Ilya Shapiro on Supreme Court Confirmations

Ilya Shapiro of the Cato Institute testified on 20 July 2021 before the Presidential Commission on the Supreme Court .  He made the following major points:

1. Politics has always been part of the confirmation process.
2. Confirmation fights are now driven by judicial philosophy.
3. Modern confirmations are different because the political culture is different.
4. Hearings have become kabuki theater.
5. Every nomination can have a big impact.
6. The hardest confirmations are when there's a potential for a big shift.
7. The Court rules on so many controversies that political battles are unavoidable.

He concluded:

The ever‐​expanding size and scope of the federal government has increased the number and complexity of issues brought under Washington’s control, while the collection of those new federal powers into the administrative state has transferred ultimate decision‐​making authority to the courts. The imbalance between the executive branch and Congress has made the Supreme Court the decider both of controversial social issues and complex policy disputes.

So should we reform the confirmation process? I’ve come to the conclusion that we should get rid of hearings altogether, that they’ve served their purpose but now inflict greater cost than any informational benefit. With instantly searchable records that nominees now have, is there any need to subject them, and the country, to an inquisition? Or maybe senators could hold hearings in closed session.

In the end, all “reform” discussion boils down to re‐​arranging the deck chairs on the Titanic. And this Titanic is not the appointment process, but the ship of state. The fundamental problem is the politicization not of the process but of the product. The judicial debates we’ve seen the last few decades were never really about the nominees themselves. They’re about the Court’s direction.

The reason we have these heated battles is that the federal government is making too many decisions for such a large, diverse, and pluralistic country. Let Congress decide truly national issues like defense or (actually) interstate (actual) commerce, but let states and localities make most of the decisions that affect our daily lives. Let Texas be Texas and California be California. That’s the only way we’re going to defuse tensions in Washington, whether in the halls of Congress or in the marble palace of the highest court in the land.

My Comments: 

Basically, the federal government is too damned big and presumptuously and injudiciously has taken on far too many powers, some of which should have been left at the state or local government levels.  People who live in different parts of the country commonly have different interests and values.  The many federal powers often conflict with these differing interests and values.  The federal legislative branch has defaulted on making those constitutional decisions that were assigned to it, allowing the executive branch to grow into a behemoth administrative, regulatory state issuing many controversial edicts, often bafflingly formulated.  As a result of the burgeoning administrative state, the Supreme Court has had make many more decisions regarding both "controversial social issues and complex policy disputes."  Ignoring the wisdom of the Constitution sure has disastrous consequences!

You have done good work here Ilya Shapiro.

It is the Content, not the Number of Executive Orders that Matters

I just made the following comment to an article by Shadee Ashtari of the Huffington Post called Obama Has Issued Fewer Executive Orders Than Any President In Past 100 Years:

Counting the number of Executive Orders and claiming that all orders are justified by a given President if he has issued fewer than prior Presidents is complete nonsense. It is perfectly reasonable and consistent with the President's position as an executive to issue orders, so long as they do not interfere with the laws passed by Congress and signed by himself or a prior President. It is the content of the Executive Order that is all-important.

A very legitimate Executive Order would establish an interim policy for the enforcement of a law properly passed by Congress in which a real ambiguity was discovered while trying to implement it or in which an unanticipated situation arose which made enforcing the law clearly contrary to common sense. Upon issuing the Executive Order in such a case for an interim policy, the President should take the matter to Congress and ask Congress to resolve the ambiguity or treat with the circumstance with a new law. His interim policy should be carefully constructed not to infringe upon the constitutional powers of Congress by creating an effect Congress cannot readily re-direct with a new law.

Reagan's Executive Order on immigration was an attempt to implement a new law passed by Congress. That law had the unanticipated circumstance that the children of parents given amnesty by Congress were not themselves given amnesty. This was a truly unanticipated result tied largely to the Cuban refugee influx. George H. W. Bush was also trying to deal with unanticipated results of the fairly new immigration and naturalization law, though on a bigger scale. Obama, however, is doing by Executive Order what Congress under both George W. Bush and under Obama has refused to do. That refusal makes it clear that Obama is acting in opposition to many sessions of Congress and not just trying to deal with an ambiguity or unanticipated consequence of a recent law, which Congress has not yet had time to rectify. Congress has had time and has refused, which is it right to do under the Constitution. A President who defies that right is a despot.

