The Supreme Court has restrained the executive branch—for now
America’s federal executive branch has met some setbacks as of late. Two recent Supreme Court rulings have constrained the administration’s impulse to act as it wishes. Yet, the mere fact that the administration has overreached as it has—and would have continued to do so had the court not stopped it—should send us a clear warning: The instincts of executive power are always toward accumulating more power. In both cases, the court found, the administration clearly ignored the express instructions of the Constitution in favor of its own convenience.
The first decision concerned an attempt by the U.S. Environmental Protection Agency (EPA) to restrict the emission of greenhouse gases like carbon dioxide under the Clean Air Act. But the Clean Air Act’s emissions strictures posed a problem, because they would require the agency to restrict emissions above a certain threshold from stationary sources. Carbon dioxide is emitted in large amounts from even small sources, so applying the Clean Air Act would mean subjecting schools, hospitals, and apartment buildings to the same standards as industrial power plants.
The EPA, realizing how unpopular this would be, took it upon itself to rewrite the law, issuing what it called a “tailoring rule,” a scheme my colleague Marlo Lewis described as an act of “breathtaking lawlessness.” The attempt to amend, in the absence of congressional intent, clear, numerical, statutory provisions was a stark usurpation by the executive branch. Remember, the Constitution vests all legislative power in Congress.
The court agreed. Writing for the court, Justice Antonin Scalia said that it was “patently unreasonable—not to say outrageous—for EPA to insist on seizing expansive power that it admits the statute is not designed to grant.” The court said the EPA was “laying claim to extravagant statutory power over the national economy,” and that if the court agreed with it, it “would deal a severe blow to the Constitution’s separation of powers.” Yet this shot of good sense came with a bitter chaser (more on that later).
In the second decision, just last week, the court found unconstitutional President Obama’s recess appointments of some members of the National Labor Relations Board whose nominations had been blocked in the Senate, because the Senate had not declared itself to be in recess. The administration argued that it was entitled to use the power whenever “the Senate is not open for business.”
The court rejected that view unanimously. As Case Western University law professor Jonathan Adler observed, “None of the justices were willing to accept the position of the Obama Administration, which was unnecessarily extreme. In choosing to make the recess appointments in the way it did, such as by not following precedents set by prior administrations (including Teddy Roosevelt) and filling some Board spots that the Senate never had time to fill, the Administration adopted a stance that was very hard to defend, so it could not attract a single vote.” (My organization, the Competitive Enterprise Institute, filed an amicus brief in the case before it reached the Supreme Court.)
The administration’s expansive view of its own enumerated powers is disturbing. But it should not be surprising. It is in the nature of executive power to seek to accrue more power. Throughout history, executives have claimed more power for themselves, whether by imperial decree or the new variant of “pen and phone.” And they’re not just raiding the legislature. Executives have a tendency to usurp judicial power too, whether by Star Chamber or administrative court.
This is why free societies must always be on guard against executive “mission creep.” As James Madison said, “There are more instances of the abridgment of freedoms of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations.”
Now, about that chaser. In its decision on the EPA rule (where the court only slightly limited the agency’s ability to regulate emissions from stationary sources), four of the nine justices agreed that the EPA should have the power to rewrite the law. When the English Parliament gave Henry VIII such a power in 1539, the philosopher David Hume later said that it “made by one act a total subversion of the English constitution.” In other words, basic freedom from executive law-making survived by just one vote last week.
So, while the idea of liberty is extremely resilient, its practical restraint on government by such means as constitutions is always fragile. The question therefore must be whether we can develop “antifragile” institutions of liberty.
Perhaps. The developing “sharing economy” might be seen as a “sharing constitution” in its early stages. Uber’s righteously defiant reaction to the Commonwealth of Virginia’s “cease and desist” orders may be an indicator of a way forward. Yes, the road from Virginia traffic court to constitutional convention is a long one, but could we be seeing an “application revolution” in action that increases citizens’ power over runaway executive magistrates?
Yes, the left hates America
By Tom Toth
The left hates America. That’s why they want to fundamentally transform it.
When Barack Obama first ventured to occupy the Oval Office, the purpose of his presidency would be to “fundamentally transform of United States.” An ear-pleasing term for far-left activists excited to move on from the George W. Bush administration with the progressive freshman Senator for Illinois, and a term that was spoken with absolute truth and intention.
Fundamental transformation is a change to the core, the very fiber of what makes up the subject of the transformation.
In this case, it’s the United States. The desire for fundamental transformation of America begins with Obama’s base. A recent poll conducted by Pew Research found that only 40 percent identifying as “solid liberals” feel proud to be an American—a strikingly low number especially when considering that the poll was taken after a half decade of a “solid liberal’s” second term in the White House. What exactly needs to happen for the other 60 percent of liberals to be proud of the United States?
The Affordable Care Act has passed, transforming the entire United States healthcare system into a bureaucratic monstrosity that’s somehow managed to work even less efficiently than the rest of Washington’s sluggish government programs.
The IRS was used to successfully target Conservative groups and their donors over the course of two campaign cycles, financially stifling limited government non-profits organizations from receiving legal non-profit status and disproportionately auditing those who financially supported their operations.
The EPA made regulations that have killed the future development of coal plants and new regulations arbitrarily cutting 30 percent of carbon dioxide “pollutants” threaten the stability of the entire energy development industry.
NASA’s highest operational priority is “to find a way to reach out to the Muslim world and engage much more with dominantly Muslim nations to help them feel good about their historic contribution to science.”
