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Barack Obama

August 4 roundup

by Walter Olson on August 4, 2014

  • Administration tees up massively expensive regulation docket for after election [Sam Batkins, American Action Forum]
  • More on FedEx’s resistance to fed demands that it snoop in boxes [WSJ Law Blog, earlier]
  • Ethics war escalates between Cuomo and U.S. Attorney Preet Bharara, but is sniping in press suitable role for prosecutor? [New York Post, Ira Stoll]
  • “Mom Hires Craigslist Driver for 9-Year-Old Son, Gets Thrown in Jail” [Lenore Skenazy]
  • One-way fee shifts, available to prevailing plaintiffs but not defendants: why aren’t they more controversial? [New Jersey Lawsuit Reform Watch]
  • Water shutoff woes sprang from Detroit’s “pay-if-you-want culture” [Nolan Finley, Detroit News]
  • “CPSC Still Trying to Crush Small Round Magnet Toys; Last Surviving American Seller Zen Magnets Fights Back” [Brian Doherty]

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In a complex decision yesterday, the Supreme Court struck down in part and upheld in part the Environmental Protection Agency’s attempt to regulate large emitters of carbon dioxide and other greenhouse gases (GHGs) [McClatchy/Federalist Society]. A key portion of the holding, writes Jonathan Adler at Volokh, is the finding that the EPA

is not permitted to rewrite the applicable statutory emission thresholds. The latter conclusion, in particular, is an important reaffirmation that agencies are not allowed to rewrite the statutes that they administer. But today’s decision was not a total loss for the EPA, however, as the Court also concluded that it was reasonable for the EPA to interpret the Act to allow for the regulation of GHG [greenhouse gas] emissions from sources already subject to regulation under the PSD and Title V [large stationary source] program. What this means is that large stationary sources (think big power plants and industrial boilers) that are already regulated as major stationary sources under these programs will have to control GHG emissions when they control other emissions. But sources that only emit large amounts of GHGs will not become subject to EPA’s regulatory authority under these provisions.

From my colleague Andrew Grossman at Cato:

At issue was one of the Obama Administration’s earliest efforts to skirt Congress and achieve its major policy goals unilaterally through aggressive executive action….

Autocrat tea bag
The Court, in a lead opinion by Justice Scalia, called it “patently unreasonable—not to say outrageous.” EPA, it held, must abide by the statute: “An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.” And if such tailoring is required to avoid a plainly “absurd result” at odds with congressional intentions, then obviously there is obviously something wrong with the agency’s interpretation of the statute. To hold otherwise, the Court recognized, “would deal a severe blow to the Constitution’s separation of powers” by allowing the executive to revise Congress’s handiwork. …

The Court’s decision may be a prelude of more to come. Since the Obama Administration issued its first round of greenhouse gas regulations, it has become even more aggressive in wielding executive power so as to circumvent the need to work with Congress on legislation. That includes recent actions on such issues as immigration, welfare reform, and drug enforcement.

Four liberal justices dissented, while Justices Alito and Thomas argued that the Scalia-led plurality were too accommodating of the EPA’s assertion of power.

“I can say that because I’m a lawyer,” President Obama told the Tumblr crowd last week. [American Interest]

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Columbia lawprof Philip Hamburger is out with a book of high importance on the administrative state and the legality of its actions, and Cato had him in to speak earlier this month, with D.C. Circuit Judge Stephen Williams commenting and Cato’s Roger Pilon moderating (video, podcast links). The event description:

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.

Earlier here, etc.

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All sitting Presidents try to press the power of their office into doubtful areas. President Barack Obama has been particularly aggressive about doing so, according to the panelists at a May 21 discussion held at the Cato Institute. Georgetown law professor and Cato fellow Nicholas Quinn Rosenkranz noted that the Constitution’s Take Care Clause directs the President to take care that the laws are faithfully executed, and descends directly from centuries of struggle against the “dispensing power” claimed by pre-modern English kings — that is, the power to dispense with enacted legislation entirely where the royal will is better served that way, a claim of power that goes beyond simple prosecutorial discretion or the pardon power.

Rosenkranz pointed to a number of Obama executive actions that are hard to reconcile with the Take Care clause. The text of the Affordable Care Act, for example, states that the employer mandate prescribed by the law was to begin Jan. 1, 2014. “You don’t need a lawyer to interpret this, you need a calendar.” Yet President Obama elected unilaterally to delay the mandate and substitute a later effective date of his own choice. Likewise, the President’s suspension of some immigration regulations overrode the clear letter of U.S. law, aside from any pluses or minuses it may have had as a policy matter.

