supreme court

Presidential Power Should Be A Top Election Issue

The midterm elections are a month away, and while I have expressed my feelings on voting and the electoral system generally, I have also made several posts trying to boost specific policy ideas that should be more discussed. In the same vein, I’ve been thinking about which issues are top priority in this election, and whether any of them are actually as high impact as their popularity warrants.

The recent Brett Kavanaugh confirmation process, which I think everyone agrees was pretty circus-like from start to finish regardless of political inclination, seems to have sparked more voter enthusiasm in the midterms. And while I’ll grant that Supreme Court nominations have grown in importance, it doesn’t follow that SCOTUS nominations should be a major issue in this election. The oldest justices are left-leaning, and so unlikely to retire in the next two years. Perhaps if there is a fear that Justices Ginsberg or Breyer (aged 85 and 80 respectively) will be forced into retirement due to medical problems, then this election would matter. But the chances of that seem less than 50%.

There are other issues, like immigration, that are highly impactful and also well discussed. If there was a decisive turnover from Republicans to Democrats in Congress, we’d expect some of that to be realized in immigration policy, but unfortunately not that much. Even if Democrats took both houses, this election is still largely being discussed in terms of being pro-Trump or anti-Trump.

This is a problem. Only one party can control the Presidency. Moreover, there are competing ideologies within parties, with many fiscal conservatives frustrated with George W. Bush, many neoconservatives frustrated with Trump, and yes, even some liberals frustrated with Obama on foreign policy. So really it should be said that only one ideology gets to control the White House as well. If the Presidency controls so much about policy, then this is disastrous for representative democracy. Depending on how ideological or political people are, the majority of people will not feel represented by the President, even if the President wins a majority of votes (something that has only happened 3 times in the last 8 presidential elections, going back 30 years).

The solution is clear, but we have no incentive to achieve it: Congress should be the most powerful branch of government. Its membership is large so as to draw from a wide range of views and geographical areas. When it acts, it must find compromises and alignments of interests, unlike the President which acts as a single unit. That was the design in the original constitution, and technically, if Congress worked to assert its control, it could retake such a position in government. However, congressmen have little incentive to do so; going on the record for votes and standing on specific principles is politically dangerous. Better instead to move questions of policy to the executive branch, and leave Congress to simply grandstand politically, never having to be tied down to specific votes.

For example: Barack Obama unilaterally decided to grant legal status and eligibility for federal benefits to millions of illegal immigrants in the United States. I happen to think this was a good policy idea, but if the President can decide what laws to enforce and make his own laws with executive orders, then Congress is vestigial. President Trump actually took a pretty constitutional position and decided to end the DACA program and told Congress to pass the DREAM Act (would have crystallized the DACA program into law). He gave them six months, and they did not make the deadline, despite such action being pretty popular. This is unbelievable. Maybe too many people were playing politics. Maybe Donald Trump is incompetent in getting the legislation passed (he torpedoed a bipartisan bill), but that shouldn’t matter. Congress should be able to pass a bill that a majority of legislators agree with, but the will didn’t exist. No one wanted to be on the wrong side of the political divide of the Trump era, and so no bipartisanship could materialize, guaranteeing further partisanship in the future.

This cycle also delegitimizes Congress, making people look more often to the Presidency and to the courts. Congress is fundamentally tied to winning elections, so if people see Congress as unhelpful or unpopular, Senators and Representatives have even less incentive to do anything that might frustrate voters. That in turn also makes the courts increasingly important, which likely fuels additional democratic frustration, as the courts are still fairly removed from direct democratic influence. But if they are viewed as partisan extensions of the presidency, that just makes even more things rely on a single election where only a single ideology can win every four years.

I think there may be a way out of this mess if political parties made the midterms about Congressional vs Presidential Authority. It’s not always been true that Congress can only define itself in relation to the President, but it may be a useful way to couch constitutional authority in political terms. Reducing presidential power would be a concrete way to oppose Donald Trump, and perhaps even reach alleged small-government conservatives.

The Cato Institute lays out a platform for a resurgent Congress to run on: requiring votes on executive rule changes that will impose costs of $100 million on the economy (already introduced as the REINS Act), updating the Administrative Procedures Act to require courts to interpret administrative authority de novo or independent of the agency’s claimed interpretation (I’m horrified this isn’t already done), and require all fees and penalties collected by the government to be appropriated and spent by the Congress (right now, fees and profits are then spent by the collecting agency, with little oversight).

