With president-elect Trump selecting people to head executive branch agencies that both make and enforce administrative law, it’s time to ask: Is such “law” really lawful? The Cato Institute hosted an event with author Philip Hamburger to address this question:
When law in America can be made by executive “pen and phone” alone — indeed, by a White House press release — we’re faced starkly with a fundamental constitutional question: Is administrative law unlawful? Answering in the affirmative in this far-reaching, erudite new treatise, Philip Hamburger traces resistance to rule by administrative edict from the Middle Ages to the present. Far from a novel response to modern society and its complexities, executive prerogative has deep roots. It was beaten back by English constitutional ideas in the 17th century and even more decisively by American constitutions in the 18th century, but it reemerged during the Progressive Era and has grown ever since, regardless of the party in power.
Listen to professor Hamburger discuss his book: Is Administrative Law Unlawful?
See also a series of essays: Questioning Administrative State, at Cato Unbound.
In the Wall Street Journal, Independent Institute research fellow James L. Payne writes that FDR understood that welfare recipients need to be productive and build skills and a work ethic. Payne writes:
Franklin D. Roosevelt was clear as well. “Continued dependence upon relief,” he said in 1935, “induces a spiritual and moral disintegration fundamentally destructive to the national fiber. To dole out relief in this way is to administer a narcotic, a subtle destroyer of the human spirit.” Yet government programs, being shallow and impersonal, tend to drift into handouts. They are like the superficial giver who drops a dollar into the beggar’s cup and walks on, feeling self-satisfied.
Source: What FDR Knew About Welfare (WSJ site). Full text here if WSJ link does not display it.
Donald Boudreaux writes:
… from page 26 of Philip Hamburger’s learned, timely, and important 2014 book, Is Administrative Law Unlawful? (footnote deleted):
The relevance of absolute power for administrative law became more clear when one realizes that Anglo-American law has a history of an extra- and supralegal power in what what known as the “prerogative.” This was the name of the power claimed by the English kings, and it corresponds to the administrative power claimed by the president or under his authority.
U.S. presidents today, with the complicity of the courts and through the cowardice of Congress, routinely issue diktats of the sort that rightly stoked the anger and fear of the great Anglo-American constitutionalists such as Sir Edward Coke and the framers of the U.S. Constitution.
Source: Quotation of the Day… – Cafe Hayek
In 2010, Business Insider CEO and Editor-in-Chief Henry Blodget wrote:
ISPs spend billions of dollars building fiber networks. Why on earth shouldn’t they be able to charge what the market will bear to deliver bits over those networks? If people want their bits delivered quickly and securely, they can pay more. If they don’t, they can pay less. It’s as simple (and fair) as that.
To see how silly the whole concept of “net neutrality” is, all you have to do is glance at the physical world.
Imagine if the Post Office (or FedEx, or UPS, or DHL, or any trucking or transport company) were legally prohibited from charging more for delivering some stuff sooner than other stuff.
Yes, ridiculous. Those shipping and transport companies spent billions of dollars building their transportation networks. They have every right to charge whatever the market will bear to deliver stuff via them.
No one has any problem with the concept that the Post Office treats overnight packages differently than slow-boat ones. Importantly, they also charge different rates depending on what is in the package–see “book rate” and all pricing by weight. So why all this hullaballoo about “NET NEUTRALITY”?
The answer is simple: Self-interest.
Net-neutrality zealots don’t own pipe companies. They haven’t spent billions of dollars building the networks that carry all those bits around. They HAVE spent (collectively) billions of dollars building the bits that get carried around–so of course they’d like to keep that bit-carrying as cheap as possible.
Read the whole article: Stop Moaning About “NET NEUTRALITY” — Of Course ISPs Should Be Able To Charge Higher Rates For Premium Traffic.
Nick Gillespie of Reason.tv explains:
[The President’s] solution to every rising price is to subsidize its purchase (this is true for health care, education, you name it). But when you subsidize something with tax dollars, you’re likely to increase both aggregate spending on it and increase prices (this too is true for health care, education, you name it). And his nod towards “high-quality” child care suggests more rules and regulations on the practice, which also will like raise prices too.
This isn’t Obama’s failing alone, of course, but why do politicians rarely or ever talk about growing supply as a way of reducing prices? One of the most frustrating aspects of the Obamacare debate was that virtually no one on either side was talking about how to reduce prices by increasing supply. It was all about regulating prices by restricting or dampening demand.
That’s an ass-backwards way of looking at things, but it makes political sense, I guess: You want to be the person cutting the check to a specific beneficiary rather than fading into the background after deregulating an industry and letting innovators come up with new, better, cheaper goods and services.
Read the whole post.
Alex Epstein writes:
If you’ve ever expressed the least bit of skepticism about environmentalist calls for making the vast majority of fossil fuel use illegal, you’ve probably heard the smug response: “97% of climate scientists agree with climate change”–which always carries the implication: Who are you to challenge them?
The answer is: you are a thinking, independent individual–and you don’t go by polls, let alone second-hand accounts of polls; you go by facts, logic and explanation.
Read the whole article: ‘97% Of Climate Scientists Agree’ Is 100% Wrong – Forbes.
“Making ‘The Moral Case for Fossil Fuels’,” a review of Epstein’s book economist Bryan Caplan’s blog posts about The Moral Case for Fossil Fuels, and the I Love Fossil Fuels Facebook community.
Paul Hsieh, MD writes:
Cryptography is just a tool that can be used for good or evil ends — like a knife or a gun. Guns can be used for both legitimate sporting and self-defense purposes, as well as to help commit crimes. Most advocates of individual liberty recognize that we shouldn’t restrict the rights of the vast majority of honest gun owners just because a small minority misuse guns for criminal purposes.
The same applies to encryption. Government officials like [FBI] Director Comey basically want to forbid Apple and Google from selling a product that lets users communicate in a way the government can’t understand.
I recognize that allowing the FBI backdoor access to encrypted communications might help solve some crimes. But so would any number of privacy-violating laws. For instance, consider a hypothetical law outlawing cash and instead requiring that all commercial transactions be conducted electronically, with records stored in a master database searchable with a government warrant. Such a law might help solve some crimes. But most Americans would also regard this as an outrageous violation of their individual rights.
If the FBI wants to argue that “a child might die” because of secure encryption, then we should also ask how many innocent children (and adults) might be injured or killed by insecure cryptography that can be breached by criminals, hackers, and repressive governments.
Read the whole article: PJ Media » Should You Have to Speak with Others in a Way the Government Can Understand?.