“President Obama is being the kind of President Nixon wanted to be,” said panelist Jonathan Turley, a well-known legal commentator and law professor at George Washington University: “Many Democrats will rue the day they stood by while the President asserted these kinds of powers.” Panelist Andrew Grossman of Cato said future presidents are likely to follow Obama’s lead and assert their own right to suspend the operation of other laws.

Bonus: At a separate event, Cato welcomed George Mason U. law professor Frank Buckley to talk about his book The Once and Future King: The Rise of Crown Government in America. I offer a question at the beginning of the comment period.

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I’ve got a new post at Cato about the latest federal court smackdown of overreaching enforcement by the Obama administration, this time in a Department of Labor prosecution regarding a Texas company’s wage-and-hour classification. I mention some greatest hits of the past couple of years reversing DoL, the EEOC, the EPA and other agencies, and suggest that a useful step might be for regulated businesses to contest unreasonable cases more often rather than, as is so often the norm now, paying to get them over with.

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Here comes a more regimented, polarized, lawsuit-ridden workplace with less upward mobility — at least if the President gets his way. I deplore some of the likely effects, unintended or otherwise, in a new Cato post: “Increasingly, Obama’s binge of executive orders and unilateral decrees to bypass Congress is coming to resemble a toddler’s destructive tantrum.” More: Daniel Schwartz, Daniel Fisher. Our wage and hour law category has more than 80 posts.

More from Scott Shackford, Reason, from Brett Logiurato at Business Insider on organized business opposition, and from the WSJ. And from George Leef, John Locke Institute:

The Fair Labor Standards Act is the federal statute that imposes the minimum wage along with other intrusions into what ought to be matters of contract between the parties.There is no real constitutional authority for the federal government to dictate the terms of labor contracts. During the New Deal, Congress relied upon the notion that if anything might have any possible effect on interstate commerce, then it’s fair game for federal control. That idea stretches the concept of interstate commerce far beyond its intended meaning.

Yet more: Welcome Andrew Sullivan, Washington Times readers. And see followup post (why this could do much more damage to economy than minimum wage hike)

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February 11 roundup

by Walter Olson on February 11, 2014

State of the Union speech

by Walter Olson on January 29, 2014

Update: I’m in this Cato video, my brief contribution on the president’s executive order powers beginning around the 2:15 mark:

I tweeted and liveblogged the State of the Union address last night so you wouldn’t have to watch. Here are Twitter highlights, in regular rather than reverse chronological order:

Tune in Tuesday night as Cato colleagues and I liveblog the State of the Union, or check Twitter at #CatoSOTU.

While you’re at it, do follow me on Twitter at @walterolson and @overlawyered, and at Facebook on both author and blog pages.

It’s coming as part of ObamaCare (earlier here and here) and it might wind up restricting consumer choice [AP]:

The rules will apply to about 10,800 companies that operate 20 or more machines. Nearly three quarters of those companies have three or fewer employees, and their profit margin is extremely low, according to the National Automatic Merchandising Association. …

Some companies may use electronic displays to post calorie counts while others may opt for signs stuck to the machines.

Carol Brennan, who owns Brennan Food Vending Services in Londonderry, [N.H.,] said she doesn’t yet know how she will handle the regulations, but she doesn’t like them. She has five employees servicing hundreds of machines and says she’ll be forced to limit the items offered so her employees don’t spend too much time updating the calorie counts.

David Boaz comments:

In my experience, vending machines shuffle their offerings fairly frequently. If the machine operators have to change the calorie information displayed every time they swap potato chips for corn chips, then $2,200 [per operator per year] seems like a conservative estimate of costs. But then, as Hillary Clinton said when it was suggested that her own health care plan would bankrupt small businesses, “I can’t be responsible for every undercapitalized small business in America.”

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Half of them arise from the White House’s ongoing effort to rewrite the terms of ObamaCare on the fly without actually going back to ask Congress to change the law. [Ilya Shapiro, Forbes]

Incidentally, the Executive Branch’s claim of power to suspend various provisions of the ObamaCare law at its whim stands on quite a different and weaker footing, constitutionally, from the well-established tradition of prosecutorial discretion (or the even more well-established power to pardon individual violators). In requiring the president to take care that the laws are faithfully executed, the Constitution’s Take Care clause necessarily implies that not all aspects of law enforcement can be suspended at executive whim, and discretion is necessarily narrower when it comes to the enforcement of statutes creating general civil schemes of private rights and regulation than it is in the realm of criminal enforcement, which necessarily labors under a scarcity of investigative and correctional resources. English kings like James II long asserted a “dispensing power” to suspend the operation of otherwise applicable laws at the royal will, but civil libertarians fought for centuries (and with much success) to cabin and curtail that power. Zachary Price of Hastings recounts some of this history, as well as contemporary readings of the Take Care clause, in a new article that is getting a lot of attention.

