Blog

In March, the Florida International Law Review hosted a symposium on the Separation of Powers. It was a stellar lineup, including David Bernstein, Ron Rotunda, Lee Strang, Brannon Denning, Jon Adler, and Michael Ramsey. My contribution, Government by Blog Post, is now available on SSRN. Here is the abstract.

During the implementation of the Affordable Care Act, President Obama repeatedly turned to this all-too-familiar pattern of executive action. First, the impact of the Affordable Care Act made certain groups worse off. Second, as a result, Congress was pressured to modify the law to alleviate these negative externalities from the law. However, Democrats feared that Republicans would seize the opportunity to unravel other portions of the law. This halted any possible bipartisan support for legislative amendments. Third, in the face of this gridlock, President Obama turned to executive action to alter the ACA’s onerous mandates. Specifically, he delayed and suspended the individual and employer mandates, as well as modified provisions affecting benefits for Congressional employees and coverage in the U.S. territories.

Each of these executive actions—implemented through formal notice-and-comment rulemaking or informal social-media blogging—came as a complete surprise. Each change posed risks to the long-term sustainability of the law. Each change relied on tenuous readings of the statute, and dubious assertions of executive authority to accomplish ends entirely at odds with what Congress designed. Each action was contested in court by states and private parties. However, because the executive actions had the effect of lifting burdens, rather than imposing any injuries, the government vigorously contested that no one had standing to bring suit. As a result, the ultimate legality of these moves was decided not by the courts, but by the President, who desperately acted alone to salvage his signature law.

One of the more disconcerting aspects of the law’s implementation, beyond the numerous delays and waivers, has been the cavalier approach by which the government announced these changes. It soon became a painful pastime of ferreting through these massive document dumps and attempting to find the actual basis for the rule previously announced in the blog post. And invariably, the policy, as stated in the blog post, doesn’t quite match up what is in the rule. This was no longer a government of law, but a government by blog post.

This article was part of a symposium on the separation of powers hosted by the Florida International University Law Review.

 

In 1960, a group of civil rights leaders published a full-page advertisement in The New York Times. “Heed the rising voices,” the advertisement proclaimed, was a rallying call to shine a light on injustices in Jim Crow Alabama. Though their advertisement conveyed a powerful message, there were factual inaccuracies. For example, it stated that Dr. Martin Luther King was arrested seven times, when he was only arrested four times. It stated that a group of protestors sang the National Anthem, but they actually sang My Country Tis of Thee. Their most outlandish claim was that the police locked protesting-students in a dining hall–it never happened.

L.B. Sullivan, Commissioner of the City of Birmingham brought a libel suit against The New York Times for running the advertisement.  (Though Sullivan was not named, the reference in the advertisement to the “police” presumably included the Commissioner who supervised the police department). In one of the most important, and celebrated First Amendment decisions, the Court reversed the libel judgment. The Court concluded that to justify a libel action against a “public figure,”  Sullivan had the burden to prove that the Times acted with “actual malice,” that is “with knowledge that it was false or with reckless disregard of whether it was false or not.”

Although this was ostensibly a pure free speech case, it must be understood in the broader context of the era. Sullivan brought this action not because he cared what a bunch of New Yorkers thought about Birmingham, but as a tool to chill and silence the Civil Rights Movement, and prevent them from soliciting funds to help tear down Jim Crow. Sullivan should be viewed alongside NAACP v. Alabama as cases that use the First Amendment to protect the sort of speech is unpopular, and that others want to silence.

Today, a full page advertisement was published in The New York Times, which I signed. The title reads: “Abuse of Power: All Americans have the right to support causes they believe in.” The advertisement, sponsored by the Competitive Enterprise Institute, sounds an alarm to the disturbing subpoenas the Attorney General of the Virgin Islands sent to the Competitive Enterprise Institute, and other right-of-center groups, as part of a broader investigation into Exxon. (Walter Olson collects a number of the stories).

I have no qualification to discuss climate change, but I am qualified, and passionate about the First Amendment. This witch hunt is clearly aimed at chilling and silencing speech they disagree with. These subpoenas are far more egregious than what L.B. Sullivan did to the New York Times half a century ago, and should be stopped.

Here is the text of the letter:

ABUSE OF POWER

All Americans have the right to support causes they believe in.

The right to speak out is among the most fundamental principles of American democracy. It should never be taken away.

Yet, around the country, a group of state attorneys general have launched a misguided effort to silence the views and voices of those who disagree with them.

