Trump’s significant shortcomings.


The second way contemporary liberalism threatens our constitutional order is closely connected to the first: Today’s Left is the party of the administrative state, which is often the means by which executive unilateralism operates but is also far more than that. The term “administrative state” refers to the tangle of regulatory agencies that populate the executive branch, including agencies that are at least nominally “independent.” They increasingly govern beyond the control of the other branches and therefore at times genuinely outside the confines of our constitutional system.

These agencies frequently operate by issuing rules and regulations: several thousand of them every year. These rules are supposed to implement federal laws, but both the growing vagueness of major legislation and the growing assertiveness of the regulators have increasingly meant that the agencies basically legislate through their rules. Some of them then also adjudicate disputes arising from their own implementation of these rules, effectively lodging legislative, executive, and judicial power in a single institution.

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny,” James Madison wrote in Federalist No. 47. Many Americans subject to the jurisdiction of particularly aggressive regulatory agencies might well agree. But the power of such agencies has been growing by leaps and bounds in the Obama years.

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The Justice of Citizens United

In National Review Kevin Williamson writes The Book Burners. Citizens United, he reminds us, was about much more than big money in politics.  It was about denying the government the right to ban books and media.  It was about the upholding of our most important Constitutional right.

Lost in all of the deeply stupid rhetoric (“Money isn’t speech!”) surrounding the Citizens United case is the fundamental issue that was at question, to wit whether the federal government can censor films of which it disapproves. The film in question was called Hillary: The Movie, and it was very critical of Mrs. Clinton while she was seeking the Democratic nomination in 2008. The government attempted to forbid the distribution of the film on the grounds that it was critical of a political figure, which was at the time impermissible, under what is cynically known as “campaign finance” law, unless done in strict compliance with narrow and restrictive federal regulations, and then only at certain times. The Supreme Court rightly threw the law behind that out as rankly unconstitutional censorship of political speech.

What those beef-witted partisans who abuse the word “liberal” fail to appreciate is that the principle behind the so-called campaign-finance laws they support is an open-ended power of federal censorship of all political speech, journalism, literature, films, television, radio, and other communication. Some of the more sinister forces on the left understand that perfectly well, and the glee with which Elizabeth Warren and Bernie Sanders present the proposal of silencing their political critics is both astounding and horrifying.

During the Citizens United arguments, Justice Samuel Alito asked Malcolm Stewart, the deputy solicitor general defending the government’s censorship, whether the law would empower Congress to ban books. Stewart affirmed that books too must be subject to “electioneering communication restrictions.” And thus do our so-called liberals become book-burners.  That may be of some interest to organizations far outside of the world of conservative activism — donor-supported feminist publishing houses, say, or grant-funded environmentalist documentarians. The leader of the United States Senate is a conservative from Kentucky, and the leader of the United States House of Representatives is a conservative from Wisconsin. The Left would do well to consider just whom it would be empowering to establish a censorship code.  Republicans cannot be trusted with that power. Neither can Democrats. Neither can Libertarians, Greens, Freemasons, Elks, Methodists, or other bad hombres — or even good hombres, absolute power corrupting absolutely and all that.

Also in National Review, Mona Charen illuminates the importance of Citizens United in Fear-Mongering about Citizens United Undermines Faith in Elections

Clinton suggests that the decision prevents Americans from knowing who is funding political activity. Citizens United did nothing of the kind. It simply ratified the concept that groups of Americans, whether they come together as labor unions, advocacy groups, or corporations of various kinds, do not lose their right to speak when they join together. Under campaign-finance laws, groups like Citizens United or People for the American Way were prohibited from running ads for or against candidates at any time, and McCain/Feingold extended this prohibition to prevent such groups from even mentioning a candidate in a broadcast ad within 60 days of a general election. The Supreme Court held that such political speech was the essence of the First Amendment.

Contra the Democrats, there is no secret about who is spending what on American elections. Candidates, parties, traditional PACs, and super PACs must all disclose their spending and their donors. When Democrats speak of “dark money” they are creating a bogeyman. Here’s what they’re referring to: When non-profits like Planned Parenthood, trade associations, or the NRA, i.e. groups that devote more than 50 percent of their activities to non-political matters, spend money on political messaging, they do not have to disclose their donors (except funds earmarked for that particular ad). As former SEC chairman Brad Smith explains, this represents a small fraction of total campaign spending. In 2012, it was 4.3 percent. In 2016, it’s coming it at under 3 percent. We know how much they spend, because they must report it. We know what they represent, or in the case of a group like Americans for Prosperity, we can easily find out. And nothing in the Citizens United decision altered disclosure requirements.

