How a Warning Became a Plan

Justin Slaughter

Justin Slaughter

Justin Slaughter is a former House committee counsel, former General Counsel to a U.S. Senator, and former counsel to a Commissioner at the Commodity Futures Trading Commission.

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16 Responses

  1. Avatar Philip H
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    says:

    In fact, an overall summary of the current Republican Party’s political goals could fairly be described as “the right to be left alone in an unchanging society,” which is one large negative right.

    You almost got it. The GOP is seeking to protect white men’s “rights” to be left alone in a society they force to remain static. They are very much about imposing all sorts of “negative rights” on women and minorities, not the least of which is through curtailing reproductive freedom. They also don’t actually support the right to bear arms for anyone who isn’t white (and generally male).

    If the Trump White House goes down this road now, however, they’ll be setting the precedent that these actions are fine. In effect, the Trump team will be handing Democratic administrations weapons almost perfectly designed to gore conservative sacred cows.

    Given the complete lack of any sort of accountability, and current Administration actions, I don’t think they believe there will be any more Democratic Administrations. The Administration and its Senate enablers are clearly angling to keep power no matter what voters actually say.Report

  2. Avatar Jaybird
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    says:

    Democratic Administrations haven’t gone down this road for a number of reasons, but one key reason is a belief that the judicial system would find this sort of action unlawful because it’s so far outside the bounds of normal legal action by a government. If the Trump White House goes down this road now, however, they’ll be setting the precedent that these actions are fine. In effect, the Trump team will be handing Democratic administrations weapons almost perfectly designed to gore conservative sacred cows.

    It depends on how fiercely they’re fought against.

    If it turns into an opportunity to explain “This is wrong and we’re going to get the SCotUS to overturn it!” and then the SCotUS actually does?

    Well, we’ve just limited future presidents too.

    Maybe.

    At base, this idea of creating policy by pure, open executive fiat is bad and dangerous.

    Yep. Always has been.

    But the House doesn’t do its job anymore, the Senate only wants to do about half of its job, the SCotUS is exceptionally disappointing (not in its rulings, necessarily, but in the cases it declines to hear), and so President is where this stuff is hammered out at a national level.

    More’s the pity.Report

    • Avatar Philip H in reply to Jaybird
      Ignored
      says:

      The House did its job and impeached him. The Senate failed to convict – hell they failed to call a witness.

      The House has done its job and sent over 400 bills for policy to the Senate, where they languish in Mitch McConnel’s pocket while he finishes restacking the Judiciary.Report

      • Avatar Damon in reply to Philip H
        Ignored
        says:

        And the republicans are still smarting about how Clinton wasn’t removed. As for the rest, elections matter. Color me surprised when one side takes what the other did and magnifies it. Maybe think m ore next time on the where things could go sideways before you move forward.Report

        • Avatar Philip H in reply to Damon
          Ignored
          says:

          And yet Republicans bend over backwards to say that because Trump was not convicted he was exonerated, but Clinton was impeached under the same circumstance and deserves history’s condemnation. and remember – in Clinton’s trial his own party called witnesses (albeit by video tape)and added documents to the record over and above what the House managers presented . . . the current Senate not so much . . . .

          That aside a lot of Democrats are still smarting that he wasn’t removed, given how he drug the Democratic party to the center in his asinine doctrine of triangulation.Report

          • Avatar Damon in reply to Philip H
            Ignored
            says:

            Meh…both presidents were impeached. Both were not convicted. You can call it exonerated or not, they were both, in a sense, found “not guilty”. One does not have to call witnesses if one so chooses. That’s a nothing burger.

            “given how he drug the Democratic party to the center in his asinine doctrine of triangulation.” Well, maybe they should have pushed harder for him to be removed…or voted out those senators who voted not to remove him…of course that might have changes the make up of the senate……so…..Report

  3. Avatar Burt Likko
    Ignored
    says:

    Justin, I’m as guilty of anyone else here (except Jaybird and Philip H) in not reading and considering this article sooner. Remedying that now.

    For reference, the SCOTUS decision (DHS v. UC Regents) is reviewable in full here.