We don’t have to limit this approach to libertarian wishlist items. Kevin Kosar in Politico details additional approaches (and adds many more words in National Affairs), including an improvement to the robustness of congressional staffing; the executive has armies of bureaucrats working to provide the best information (and sometimes self-aggrandizing propaganda) to the branch (the Executive Office of the President alone includes some 4000 people). Congress has seen shrinking staffing for its oversight and accountability offices like the GAO. Congress should be the most powerful branch and so it should have access to the data and expert information on how best to oversee the actual implementation of policy the executive branch undertakes. Instead what we often have is Congressional staffers directly trying to research regulatory agencies, who are providing their own oversight information to non-expert politicians who often defer to the self-interested agencies. Kosar’s suggestion of a Congressional Regulation Office is also intriguing.

However, just because there is a way to do this, there is no reason to believe Democrats ever had an intention to follow this path during this midterm election. Nor does it mean Republicans will consider it in 2022 if the tables are reversed. Neither have an incentive to discuss constitutional authority when culture war issues are more likely to encourage their base to turn out. Understanding these public choice incentives doesn’t mean we have to live with them though. There is a nebulous role for real ideas in democracy, and it starts with having a discussion about the state of our politics.

Only One President Has Defied the Courts

It’s not Trump.

Or, I should say, it’s not Trump yet. However, given this administration’s…broad view of executive power, it’s worth looking at how past presidents have interacted with a court system that opposed them. Most presidents, as you would expect, reacted to an unfavorable court ruling by obeying the courts’ directive, with only a few real exceptions.

From history class, I recalled that Chief Justice John Marshall had ruled against Andrew Jackson’s interest in dealing with the Native American populations. But upon further inspection, it appears that despite the famous quote of Jackson’s “John Marshall has made his decision; now let him enforce it!”, the ruling in Worcester v Georgia was actually not a constitutional crisis. The quote itself seems apocryphal.

Marshall ruled that Georgia did not have the ability to regulate the interaction between Georgians and the Cherokee; instead, only the federal government has that power. Georgia complied and they freed the plaintiff, Worcester, eventually, but Andrew Jackson had nothing to enforce, since the federal government was not a party to the suit. Moreover, the Indian Removal Act had already been passed, and so the removal of native tribes on the Trail of Tears continued, with Marshall’s ruling changing nothing.

In 1942, German sabateurs were captured on American soil. President Franklin Delano Roosevelt issued an executive order declaring they would be tried by a military tribunal, and they appealed that the President could not try them under a military tribunal, and they petitioned for a writ of habeas corpus under the 1866 decision Ex parte Milligan which stated that civilians in the U.S. could not be denied habeas corpus and their right to trial. In Ex parte Quirin, the Supreme Court ruled against the Germans, siding with the President. Pretty straightforward, except according to Newt Gingrich (couldn’t find it anywhere else), Roosevelt threatened the Court that he would ignore their ruling and refuse to issue a writ of habeas corpus if the justices decided against him. So not a constitutional crisis, just the threat of one.

In 1952 there was a famous case of Truman seizing control of steel mills during the Korean War. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court ruled against Truman, stating that the powers the president claimed to have under the Taft-Hartley Act were not present. One of the concurring opinions was that of Justice Robert Jackson who divided presidential power into three categories: (1) Powers explicitly granted or implied by Congress, (2) Powers that Congress has not stated a position on, and (3) Powers that Congress has explicitly or implicitly rejected from giving to the president. This has become the standard way of analyzing presidential versus congressional power. Of course, at the conclusion of the case, Truman immediately returned control of the steel mills to their owners. Again, the Court’s decision was respected.

Perhaps the most famous case of executive action gone overboard is the Watergate scandal. A special prosecutor obtained a subpoena ordering Nixon to turn over certain conversations he had recorded. Nixon argued that the special prosecutor had not proven the tapes were important to the investigation, that the courts did not have jurisdiction over this “internal” executive branch matter, and that the President has absolute executive privilege of communications between high government officials. The Supreme Court ruled unanimously against him on all three counts. However, in United States v Nixon, Nixon did comply and turn over the tapes, despite it likely ending his presidency. This was a major moment, as I detailed in “Against Trump“, several months ago. If he had refused, would the court have been able to hold him in contempt and have U.S. Marshals arrest him? Technically, the marshals are part of the Justice Department, so that seems problematic, as the Justice Department answers to the President. Regardless, we have gone through almost all the famous cases, and the President has basically never gone against an explicit court decision.