There are even more common reasons for Executive Orders.  There are bound to be management issues in running the large executive branch which Congress simply does not wish to micromanage.  Examples might be how shall job performance evaluations be written up, what accounting method will be used to deal with a kind of situation, which federal land will be leased for oil and gas development next, etc.  One of the essential restrictions of a valid Executive Order is that only federal employees in the Executive Branch are required to take actions in response to the Executive Order.  The President cannot order any other American to do anything without the consent and authorization of Congress.

There is a better case, though a weak one, for Obama saying he will not use limited Homeland Security manpower and funding to deport some of the illegal aliens he has decided not to deport.  But, it is 100% clear that Obama is not empowered by the Constitution to have work permits issued to those he is not acting to deport.  That is very clearly a power that would reside only with Congress.

Does a President Have the Constitutional Authority to Demand that Congress Pass a Bill of His Liking?

Tonight, Obama said he was issuing an Executive Order to change immigration law because Congress had not responded to his demand that it pass a comprehensive immigration bill to his liking.  He is posturing that this is within his constitutional authority.  In fact, he does not care whether he has such authority under the Constitution or not.  He has always regarded the Constitution as an impediment to his agenda, as he made very clear in a radio interview back when he served as a Senator in the Illinois state legislature.  Twice he took the presidential oath of office to preserve, protect, and defend the Constitution when he was always determined to undermine it.  These were the most colossal of his many lies.

If a president were to have such a constitutional authority to demand bills from Congress that were to his liking, the federal government would be no more than a despotic regime.  There would be no check on the power of the president by the people short of impeachment.  In fact, it is not at all clear that a president with such powers would even feel any need to care whether he was impeached or not by a toothless Congress.  Yes, the People might so threaten rebellion that he would come to pay attention, but short of that, why would he care?  Neither would he care what the rulings of the federal courts might be.  The People would only have recourse by refusing to carry out his Executive Orders.

Obama has already shown dozens and dozens of times that he believes he has the power to unilaterally change laws passed by Congress.  ObamaCare, the PPACA, or more honestly the Patient Subjugation and Unaffordable Care Act, has already been changed unilaterally over and over by the health care insurance and tax Czar, namely Obama.  Obama, the Justice Department, the EPA, the IRS, the National Labor Relations Board, and many other Obama Regime agencies have already ignored court orders and violated numerous laws including the Freedom of Information Act.  He has long ignored his duties under the immigration laws.

Now he is making massive changes in the immigration laws simply because a bill he liked that was passed by a Democrat-controlled Senate was not taken up in a Republican-controlled House of Representatives.  He insists that if it had been taken up in the House, it would have been passed.  Maybe, maybe not. He is not making a similar argument that the 370 or so bills passed by the House and sent to the Senate should have all been acted on by the Senate.  There are problems in the way the parties work the rules of both the House and the Senate due to the majority party leadership having excessive control of each body.  Yet, those houses have control of their rules and it is entirely unwise to give that control to a president, especially one who does not believe in principles and general rules, but instead changes those rules in any way he needs to get what he wants.  Obama has no principles by which he governs his actions, except his single-minded devotion to collectivism and the total control of the individual by a state with a Great Socialist Leader at its head.

I make these comments on what I believe the essential issues are here despite the fact that I want our immigration laws to allow more lawful immigrants, most especially more who are well-educated and who have great skills and ability.  Obama's rule to increase the number of H1B Visas and not to count spouses against the quota is something I would favor, were it voted by Congress.  Unlike Obama and the courts, I believe it is wrong that the children of illegal immigrants who are born in the US are given citizenship.  To compound that wrong with a ruling that all of their parents illegally in the US will be freed of deportation and allowed to apply for citizenship is wrong.  I would allow children born in the US and their parents a path to citizenship, but they would have to prove themselves worthy.  But what I think Congress should do to change the law is just my opinion.  It is Congress' power under the Constitution to either do so, or not to do so.

