A rhetorical question
Ilya Somin
isomin at gmu.edu
Fri Aug 17 12:28:16 PDT 2007
Minor correction:
I should have said, "3 points" rather than 2.
Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339
----- Original Message -----
From: Ilya Somin <isomin at gmu.edu>
Date: Friday, August 17, 2007 2:38 pm
Subject: Re: RE: A rhetorical question
> I would note 2 points on this debate:
>
> 1. It is not true that unitary executive advocates in the academy
> have ignored the fed. Steve Calabresi and others have pointed out
> this issue and have argued, quite plausibly, that de facto fed
> independence could be maintained without statutorily required
> independence.
>
> 2. More broadly, many conservative and especially libertarian
> scholars have long argued that we would be better off without the
> Fed either because free banking is superior to central banking
> (Lawrence White, F.A. Hayek, etc.), or because we would be better
> off if the Fed's discretionary authority was strictly limited by
> statute (as Milton Friedman advocated). In the latter scenario,
> the appointment and removal process for Fed members wouldn't
> matter so much because they would have much less discretionary
> authority.
> 3. Comparative experience is instructive here. In parliamentary
> regimes such as Britain and pre-Euro Germany, central bank
> independence was maintained almost as well as in the US despite
> the fact that in such states there is no meaningful separation
> between the legislature and the executive, and the ruling party or
> coalition could reign in the central bank or change the rules by
> which its members are appointed any time it wanted to.
>
> In sum, I think unitary executive advocates have addressed the Fed
> issue, though it is always possible to argue that they should do
> so to a greater extent. And, in addition, there are good
> theoretical and empirical reasons to believe that this particular
> entrant in the anti-unitarist parade of horribles is greatly
> overblown.
> Ilya Somin
> Assistant Professor of Law
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/
> SSRN Page: http://ssrn.com/author=333339
>
>
-------------- next part --------------
There are two things going on here. First is a perfectly sensible
argument that the unitary executive theory is misguided for various
reasons, one of which is that it would render the Federal Reserve
unconstitutional.
Second is an attack on "unitary executive types" who are
surprisingly not "screaming" about this and therefore are "hid[ing] the
ball" and "obscur[ing] the radical implications of one's arguments." If
Marty wants to insist that scholars devote time to fighting battles that
they plausibly see as losing battles (at least at this stage of the
war), and wants to fault them for paying attention to those arguments
that they think may actually have political traction today, that's fine.
It just strikes me as a norm that's extremely hard to defend, and that's
certain not to be adopted, even by the most serious, thoughtful, and
fair-minded of scholars either on the Left or or on the Right.
Naturally no-one should lie about the consequences of his proposals;
and a good scholar should anticipate counterarguments based on such
consequences. But that hardly imposes an obligation for the "types" to
"scream[]" about perceived constitutional violations that they expect
will be extremely hard to dislodge, and will be impossible to dislodge
as the first battle in the war.
Eugene
________________________________
From: Marty Lederman [mailto:marty.lederman at comcast.net]
Sent: Friday, August 17, 2007 10:46 AM
To: CONLAWPROF at lists.ucla.edu; Volokh, Eugene
Subject: Re: A rhetorical question
Yes, I agree that "hide the ball" and "obscure the radical
implications of one's arguments" are perfectly normal and proper
approaches. I've no doubt used them myself on occasion.
And it is likewise perfectly normal and proper for the rest of
us to point out that if one were to take seriously the "unitary
executive" theory championed by Steve Calabresi and Justices Scalia and
Alito, the result would be not simply the end of independent
prosecutors, but the unraveling of the New Deal and much of the modern
administrative state, particularly when combined with the views of those
who would advocate using "original expected application" w/r/t the
Commerce Clause in Justice Thomas's manner.