    I think it’s important to note that both DACA (which applies to undocumented aliens who moved to the United States as children, people sometimes called “Dreamers”) and the related program DAPA (which applies to parents of the Dreamers) were not established by full Executive Orders but rather initiated by a similar but different executive lawmaking device called a Presidential Memorandum. From there, DHS promulgated a series of regulations and policies under the Administrative Procedures Act. So we’re talking about a federal policy that was created in compliance with the APA.

    Successive administrations can alter the policies set in place by previous administrations within the scope of the law, there just isn’t any doubt about that and it doesn’t seem to me that DHS v. UC Regents alters that fundamental truism in any way. What it states is that as with so many other things, the new Administration must change promulgated regulations lawfully. Once you have policies in place that have been promulgated and subject to public comment and revision under the APA, you then need to further comply with the APA to change them later.

    The reasoning for the application here relates to the nature of the policies that were created — because someone might seek deferred immigration status under DACA or DAPA, that also created a potential to lawfully receive different kinds of federal entitlements, like Social Security benefits, Education Department guaranteed loans, or Federally-subsidized housing. Changing DACA status without addressing entitlement relief status, particularly for people who have come to rely on these as part of how they live (the “reliance interest”) violated the APA because that issue was not addressed in the DACA “repeal” nor in any kind of public commentary and response from DHS. That is the core of the DHS v. UC Regents case, as applicable to the point Yoo tries to raise.

    I don’t disagree that there are some Democrats who would elevate existing entitlements to the status of positive rights. There is room to argue that the way entitlements are treated amounts to something that approximates positive rights. I’m far from sure that this is endemic throughout the Democratic Party or even its policy movers.* I submit for your consideration that in a lot of cases, this isn’t particularly controversial or partisan — most especially in the case of Social Security, something that people of nearly every ideological strip insist that they “have paid into” and therefore get to receive “their” benefits later. (This is, as scholars of the program know, a white lie FDR told the nation when the law was under consideration, since in fact social security is a tax on earnings whose funds are immediately disbursed to a variety of claimants, some of whom are not yet in their golden years but rather have disabilities or other bases to claim the entitlement.)

    To get to agree with the larger point here, I need to accept that 1) entitlements really are positive rights, 2) once a regulation or other executive-derived law is enacted that affects entitlements is in place, it can only be magnified and never deprecated, and 3) Congress is a powerless, passive observer of this process. I don’t think any of that is true.

    Entitlements are not positive rights, precisely because Congress is not a powerless, passive observer of the lawmaking process. There’s nothing in the Constitution about entitlements; as close as it comes is that the government may not take away someone’s property interest in something without affording them due process first. But due process arguments in this context can only apply to executive action as it affects individuals, and do not apply to new political decisions Congress makes (or, for that matter, for new policy priorities and interpretations of statutory law by shifting Administrations). This, ultimately, is what the APA interpretation in DHS v. UC Regents addresses: the Supremes said to DHS “Wait a minute, people have reliance interests here and you didn’t address them. That’s what the APA is designed to require you to do, so if you want to pursue this shift in policy, go back to the Federal Register and do it right.” But ultimately, these entitlements are creations not of executive action but rather of Congress, and consequently are subject to Congress’ effectively plenary power to create, expand, contract, or eliminate them.

    Phrased most dramatically: Congress could repeal Social Security today. All those SSI taxes you and I and everyone else has paid would thereafter count for squat. Now, that’s an extraordinarily unlikely thing to do because Social Security has become quite possibly the single most popular thing the Federal government does. But the political likelihood or wisdom of a particular action isn’t the same thing as its Constitutional permissiblity.

    More on point, Congress could overrule DACA and DAPA and replace them with different schemes for addressing aliens present in the country that fit within the DACA/DAPA categories today, if it found the political will to do so. If it were to do that, all of the memos and executive orders we’re talking about would be mooted. The executive possesses lawmaking power, despite the contrary claims of people whose knowledge of the workings of government never exceeded watching Schoolhouse Rock. But the executive’s lawmaking power exists as a function of discretion to interpret ambiguous or incomplete legislation, and as a function of the degree to which Congress has or has not delegated power to the executive to do that.

    And, getting back to the specifics, we find nothing in DHS v. UC Regents suggesting that even revisions to or repeal of executive regulations that do affect entitlements cannot alter the ability of a person to claim or receive those entitlements despite the existence of reliance interests. All I find is that in order to do that, the executive must go through the promulgation – receive public comment – respond to public comment – repromulgation routing specified by the APA. If the executive agency has its act together, that can be done in as little as 181 days, at least in theory.

