Like America’s president, Brexiteers resent the very idea of governing as complex and based in facts.
A common thread linking “hard” Brexiteers to nationalists across the globe is that they resent the very idea of governing as a complex, modern, fact-based set of activities that requires technical expertise and permanent officials.Soon after entering the White House as President Trump’s chief strategist, Steve Bannon expressed hope that the newly appointed cabinet would achieve the “deconstruction of the administrative state.” In Europe, the European Commission — which has copious governmental capacity, but scant sovereignty — is an obvious target for nationalists such as Prime Minister Viktor Orbán of Hungary.
The more extreme fringes of British conservatism have now reached the point that American conservatives first arrived at during the Clinton administration: They are seeking to undermine the very possibility of workable government. For hard-liners such as Jacob Rees-Mogg, it is an article of faith that Britain’s Treasury Department, the Bank of England and Downing Street itself are now conspiring to deny Britain its sovereignty.
It is thought that Mr. Davis’s real grudge was with the unelected official, Olly Robbins, who had usurped him in his influence over the Brexit process. The problem was that Mr. Robbins is willing and able to do the laborious and intellectually demanding policy work that Brexit will require, while Mr. Davis is famously not.
.. But another byproduct of the anti-government attitude is a constant wave of exits. Britain leaves the European Union, Mr. Johnson resigns from the cabinet. The Trump White House has been defined by the constant churn of sackings and resignations. With astonishing hypocrisy, wealthy Brexiteers such as Mr. Rees-Mogg, John Redwood, Lord Lawson and Lord Ashcroft have all been discovered either preparing to move their own assets into European Union jurisdictions or advising clients on how to do so. No doubt when Britain does finally leave the European Union in March 2019, they will distance themselves from reality once more, allowing the sense of victimhood and the dream of “sovereignty” to live another day. Meanwhile, someone has to keep governing.
The Supreme Court Won’t Stop Executive Overreach
Presidential appointees, business advocates complain, routinely overstep the authority given them by Congress in how they write and enforce rules. With the addition of Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, business sees the Supreme Court as a reliable bulwark against executive branch overreach.
.. Judge Kavanaugh believes presidents, unlike regulators, are owed considerable deference, especially on national security and law enforcement. That’s significant because Mr. Trump is now using national security to justify his own economic interventions, especially on trade.
.. Much of the controversy over the administrative state harkens back to 1984, when the Supreme Court decided, in a case involving the Environmental Protection Agency, Chevron U.S.A. Inc. and an environmental group, that when a law is unclear, the court should defer to a federal agency’s interpretation of that law.
.. Courts have cited Chevron deference, as this doctrine is known, to grant wide latitude to regulatory agencies, from the EPA to the Department of Labor and the Federal Communications Commission. Many conservatives blame it for a decadeslong transfer of power to the executive branch. They questioned the legality of President Barack Obama’s routine use of executive authority, such as limiting greenhouse gas emissions and suspending some deportations of illegal immigrants, to sidestep Congress.
.. “Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch,” he wrote in 2016 in the Harvard Law Review.It encourages the president, regardless of party, to “be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.”.. Both parties have agencies they love to hate: For Republicans, it’s the EPA and the Consumer Financial Protection Bureau; for liberal Democrats, it’s now Immigration and Customs Enforcement. For both, it’s the Internal Revenue Service or the Justice Department when the other party controls the White House. In each case, a change of president is usually enough to change the agency’s behavior.
.. Yet even as he rolls back the administrative state, Mr. Trump has pushed the boundaries of presidential authority. He has imposed steep tariffs on imports of aluminum and steel and is planning the same on cars, citing his national security authority under a little-used 1962 law. Mr. Trump is also weighing forcing utilities to buy more coal and nuclear-generated power, also on national security grounds.