Of course, this whole matter is one in which Obama has a very vested interest.  Because his father was illegally in the US when he was born, he should not himself have been considered a citizen and should have had to apply for citizenship.  This is especially so because he was abroad so long and became a citizen of Indonesia.  Had Obama applied for citizenship, he could have had his own Social Security number!  His Executive Order is designed to keep many of his citizenship problems from happening for the many illegal immigrants in the USA.

Because of the classical liberal viewpoint that infused the Founding Fathers, the Framers of the Constitution, and most of the nation's leaders until about 1912, the powers of the Executive Office in the federal government were tightly controlled by many checks and balances and by an ideology that tended to make individual freedom and the rights of the individual our highest political values.  Thus, our philosophy of government was guided by principles.  Then the Progressives came along, who had given up moral and political principles as they had adopted a philosophy of Pragmatism. 

Unfortunately, Pragmatism is highly impractical as a philosophy of life.  Without guiding principles for one's actions and one's value choices, excepting the choice of one's own life as one's highest value, it is entirely impractical to assess every choice one makes in a complex world.  This is like trying to do physics without ever using the general principle of the Conservation of Energy, or Newton's laws of motion, or the principles of thermodynamics.  Yes, with a huge effort one might do all the research needed to make one right decision, but this is the equivalent of placing oneself in time prior to Galileo and Newton and trying to figure out what the momentum, force, and kinetic energy of a stone dropped off a cliff will be when it falls on the head of an enemy below.  Rational decisions without principles are made so difficult that real people give up on trying to make rational decisions and they make their decisions based only on emotional grounds.  This is why the politics of Progressives is entirely based on passions and feelings.  Obama and his followers are such people.  They are stultified by the effort to reason, so they default to their feelings.

Our federal government was crafted as mandated by the Constitution with a great many checks and balances which were to check the power of the executive, each of the two houses of the Congress, the judiciary, the federal government versus the state governments, and the elected politicians generally with respect to the People.  There were also temporal checks, either against passing fads and the madness of crowds or against old men too long in power.  These checks and balances mean that there are built-in frictions against governmental actions.  Some rational policies may take considerable time to be chosen and then put in place.  Patience is usually needed.  But, the Framers of the Constitution had learned that democracy was unstable and unsustainable and strong executive leadership was despotic.  The American system of government was designed to prevent those extremes and because of that, it has proven unusually stable and sustainable.  Unfortunately, Obama and the Progressives have de-stabilized our federal government and created huge discord among the People as they diverted the purpose of government from protecting individual rights to providing favors for special interest constituencies.  To do this, they have found it increasingly expedient to claim greater and greater powers for the president, except when the president is not in alignment with their agenda.

Obama does not care about the welfare of illegal immigrants.  It is very clear that he only cares that they become voters for the Democratic Party.  The evidence is that he even wants them to vote before they become citizens.  But, if he really cared about them or his black supporters, he would not have pursued so many anti-business, anti-job, and anti-right-to-earn-a-living policies as he has.  Both groups have suffered terribly under the massive unemployment since he occupied the White House.  Actually, everyone has lost freedoms and their standard of living has decreased under his increasingly despotic regime.

The American People to an unusual degree rose up to oppose Obama's push for more and more despotic powers and controls in the election of 2014.  Obama is choosing to ignore this by and large.  Since he will not be able to control the actions of either the House or the Senate during the remainder of his administration, he has made it perfectly clear that he intends to by-pass their powers and ignore their constitutional authority.  He is ruling the USA with decrees and proclamations now.  This is a precedent which the American People must vociferously oppose, unless they wish a future as serfs without self-ownership or other individual rights.

Which Americans Disapprove of Despotic Presidential Actions?