Going further back than any of these presidents, it’s possible that Jefferson was the first to have actually defied the courts. In 1807, Thomas Jefferson signed the Embargo Act which was meant to punish Britain and France during the Napoleonic Wars for their attacks on American shipping. It was a pretty miserable failure, and apparently in Gilchrist vs Collector of Charleston, Justice William Johnson ruled against the government’s authority (although this was a congressional action, not just executive action). The New Yorker says that despite this ruling, the policy remained in place until 1809, but it was so early on in American history that I’m having trouble finding any sources to validate that claim.

But we can do better than an alleged delayed repeal of an unconstitutional act of Congress from 200 years ago! The best example of defiance on record belongs to Abraham Lincoln in the aftermath of Ex parte Merryman, and it is quite unrepentant.

In 1861, Chief Justice Taney (in the capacity of a Circuit Court) ruled that President Abraham Lincoln had unconstitutionally suspended the right to the writ of habeas corpus during the Civil War. The court ruled only Congress has that power. Lincoln and the army defied the order. Their argument was hilariously reminiscent of Trump, stating that Taney had not actually ordered them to release Merryman. Of course, they didn’t stop there as several newspaper owners and editors were also detained by the federal government, as well as eventually the Baltimore police chief, the Baltimore mayor, and even 30 members of the state legislature! A Maryland state judge was not only arrested, but beaten unconscious by federal troops, and then held without being charged for six months.

Even after the judge’s ruling, Congress did not vote to authorize Lincoln’s suspension of habeas corpus, until two years later, in the 1863 Habeas Corpus Suspension Act.

So what are the takeaways? One is that it’s fairly common for presidents to claim they have more power than they do. Obama, for example, lost in the Supreme Court more often than any modern president. It is, however, highly uncommon for presidents to actually defy the courts and continue to use their claimed powers when the courts have ruled against them. If Trump were to do so, by my estimate he would be the only person to do so not during a civil war.

Another interesting point is that in terms of abuse of power and constitutional crises, Trump has done nothing in comparison to Lincoln. Certainly President Lincoln faced extenuating circumstances and a secession crisis that may have made further constitutional crises seem minuscule in comparison. Nonetheless, it seems clear in hindsight that suspending habeas corpus did not improve support for the Union in Maryland, nor was jailing critical members of the press really necessary for victory. Interestingly, according to author Marc Neely, Lincoln was able to get away with these civil liberties abuses because they were largely aimed at three groups with little political power: residents of southern states who had been stuck on the wrong side of the border when war broke out, residents of border states where Lincoln had little political backing anyway, and foreigners.

Of course, if anyone was justified in taking extreme actions on civil liberties, it would be the president during the civil war, but unfortunately, every executive targets politically vulnerable groups and justifies it under national security reasoning (Adams, Wilson, FDR, Nixon, George W. Bush). And as you’d expect, Lincoln’s actions have become a precedent for other abuses. This essay from the Heritage Foundation in 2004 cites Lincoln’s actions in justifying President Bush’s holding of “enemy combatants” without a trial, equating the war on terror with the dangers of the Civil War. Trump has used related ~~rhetoric~~ words to describe threats from immigration. Were he to ignore a court order in the future, it’s virtually certain to be under national security justifications.

Finally, regardless of Lincoln’s accomplishments, we should be very concerned with any presidents who cite Lincoln’s extreme wartime actions as justification for their policies. Lincoln’s circumstances were extreme, and even then I would argue his defiance of court rulings was questionable. Any test for when it is acceptable to suspend civil liberties should be equally extreme in rigor. For example, unless states have actually seceded and there currently exists a newly elected second president of those seceded states, Congress should not even consider curtailing civil liberties, much less the President alone. Nonetheless, the long history of executive overreach by American presidents is likely to continue under Trump. We can only hope it never reaches the unprecedented event of peacetime court defiance.

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Links 2016-4-17

Counting past infinity is easy! It was the infinity raised to infinity and infinite number of times that I really got lost.

I’ve settled on the right way to show the date in these links posts: the international standard ISO-8601. It’s about time since that has been the standard since 1988.

Niskanen center names social justice aware libertarianism as “neoclassical libertarianism“. I like this idea, as it’s strictly superior to progressivism, and I’ve been trying to come up with a good name for it. Scott Alexander called it left-libertarianism-ist, which just isn’t as catchy. Of course, maybe pure libertarianism is better, but neoclassical liberalism is far more politically palatable. It is also more “conservative”, meaning that it is closer to the status quo.

