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.