Citizens United upheld the most cherished right protected by the Constitution. The disclosure requirements in current law are more extensive than ever before in American history. Moreover, there are some pitfalls in total disclosure, such as exposing those with unpopular viewpoints to harassment. Democrats obscure these essential girders of free speech and demonize the case to suggest that a wealthy, obscure elite has hijacked the political system.

Donald Trump again signaled his contempt for democratic norms by declining to say he’d respect the results of the election. But Democrats, including Hillary Clinton, who stoke mistrust by falsely spinning conspiracy theories of illegitimate, dark forces controlling our system are also to blame for the parlous state of social trust in America.


At least when Donald Trump expresses lack of faith in the election process, he does not propose to gut the Bill of Rights as a solution.

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Who Needs the Intellectuals?


The Democrats have long enjoyed greater unity than the Republicans. Even the surprising challenge raised from Bernie Sanders is now only a recent memory. This may have come from the insider manipulations and the control wielded by the super delegates, but at least they are united after the nomination.  There are far fewer Democrats for Trump than the reverse.

The Democrats shielded their process from unfiltered democracy after the landslide loss of George McGovern, though it would have been a tough slog for any Democrat in that election year.  The Republicans are plagued by a list of litmus tests: second amendment rights, abortion, immigration, school prayer, and gay rights are distinct issues that decide whether a candidate is acceptable regardless of how strong they support or define constitutional protections of liberty or free market principles.

Since Roe v Wade there has been a fragile coalition of the economic and constitutional conservatives with the social conservatives. Yet Reagan enabled this coalition to deliver decades of growth and prosperity. Since then the Republicans have had to overcome their own fragmentation as much as the media and other institutional biases.

Trump’s campaign has rejected the political necessity, especially for the GOP, of building coalitions.  He immediately ran afoul of the famous Reagan rule to speak no ill of fellow Republicans. While his style may have won the nomination in a populist revolt against elites from both parties, it is increasingly doubtful that this strategy will win the general election. Recent polls have him slightly behind, but this masks the reality that against the enormously unpopular and untrusted Hillary Clinton he should be at least ten points ahead. The election was the Republicans’ to lose, and that is increasingly likely.

Trump trampled the establishment Republicans, which are those who have actually won elections and have had to govern in a divided government, but all of them failed one litmus test or another and thus as a group became unacceptable.

Unique in this campaign is the united resistance from the conservative intellectuals.  This was most boldly stated in the cover story in National Review, Against Trump.   Jonah Goldberg, David French, Kevin Williamson, Mona Charen, George Will, Erick Erickson, Charles Krauthammer and many others have written frequently on the dangers of a Trump candidacy and presidency.  Rarely have so many conservative thinkers so strongly opposed the Republican nominee.  Does it matter?

It appears not, since he has risen in the polls as the often vicious attacks from the intellectual right accumulated.  But there is only one poll that matters, and that is less than a month away. These thinkers and writers object to Trump for three main reasons.

First, he has a poor concept of conservative or free market principles. He enthusiastically supports the Supreme Court Kelo decision, allowing corporations to usurp the state’s power of imminent domain. He has sued reporters who questioned his statements and claims (and lost), and threatened to use his power to stifle criticism.  He indicates he will continue Obama’s abuse of the Constitution with executive orders. He reduces trade to its most ignorant form, seeing only one side of the transaction.  Like the Progressives he substitutes his version of pragmatism for an understanding of Constitutional or market principles.

Secondly, he remains profoundly ignorant of our foreign relationships, treaties, and trade agreements.  He has had a year to get up to speed. Quick test: How many people did you know before the campaign that thought there was a problem with our NATO allies not paying their fair share?  Mutual defense pacts are not like multiple partners in casino or hotel properties. Treaties are mutual pacts, not business propositions or shakedown opportunities.

Third, his character issues are worrisome in a national leader, not because he insults a beauty queen or engages in lewd locker room talk, but because he is unprepared, unthoughtful, egocentric, undiplomatic and unrestrained.  He does not separate the important from the unimportant. His excuse of the audit for not releasing his tax returns is no more believable than Hillary’s claim that the deleted e-mails were about yoga classes.

By refusing to support Trump are they not just supporting Hillary? Would we not be better off if Trump picked the new Supreme Court justices? Isn’t his tax plan much better that Hillary’s? (It is.) Are they willing to let his many imperfections control their decision to allow the sinister Hillary to rule?