Recently, New York Attorney General Eric Schneiderman, U.S. Virgin Islands Attorney General Claude Walker, and a coalition of other “AGs United for Clean Power” announced an investigation of more than 100 businesses, nonprofits, and private individuals who question their positions on climate change.

This abuse of power is unacceptable. It is unlawful. And it is un-American.

Regardless of one’s views on climate change, every American should reject the use of government power to harass or silence those who hold differing opinions. This intimidation campaign sets a dangerous precedent and threatens the rights of anyone who disagrees with the government’s position—whether it’s vaccines, GMOs, or any other politically charged issue. Law enforcement officials should never use their powers to silence participants in political debates.

We are standing up for every American’s First Amendment right to speak freely. We hope you will join us. This is a critical battle, and it will determine whether our society encourages spirited debate or tolerates only government-approved opinions.

Kent Lassman
President & CEO, Competitive Enterprise Institute

C. Boyden Gray
Former White House Counsel

Andrew C. McCarthy
Former Chief Assistant United States Attorney, Southern District of New York

Michael B. Mukasey
U.S. Attorney General, 2007-2009; U.S. District Judge, 1988-2006

Ross McKitrick
Professor of Economics, University of Guelph

Ronald D. Rotunda
Distinguished Professor of Jurisprudence, Chapman University

Richard S. Lindzen
Professor Emeritus of Atmospheric Sciences, MIT

William Happer
Emeritus Professor of Physics, Princeton University

Jim DeMint
President, The Heritage Foundation

James H. Amos, Jr.
President & CEO, National Center for Policy Analysis

John A. Baden
Chairman, Foundation for Research on Economics & the Environment

Lisa B. Nelson
CEO, American Legislative Exchange Council

Paul Driessen
Author & Energy Policy Analyst

Thomas J. Pyle
President, Institute for Energy Research

Steven J. Allen
Vice President & Chief Investigative Officer, Capital Research Center

David Ridenour
President, National Center for Public Policy Research

Steven J. Milloy
Publisher, JunkScience.com

Brooke Rollins
President & CEO, Texas Public Policy Foundation

Paul Gessing
President, Rio Grande Foundation

Ron Arnold
Researcher & Author

William Perry Pendley
President, Mountain States Legal Foundation

Adam Brandon
President & CEO, FreedomWorks

Hank Campbell
President, American Council on Science and Health

Craig Rucker
Executive Director, Committee for a Constructive Tomorrow

Tom McCabe
CEO, Freedom Foundation

Richard B. Belzer
Economist

Heather R. Higgins
President & CEO, Independent Women’s Voice

Joseph G. Lehman
President, Mackinac Center for Public Policy

Sabrina Schaeffer
Executive Director, Independent Women’s Forum

Joseph Bast
President, The Heartland Institute

John C. Eastman
Founding Director, The Claremont Institute’s Center for Constitutional Jurisprudence

Robert Alt
President & CEO, The Buckeye Institute

Michael Pack
President & CEO, The Claremont Institute

Josh Blackman
Assistant Professor, South Texas College of Law

Lynn Taylor
President, Tertium Quids

David Rothbard
President, Committee for a Constructive Tomorrow

Tracie Sharp
President & CEO, State Policy Network

Kenneth Haapala
President, Science and Environmental Policy Project

Tim Phillips
President, Americans for Prosperity

Myron Ebell
Director of the Center for Energy & Environment, Competitive Enterprise Institute

George Landrith
President, Frontiers of Freedom

John Tillman
CEO, Illinois Policy Institute

Craig D. Idso
Chairman, Center for the Study of Carbon Dioxide and Global Change

Affiliations listed for identification purposes only. 

I am shocked at how few advocates for free speech–especially those on the left– have spoken up about this travesty. It moved me to put my name on this letter, knowing full well the price of taking a stand on an controversial topic.

On Friday, March 11, the Florida International Law Review hosted an excellent symposium on the separation of powers. David Bernstein provided the keynote. Also speaking were Ron Rotunda, Brannon Dennings, Lee Strang, Jon Adler, Michael Ramsey, and me.  Video of the entire day is available here. My speech starts around the 5:34:00 mark. Or, you can watch it on YouTube.

The event was a special treat because Ron and David were my constitutional law professors. It is a rare honor that I get to talk about ConLaw with the people who taught me ConLaw!

In honor of President’s Day, I recently visited the National Archives. With the utmost awe and reverence, I walked up to the enclosed cases containing the original copy of our United States Constitution. My eyes slowly panned across my favorite provisions—Article I limiting the powers of Congress, Article III creating the Supreme Court, and Article VI stating that the Constitution is the “Supreme Law of the Land.” But, my immersion in our Charter of Liberty was abruptly interrupted. A guard told me to keep walking: “Please do not read the entire Constitution. If you want to read the entire document, please visit the gift shop.”