That is to say, there may be nothing at all improper about
adopting such fairly radical views (radical in the sense of calling into
question much of the framework of 20th Century constitutional law) --
but don't we have an obligation to call them by their right names? And
when we discuss, say, Justice Scalia's dissent in Morrison v. Olson,
after we get done lauding him for predicting the Starr Report, shouldn't
we also point out that his cure (a constitutional trump rather than the
statutory repeal that actually occurred) would be worse than the
disease, because it would call into question the independence of the Fed
and much more of the 20th Century administrative state? For more on
this theme in the context of challenging many proponents of "original
meaning," see Jack Balkin's post today:
http://balkin.blogspot.com/2007/08/ed-whelan-joins-in.html.
P.S. Yes, I am aware, of course, that not every variant of the
unitary executive theory is a slope that slips so quickly to 1896 --
just as not every theory of "original meaning" means the overturning of
Brown (see Mike McConnell), or even Roe (see Jack Balkin). But the
burden on those who would so cavalierly advocate such theories is to
explain why they would not have such unthinkable results (a burden that,
as Eugene notes, some such as Akhil Amar and others do take seriously).
(Unless, of course, you think the theory of the unitary executive or
originalism should lead to such results; and, to their credit, folks
such as Steve Calabresi and Justice Thomas are quite candid about their
nostalgia for a return to the constitutional law of the late 19th
Century.)
----- Original Message -----
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu
<mailto:VOLOKH at law.ucla.edu> >
To: <CONLAWPROF at lists.ucla.edu
<mailto:CONLAWPROF at lists.ucla.edu> >
Sent: Friday, August 17, 2007 12:04 PM
Subject: RE: A rhetorical question
> Well, Steve Calabresi has spoken about this. Akhil Amar,
who at
> least seems sympathetic to the unitary executive in many ways,
has
> spoken about it, too (though in his characteristically more
nuanced way,
> which might allow the Fed to be preserved for complex
reasons).
>
> You may well be right that this is partly because the
Nation has
> come to accept the independent Fed, and advocates of the
unitary
> executive don't see this as a particularly effective place to
start the
> argument. But it's hardly that they aren't "acknowledg[ing]"
this;
> they're choosing to focus on those things where they think
they can win
> at the outset (while being quite candid, albeit with less
emphasis,
> about the possible invalidity of the Fed). Seems like a
perfectly
> normal, and proper, approach.
>
> Eugene
>
>
> Marty writes:
>
>
> Fair enough. But the question is why there isn't much more
> serious controversy in legal academic circles about the Fed
than about
> the occasional (now defunct) independent prosecutor. After
all, the
> power wielded by the former is much vaster, more pervasive,
and more
> permanent -- and unlike the prosecution power, which was not
the
> exclusive preserve of the Executive at the Founding, there is
no
> "originalist" theory (I assume -- I haven't looked into it)
for
> delegating the nation's monetary policies to independent,
> "unaccountable" officials. So why doesn't the unitary
executive theory
> have much more traction in this context than in that of the
independent
> prosecutor?
>
> The answer, I think, is that the Nation has fully come to
terms
> with, and accepted the value of, an independent Fed; and
therefore if
> the unitary-executive proponents were to acknowledge that
their theory
> leads to the invalidation of the independent Fed (and many
other
> agencies whose independence is now taken for granted), the
"traction" of
> the theory as a whole would suffer (as, IMHO, it should).
>
>
> ----- Original Message -----
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu
<mailto:VOLOKH at law.ucla.edu>
> <mailto:VOLOKH at law.ucla.edu <mailto:VOLOKH at law.ucla.edu> > >
> To: <CONLAWPROF at lists.ucla.edu
<mailto:CONLAWPROF at lists.ucla.edu>
> <mailto:CONLAWPROF at lists.ucla.edu
<mailto:CONLAWPROF at lists.ucla.edu> > >
> Sent: Friday, August 17, 2007 11:28 AM
> Subject: RE: A rhetorical question
>
>
> > Well, the unitary executive "types" I know are quiet
> people, not
> > generally given to screaming. But Steve Calabresi, one of
the
> leading
> > supporters of the unitary executive, has expressly argued
that
> the
> > independent Fed is indeed unconstitutional (see, e.g., 48
Ark.
