Aug 13, 2012

Posted in Uncategorized

Paul Ryan on the Constitution, the Rule of Law, and the Problem of Delegation

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Here is the text of a speech Ryan gave on Constitution Day last year.

Usually, our defense of the Constitution is presented as a defense of America’s founding principles and values, and rightfully so. But our constitutional system is not just a collection of principles; it embodies an approach to government with profound practical implications for both our freedom and our prosperity. When that system is threatened, both freedom and prosperity suffer.

Freedom is lost by degrees, and the deepest erosions usually take place during times of economic hardship, when those who favor expanding the sphere of government abuse a crisis to persuade free citizens that they should trade in a little of their liberty for empty promises of greater economic security.

This is an interesting economic twist on the liberty/security balance.

The focus of the talk is on the rule of law.

The great difficulty we encounter in striving to meet Aristotle’s ideal was best summed up by James Madison: “If men were angels, no government would be necessary. And if angels were to govern men, neither external nor internal controls on government would be necessary.”

But, as Madison reminded us, men are no angels, and government is “administered by men over men.” Grounded in a proper understanding of human nature, our Founders tackled this challenge head-on with a brilliant Constitution and a healthy separation of powers, binding all men to the same set of laws and preventing any one man or group of men from gaining enough power to declare themselves above the law.

The Constitution secures other rights long understood to be essential to the rule of law, such as the right to due process, meaning that the laws of the land must be transparent, consistent, and equally applied to all men, so that no man may be arbitrarily deprived of life, liberty, or property.

This constitutional cornerstone of our free society is also a critical precondition for a free and dynamic economy. Without the rule of law to safeguard the ownership of property and the enforcement of contracts, it makes little sense for an investor to put his capital at risk helping an entrepreneur to pursue a dream, advance an idea, and ultimately grow a business that creates good-paying jobs for Americans.

Then he goes on to attack the Federal Reserve, Obama’s energy and environmental policy, TARP, Dodd-Frank, the NLRB, and the ACA, as examples of laws in derogation of the rule of law. Specifically about the ACA, he focuses not on the commerce clause infirmities, but on the broad discretion granted to HHS and other bureaucrats administering Medicaid:

Last case: the president’s health-care law. This one is a doozy. Let me share with you a figure that serves as a devastating indictment of the new law: So far, over 1,400 businesses and organizations have been granted temporary waivers from the law’s onerous mandates. These waivers do not guarantee relief in the future, which is why I refer to them as “stays of execution.” Nor do they help those firms that lack the connections to lobby for waivers. The powerful discretion assumed by the Department of Health and Human Services to play judge in determining these stays of execution does tremendous damage to the rule of law.

The president’s health-care overhaul undermines the rule of law in other ways as well. The new law empowers a panel of 15 unelected, unaccountable bureaucrats in Washington to cut Medicare in ways that will deny benefits for current seniors. The new board’s recommendations would become law unless a supermajority voted affirmatively to replace these recommendations — a high hurdle that raises constitutional questions about whether Congress can legitimately grant this much lawmaking power to an unelected agency.

Look, I am not trying to question the intentions of those who have decided to make Medicare spending less accountable to the democratic process. I think they truly believe that it is better to let government-appointed experts make these kinds of decisions, free from the checks and balances that define our messy democratic process.

But in weakening the rule of law in the United States, their intentions are totally irrelevant. The damage they have done is real. And the relevant question we have to ask ourselves is whether, as Reagan put it, “we believe in our capacity for self-government, or whether we abandon the American Revolution and confess that a little intellectual elite in a far-distant capital can plan our lives for us better than we can plan them ourselves.”

Amazingly, his solution to our current constitutional crisis focuses on the delegation power.

The Constitution’s Framers knew that there is a human inclination to increase personal power at the expense of law, so they created Congress as a decentralized and internally divided institution, but they granted it ample authority to secure the rule of law in every case. Congress holds the power of the pen as well as the purse. It has the power necessary to address attacks on the rule of law in our executive bureaucracies and even in the courts. The Constitution provides us with the power to solve these problems; what we need, is the will to do it.

The solution, the defense of the rule of law, will have to involve alternative ways to address the public problems that too many on the Left want to solve by delegating power to bureaucrats. For every government curtailment of our liberty through the discretion of bureaucrats, there are alternative reforms that could address the same problems within the framework of the rule of law, and indeed they could address those problems more effectively.

Ryan should get some Schechter Brothers Chicken while on the campaign trail.

The American idea unites liberty and law in a bond that must not be severed. America can win back the promise of individual liberty — a promise we have and continue to shed blood to defend. But the time has come to honor our Constitution’s limits on arbitrary bureaucracy and return the rule of law to the center of our government.

Looking out on the faces here today — and knowing that some of you woke up at 8:30 to watch online — I am hopeful that a new generation is coming to the study of politics with a real appreciation of the Constitution and its centrality to ensuring justice and security in our communities, to promoting the welfare and the prosperity of all the people, and to securing the blessings of liberty to ourselves and our children.

By respecting the rule of law, reclaiming the prominence of our Constitution, and reforming our government, I have no doubt that we the people, working together, can help ensure that the next generation of citizens inherits a stronger, freer, more prosperous America, and a more perfect union.

Most politicians talk in platitudes about the Constitution–limited government, federalism, whatever. But this talk evinces a more clear knowledge of the underlying principles for the non-delegation doctrine, and some of the historical and philosophical roots of separation of powers.

I look forward to hearing more from Ryan about his views on the Constitution. You know, in the Vice Presidential debate, he will be going up against a former Con Law Professor-Joe Biden that is. As will Romney, against President Obama.

H/T Originalism Blog

Update: Welcome WSJ Law Blog readers.

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  • http://www.facebook.com/TheStilettoBlog Victoria Knox

    Interesting article. Just one thing I’d like to add: Mitt Romney has a JD and an MBA from Harvard. I think he will do just fine in his debate with Barack Obama.

  • Kevin

    When did Biden teach law? He finished very near the bottom of his law school class at Syracuse. He was lucky they didn’t toss him out. He was a plagiarist even then. He won a Senate seat at 29, hardly enough time for much of a legal career.

    • http://joshblackman.com/ Josh Blackman

      Biden taught a constitutional law class at Widener Law School in Delaware. A former colleague took the class. She said Biden showed up once or twice the entire seminar, and just talked about himself.

      I remember during the 2008 President Debate, Joe Biden was trying to show off against Palin (not hard to do), and said something about the power of the VP residing in Article I of the Constitution. I remember yelling at the TV at a party, while whipping out my pocket Constitution, that he meant Article II.