The United States completely pulled out of Iraq, opening the door for Islamic radicals to pillage and plunder the cities American servicemen and women died to control. Any doubts about these Caliphate-seeking crazies were wiped away by images this week of the tomb of the Biblical Prophet Jonah in Mosel, Iraq being sledgehammered. In Afghanistan, Obama’s given an arbitrary American exit date to Islamic militants so that they can prepare to do the same.
The United States Department of Justice is no longer enforcing immigration laws and hundreds of thousands are crossing across the United States’ sovereign borders without fear of deportation.
The demands from the far left base that voted Barack Obama into office have been dually fulfilled—but the pride is still not there. The nation has still not been fundamentally transformed.
The Tea Party represents the America that the left wants fundamentally transformed. Barack Obama and the 60 percent of liberals who are not proud to be Americans resent what America is, where it came from, what its values are, and the citizens who tirelessly advocate for that America.
Barack Obama sees his time in office screaming toward an abrupt end with his primary mission yet to be fulfilled. Before that inevitable day, he’s doing everything in his power to see America, as everyday Americans know it, brought to its knees (see: IRS targeting, refusal to enforce federal law).
“The greatness of America lies not in being more enlightened that any other nation, but rather in her ability to repair her faults.” If America is still indeed great, then Americans are capable of achieving what Alexis de Tocqueville observed two hundred years ago about our ability to fix the mess our representatives in government are bound to create.
Until that happens however, the fight for fundamental transformation rages on.
Chimpanzee intelligence is determined by their genes not their environment, researchers say
A chimpanzee’s intelligence is largely determined by the genes they inherit from their parents, reveals a new study.
It found Chimpanzees raised by humans turn out to be no cleverer than those given an ape upbringing.
Research into chimp intelligence could help scientists get a better handle on human IQ, say scientists.
The study involved 99 chimpanzees, ranging in age from nine to 54, who completed 13 cognitive tasks designed to test a variety of abilities.
The scientists then analysed the genetics of the chimps and compared their ability to complete the tasks in relation to their genetic similarities.
Genes were found to play a role in overall cognitive abilities, as well as the performance on tasks in several categories, the scientists discovered.
This is because while genes also play a major role in human intelligence, factors such as schooling, home life, economic status, and the culture a person is born in complicate the picture.
Previous studies have suggested that genetics account for around a quarter to a half of variations in human intelligence.
The new research involving 99 chimpanzees from a wide range of ages showed that genes explained about 50% of the differences seen in their intelligence test scores.
Chimps raised by human caretakers did no better in the tasks than individuals brought up by their chimpanzee mothers.
'Intelligence runs in families,' Dr. William Hopkins from the Yerkes National Primate Research Center in Atlanta, who ran the study, said.
'The suggestion here is that genes play a really important role in their performance on tasks while non-genetic factors didn’t seem to explain a lot. So that’s new.'
He believes the experiment could shed new light on human intelligence. 'Chimps offer a really simple way of thinking about how genes might influence intelligence without, in essence, the baggage of these other mechanisms that are confounded with genes in research on human intelligence.
'What specific genes underlie the observed individual differences in cognition is not clear, but pursuing this question may lead to candidate genes that changed in human evolution and allowed for the emergence of some human-specific specialisations in cognition.
Why Countries Must Pay Their Debts
Many countries have, over the past few decades, sought debt restructuring from the IMF and other international institutions, and others have sought outright cancellation of their debts, such as Mexico in 1982 and 1994, Russia in 1996, Argentina in 2001, and Hungary in 2010.
Debt cancellation for the world’s poorest countries in the wake of the 2005 Gleneagles Summit has made such cancellations seem acceptable in the course of international affairs. As a result of this, as well as a result of rapid economic growth in the developing world, debt as a percent of gross national income has fallen significantly
Yet debt remains a persistent problem in many countries. Headlines have been grabbed in recent weeks by Argentina’s most recent rumbling about debt repayment. A recent U.S. federal court ruling, which was then upheld by the Supreme Court, instructs Argentina to repay its American creditors. Argentina’s president, Christina Fernandez de Kirchner, has accused the U.S. government of being unfair, and even extortionate.
The case of Argentina reveals the problem with debt forgiveness: it gives the perverse incentive to governments to run up debts they know they will not have to pay. America should stick by its guns and ensure the repayment of its loans.
People are more irresponsible when they do not face the consequences of their actions. The same is true of states. When a state is not liable for the risks it takes, it has an incentive to increase its risk. This is the case in debt cancellation. When the developing country does not have to pay off its debt, it has no reason to concern itself with spending loans effectively; if things get bad they can simply have their debt forgiven.
The moral hazard problem causes the further perverse incentive for elites within countries to allow their people to suffer as a means of expediting acknowledgment by the creditor countries that they cannot possibly pay off their debts. It is pure folly to allow countries to renege on their lawfully accrued debts.
When one state, or group of states, is awarded a debt cancellation, fear of similar provisions being made for other states may be aroused in investors. This will lead to panic and movement of investment funds from developing world economies, which are already considered relatively more risky, to safer investments in the developed world.
By paying off their debts, however painful such payments may be in the present, not having to kowtow to creditors ensures their independence and engenders respect, rather than pity or contempt in a country’s neighbors. Default breeds contempt.
Developing countries must resolve their internal corruption and organizational problems that prevent them from effective development. In the case of Argentina, Ms. Kirchner must accept responsibility for her government’s profligacy and quit acting like a petulant child.
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