As I frequently note, good government only results when Americans adhere to rational principles that define the purpose of legitimate, very limited government.  Those good American Principles are defined in the Declaration of Independence and mandated in the Constitution quite well, though those principles are no longer well-understood by most Americans.

Among the basic principles of good government is the principle that all Americans must obey legitimate laws.  This includes the President and the members of Congress.  Another very good principle is that the executive charged with executing the laws does not make the laws.  That function is very clearly and properly assigned to the legislature, our Congress.  The President's oath of office requires him to protect, preserve, and defend the Constitution and to faithfully execute the laws passed by Congress.

Obama repeatedly and habitually violates his oath of office, thumbs his nose at the Constitution and now at the Congress which is no longer entirely under his control.  He assures us that he can do anything he wishes to do and is entirely unconstrained by the Constitution.  As is the habit of convinced socialist leaders, he is sure the laws only apply to others and not to him.  He follows the path of many a socialist in assuming despotic powers over the people of his country.

What is the opinion of the People about this despot?  Well first off, the latest Rasmussen weekly poll says that 48% of the People overall approve of Obama's job as President.  Yet, when Fox News polled the People on what they thought of Obama's going around Congress and changing the laws by executive orders and with executive branch regulation changes based on exceedingly creative interpretations of laws in ways never imagined by the Congresses that passed those laws, 74% of the People disapproved of that very critical usurpation of powers.  Though 74% disapproved, many of them clearly fail to recognize how important it is to oppose such despotic acts, since 48% approve of his overall job performance.

Now it is popular among libertarians and Objectivists to claim that it does not matter a wit whether Republicans or Democrats control the government.  If this is true, then nearly equal numbers of Republicans and Democrats ought to be opposed to presidential usurpation of powers not assigned to the office in the Constitution.  Yes, when a Democrat is President, slightly more Republicans will oppose such despotic acts and when a Republican is President, slightly more Democrats will oppose despotic presidential actions.

The Fox News poll found that 93% of Republicans opposed Obama's despotic acts, 80% of Independents opposed them, and only 54% of Democrats opposed them.  Very interestingly, when asked to set aside their beliefs in how our American government was supposed to work, the People overall no longer opposed presidential despotism by 74%, but that opposition fell to a mere 60%.  Clearly many Americans would rather not have their government limited by the Constitution and do not mind having a despotic ruler.

So, removed of the constraint of how they think the American government works, those who disapprove of a despotic presidential model among Republicans falls from 93% to 90%.  Independents disapproval falls 14% from 80% to only 66% disapproval.  Democrats show their general contempt for the Constitution and their love for despotism by dropping their disapproval from only 54% to a mere 31%, a drop of 23%!  The majority of Democrats just want to be told by a Supreme Leader what to do and they will do it.

To rephrase the attitude of most Democrats, if they could have their druthers, they would happily be slaves.  Most Democrats would do away with the Constitution.  Most Democrats are less than half as much inclined to oppose despotic rule as most Independents and only about one-third as likely to oppose it as Republicans.

Like it or not libertarians, the Republicans are Patriots with respect to the American Principle of government limited to the protection of individual rights compared to the Democrat traitors.
Many Republicans are highly flawed, but they are not despot lovers.  This is why far more libertarian voters are more aligned with the Republicans than with the Democrats.  This is why I usually vote for a Republican and never for a Democrat.  I am very strongly opposed to being a slave to any despot.

There are some very significant differences between Republicans and Democrats.

Obama Transparency Requires the Elimination of Inspector Generals

When one is busy maintaining the con game that your administration is the most transparent administration in history, it is really awkward having inspector generals pointing out the shortcomings of your agencies.  The Obama administration being the most thoroughly corrupt administration in my lifetime and probably forever since the measure of corruption is both a function of the degree of corruption and the scale of that which is corrupt.  The government has never before been as big and it wields an increasing amount of power simply by decree of the Executive Branch.  The Obama administration has maximized both the scale of the power wielded and the degree of its corruption.