In both cases, national security appears to be a pretext to shore up economically beleaguered industries... “There is a pronounced dichotomy between Kavanaugh’s view on deference to agencies as opposed to his view on deference to presidents,” says Jonathan Turley, a law professor at George Washington University. He says Congress has been progressively marginalized by the expanding authority of both federal agencies, and presidents; Judge Kavanaugh seems to oppose the first and encourage the second... Judge Kavanaugh’s concurring opinion, as a judge on the U.S. Court of Appeals for the D.C. Circuit, in 2015 that the National Security Agency could collect an individual’s telephone “meta data.” Because the purpose was preventing terrorist attacks, he said, it didn’t violate the Fourth Amendment’s prohibition on unreasonable search and seizure.
Brett Kavanaugh Has Shown Deep Skepticism of Regulatory State
As an appellate judge in Washington, President Trump’s Supreme Court pick is known for ruling against regulators he sees as having overstepped their bounds
His dozen years on the U.S. Circuit Court of Appeals for the D.C. Circuit have been marked with dozens of votes to roll back rules and regulations. He has often concluded that agencies stretched their power too far and frequently found himself at odds with the Obama administration, including in dissents he wrote opposing net-neutrality rules and greenhouse-gas restrictions.
.. When a divided Supreme Court in 2015 rejected the Obama administration’s rules requiring power plants to cut mercury emissions and other pollutants, the majority opinion by conservative justices drew heavily from Judge Kavanaugh... The high court cited his earlier dissent when he argued that the Environmental Protection Agency had failed to consider the costs of its regulations before moving forward. The EPA, he concluded, had ignored a requirement in the Clear Air Act that the agency determine whether an electric-utility regulation is “appropriate” before imposing it.
.. Too often, he found, judges were giving agency regulators the benefit of the doubt based on a doctrine that instructs judges to give more deference when the meaning of what Congress wrote isn’t precisely clear.That was the case, he thought, when the D.C. Circuit last year reviewed the legality of net-neutrality rules adopted by the Federal Communications Commission.In a dissenting opinion, he said the FCC didn’t have the authority to classify internet providers as “telecommunications services” and ban them from splitting internet traffic into fast and slow lanes.
The Supernumerary Executive
Conservatives who think about constitutional and legal issues, the administrative state, and the executive branch have argued for many years now for the importance of the so-called “unitary executive” model of the presidency.
.. And conservatives therefore tend to recoil from the notion that the broader executive branch has its own distinct prerogatives and exists apart from the president as a kind of administrative state onto itself.
But when you talk to senior officials in this administration about their work, and when you listen to the ways they talk about it with journalists and activists, it’s hard to avoid the conclusion that what we are seeing in the Trump era so far is the emergence of something like the inverse of the unitary executive.
.. Today, the people who occupy executive-branch positions (in the White House and in other agencies) are all trying to administer the government as if there were a president in office directing their work in the ways presidents generally do, even as they know that isn’t quite the case. And when people raise concerns with them about something the president has said, they respond by offering calming assurances that there is a body of people governing precisely not as extensions of the president. They say “the system is working,” and they mean we have a functional administration most of the time despite what’s going on at the top
.. The national security team calms foreign and domestic worries by pointing to the layered infrastructure of decisionmaking they have tried to set up. Social and fiscal conservatives on the inside calm those on the outside by pointing to the work being done by various appointees. When the most populist and nationalist of Trump’s supporters become worried that he might be abandoning them to make deals with swamp dwellers they are reassured by like-minded people very close to the president that he will soon enough move on and let them work. These various calming voices are of course in some tension with one another, but they are in agreement that at this point what the administration does is not connected to what the president says in the usual way.
.. But once in a while—through Twitter or an interview—we get a glimpse of Trump himself that has the feel of a fleeting glance into the dark, swirling maw of a shrieking brute, angry and in pain, and kept out of view by careful machinations.
.. But the idea that there is much more to the executive than the president is a form of a problem with the administrative state that conservatives normally, and rightly, worry about.
.. Like the importance of character in leadership, this longstanding conservative concern is a subject many on the Right will probably feel is better avoided or dismissed while this particular president is in office. But as with the character question, it sure seems like there will be a price to pay in time.