November 12, 2022

How The Left Views Administrative Law: A Highlight From The Federalist Society Convention

November 12, 2022/ Francis Menton

You may have seen that the Federalist Society has been holding its annual convention in Washington. I was there on Thursday and Friday. They have recorded all the presentations. If you want to watch some, go to this link and see what interests you.
There was not a lot of moaning about the election results. Rather, the focus was on high-minded issues, mostly of constitutional and administrative law.
I have selected a highlight that you may find interesting. One of the lunchtime panels on Thursday was titled “Render Law Unto Congress and Execution Unto the Executive: The Supreme Court Rebalances Constitutional Power.” Here is the description of the subject of the panel:
The Roberts Court is recasting the administrative state according to its view of the separation of powers. It is giving the President more authority to fire his subordinates and creating a hierarchical executive where the President and his principal officers have more authority over appointments and decision making.

July 11, 2022

Federalism Is The Key To Demonstrating The Disaster Of Green Central Planning

July 11, 2022/ Francis Menton

Central planning always fails, but the utopian visionaries implementing the plans cannot admit that they are at fault. A scapegoat must be found. As a leading example, when Soviet dictator Josef Stalin’s collectivization of agriculture led to mass starvation, the official blame was placed on “saboteurs” and “wreckers.”
Our current-day analog is the centrally-planned replacement of our very large, inexpensive and highly functional energy system, mostly based on fossil fuels, with the alternatives of intermittent wind and sun-based generation, as favored by incompetent government regulators who don’t understand how these things work or how much they will cost. Prices of energy to the consumer — from electricity to gasoline — are soaring; and reliability of supply is widely threatened.
All of which brings our President forth to blame the current price and supply issues in the energy markets on anything but his own administration’s intentional efforts to suppress the functional fossil fuel energy.

July 08, 2022

July 08, 2022/ Francis Menton

Last Thursday, June 30, the Supreme Court issued its decision in West Virginia v. EPA, holding that, absent a further explicit statute from the Congress, the EPA did not have the authority to orchestrate its planned fundamental restructuring of the electric power generation sector of the economy.
More generally, the Supreme Court stated that in cases involving “major questions,” including regulations that affect large portions of the economy, the government must demonstrate “clear congressional authorization” to support a sweeping effort to regulate.
Do you think that such a Supreme Court decision might cause the various regulatory bureaucracies to slow down and reconsider a little before plowing ahead with other dubious plans for fundamental economic restructurings?
That’s not how these bureaucracies work. And such is most particularly the case with regard to regulators of the energy sector, sometimes known as “climate change” arena.

July 05, 2022

July 05, 2022/ Francis Menton

Probably you think that the justices sitting on the U.S. Supreme Court must be among the most intelligent people in the country. Granted, the mainstream press spends a lot of time denigrating the intelligence of the conservative justices. But surely then, the liberal justices must be really, really smart.
Consider Justice Elena Kagan. She was the Dean of the Harvard Law School. Then she became the Solicitor General of the United States. That’s the person in charge of arguing the government’s positions in the Supreme Court. You need to be really smart to do that job.
So if you’re looking for someone who can teach you the thinking processes of the very smartest of the smart, there is no one better to look to than Elena Kagan.
With that in mind, let’s take a closer look at Justice Kagan’s dissent on behalf of the three liberal justices in the case of West Virginia v. EPA that came out just last week.

July 01, 2022

July 01, 2022/ Francis Menton

It’s been a momentous couple of weeks at the Supreme Court. As usual, they saved the big cases for the end. This year the big three were Bruen (gun rights), Dobbs (abortion rights) and West Virginia (administrative regulation of CO2).
All three cases were decided 6-3 along ideological lines.
These cases involved the most basic issues of what the Constitution is and how it is to be interpreted. On those issues there is virtually no hope of one side ever convincing anyone from the other side. There just are two fundamentally irreconcilable visions of how this should work.
The two visions can be summarized in just a few sentences each:

May 23, 2022

May 23, 2022/ Francis Menton

The great mission of the early twentieth century Progressives was to transform our constitutional order without ever amending the Constitution itself. The intellectual leader of the movement was Woodrow Wilson. The fundamental idea was to replace the messy and contentious system of separated powers and slow bi-cameral lawmaking with a cadre of supposedly apolitical administrative “experts” who could run the country smoothly and efficiently.
The idea sounded rather benign to most people at the time, and probably still sounds benign to most people today. Who could be against having “experts” to run significant government agencies?
But a hundred-plus years into this project, we have seen cancerous growth of vast administrative bureaucracies, outside the constitutional structure, and exercising great powers, but accountable to no one but themselves — the very antithesis of the constitutional structure that our founders attempted to bequeath to us.
Last week the Fifth Circuit Court of Appeals in New Orleans knocked a significant chink in the structure under which many of these agencies operate.