In this light, it is very interesting that according to a Wall St. Journal article by Joseph Schmitz entitled Obama's Inspector General Negligence, Obama has failed to nominate Inspector General candidates for the State, Interior, Labor, Defense, and Homeland Security departments for approval by the Senate.  He is also supposed to provide a nominee for the Agency for International Development.  The missing Inspector Generals have been missing for between 18 months and 5 years.  The State Department IG office has been occupied by a retired career State Dept. employee for the entire Obama presidency as a fill-in.  By law, he cannot hold the actual office permanently due to potential conflict of interest with the friendships and even the viewpoint of a career member of that organization.

These missing inspector generals are a boon to those who wish to operate our government corruptly.  One of the nuisances such people face are the moral whistleblowers.  It is always a very dangerous task to tell the truth in any large organization that is hit by scandal.  Such organizations are usually intent on covering up the scandal.  So, one of the important duties of a fully empowered and Senate-approved IG is to protect whistleblowers.  It is not surprising that each of the three Benghazi whistleblowers has reported reprisals for their role in testifying before Congress.  It also is not surprising that there are few who are willing to step forward and tell the truth.

While the general pattern of corruption in the Obama administration is all too clear, those who persist in claiming that the corruption is not tied to Obama and his cabal of close advisers should be telling us why he has had so little interest in doing his job as required by the Inspector Generals Act of 1978.  Is he just that incompetent that he cannot get the job done?  Or does he just prefer to learn about scandals for the first time from the mostly friendly, immoral press, rather than from a possibly objective and all-too-moral Inspector General?

Did you do your required federal reading today?

The annual report by the Competitive Enterprise Institute (CEI) on the state of federal regulations called Ten Thousand Commandments for 2010, written by Clyde Wayne Crews Jr. notes that:

• The Code of Federal Regulations is now over 157,000 pages long
• 3,503 new rules went into effect in 2009
• That is a new regulation every 2.5 hours every day, all 365 days of the year

For the last decade, the number of pages in the Federal Registry, where new regulations are published, has averaged 73,018 per year.  This would suggest the Code of Federal Regulations should have grown by 730,177 pages in the last decade, but apparently many of the older regulations are replaced by the newer ones.  Fortunately!  The following plot comes from the CEI report:

Most of these regulations provide for fines, penalties, and even jail sentences should they be violated.  Ignorance of the law is no defense in our courts of law.  That may have made sense when the laws were simple enough that an ordinary American could be expected to know the law and the regulations, but I am betting that, like me, none of my readers have read all of these regulations.  Therefore, you and I are under constant threat of fines, penalties, and jail time for breaking regulations we know nothing about.  The situation is even worse, since our state and local governments are also busy writing laws and regulations.

Since we have not read these regulations, I suppose we are supposed to consult with a lawyer before we undertake any action at all.  In fact, we have to consult with a lawyer in many cases before we do not take any action at all!  But this volume of regulations is so large that no lawyer knows the entire width and breadth of these regulations either.  So, they specialize in portions of the regulations, such as bank regulations, or import regulations, or export regulations, or farming regulations, hiring and firing regulations, or gaseous emissions regulations.  So, before we undertake any action, we need to figure out how many lawyers with how many specialties we need to consult.

There are a lot of Americans who have not read 157,000 pages in their entire lives.  I surely have, but very, very little of my reading has been federal regulations, despite having worked for the Dept. of the Navy for 10 years and the Dept. of the Army for 19 months.  I certainly did not read my 9.6 regulations today that I should have read.  Now, some of you will say that surely we do not have to read all of these regulations.  We can just skim through their titles and judge whether they will apply to us.  After all, many of us are not farmers.  But, a regulation on the use of fertilizers aimed mostly at farmers, might in some cases affect those of us who fertilize our lawns and gardens.  Or, we might buy an item from an importer who is not allowed to import that item.  Are we then guilty of purchasing contraband and subject to penalties ourselves?  In many such cases we are at least likely to lose our investment in the item, since it can be seized by law enforcement authorities.  We are not talking about cocaine here, which we all know to be illegal.  But, you had better be careful which flowers you buy that have been imported.  A man has been in prison for two years for not filing the necessary paperwork to import some unusual flowers.  He claims he did not know he needed to do this and there is plenty of reason to believe his import effort was small enough that this was likely true.

