Saturday, May 21, 2016

More on the Senate's Absolute Discretion to Refuse to Consider Presidential Nominees


In an excellent essay in the Atlantic, Michael D. Ramsey, the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego, demolishes claims that Article II of the Constitution somehow requires the Senate to hold hearings and a vote on President Obama's nominee to the Supreme Court, Chief Judge Merrick Garland.   As Ramsey points out, the text of Article II does not mention hearings or a vote, so any such requirement must be found "by implication."  

Ramsey makes three arguments rebutting claims that the Constitution somehow implies such a duty. 

First, several other provisions of the Constitution provide that one branch may propose actions subject to the approval of another.  For instance, the President may propose treatises subject to the Senate's consent.  None of these provisions, with one exception, has been read to require any sort of process before the second body refuses to act. The exception is the so-called "presentment clause" (Article I, Section 7), which provides that the President has only ten days to veto a bill and, if he does so, must given his reasons in writing.  As Ramsey  puts it: "The framers knew how to require formal action if they wanted to; they just chose not to require it in the appointments clause (and elsewhere)." 

Second, Article I, Section 5 of the Constitution expressly empowers the Senate to: "determine the rules of its proceedings."  While the Senate could adopt a rule requiring formal proceedings before rejecting a nominee, it has not done so.  

Third, Article II's appointments clause governs the nomination and possible appointment of all "officers of the United States," including lower court judges and countless executive branch officials. Any requirement of a hearing and a vote would therefore also apply whenever the President nominates an individual to such a position. And yet, the Senate has often declined to provide a hearing or vote to nominees for such offices.  (For instance, Jonathan Adler has explained, the Senate declined to consider over two dozen of President George W. Bush's nominees to various United States Courts of Appeals, including one John Roberts.)  Here Ramsey responds to the claim that the Supreme Court is somehow "different" because the Constitution expressly requires Congress to create this body.  As Ramsey explains, there is no constitutional requirement that the Supreme Court contain nine Justices. Instead, Congress sets the number of Justices and has, over the years, set the number at six, seven, nine or ten justices.  (This blogger notes that the Court that decided Marbury v. Madison, 5 U.S. 137 (1803) consisted of six justices, while the Court that decided Gibbons v. Ogden, 22 U.S. 1 (1824) included seven.)  Declining to consider or confirm a ninth justices does not prevent the Court from performing its constitutional role.

The Atlantic essay is a streamlined version of Ramsey's arguments on this question.  For his elaboration on these arguments on the Originalism Blog, go here, here, here and here.  Go here for this blogger's own take on this question.

William Galston on President Obama's Choice of Reform over Recovery


In a superb op-ed in the Wall Street Journal, entitled "[h]ow Obama's Economy Spawned Trump," William Galston of the Brookings Institution contends that the weak economic recovery that began in 2009 fueled the popular discontent that begat the presumptive Republican nominee. While Galston gives the President credit for securing passage of the 2009 "stimulus package" and formulating the "bailout" of General Motors and Chrysler, he also contends that the President had no follow up plan for bolstering the recovery which, as previously explained on this blog (see also here), has been exceedingly slow. Instead, Galston says, the President chose to spend his scarce political capital on securing passage of the so-called "Affordable Care Act" and regulatory efforts to combat "Global Climate Change."  Had the President remained focused on nurturing the recovery, Galston says, he could have expended his political capital on advocating and securing additional deficit spending on various infrastructure projects, such as highways, thereby further stimulating the economy and bolstering the recovery.