While on the topic: ObamaCare’s corporatism is sacrificing both the rule of law and transparency, argues Mickey Kaus [first, second] The program’s atomistic individualism [David Boaz] And Megan McArdle on the Administration’s “willingness to take large risks with the program’s stability” by altering rules.

I’ve got a new op-ed for Bloomberg View (first time I’ve appeared there) calling last week’s venture in presidential clemency “mingy and belated” and, if aimed at prison overcrowding, “like trying to bail out Lake Michigan with a paint can.” On Thursday President Obama commuted the sentences of eight inmates caught up in the crack cocaine sentencing fury, all of whom had already served at least 15 years for what were often relatively peripheral involvement in the drug trade. Clarence Aaron, for example, was serving three life sentences without possibility of parole for a first-time nonviolent offense. Many advocates from all political viewpoints pushed for Aaron’s release, among them Debra Saunders who wrote dozens of columns on his case in the San Francisco Chronicle over the past 12 years (Also in Minneapolis Star-Tribune and other papers, and AP roundup of opinion columns; & Scott Greenfield, Pardon Power).

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Surveillance roundup

by Walter Olson on June 14, 2013

  • “Old crisis creates new leviathan” [Barton Hinkle] Some other things that maybe should happen before Snowden gets prosecuted [Bruce Schneier] “Were they here, my parents might have asked, ‘What happened to America?'” [Nat Hentoff]
  • Candidate Obama, meet President Obama; on surveillance, you’ll find you have little in common [graphic courtesy Caleb Brown, Cato at Liberty] Don’t say the president wants to be trusted with complete discretion unfettered by the other branches of government; that’s his assassination program, not his surveillance program [Jacob Sullum]
  • A different view: two leading libertarian legal thinkers, Roger Pilon and Richard Epstein, defend the NSA surveillance program [Chicago Tribune]
  • How very wrong David Simon is about the NSA’s capabilities [Clay Shirky, Guardian]
  • Tracking by advertisers just as bad? No, here’s why state surveillance is worse [Jason Kuznicki, Brian Doherty]
  • I’m not the only one wondering whether prosecution of QWest’s Joseph Nacchio relates to his non-cooperation with NSA [Michael Kelly/Business Insider, Scott Shackford/Reason, Greg Campbell/Daily Caller]
  • What would it take to bring back a Watergate-era spirit of reform? [Jesse Walker]
  • “As the NSA has made all too clear, unless we update our concept of the Fourth Amendment to fit the realities of the Internet Age, those general warrants [despised by colonists] will be back — on a far larger scale, and in secret.” [Julian Sanchez]

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And why are many of the decisions against him unanimous? Ilya Shapiro has some ideas, and an update at Cato. And from Ramesh Ponnuru:
Obama’s Dangerous Contempt for the Rule of Law.”

Schools roundup

by Walter Olson on May 16, 2013

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His latest. The Reason editor-in-chief has consistently focused on the Benghazi angle that should most concern libertarians, namely the Administration’s scapegoating of speech (I think I’ll go ahead and coin the term “speech-goating.”) Here he focuses on a David Brooks column seemingly intended as a defense of the process that led to the famed Benghazi talking points, but which winds up putting them in a bad light indeed:

…in the absence of a clear narrative, the talking points gravitated toward the least politically problematic story, blaming the anti-Muslim video and the Cairo demonstrations.

Why was it deemed “the least politically problematic” course to spread an untruth, already widely known to be such by many senior officials, that sought to focus public and world anger on private speech, and by implication on our First Amendment protection of free speech about religion?

One should note carefully Ken White’s powerful argument at Popehat that the arrest of filmmaker Nakoula Basseley Nakoula wasn’t in fact legally irregular because Nakoula had clearly violated the terms of his supervised release and revocation of his release was par for the course under the circumstances.

Even so, the questions remain. The Administration sent Susan Rice out to five talk shows on the weekend of the attacks, where she pressed the line that outrage about the video fueled the attack. Brooks makes the case that interagency rivalries and secrecy got in the way of telling a fuller story. Maybe so. But why should American free speech be left as the “least politically problematic” thing to blame after a terrorist attack?

Ilya Shapiro and Hans Bader make the case against Obama pick Thomas Perez. Senate Democrats have postponed a committee vote on Perez to May 8 “after Republicans threatened to use a separate hearing to criticize his handling of a whistleblower case.” [HuffPo]