Now behind the huge flood of regulations is the Congress that no longer listens to the American People.  It passes bills, many of which are 1,000 or even 2,700 some pages long.  Those Congressmen voting for these bills do not read them, even though their oath of office makes reading them their duty because they are supposed to only pass laws that are constitutional and also meet the requirement of promoting the general welfare.  Apparently, one of the reasons that most Congressmen do not care whether their laws are constitutional or not is because if they did care and if they did their duty to the Constitution, then they would have to actually read all of the laws they vote for!  Ugh..... how boring.  It is so much more rewarding to be wined and dinned by constituents and special interests who are imploring you not to hurt them or who are trying to bribe you into giving them a special benefit.  Yes, at those dinners the money just flows in for your next re-election campaign.  Who cares whether you have actually read the bills you vote for?  How many Congressmen have lost their re-election campaigns to-date for that reason?

Then these thousand page plus bills call on the various executive branch agencies to create the new regulations to deal with hundreds of issues.  The recent Patient Protection and Affordable Health Care Act of 2010 was more than 2,700 pages long and called upon the Secretary of the Department of Health and Human Services alone to create rules and regulations 137 times.  Many other federal agencies were given new responsibilities and many more new agencies were created.  This will call for many, many more new regulations.  Many of these regulations will presumably apply to the many Americans who will be forced to buy the mandated health insurance and who will receive the more rigidly regulated health care also mandated in the bill.  It appears inevitable that we will be held responsible for knowing all or many of these new regulations.  Since the health care industry is one-sixth of the economy, everyone in that industry will have to know a lot more about these upcoming regulations than the average patient will have to know.

Of course we are all pretty busy as it is.  So how on earth are we going to have the time to read all of these federal, state, and local regulations?  For one thing, there ought to be a law that no vehicle can have a radio or play any CD which is not encoded by the government as an official government law and regulation CD.  When driving, we shall be required to listen to audio readings of the laws and regulations of that area of the country we are in.  If we are pulled over for any reason, law enforcement should immediately check that we have the required CD in our government-mandated CD players.  Those too poor to have a CD will be required to apply for a federal subsidy for the purchase of the mandated CD player.  Before graduating from high school, every student must have read every law and regulation applicable to his area prior to two weeks before his graduation date and pass tests on those laws and regulations.  Once a year, every resident of the United States will go to the Department of the Laws and Regulations and pass a test on the body of the current laws and regulations including all new regulations and laws issued up to two weeks prior to that annual renewal date.

That, of course, is the socialist response to this problem.  My response is this:  It is perfectly clear that we have far, far too many laws and regulations.  The logical consequence of having laws and regulations is that we must read them and understand them.  If the burden of reading them and understanding them is so great that it cannot be consistent with our general welfare and it is an unreasonable infringement of our individual right to life, liberty, and the pursuit of happiness, then all laws and regulations in excess of such a reasonable limited number, must be unconstitutional for that reason even if some small fraction fall within the powers actually granted the federal government by the Constitution.  This is because any law passed by Congress must meet both of the following requirements:

• It must be the exercise of one of the few powers given to Congress in the Constitution.
• It must also be consistent with promoting the General Welfare.

The Constitution does not even provide for regulations issued by the executive branch.

Of course, the interpretation of the Progressive Retrogressives differs with mine.  They say it may either be an explicitly enumerated power or it may be anything they choose to claim is for the General Welfare.  This is nonsense for many reasons, but one of them is the reason we are examining in this post.  If the power of government is to do anything it says is in the General Welfare, then the rules, laws, and regulations will quickly become unknowable, unintelligible, and overwhelming in their demands for reading time!  This is clearly inconsistent with the General Welfare being claimed.