I could not believe my ears. Could he possibly be serious? Did he actually just say what I think he said? Now, I recognize the guard was attempting to move the crowd along (a small line had formed), and that he likely had said this many times before. But the thought that a guard would have the gall to tell visitors to our Nation’s capital to not read our Constitution is appalling. By the way, all federal employees draw a salary by virtue of the Constitution’s “Appropriations Clause,” found in Article I, Section 9, in case he allowed anyone to read that far.

No one, myself included, was going to read the entire document. At best, maybe interested guests would look at a few provisions and try to make out the faded letters on the parchment (it is not easy to read). This exercise would take several seconds, at the most. But instead of allowing people—who may only witness the majesty of our Constitution once in their lives—the opportunity to savor the moment, it is apparently the official policy of the National Archives to move people along. Nothing to see here, apparently.

I cannot imagine that any other museum in Washington, or anywhere in the world, would rush people past an exhibit—let alone the Constitution, a document that every American should discuss and learn more about. Any policy that favors rushing more visitors past our founding documents, at the expense of denying them the opportunity to even read a few letters, strikes the wrong balance.

As a surreal post-script to this troubling episode, after I departed from the rotunda containing the Constitution, as the guard suggested, I went to the gift shop. I was drawn to a sign that advertised “The Declaration of Independence in a Bottle” for $2.95. I looked closely at the bottle and saw the phrase, “We the People.” Huh?! This wasn’t the Declaration of Independence. This was the Constitution of the United States. I brought this error to the attention of a manager. She promptly switched the signs around, so that the “Constitution in a Bottle” sign now appeared in front of the Constitutions. No problem, right? That the National Archives made such a mistake is stunning. I have no idea how long the exhibit was mislabeled, and I hope visitors did not buy the wrong document.

These charters of freedom belong to We the People. We should expect better from the museum charged with protecting our national treasures.

Cross-Posted at Law & Liberty.

The good. They have Magna Carta!

You see the eerie yellow glow of a display case. And inside, written on thick vellum, with a threaded ribbon holding an ancient royal seal, is one of four surviving copies of the 1297 Magna Carta, a contract between English barons and their tyrannical king.

What a way to begin this exhibition while also foreshadowing prospects ahead! The document was purchased by the investor and philanthropist David M. Rubenstein in 2007 for $21.3 million; he provided it on permanent loan. He also donated a major portion of the $30 million required for the new entrance plaza, the new gallery we are entering, and the exhibition that opens with this document.

The bad. The exhibit offers no explanation or context for the documents.

A good part of this should be included in any history of the United States, but here, presented in isolation, without context or deeper analysis, the effect is numbing. We aren’t being asked to think: We are being drilled, unrelentingly, in injustice. When we are told, for example, about the Voting Rights Act of 1965 and its long-overdue promise, we are also informed that this year, “the Supreme Court declared Section 4 of the act unconstitutional.” There is no explanation either of that section or of the decision; the only point is to imply continuing wrongs.

Another example: The section on immigration makes you wonder why anybody bothered to come to the United States at all. The exhibition’s explanation is passive, even grudging, suggesting that war or persecution “pushed” some here; some were drawn by material prospects; and “for others the impetus was the promise of political of religious freedom.” The impression, over all, is that this remained just a promise, and that America, even now, is resistant to immigration. We don’t find contrary indicators like this: From 2001 to 2011 the number of immigrants legally admitted to the United States was greater than in any other comparable period in the nation’s history.

The exhibition notes that Americans have “debated issues” like these, but there is no debate — only compassion opposing intolerance. A more compelling approach might have been to explore how the idea of “rights” has changed. Or to compare American struggles with those of other nations. Or to see the nation’s profound virtues alongside its failings.

Magna Carta is this exhibition’s promissory note, in more ways than one; its gallery’s promise is also unfulfilled. What are we left with, as we head up to the Rotunda to see the founding documents? No context or perspective; only grim struggles and partially won liberties. What are we to think of Magna Carta, which no doubt accompanied a fair share of baronial tyranny? And what is a visiting class of students to think, except that the United States has been uniquely hypocritical and surpassingly unjust?

This is a peculiar way for an institution that is a reflection of the government itself, to see the nature of its origins, the character of its achievements, and the promise of its ideas.

Yikes. That’s pretty scathing for this law nerd.