Galston's trenchant analysis bolsters the adage that those who ignore the lessons of history are doomed to repeat it. This is not the first time that a President facing a deep recession has chosen reform over recovery.  In 1933, Franklin Delano Roosevelt secured passage of the National Industrial Recovery Act, his administration's central economic recovery plan.   Among other things the NIRA imposed so-called "codes of fair competition," along with above-market minimum wages and requirements that firms recognize and negotiate with labor cartels also known as unions.  As John Maynard Keynes explained in a letter to the New York Times, the NIRA's wage and price fixing provisions were tools of "Reform and probably impeded recovery."  Subsequent analysis has verified Keynes' prediction, finding that the NIRA's wage-fixing provisions in particular, while furthering what Keynes called "redistribution," also helped deepen and lengthen the Great Depression by several years.  (See here and  here)  If Galston is correct, then President Obama, too, chose reform over recovery, with negative consequences for the nation's overall economic well-being.

At the same time, Galston overstates his case in a couple of ways. First, he likely overstates the impact of the initial stimulus package. For one thing, the $800 Billion package was spread over several years, thus constituting a very small share of overall GDP each year. Indeed, in 2009, Galston himself opined that some of the package's proposed projects would "take effect slowly over many years, muting their stimulative consequences." Like Martin Feldstein, Galston proposed allocating stimulus funds to immediate military spending (see also here discussing Feldstein's proposal.). Moreover, as this blog explained at the time, the net impact of the 2009 package was likely smaller than its nominal price tag, insofar as some such deficit spending simply displaced debt and resulting spending that states would have incurred anyway.  (See this testimony by John Taylor at Stanford, who summarizes research finding such a displacement effect.)  Second, as previously explained on this blog, any claim that the auto bailout was worth the cost does not survive scrutiny.  All in all, however, Galston makes a powerful point.  It would be ironic indeed if the President choice of reform over recovery leads to the election of a President hostile to those reforms.

Saturday, April 30, 2016

Chicago Bears Draft DeAndre Houston-Carson!


Future Bears Co-Captain?

The Chicago Sun-Times reports that the Chicago Bears have chosen William and Mary safety DeAndre Houston-Carson in the 6th round of the NFL draft.  Carson, a co-captain, is pictured above at the coin toss before the Tribe's thrilling 52-49 victory over Duquesne in the first round of the FCS playoffs this last fall.  The William and Mary Sports Blog, which anticipated that Houston-Carson might be drafted, summarizes his extremely impressive career, which included 293 tackles, 10 interceptions, 9 punt or kick blocks and consensus first team FCS all American honors. Congratulations to Houston-Carson, and to the Bears for making such a great pick! 

Occupational Licensing, the Criminal Law and Vocational Liberty


He Told You So

A story on the Wall Street Journal's "Law Blog" highlights a study by the National Employment Law Project demonstrating one of the many perils of occupational licensing statutes, namely, that many such statutes needlessly exclude individuals with a criminal record, including some with misdemeanors, from employment in the field in question.  According to the story, about one in four Americans works in a profession that requires a state license, and nearly one third of Americans have a criminal record.  While some states (e.g. Minnesota), ignore convictions for offenses unrelated to the licensed occupation in question, others invoke unrelated convictions to bar individuals from a licensed occupation, sometimes declaring such convictions evidence of the sort of "moral turpitude" that requires such exclusion.

As a result of these restrictions, perhaps millions of Americans cannot pursue the vocation of their choice in some states, thereby undermining basic occupational liberty, preventing countless voluntary transactions, and depriving society of the productive services of talented individuals. To be sure, some of these restrictions may serve valid public purposes, as when a state bars convicted bank robbers from driving armored cars. However, many such restrictions do not, as when, for instance, a state bars an individual convicted of marijuana possession from serving as a manicurist, landscape worker, make up artist, travel guide, bar tender, taxidermist or animal trainer.  (See here for a list of 102 occupations to which some or all states limit entry.)

