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. 

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.

We Need More Reagan, Not Less

Had A "Reaganite" Plan

Executed the Plan

In a recent op-ed, David Brooks claims that what he calls the "post-Trump" Republican party will have to reject Reaganism in favor of a new organizing philosophy. While Brooks admits that the "Reagan orthodoxy" was "right for the 1980s," he also claims that this template is "increasingly obsolete."  In particular, Brooks claims that: "[t]he Reagan worldview was based on the idea that a rising economic tide would lift all boats.  But that's clearly no longer true." Analogizing to Thomas Kuhn's work on scientific revolutions, Brooks observes that today's Republicans "are still imprisoned in the Reaganite model . . . ask Reaganite questions [and] propose Reaganite policies." Because the Reaganite model no longer works, Brooks says, conservatism is in a crisis state and must develop a new model.   Among other things he suggests that conservatives turn away from economic theory and embrace Sociology because, in his words: "Homo economicus is a myth and conservatism needs a worldview that is accurate about human nature."

Brooks' assessment of modern Republican ideology rests upon a crucial assumption, namely, that a robustly rising economic tide does not lift all boats.  However, he offers no evidence to support this assumption.  To be sure, the current economic recovery has left out millions of Americans.  Some cannot find jobs and others must work two or more part-time jobs to make ends meet.  Total employment rose a mere 10 percent from 2009 through 2014. Median household income, is still below what it was in 2008, and poverty rates are still higher. In 2015, the United States experienced its 10th straight year of economic growth below 3 percent, apparently a record, though not the sort of record that any country brags about.  (GDP growth in 2015 was 2.4 percent.)

Still, these data shed no light whatsoever on the "Reagan worldview," or the usefulness of "Reaganite policies" derived from economic theories assuming that human beings are rational actors that respond to incentives.  In March, 1983 President Reagan, who had majored in Economics, predicted that his policies across-the-board tax cuts (inspired by John F. Kennedy), reduced regulation and free trade would produce an economic recovery that would be "powerful and sustained."  (The second photo above depicts President Reagan signing the Economic Recovery Tax Act of 1981.)  He was correct. Between 1983 and 1988 (inclusive), the economy grew at an annual average rate of 4.6 percent, more than twice the rate of growth during this most recent recovery. During the same period median real household income rose 10.9 percent and rose another 1.8 percent in 1989. The economy added 17,913,000 jobs, increasing total employment by 20.1 percent, twice the rate of the current recovery.  Exports skyrocketed as more productive U.S. industries won new markets abroad.  Tax relief allowed Americans in all economic classes to keep more of their income. Rules indexing the standard deduction and tax brackets for inflation preserved the value of the deduction and protected low and middle income taxpayers from the sort of "bracket creep" that had pushed Americans of modest means into higher tax brackets in the late 1970s.  A significant portion of the tax burden shifted from the middle class to those in the "top one percent" of the income distribution.

None of this is to say that the Reagan recovery improved the lives of each and every American.  Still, the difference between that recovery and the most recent one is stark indeed. It is little wonder that, less than two years into the Reagan recovery, the American people resoundingly reelected President Reagan in a landslide, i.e., 49 of 50 states and nearly 59 percent of the popular vote.  In so doing the voters rejected former Vice President Mondale's platform of higher taxes, Trump-like economic protectionism and more intrusive federal regulation.  The economy continued to grow into 1990, thus constituting the longest peacetime expansion in U.S. History.

This blogger believes that most Americans would be thrilled by an economic recovery similar to that which occurred between 1983-1990.  Any decision to reject the "worldview" that helped produce that recovery should be based on sound argument and hard evidence, not cavalier speculation.  We need more Reagan.  Not less.

On the Senate's Absolute Discretion to Refuse to Consider Nominees

Still Waiting For A Hearing . . .

Denied 32 Nominees a Hearing 

In an op-ed in yesterday's New York Times, Vice President Joe Biden contends that Article II, Section 2 of the Constitution imposes a "constitutional obligation" on the Senate to provide "advice and consent" with respect to any nominee to the Supreme Court that the President submits. This requirement, according to the Vice President, includes meaningful "consideration" of such a nominee as exemplified by "meetings," "hearings," and/or "votes."  This requirement to consider such a nominee, the Vice President says, "is written plainly in the Constitution that both Presidents and Senators swear an oath to uphold and defend."   The Vice President also claims that failure to consider such a nominee is an "unprecedented act of obstruction."  

1. The Vice President is wrong on both counts. Neither the Constitution's text nor historical precedent requires the Senate to provide such "consideration" to a nominee.   Indeed, the Vice President himself, while chairing the Senate Judiciary Committee, repeatedly declined to consider Presidential nominations that were governed by the very same constitutional text that he now claims "plainly" required such consideration.  The power to provide "advice and consent" is a discretionary, political power, which the Senate may exercise or not in whatever manner it deems appropriate.

2.  Article II, Section 2 of the Constitution provides as follows:

The President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States." 