> L. Rev.
> > 23).
> >
> > Indeed, Calabresi and others don't seem to be spending
much
> of their
> > time criticizing the Fed rather than, say, independent
> counsels. But
> > this makes perfect sense: All of us rightly focus our
> arguments on
> > those examples that we think will most appeal to our
listeners
> -- this
> > means we choose those examples as to which there is a
serious
> > controversy (so that our arguments are likely to have
> traction) rather
> > than those as to which there isn't.
> >
> > Eugene
> >
> > ________________________________
> >
> > From: conlawprof-bounces at lists.ucla.edu
<mailto:conlawprof-bounces at lists.ucla.edu>
> <mailto:conlawprof-bounces at lists.ucla.edu
<mailto:conlawprof-bounces at lists.ucla.edu> >
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
Marty
> Lederman
> > Sent: Friday, August 17, 2007 8:00 AM
> > To: Sanford Levinson; Earl Maltz; Jonathan H. Adler; James
G.
> Wilson;
> > CONLAWPROF at lists.ucla.edu <mailto:CONLAWPROF at lists.ucla.edu>
<mailto:CONLAWPROF at lists.ucla.edu <mailto:CONLAWPROF at lists.ucla.edu> >
> > Subject: Re: A rhetorical question
> >
> >
> >
> > I had the same reaction as Sandy. Where are the screams
from
> > the unitary-executive types when the nation's entire
monetary
> policy is
> > being determined by someone who is not subject to the
> President's (or
> > anyone else's) control?
> >
> > I recall that, in my first-year ConLaw course, Charles Black
> --
> > obviously not a skeptic of the New Deal -- recounted having
> espied
> > Arthur Burns in an airport one day in the early 1970's and
> thinking to
> > himself, "Now, where in the Constitution is it, exactly,
that
> authorizes
> > this man, never elected to any public office, to
unilaterally
> control
> > the entire economy of the United States?"
> >
> > ----- Original Message -----
> > From: Sanford Levinson <mailto:SLevinson at law.utexas.edu
<mailto:SLevinson at law.utexas.edu>
> <mailto:SLevinson at law.utexas.edu
<mailto:SLevinson at law.utexas.edu> > >
> >
> > To: Earl Maltz <mailto:emaltz at camden.rutgers.edu
<mailto:emaltz at camden.rutgers.edu>
> <mailto:emaltz at camden.rutgers.edu
<mailto:emaltz at camden.rutgers.edu> > > ;
> > Jonathan H. Adler <mailto:jha5 at case.edu
<mailto:jha5 at case.edu> <mailto:jha5 at case.edu <mailto:jha5 at case.edu> >
>> ; James G. Wilson
> > <mailto:james.wilson at law.csuohio.edu
<mailto:james.wilson at law.csuohio.edu>
> <mailto:james.wilson at law.csuohio.edu
<mailto:james.wilson at law.csuohio.edu> > > ; CONLAWPROF at lists.ucla.edu
<mailto:CONLAWPROF at lists.ucla.edu>
> <mailto:CONLAWPROF at lists.ucla.edu
<mailto:CONLAWPROF at lists.ucla.edu> >
> > Sent: Friday, August 17, 2007 9:45 AM
> > Subject: RE: A rhetorical question
> >
> > Earl writes, "I know, this has nothing to do with
> > constitutional law, but its kind
> > of interesting anyway."
> >
> > Isn't it bizarre to say that the central mechanisms of
> > economic control, including the strange status of the Fed in
> an
> > ostensibly "three-branch" system, have "nothing to do with
> > constitutional law."
> >
> > sandy
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20070817/cfd410d6/attachment.htm
-------------- next part --------------
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
-------------- next part --------------
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
More information about the Conlawprof
mailing list