These are difficult and legitimate questions, but a party with no principles is not a party but a populist movement, in this case possibly a political revolution.  Revolutions often degenerate into the hands of those who respect power more than principles.  Our American Revolution was a rare exception, but the framers and founders were exceptional men in a unique time that is rarely found in the course of history.

It may be unreasonable to expect the voters to appreciate the spontaneous elegance of the free market, the extended benefits of trade, the significance of our constitutional restraints on central power and the importance of placing liberty before democracy.  When you face a stagnant economy, spiraling health care costs, the fear of terrorist attacks, and the contempt of an elite, deaf to your reality, these principles may seem irrelevant.

They are not. If allowed to acquire power while rejecting these important principles, such a candidate would neuter the only political organization left that is keeping those principles alive. The conservative intellectuals understand that undermining sound principles of Constitutional law and free market capitalism is no better just because it is accomplished by a candidate who has managed to run with an ‘R’ by his name.  It may be worse.

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Judicial Lawlessness

Yuval Levin recently wrote TheFractured Republic, an intelligent look at the state of political discontent, and a recommended read.  He recently wrote Hillary Is an Embodiment of the Left’s Disdain for Democracy with coauthor Ramesh Ponnuru in National Review. He examines three reason why Hillary is the larger threat while acknowledging Trump’s significant shortcomings.


This is the third way in which that liberalism is a threat to American constitutional democracy. Liberal judicial philosophy understands the courts, like the executive branch, to be in the business of advancing what is properly understood as a legislative agenda. In essence, liberals want everyone but Congress — at least so long as they do not control it — to advance such an agenda. This preference leaves them with an entirely consequentialist attitude toward the courts, and they are increasingly uninterested even in making a case for such an attitude as a form of constitutional interpretation.

Old tropes about judicial “activism” and “restraint” can obscure the root issue of judicial lawlessness. Whether in “actively” overturning acts of Congress or state laws or in showing “restraint” and affirming a statute or regulatory action they approve of, liberal judges now frequently pursue substantive policy outcomes rather than advance some particular understanding of our constitutional system and its limits. And those policy outcomes are almost always precisely the same ones liberals pursue through a hyperactive presidency and an overreaching administrative state.

This aggressive progressivism threatens our democratic-republican form of government because it begins by seeing the restraints on power inherent in our constitutional system as obstacles to be overcome. It (correctly) perceives that they can best be overcome by weakening the Congress and strengthening the executive and by using the courts as an instrument for both of those ends — thereby making the courts both too strong and too weak to properly serve the constitutional system.


The troublesome legal trend is for the Supreme Court to support the legislature as the embodiment of democracy instead of supporting the Constitution as the embodiment of liberty.

Judicial activism is usually condemned from the right as ‘legislation from the bench’. ‘Judicial restraint’ usually means the reluctance to overturn laws unless in clear violation of the Constitution. These definitions have become cloudy as the bench has ‘actively’ agonized in the direction of supporting legislative majoritarianism rather than Constitutional protections.

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Guidance Letters

Yuval Levin recently wrote TheFractured Republic, an intelligent look at the state of political discontent, and a recommended read.  He recently wrote Hillary Is an Embodiment of the Left’s Disdain for Democracy with coauthor Ramesh Ponnuru in National Review. He examines three reason why Hillary is the larger threat while acknowledging Trump’s significant shortcomings.


The courts cannot, for a number of reasons, be expected to keep the modern state running according to perfectly Madisonian procedures. But they have pushed back on many of the Obama administration’s dubious legal claims. The administration has lost unanimously at the Supreme Court 44 times, setting a record. But the administration has not just sought to make its policies independent of Congress; it has also sought to insulate them from judicial scrutiny.

It has sent “guidance letters” to interfere in the disciplinary policies of schools and universities and, recently, in their policies regarding the use of bathrooms and locker rooms as well. These letters are supposedly not regulations and thus not subject to the notice-and-comment requirements that allow for some modest transparency and accountability in the regulatory process. They are also less subject to judicial review and less transparent in general: They don’t force their recipients to comply, after all; they just strongly suggest that the recipients will be safer if they do. Deferred-prosecution agreements, whose use is on the rise, are another way to regulate off the books: They are a kind of plea bargain in which a company agrees to undertake whatever the government asks in return for a reprieve from legal harassment. The EPA’s power-plant regulations were designed to bypass the courts in a different way: The hope was to make them a fait accompli before they drew an adverse ruling.