E-Pluribus | January 19, 2024
Bureaucracy, Constitution-style; raising the bar at the Bar; a closer look at book "bans."
A round-up of the latest and best musings on the rise of illiberalism in the public discourse:
Alison Somin: The Constitution’s Overlooked Road Map for an Accountable Bureaucracy
When the founders envisioned the federal government of the United States as spelled out in the Constitution, they could not anticipate all the challenges that would come. Yes, a process for amending was provided, but Alison Somin writes at Discourse Magazine that the text of the Constitution itself should not be overlooked when overreach occurs; the appointments clause of Article II, for instance, could help Congress rein in our runaway bureaucracy.
The Constitution grants executive power to the president, but presidents cannot do all the work of the executive branch alone. They need subordinates to help them carry out their work: cabinet secretaries, undersecretaries and thousands of other political appointees throughout the federal government. But the Constitution also promises a government that is accountable to the people. So how do we the people retain that accountability when we don’t get to vote for many of these officials, who wield enormous power?
The Constitution has two important tools to guarantee that federal officials remain accountable to the people. First, the appointments clause requires that any government officials who wield substantial power must be confirmed by the Senate, ensuring these officials are vetted by the people’s representatives in Congress. Second, the Constitution requires that, once confirmed, appointed officials can be fired by the president if they perform poorly or follow their own priorities rather than the president’s. The president’s control over these officials makes him responsible for their actions, and at the same time, the president is directly accountable to voters, who can show their displeasure at the next election.
Unfortunately, this system has fallen into disrepair. Today there are hundreds, if not thousands, of officials in the federal government who exercise expansive power who are not confirmed by the Senate, are not accountable to the president, or both. To fix this broken system, it’s necessary to revitalize the president’s powers to appoint and remove executive officials.
In the late 19th and early 20th centuries, the progressive movement grew increasingly critical of the original constitutional design. The progressives wanted to move power away from the democratically elected president and direct appointees into the hands of supposedly impartial, nonpolitical experts.
[. . .]
There is value to having the executive branch staffed by experts with technical knowledge. But technical knowledge is only one part of the puzzle that is policymaking. Values also matter, and the ability to make tradeoffs among competing values is one of the most important parts of governing. Those tradeoffs must be made by the people’s representatives or, at the very least, officials who are directly accountable to them.
[. . .]
Regulatory overreach by officials who are not constitutionally appointed appears to be all too common. One Pacific Legal Foundation study found that 71% of rules issued by the Department of Health and Human Services were unconstitutional because the officer signing them was never appointed by the president and confirmed by the Senate.
Therefore, the Supreme Court and lower courts ought to take advantage of opportunities in the cases brought before them to enforce the appointments clause and strip removal protections from unaccountable federal officials.
[. . .]
The appointments clause provides a floor for democratic accountability, but it is not a ceiling. Congress could consider passing additional legislation that safeguards the principle by, for example, requiring the president to personally sign rules in high-profile areas of regulation. This step is not unprecedented: There were presidential signature requirements for issuing rules under Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. These requirements have, alas, been wrongfully delegated away, but they did serve as a brake on regulatory state overreach earlier in these laws’ histories. Congress should revive those requirements and enact similar requirements for other laws.
Read it all here.
The American Bar Association’s Coming Free-Speech Intervention
Professional associations often seem to lean towards progressive ideas in an attempt to appear responsive to modern trends. But Mark Pulliam in a piece for the James G. Martin Center says that the American Bar Association’s latest proposal regarding free-speech rights is a welcome development. Using its influence over accreditation, the ABA wants schools to develop clear policies protecting academic and other freedoms, of students and faculty alike.
Higher education did not have a good year in 2023, as evidenced by high-profile resignations at Penn (Liz Magill) and Harvard (Claudine Gay). This followed abysmal televised congressional testimony in which the two Ivy League presidents and MIT’s Sally Kornbluth refused to condemn campus calls for genocide against Jews. Harvard’s disgrace was compounded by revelations of serial plagiarism on the part of Gay.
The legal academy has fared no better in recent years, with highly publicized incidents of intolerance, de facto censorship, and speech suppression at Stanford Law (e.g., students heckling Fifth Circuit judge Kyle Duncan), Yale Law (e.g., disruption by students of an event featuring Alliance Defending Freedom general counsel Kristen Waggoner and administration harassment of a Federalist Society member for promoting a Constitution Day event), Georgetown Law (e.g., the suspension of lecturer Ilya Shapiro for a tweet criticizing President Biden’s selection of Ketanji Brown Jackson to serve on the U.S. Supreme Court), and Penn Law (e.g., disciplining tenured faculty member Amy Wax for making unpopular statements).