Merrick Garland would not be a good SCOTUS justice. Randy Barnett discusses with Reason why he opposes Garland’s nomination: he’s completely deferential to executive and legislative authority and does not protect individual rights from the state. Does it make sense for the Senate to not give him a hearing? Maybe, maybe not. Did it make sense to declare prior to his announcement that any candidate wouldn’t get a hearing? Hard to say; if that hard line approach made Obama nominate an old white guy who endorses state power in the name of national security, that’s certainly a win for neoconservatives. I don’t think anyone should take an outrage stance on the Supreme Court opening because this really is a complicated game theory situation with nested layers of strategy. Even though I’m sure he is one of the most un-libertarian nominees ever, it’s impossible to say if he would be worse than a Hillary appointee or even a Trump appointee.

How to fight the War on Drugs: hit their wallets. Legal marijuana causes Mexican drug cartel revenues to plummet.

Heard through Slate Star Codex, anti-censorship blog Status 451 (linked in the sidebar) held a fund-raiser for LambdaConf, a functional programming conference I had no idea existed until a week ago. Apparently, after an anonymous analysis of submitted papers, the Lambdaconf organizers selected a paper to be presented at the conference by Curtis Yarvin, a.k.a. Mencius Moldbug, perhaps the most well known neo-reactionary. Certainly I think neo-reactionaries are a bit nuts, but Mr. Yarvin has also invented the intriguing functional programming language Urbit. We don’t agree with him politically, we can learn and grow our knowledge by understanding what he has to say, especially in technological areas he is an expert in! Alas, as Eric S. Raymond recounts, the social justice movement did not see it that way and pressured LambdaConf to remove Yarvin from the event. Lambdaconf refused and the activists moved to forcing sponsors to drop out. Incredibly, Status 451 started an indiegogo campaign to save LambdaConf, which was funded within the day. This is a big victory for anyone who wants to live in a tolerant, knowledgeable, and free society, but if you want to know their motivations firsthand, please read what they have to say. Status 451 are also true believers, calling out some on the right for their similarly censoring response.

Related in Not the Onion news: Emory vows to hunt down students who politically disagree with the Left.

Bryan Caplan on liberalizing expertise and the link with defending free speech from the attacks of economic licensing.

A great write up on derivatives, what they are, how they work, and why it’s misleading to suggest that the derivatives market has a quadrillion dollars in risk.

Another excellent reddit post, this one asking soldiers what things they don’t tell you about war. In short: the smell.

Apparently the music industry thinks the DMCA doesn’t do enough to stop copyright infringers (more on the RIAA at TorrentFreak). It seems they’d like to target the safe harbor provisions of the DMCA, the only parts of it that are useful. Techdirt has a great series of posts from the other side, detailing the many abuses of DMCA takedown notices. Right now, there is no legal check on whether a takedown request comes from someone who actually owns the copyright, or even if that copyrighted work is utilized fairly for criticism or commentary. This isn’t an easy problem to solve by any means, but we should remember that the point of copyright is to encourage production of new works, and if there’s anything that YouTube does right is making it easier to create new content. Moreover, it’s helpful to remember that YouTube is run at a loss of more than $150 million a year. Trying to force YouTube to pay for content policing is one of the dumber ideas they’ve ever had, which is saying something. So what should be done instead? A good start would be to make false copyright claims a criminal offense, and require you to prove you own the copyright in the claim. It would also be good if it turned out your copyright claim was wrong, the ad-money would not go to the claiming part, but would be held in escrow until the dispute is resolved. This would allow YouTube to better focus on actual infringers and stop the torrent of false claims. Of course, another big looming problem for the RIAA is Facebook video, which doesn’t even have the semi-transparent (though flawed) takedown-notice system of YouTube. Ultimately, given how little money YouTube makes after 10 years on the internet, if YouTube was allowed to be held liable for infringing uploads, YouTube would either go out of business, or cease becoming a free platform anyone could use. This would be a monumental failure of the copyright regime; yes, it might end up getting RIAA members more money, but that is not the purpose of copyright. Copyright exists to help make new content, not destroy content platforms.

California is raising its minimum wage, eventually to $15 an hour. FiveThirtyEight’s Ben Casselman is excited at least to get some data on large minimum wage hikes, although judging from the headlines, it seems like he thinks this is a good idea. I’m fairly confident it is not, and Matt Zwolinski makes one good point to support me: the minimum wage doesn’t fight poverty. There’s a lot of data surrounding the minimum wage. And it’s apparent that unemployment does not automatically rise when minimum wage increases occur. Nonetheless, longer term unemployment effects are essentially impossible to study, and it’s likely there are some effects on businesses. If businesses could absorb 20-40% increases in labor costs easily, then why aren’t businesses getting more out of their employees, or more firms entering the business due to excess profits? There is evidence of long term job growth being harmed, as well as higher prices (see last link). Ultimately, I predict there will be negative consequences for California, but it’s hard to find something that is worth predicting. I could predict that California’s employment and workforce participation rate will be lower than the country average by more than they are now (check this in the future). It’s also likely that low cost goods will see price increases, but I don’t have an easy way to check that over the next five years.