At the same time, this anti-liberty "synergy" between the criminal law and occupational licensing is just one negative facet of a legal regime that grants states nearly limitless authority to prevent individuals from pursue their chosen vocation.  As Milton Friedman explained more than half a century ago, many such statutes infringe the basic human freedoms to engage in voluntary wealth-creating transactions, while simultaneously protecting incumbent producers from competition, reducing output and increasing prices. See Milton Friedman, Capitalism and Freedom 137-160 (1962).  Thus, Friedman contended, society should adopt a very heavy presumption against such regulation.  See id. at 144.   These conclusions, of course, followed ineluctably from basic economic science. Even some progressives, including the Obama Administration, have finally conceded Friedman's point that occupational licensing wreaks significant harm on the economy.  Unfortunately these same progressives still maintain their ideological and anti-scientific support for other intrusive regulations of labor markets, thereby weakening the sort of intellectual milieu necessary to true reform.  (Indeed, the same National Employment Project supports the anti-liberty and anti-wealth measure known as the "minimum wage.")

The National Employment Law Project identifies a serious problem, namely, numerous unjustified abridgments of personal liberty.  These results come as no surprise to those who have long internalized Friedman's lessons. However, Friedman also provided the best solution to this problem, viz., a wholesale embrace of economic science and the resulting elimination of the vast majority of occupational licensing statutes, period.  Nibbling around the edges by altering the interaction between the criminal law and unjustified occupational licensing is at best, a half-measure. 

Occupational Licensing, the Criminal Law and Vocational Liberty


He Told You So

A story on the Wall Street Journal's "Law Blog" highlights a study by the National Employment Law Project demonstrating one of the many perils of occupational licensing statutes, namely, that many such statutes needlessly exclude individuals with a criminal record, including some with misdemeanors, from employment in the field in question.  According to the story, about one in four Americans works in a profession that requires a state license, and nearly one third of Americans have a criminal record.  While some states (e.g. Minnesota), ignore convictions for offenses unrelated to the licensed occupation in question, others invoke unrelated convictions to bar individuals from a licensed occupation, sometimes declaring such convictions evidence of the sort of "moral turpitude" that requires such exclusion.

As a result of these restrictions, perhaps millions of Americans cannot pursue the vocation of their choice in some states, thereby undermining basic occupational liberty, preventing countless voluntary transactions, and depriving society of the productive services of talented individuals. To be sure, some of these restrictions may serve valid public purposes, as when a state bars convicted bank robbers from driving armored cars. However, many such restrictions do not, as when, for instance, a state bars an individual convicted of marijuana possession from serving as a manicurist, landscape worker, make up artist, travel guide, bar tender, taxidermist or animal trainer.  (See here for a list of 102 occupations to which some or all states limit entry.)

At the same time, this anti-liberty "synergy" between the criminal law and occupational licensing is just one negative facet of a legal regime that grants states nearly limitless authority to prevent individuals from pursue their chosen vocation.  As Milton Friedman explained more than half a century ago, many such statutes infringe the basic human freedoms to engage in voluntary wealth-creating transactions, while simultaneously protecting incumbent producers from competition, reducing output and increasing prices. See Milton Friedman, Capitalism and Freedom 137-160 (1962).  Thus, Friedman contended, society should adopt a very heavy presumption against such regulation.  See id. at 144.   These conclusions, of course, followed ineluctably from basic economic science. Even some progressives, including the Obama Administration, have finally conceded Friedman's point that occupational licensing wreaks significant harm on the economy.  Unfortunately these same progressives still maintain their ideological and anti-scientific support for other intrusive regulations of labor markets, thereby weakening the sort of intellectual milieu necessary to true reform.  (Indeed, the same National Employment Project supports the anti-liberty and anti-wealth measure known as the "minimum wage.")

The National Employment Law Project identifies a serious problem, namely, numerous unjustified abridgments of personal liberty.  These results come as no surprise to those who have long internalized Friedman's lessons. However, Friedman also provided the best solution to this problem, viz., a wholesale embrace of economic science and the resulting elimination of the vast majority of occupational licensing statutes, period.  Nibbling around the edges by altering the interaction between the criminal law and unjustified occupational licensing is at best, a half-measure. 