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To its credit, the American Bar Association, responsible for accrediting the nation’s law schools for purposes of eligibility for federal student loans and graduates’ bar admission, is considering a proposal (sponsored by the ABA’s Council of the Section of Legal Education and Admissions to the Bar) that would require law schools to adopt policies protecting the free-speech rights of faculty, staff, and students. It would also prohibit disruptive conduct interfering with free expression (such as the “heckler’s veto”) and provide for due process for those accused of violating the policy.
The ABA’s accreditation rules carry great weight, because law schools that do not comply face the loss of their accreditation—in effect, capital punishment. Law schools cannot ignore the ABA when accreditation is at stake, and the ABA knows it.
This proposal, which has been endorsed by free-speech advocate and well-known legal scholar Erwin Chemerinsky, dean of the UC Berkeley Law School and past president of the influential Association of American Law Schools, will be considered by the ABA’s House of Delegates at its February 5 meeting in Louisville. If approved by the House of Delegates, the ABA’s proposed Standard 208 would create a new requirement for law schools (both public and private) entitled “Academic Freedom and Freedom of Expression.” Amazingly, outside of the faculty-tenure context, there is no existing ABA standard on this topic.
Without prescribing specific language, Standard 208 would require all law schools to adopt, publish, and adhere to a written policy that applies to all full- and part-time faculty (and guest lecturers), protecting their academic freedom in the classroom, in clinical programs, in scholarship and research, and in “law-related public service activities.” Law schools would also be obligated to protect the right of faculty, students, and staff “to communicate ideas that may be controversial or unpopular.” Importantly, Standard 208 would “[p]roscribe disruptive conduct that hinders free expression by preventing or substantially interfering with the carrying out of law school functions or approved activities, such as classes, meetings, interviews, ceremonies, and public events.” In other words, no more childish mob behavior.
Read it all.
James Fishback: The Truth About Banned Books
As I have noted on Twitter (X), PEN America’s definition of “book banning” is suspect on its face. But even using a loose definition of “ban,” what books are being banned, anyway? For The Free Press, James Fishback shares his research and conclusions, finding that while the left decries bans, more often than not, it is right-leaning books that are far less available in school libraries across the country.
Over the last couple years, the media have peddled a narrative of “book bans” sweeping the nation.
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But the truth is a lot more complicated.
Last spring, I wrote about the hijacking of high school debate for The Free Press. I detailed how judges disqualify students for advancing conservative arguments that the judges personally disagree with—effectively taking the debate out of high school debate.
Since that article, I’ve spent time meeting with students, parents, teachers, and school board members. Several students complained that their school libraries had become one-sided, offering only books in line with progressive orthodoxy.
So I decided to investigate just how one-sided things actually are. I surveyed the library catalogs of 35 of the largest public school districts in eight red states and six blue states, representing over 4,600 individual schools. All of these records are publicly available online. (Here are just three online catalogs I searched: Broward County, FL, Austin, TX, and Oklahoma City, OK.) What I discovered isn’t so much a problem of banned books. It’s that kids are often exposed to only one side of the story.
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The American Library Association and groups like PEN America have raised alarm bells (and millions in donations) by warning of “the continued rise in attempts to censor books and materials in public school and academic libraries.” PEN America estimated that 2,532 books were removed from schools in 32 states during the 2021–2022 school year.
But an investigation by the Heritage Foundation found that 74 percent of those so-called banned books are actually widely available to students. My own research uncovered the same.
[. . .]
Yet, there are still books that are being pulled from some school library shelves, largely over objections to their ideological arguments. In Martin County, FL, the book Stamped: Racism, Antiracism and You by Jason Reynolds and Ibram X. Kendi was removed from the shelf. Parents from far and wide have objected to Stamped because, as North Carolina mom Katie Gates told her school board in January 2022, the book “contains Marxist ideology” and “inaccurate reframing of history.”
She’s not wrong. Stamped argues, among other things, that the phrase “law and order” is a racial slur and that “the only thing extraordinary about White people is that they think something is extraordinary about White people.” I’ve read it twice. It’s a deeply flawed book, but why is removing it seemingly the only option? Leave it on the shelves so long as it’s accompanied by books that offer a contrasting viewpoint. I believe students should be able to access it in their school library so long as they can access books from the likes of Thomas Sowell and John McWhorter, offering them a range of viewpoints.
Read the whole thing.
Around Twitter (X)
Via Free Black Thought, some excerpts from Corey Brooks essay in Tablet Magazine:
The University of Wisconsin Law School is very concerned about racial attitudes of their incoming students—at least some of them.