Robin Hanson has a good thought experiment to show that most people don’t vote to change the outcomes of elections. This would explain why anyone votes at all, given the uselessness of voting generally.

GiveWell tries a new tactic to persuade more people to fund their top researched causes: ” First of all. Just so you understand, this guy is a total loser. He begged me to be his peer reviewer, I said ‘NO THANKS.’ Pathetic!”

Daniel J. Bernstein taking over crypto is good.

Links 20160224

Marginal Revolution has a post about an event that occurred on Shark Tank. The pitch on the show was an alternative to bee honey, made from apples. Part of the pitch was that this would save the bee population by reducing the industrial demand for it (yes, really). Spoiler from Professor Tabarrok: “Reducing the demand for honey, reduces the demand for bees”.

Politico has a nice article about the potential of Bernie Sanders’ campaign, even if he doesn’t win a majority of delegates. The way the Democrats set things up, he will be in an excellent position to make demands on the party platform, possibly reshaping the Democrats’ economic policy for many years to come.

A recent Quinnipiac poll found that head-to-head, Sanders beats Trump by 10 points in a national survey (he does better than Clinton against Trump). Things could change of course, but it seems that Trump really isn’t who I should be worried about becoming president right now, as he’s still not likely to win the Republican nomination, and it seems the Democrats poll well against him.

SCOTUSblog has a nice write up on the next court nomination fight, now that Scalia is gone, what factors will be in play, and how can the Obama administration find a nominee with a spotless record that fires up the base and ensures a left-of-center court for a long time. I doubt they nominate a classical liberal.

Tyler Cowen writes about the benefits market monetary policy can bring, as well as the shortfalls of its approach when critiquing Fed policy.

Apple CEO Tim Cook posted a public letter to Apple customers detailing a demand made by the FBI. Law enforcement wants the company to create a new version of their operating system which they could then install on a criminal’s seized phone. The new OS would have a backdoor allowing the FBI to more quickly access it. I liked Apple just fine as a company, but this is pretty awesome. This week, it turns out the FBI was lying about this being a one-time request as the DoJ is already pursuing orders to force Apple to unlock about a dozen other phones, according to anonymous sources.

Nostalgia Critic on Channel Awesome on YouTube has a great video detailing the absolutely horrible copyright abuse rampant on YouTube. Claimants have no repercussions for false claims, even on self-evident fair use cases because YouTube’s system is entirely automated with no oversight. Copyright battles are not something of the past, there are still huge problems today.

An NBER study from last year found government subsidies more than account for increases in tuition. H/t Slate Star Codex.

The German government gives us another example of how you can’t have government surveillance without fundamentally breaking security. Hacker News discussion.

Second link from Alex Tabarrok, this time on drug prices and the FDA. Apparently the US has the lowest generic drug prices of any developed nation. I feel like we should switch to a prize system where drug companies are awarded $X million for successfully passing approval, and then that drug is immediately released with no patent into the market. X could be set based on the amount of patients in the previous 5 years who could have used the drug.

People like to talk about the “Uber” of some industry, trying to say a company is disrupting their space like Uber did to taxis (also in the interest of fighting monopolies, Lyft is great too). How about Uber for welfare? The left often opposes “workfare”, or ways which incentivize welfare recipients to work, since finding jobs for everyone isn’t practical “…but today the gig economy offers the solution: It can easily and quickly put millions of people back to work, allowing almost anyone to find a job with hours that are flexible with virtual locations anywhere.” There’s also some data that working is a really good on a cultural level, teaching discipline and responsibility. This sort of goes against my attraction to a basic income, but could go hand in hand: you get a basic income allowance if you can prove you engaged in the gig economy recently. Really cool idea.

From EconLog, some praise for the Free State Project. Apparently they’ve already got over a dozen people elected to the state legislature? Tried to find somewhere else this is being tracked, but I didn’t see anything. If you have info on this, tweet at me.

Also from EconLog, Bryan Caplan finished his summarized his extended discussion of ancestry and long run growth literature. In sum, we can’t say that people with more advanced culture thousands of years ago had that much better outcomes today. It’s likely other institutional decisions are more important (like having stable free markets).