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Richard Epstein expounds on the problems that accrue from the president’s government-by-waiver.
One of the great achievements of Western civilization is what we commonly call “the rule of law.” By this we mean the basic principles of fairness and due process that govern the application of power in both the public and the private spheres. The rule of law requires that all disputes — whether among private parties or among the state and private parties — be tried before neutral judges, under rules that are known and articulated in advance. Every party must have notice of the charge against him and an opportunity to be heard in response; each governing rule must be consistent with all the others, so that no person is forced to violate one legal requirement in order to satisfy a second. In the United States, our respect for such principles has made our economy the world’s strongest, and our citizens the world’s freest.
Though we may take it for granted, the rule of law is no easy thing to create and preserve. Dictators and petty despots of all sorts will rebel against these constraints in order to exercise dominion over the lives and fortunes of their subjects. But anyone, of any political persuasion, who thinks of government as the servant of its citizens — not their master — will recognize that compliance with the rule of law sets a minimum condition for a just legal order.
That, however, is precisely where the difficulties begin — for minimum conditions by themselves are not enough. Law is not just an idealized system of rules: It also involves the public administration of those rules by a wide range of elected and appointed officials in an endless array of particular circumstances. For those who would defend a just legal order, the basic challenge is to strike a proper balance — between limiting the discretion of these officials so that they do not undermine the rule of law, while also allowing them enough leeway to perform their essential roles.
Lately in America, we have done a poor job of preserving this balance. In practice — and, increasingly, in legal theory — government officials have been given unprecedented ability to make exceptions to the law, both in enforcing it and in respecting the rights granted under it. Indeed, the past year has seen two of the most enormous pieces of legislation in U.S. history — the Patient Protection and Affordable Care Act and the Wall Street Reform and Consumer Protection Act — make the imbalance far worse. Both laws seek to dramatically transform vast swaths of the American economy; both give enormous power to the government to bring about these transformations. And yet both laws are stunningly silent on exactly how these overhauls are to take place. The vague language of these statutes delegates much blanket authority to government officials who will, effectively, make the rules up as they go along.
As these officials stumble through how to implement these sprawling new laws, they will inevitably come up against unanticipated obstacles (or powerful interests) that will demand exceptions to the statutes’ far-reaching provisions. In some cases, special benefits or permissions releasing companies from government regulations will simply be granted. In others, the releases will be provided only if the regulated parties agree to waive some legal protection to which they would otherwise be entitled.
Neither of these practices — providing waivers or demanding waivers — is necessarily pernicious. Indeed, in some cases, they are part and parcel of the ordinary course of business in the modern administrative state. But both are open to abuse, and that abuse makes for a particularly dangerous form of government power. …
… Of course, a total transformation of the role of government will not happen any time soon. Meanwhile, the problem of government by waiver — like the larger danger of excessive discretion — can be limited only by a greater awareness of these perils on the part of judges and administrators. The best we can hope for, then, is enlightened leaders.
And that is precisely the problem. The fate of our rights and liberties is left to the wisdom and discretion of individuals; we are therefore governed by men, not by laws. It was this exact circumstance that our system of government was designed to avoid: As James Madison noted in Federalist No. 10, “enlightened statesmen will not always be at the helm.” In this sense, the problem of government by waiver shows us just how far we have strayed from the intentions of those who created our system of government — and how we risk betraying their hope that we might preserve it.
Tony Blankley knows what is behind the president’s new fiscal caution.
… no president who is confident of re-election chooses to embarrass himself by so conspicuously reversing himself on the central domestic issue of his time within two months unless he fears a new mood among the voters.
I don’t know what new Washington conventional wisdom the network parrots will be reciting Thursday morning after the president’s remarks, but let me offer a broad assessment of the fast-emerging debt- and deficit-reduction fight strategies.
The Republicans have bet the farm that the American public will more likely punish them for inaction than action. Good. The president seems to have come to the same conclusion regarding his chances with the 2012 electorate. So a fight over something that looks like real legislative action on the deficit crisis is going to be joined by the two parties.
But the nature of the Democratic Party’s coalition for power must drive it to protect the excessive spending at all cost. The Democratic Party coalition since Franklin D. Roosevelt has been premised on the concept of “tax and tax, spend and spend, elect and elect.” The phrase was first reported in the New York Times by reporter Arthur Krock in 1938, allegedly as a quote from FDR’s closest adviser, Harry Hopkins. Hopkins denied having said it at the time, but it encapsulated the Democratic Party’s successful method of getting elected by taxing the rich and upper-middle class, spending on the poorer public and thereby getting re-elected by that public.
If the Democratic Party gives up the vast spending that is driving the nation to fiscal catastrophe, that undermines its ability to win elections as a national political party. Democrats will fight for years to prevent such a spending “drought.”
But as it has suddenly become clear to the president and his strategists that they cannot be seen to be on the sidelines, they will have to offer what may seem like a plausible solution. …
It is conventional wisdom that the “Arab Spring” has threatened Israel in new ways. David Goldman, writing as Spengler takes a different view, claiming it provides Israel with better chances to protect herself.
Civilian casualties are the currency of Middle East diplomacy. The military issue in the region has never been whether Israel had the power to crush its opponents, but whether it had permission to do so. Iran and Syria have supplied Hezbollah with 50,000 rockets, many capable of hitting any target in Israel with precision. Many are emplaced under homes, schools and hospitals. Thousands of civilians used as unwilling human shields would perish if Israel were to destroy the missiles.
Too much collateral damage will “stain the conscience of the world”, as United States President Barack Obama intoned over Libya. By this reckoning, Syria’s President Bashar al-Assad and other Arab dictators have enhanced Israel’s strategic position by cheapening Arab life.
Another 34 Syrians died in last Friday’s protests, the largest to date, bringing the body count to 170 in the past three weeks.
Estimates of the dead in Libya’s civil war, meanwhile, range from 1,000 to 10,000. No one paid much attention to the dozen and a half dead in Israel’s latest retaliatory strike in Gaza. At the US State Department briefing April 7, spokesman Mark Toner condemned the latest rocket attacks on Israel “in the strongest possible terms”, but said nothing about the Israeli response.
That is harbinger of things to come. …