The Texas Plan, Part III

The third of Abbott's proposed amendments would restore the balance of legislative and executive power that existed before the New Deal, and specifically before Roosevelt's Supreme Court-packing scheme intimidated the Court into letting him do what they had repeatedly held to be unconstitutional.

III. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.

At this point, this would make a massive change in the way the Federal government does business. Administrative rules now make up the bulk of Federal law, including the bulk of Federal felonies for which you can be sent to prison for years. This is another one of those issues that readers of the Hall have read about for years.  Here's a longer piece from 2007 that talks about administrative regulation as well as the explosiveness of SCOTUS picks.  (Here is a post from the same year on the problems of over-regulation for government itself, from the perspective of trying to be sympathetic and helpful to the State Department.)

Looking back over my work in assembling that quite incomplete list, I see that Abbott's solution is the very one I was endorsing eight years ago: not just this shift, but a constitutional convention to restrain the SCOTUS and the regulatory agencies. It would be a huge change. The argument against it has to do with the complexity of the economy and society: a Congress that had to pass all the laws would be unable to come up with nearly so many laws and regulations and standards. We would have a much less managed society and economy.

The compensation would come in the legitimacy of the rules we did pass. Now, most of Federal law is created without you or your representatives being involved in the process, or even knowing about it. That's not obviously legitimate in a representative democracy, or a democratic Republic. If "No taxation without Representation" is a founding principle, well, every regulation is a kind of tax: compliance takes time and, yes, money. Regulations of such complexity that you cannot be sure you are following them all -- and we are very far past that threshold -- destroy the legitimacy of the whole scheme. They also create a great danger of partisan tyranny through prosecutorial discretion: if we are all guilty of transgressing these hidden laws, the government can punish its enemies and reward its favorites simply by choosing where and on whom it enforces the law.

The amendment suggests a course that will not be easy, but I think the hardships are necessary to the legitimacy, and stability, of our government. I have thought so for a long time.

The Texas Plan, Part II

The second proposed amendment is one that has been hugely popular with states as a proposal -- there are almost enough states demanding it to force the Constitutional convention on this point alone.

II. Require Congress to balance its budget.

The only thing that I can think to say against this is that the amendment might need a waiver for high emergencies such as wars. Of course, any waiver can be abused, and is likely to be. Still, you can't always fight a war on a budget, and some wars are necessary for the survival of the nation. Those of you who are Keynesians may wish to see this extended to business cycle events, although the evidence of the last decade should probably cause us to re-examine the validity of Lord Keynes' theories on that point.

The Texas Plan, Part I

Cassandra suggested a series of posts exploring the Constitutional amendments proposed by Greg Abbott. I think her intent is that we should look at them critically, to see if they need refinement.

I. Prohibit Congress from regulating activity that occurs wholly within one State.

My sense is that this is intended as a reinforcement of the limits of the Interstate Commerce Clause against SCOTUS overreach. As you know, a long series of SCOTUS rulings have expanded that power until it is essentially unlimited: it is now a power to regulate any economic activity that has any effect on commerce sufficient to plausibly affect interstate prices, but also power to regulate economic non-activity that might affect prices where the Federal government would like to require some activity (e.g., health insurance purchases you haven't been making).

Since states are forbidden to raise tariffs that would isolate their markets, the law of supply and demand means that any supplier in any state affects the market as a whole. The same is true for people who elect not to become suppliers. It is not clear what aspect of life is thus outside the expanded scope of Federal power under this revised understanding of the Interstate Commerce Clause. Presumably, the state can regulate any sort of economic production or non-production: you can be made to do or not do anything at all, and more than that, you can be told not just that you must do it but how to do it as well.

If this section has a weakness, it lies in the fact that the language does not specify that it is talking about "economic" activity. Presumably as written this would strip the Federal government from any power to regulate any sort of activity that occurs wholly within a state. On the other hand, the limiting force of the word "economic" is not clear to me: the Interstate Commerce Clause, which clearly is limited to economic activity, has somehow expanded to embrace any sort of activity or non-activity. It may be that there are very few human activities that cannot be described as economic.

I am going to propose a general standard for considering these amendments, which is that it is best if they start off stronger to leave room for negotiation in the necessary Constitutional convention. The amendments should be a little stronger than necessary going into the convention, so that what emerges from the convention is more likely to be adequate medicine.

Discuss.