Domestic Policy, Government, Immigration

The Swamp Wins Again

Bob Claude |

In this site’s mission statement, I said that as much as Theodore Roosevelt was a model, there would be times we would disagree with his likely approach to an issue.  The Supreme Court’s recent opinion on the DACA immigration program highlights one of those differences – the wisdom of unchecked presidential power. 

The Court’s opinion errs not just because it continues a program that flouts the basic rules of immigration law.  The so-called Dreamers would have been granted permanent residency eventually. However, it should have occurred through the legislative process as part of a comprehensive immigration reform that created real and enforceable limits on future immigration.  Instead, the Court used arcane administrative obstacles to allow the Obama Administration to evade the Congress and the people to achieve its political goals. In doing so, the Court has undermined the constitutional separation of powers and the democratic process.

The breadth and depth of the power granted by the Court to administrative agencies (and thus the presidency itself) can only be understood by delving into the details. The court admits that the DACA program (and the corresponding rule protecting the parents of DACA children) were affirmative rules subject to the Administrative Procedure Act. This law ordinarily would require such rules to be issued through a notice and public comment process and adopted only after “reasoned decisionmaking” (the Court’s language). They then could be appealed for judicial review by interested groups such as the Federation for American Immigration Reform, which advocates for immigration restrictions. Instead, the program was initiated by a three-page “memorandum” not posted for prior comment and justified on conclusory grounds that such immigrants “lacked the intent to violate the law”, are “productive contributors” and “know only this country as home”. No other justification or evidence was cited to support the memorandum. In addition, by acting through such a memorandum, the administration made it more difficult to challenge the program in the courts.

Thankfully, several states did challenge it and the Fifth Circuit Court of Appeals issued a preliminary ruling holding it to be an illegal rule making.  After President Trump took office, Attorney General Jeff Sessions issued an opinion to the Department of Homeland Security holding it to be illegal. Based on these opinions, the acting Secretary of the Department of Homeland Security decided to rescind the program. That should have been the end of the matter. Instead, a new set of appeals were filed and the Supreme Court struck down the rescission and sent it back to the agency so it can consider at least 8 different objections by supporters of the rule. In short, the court ruled that an agency rule having a multi-billion dollar economic impact and granting new rights to over 20 million people could be adopted without public comment or congressional input on conclusory grounds, but could only be repealed by engaging in a detailed factual and legal analysis.

Justice Thomas’s dissent accurately describes the danger to our constitutional democracy, stating that an agency is  now “not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration”.  It grants agencies and the beneficiaries of their largesse more rights than the people as a whole. No wonder many refer to Washington as a swamp. Policies adopted through the democratic process go in, but become so mired in governmental and special interest muck that they never come out.

To his credit, President Trump has issued an executive order prohibiting this kind of rogue administrative action.  At the same time, he encourages the same culture of presidential power by constantly acting through executive orders rather than by legislation.  He has never seriously pursued a comprehensive administrative law reform in the Congress.  Without this, a succeeding administration can undo his restraints by its own executive order. As we approach the 2020 election, American nationalists who believe in the unique value of our constitutional democracy should insist that candidates, including Trump, commit to reform that drains the administrative swamp once and for all and opens up policy making to the American people.

Antitrust & Trade Regulation, Domestic Policy, International Trade

Building American National Security and Good Jobs

Bob Claude |
https://www.theamericanconservative.com/articles/how-to-change-the-rules-of-trade-to-bring-manufacturing-home/

No [tariff] duty should be permitted to stand as regards any industry unless the workers receive their full share of the benefits of that duty. In other words, there is no warrant for protection unless a legitimate share of the benefits get into the pay envelope of the wage-worker.

Acceptance  Speech to the Progressive Party Convention, August 6, 1912

Reshoring manufacturing and vital supply chains after decades of neglect was always going to be a difficult process.   This article is a good primer on how to do it and the kinds of issues that must be addressed to harden our economy against shocks like COVID-19.  Trade agreements that prevent us from favoring local production may have to be abrogated and domestic policies that empower workers will be necessary to prevent the benefits from flowing primarily to Wall Street rather than workers.  The article also proposes some radical changes in labor relations to achieve this goal, but minimizes or misses two other necessary policy changes. 

We learned in the aftermath of FDR’s New Deal that protected industries can easily slide into anti-competitive practices that create monopolies.  The article advocates direct regulation rather than reviving antitrust laws to prevent this, which was actually the approach TR took in his New Nationalism speech in 1913. However, the 2008 financial crisis showed us behind-the-scenes regulation can be captured and then neutered by the very industries it is trying to control.  New and robust antitrust laws enforceable in the courts would add transparency to the process of controlling this market power.

The article also fails to mention the importance of education and training.  As the author points out, the jobs of the future will require high-level technical skills to create the kind of superior products that command correspondingly high salaries. All levels of government should increase their support for the community colleges and quality vocational tech schools that will be required to provide the necessary training.  In the end, our education system and employers will need to develop lifelong learning mechanisms to keep American workers competitive with the rest of the world’s workers. 

Americans have the talent. They just need a government that will give them the skills and the opportunity to succeed.