The text plainly empowers the President to nominate, at his discretion, possible Supreme Court justices, ambassadors, public ministers and consuls, and other "officers of the United States." The text also requires, in a straightforward and unambiguous way, Senate "advice and consent" (sometimes called "confirmation"), before the President may appoint such a nominee to the office in question.   The clause does not, however, mention or impose any duty to consent to such nominations or, for that matter, to consider the nomination in any particular way. The Vice President's assertion to the contrary is just that, an assertion, which attempts to transform a requirement of Senate consent before appointment into a constitutional mandate of an (unspecified) amount and type of "consideration" before granting or withholding such consent.  Far from "plainly" requiring such process, the language of Article II, Section 2 simply does not bear this construction, which would assign the phrase "with the advice and consent" two entirely different functions.  As Ed Whelan explains over at Bench Memos. "the Constitution says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold consent, and it thus leaves the Senate entirely free to exercise that power as it sees fit."   In the same way, it should be added, the Constitution leaves the President entirely free to determine how to go about deciding whom to nominate in the first place.  See Public Citizen v. Department of Justice, 491 U.S. 440, 467-89 (1990) (Kennedy, J. concurring) (explaining that Congress cannot regulate the process employed by the President to determine whom to nominate to federal office).

3.  Of course, historical practice can in some instances give meaning to ambiguous constitutional provisions.  However, even if the language of Article II, Section 2 were ambiguous, and it is not, historical practice contradicts the Vice President's reading of this provision as well as his claim that refusal to consider a nominee during the next several months would constitute "an unprecedented act of obstruction."  For instance, according to this 2009 report by the Congressional Research Service, Henry Stanberry (pictured above), whom President Andrew Johnson nominated to the Supreme Court in 1866, received no hearing, no committee vote, and no Senate vote. George E. Badger, nominated by President Fillmore in 1853, also received no hearing or Committee vote. Worse yet, the Senate never even referred his nomination to the Judiciary Committee but instead simply voted to "postpone" consideration of his nomination, to which it did not return.  In the same way, the Senate also refused to refer the 1861 nomination of Jerimiah Black to the Judiciary Committee, and the Senate declined to proceed to a vote on his nomination.  Even these examples of purported "obstruction" seem relatively minor compared to the experience of President Tyler, whose nominations for a single seat on the Supreme Court repeatedly failed to obtain Senate approval, resulting in a vacancy of 841 days.  

4.  Those who prefer more modern examples need look no further than the current Chief Justice of the United States, John Roberts, Jr. President George H.W. Bush nominated Mr. Roberts to an open seat on the U.S. Court of Appeals for the District of Columbia Circuit in January, 1992.  Judges of that court, are, like all federal judges, "officers of the United States."  Such nominations are therefore subject to the same Article II, Section 2 that governs Supreme Court nominations.  If this constitutional text "plainly" obliges the Senate to "consider" Supreme Court nominations, then it must also require the same consideration for other nominees.  However, the Senate Judiciary Committee, chaired by then-Senator Biden, refused to consider the nomination of Mr. Roberts.  This was not the only such example.  As Jonathan Adler reports, the Judiciary Committee also refused to consider the nomination of Lillian BeVier to a seat on the U.S. Court of Appeals for the Fourth Circuit, for which President Bush nominated her in October, 1991.  Again, there was no hearing, no committee vote, and no Senate vote.  Indeed, after reviewing a different report of the Congressional Research Service, Marc Thiessen concludes that Senator Biden's Judiciary Committee "killed 32 Bush [nominees] to the federal bench without giving them so much as a hearing." If Vice President Biden's current interpretation of Article II, Section 2 is correct, then he violated his oath of office 32 times during that period.  There is, of course, an alternative and more persuasive account of the Committee's actions, and one that does not impute any such violation to then-Senator Biden, namely, that the Senate was exercising its constitutional authority to decline to consider such nominations.

5.  In Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall explained that the Constitution vests the President "with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience." Marshall continued that "the subjects [of such powers] are political.  They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive." According to Marshall, the power to nominate officers of the United States was just such a power "to be exercised by the President, according to his own discretion."  The Senate's power to advise and consent is also such a power, committed to the discretion of the Senate and subject only to the constraints of politics and conscience.  To be sure, discretion vested in the Executive, Legislative or Judicial branch can be subject to abuse.  However, as Joseph Story explained nearly two centuries ago:

"It is always a doubtful course to argue against the use or existence of a power from the possibility of its abuse.  It is still more difficult by such an argument to ingraft upon a general power a restriction which is not to be found in the terms in which it is given."

See Martin v. Hunter's Lessee, 14 U.S. 304, 344-45 (1816).  Story was of course speaking of the meaning of Article III, and the possibility that the Supreme Court might abuse its authority to review a state court's construction of federal law.  However, his argument is perhaps even stronger in the context of Article II, where both the President and the Senate are, unlike the Courts, subject to political constraints. In a constitutional republic, the remedy for abuse of the power to nominate and/or to advise and consent resides at the ballot box, and not the imposition of an ad hoc extra-constitutional "restriction which is not to be found in the terms in which [the power] is given."