Wednesday, April 27, 2016

Did the Harvard Placemats Abridge Free Speech? Why Great Universities Should Not Take Political Positions


In an interview with the Weekly Standard's William Kristol, Lawrence Summers, President Emeritus of Harvard University, decries what he calls "creeping totalitarianism" on many of America's college campuses.  (Go here for a video of the full interview.)  Examples, he said, include calls [by students at Yale] to fire faculty who question university policy as well as Harvard's "us[e] of placemats in the dining hall to propagandize about what messages students should give their parents about Syrian refugee policy[.]"  Explaining why he believes these actions were problematic, Summers invokes basic free speech principles, namely, that the "answer to bad speech is different speech [and] not shutting down speech."

Summers is certainly correct to decry both the particular events described above as well as the anti-academic trend that these events exemplify.  At the same time, this blogger respectfully suggests that Summers has identified two analytically distinct issues.  To be sure, firing someone for expressing disagreement with University policy abridges the sort of free expression that public universities are obliged to protect and that many private universities (including Yale) promise to protect.  Those who call for such termination instead of engaging in counter-speech thereby ignore the basic premises of a free society that inform the protection that a university accords free expression.

Ironically, even the Harvard administrators responsible for conceiving and distributing the place mats in question conceded, in a letter of apology, that distribution of place mats contravened "academic freedom."  However, distributing placemats containing political messages does not in the view of this blogger abridge free expression or contradict academic freedom.  On the contrary, the propagation of centrally-approved political messages left members of the Harvard community (and everyone else) perfectly free to express their disagreement with the messages in question or, for that matter, with the decision to create and distribute such mats in the first place.  Many, including Harvard's Undergraduate Council and College Republicans, did exactly that (see here and here), without suffering any penalty, whether formal or informal.  As Justice Brandeis explained, those who wrote and ratified the First Amendment believed that "liberty was the secret of happiness and courage the secret of liberty" and that "an inert people" was the "greatest menance to freedom."  Freedom implies the courage to exercise it, even in the face of dominant opinion.

None of this is to say that the distribution of such placemats was appropriate.  Such distribution offended a different but related principle, namely, that universities should not take political or ideological positions, even if taking such positions leaves members of the community entirely free to disagree.  Nearly five decades ago, a University of Chicago Committee chaired by Harry Kalven explained why great universities should remain politically and ideologically neutral:

"To perform its mission in the society, the University must sustain an extraordinary environment of freedom inquiry and maintain an independence from political fashions, passions and pressures.  A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community.  It is a community, but only for the limited, albeit great, purposes of teaching and research.  It is not a club, it is not a trade association, it is not a lobby. . . . . A great university should not, therefore, permit itself to be diverted from its mission into playing the role of a second-rate political force or influence."

By taking political or ideological positions, then, a university short-circuits the process of inquiry, discussion and engagement that furthers the pursuit of truth and its dissemination in the classroom.   One might also add that, by rejecting neutrality and wading into social or political disputes, a university discourages individuals who might disagree with these positions from joining the university community in the first place, thereby reducing the extent of ideological and political diversity at such institutions.   Moreover, a university that takes such positions implies that there is an academic answer to vexing political or social controversies.  While the results of academic inquiry can of course inform public debate, such results can rarely settle such debate.  A university that suggests otherwise misleads the public (perhaps inadvertently) and, by trafficking in political or ideological disputes, undermines the perceived credibility and academic integrity of its own scholars, by signaling that politics, not free inquiry, drives their research.   This can be so even if, as often happens, administrators, and not scholars, determine a university's official position on (non-academic) matters of the day.  As the Kalvin Report properly explained, a "great university's . . . prestige and influence are based on integrity and intellectual competence" and not upon things like "political contacts or influential friends."  While taking political positions may further the short term interest of a university or those who lead it, taking such positions will, over the longer run, compromise the institution's reputation for integrity and intellectual competence, thereby (properly) weakening its influence and prestige.