    None of which is to say that you haven’t touched upon something quite important here. It’s just that (as I’d have expected) Yoo has missed the mark of the Supreme Court’s ruling quite badly. I appreciate your noting that Yoo’s writing is gaining influence despite his intellectual error, and that this is not the first time Yoo has committed profound intellectual errors which have contributed to unwise-to-morally-shocking policy decisions taken by Republicans holding public office.

    * I’ve similar qualms about your characterization of the Republican Party as the sentinel of negative rights, particularly when contrasting that position to Democrats. At minimum, the GOP is highly selective in its efforts to safeguard negative rights, and Democrats also have a set of freedoms from governmental interference in personal autonomies which they prioritize.Report

    • Avatar Philip H in reply to Burt Likko
      Ignored
      says:

      More on point, Congress could overrule DACA and DAPA and replace them with different schemes for addressing aliens present in the country that fit within the DACA/DAPA categories today, if it found the political will to do so. If it were to do that, all of the memos and executive orders we’re talking about would be mooted. The executive possesses lawmaking power, despite the contrary claims of people whose knowledge of the workings of government never exceeded watching Schoolhouse Rock. But the executive’s lawmaking power exists as a function of discretion to interpret ambiguous or incomplete legislation, and as a function of the degree to which Congress has or has not delegated power to the executive to do that.

      Given that Mr. Obama moved to create DACA and DAPA after the Congress repeatedly declined to legislate on the issue, I remain frustrated at the notion that he really did anything wrong. I know thats politics and not law but still . . . .Report

      • Avatar Damon in reply to Philip H
        Ignored
        says:

        If that’s the, surely you would agree then that “politics” works the other way too…and would understand why a new president would reverse said actions. After all, it’s the same thing just in reverse….nothing wrong with that…Report

        • Avatar Philip H in reply to Damon
          Ignored
          says:

          An as Burt notes, SCOTUS ruled that Trump had violated process, not on the merits of his roll back. They told him – as they have told many administrations before – that you have to do what you want to do a certain way, and when you don’t then you can’t act. Timid as it is they actually put a sideboard on his administration.Report

          • Avatar Damon in reply to Philip H
            Ignored
            says:

            Sure, gotta do it correctly. Not objecting to that. However, it does seem a bit unfair that something created solely with a stroke of a pen have to be removed with a long tedious process by a bunch of bureaucrats.Report

      • Avatar Burt Likko in reply to Philip H
        Ignored
        says:

        I’d hesitate to draw that inference. Silence is not always approval, it may indicate an inability to form a consensus of either approval or disapproval. That seems to be the best assessment of Congress’ behavior in this case.Report

        • Avatar Philip H in reply to Burt Likko
          Ignored
          says:

          I said nothing about silence. I indicted process. The President – like his immediate republican predecessor – invited Congress to do their day jobs repeatedly. They declined to do so. That’s a process failure, in as much as the Congressional incentive structure didn’t propel action.Report

  4. Avatar Pinky
    Ignored
    says:

    It seems to me that any negative right can be torturously described as a positive right. I’m not endorsing the action, but it’s possible. Justice Kennedy famously wrote, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”. Call that a positive right, say it includes the right to not pay estate taxes, and you’re home free. I’d prefer an intellectually honest argument, but tactically, it’s not necessary.Report

  5. Avatar DavidTC
    Ignored
    says:

    The right to join a union is not a ‘positive right’. People have both a constitutional and a natural law right to associate and plan with whomever they want.

    Likewise, WRT negative rights, the Republicans have barred specific forms of union contracts, like a union shop contract. Which is, in fact, a restriction on freedom of contract.

    Hell, the right to _create and operate a corporation_ as a psuedo-person, is a positive right, there is no possible natural law concert of corporations in any sense, and there’s no constitutional right. Which means that every right _given_ to a corporation (like refusing to serve people) is a positive right, because it’s built on top of a positive right.

    And let’s not even get into abortion.

    Republicans are just _really good_ at getting people to repeat their PR gibberish about positive and negative rights, so much a lot of Democrats have even fallen for it.

    The actual between the sorts of rights that Republicans vs. Democrats want is that they want rights to benefit different people.Report

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