Rejoice! The Storm Troopers of Leftism Are Being Crushed!

 

TAA_Rally_in_the_Capitol,_2012_(6879367837)This is the second in a series on the importance and durability of conservative successes since Reagan took office and since Obama lost his supermajority; we do win battles and they can stay won.

Though FDR created the modern Democratic Party as a diverse array of government entities and sales pitches to attract various identity groups, its heart was legally-empowered unions. In what might be considered the first individual mandate, Americans under a pro-union government would be forced to pay dues to a third party who would spend it, in part, on getting Democrats elected. There’s a raft of ways in which that system was enhanced; since 1931, for instance, Davis-Bacon prevailing wage laws have meant that government had to overpay for contracts, with much of the surplus going to unions, who were also helped by the additional red tape. Because people rarely give much of their own free will, declared union spending on the 2012 cycle topped $1.7 billion, while the Obama campaign ($0.5 billion), DNC ($0.3 billion), and declared outside spending on the Presidential race ($0.1 billion) didn’t compare.

But it’s more than money. Unions are the Democrats’ answer for why America is great. All the wonderful changes of the twentieth century, the incredible wealth enjoyed by our middle class, the massively superior quality of life we have over our parents … all these are explained, in their telling, by unions. The roll free markets serve in conservative mythology (and in reality) are credited to unions in the Left’s narrative. They can also point to unions as a source for social capital and the guarantors of individual rights, making them not merely the purported engine of economic growth, but also the Left’s church.

What Democrats could never do through direct government control, they achieved, for a while, through unions. People complain about regulatory overhead today — and the complaint is just — but our situation is still greatly superior to the awfulness of the schlerotic unionized industries of the 1970s. Reagan didn’t just lift the boot of direct government control off our neck, but he helped lift the violence, the inflexible and cumbersome union rules, and the sheer corruption of the union system.

Private Sector Union Membership

Before Reagan took over, private sector union membership was at 23 percent. Before Scott Brown took office, it was at 7.2 percent. By last year, it had fallen to 6.6 percent. Reagan was brutal to the unions, Bush 41 followed up, and it took a while for membership to look as if it might stabilize in Clinton’s second term. Bush 43 had an excellent Labor Secretary in Elaine Chao, who I hope would be available for the next administration, and who killed the unions’ brief hope under Clinton. More recently, Obama put a ton of effort into this issue; his two biggest achievements were Obamacare and the Stimulus, and the latter was primarily a union issue (the auto bailouts helped, too). But even with Obama’s NRLB, unions being the key priority of the Democrats, and an inspirational president who got his start working for unions, the relentless drive toward freedom has continued.

That 6.6 percent figure from 2014 is set to fall further, too. In 1958, there were 18 right to work states. In 1963, Wyoming brought that to 19. Louisiana (1976), Idaho (1985), and Texas in (1993!), brought us to 22, and then there was stasis. We weren’t falling back, but we weren’t gaining, either. Other than Nevada, these were all states with weak unions, anyway. We’d never taken a union-loving state until 2012, when Mitch Daniels moved Indiana. Last year, both West Virginia and Michigan became right to work states. This year, so did Wisconsin and we’re set to see some more states fall to our conquest, with none moving in the opposite direction.

Private sector unions aren’t just the mythology the Left credits with essentially everything good that happened in America in the 20th Century. They’ve also been the Democratic Party’s best shock troops ever since the Klan failed them, they’ve been their best fundraisers, and they’ve been the reason that white men and traditionally-minded women could be proud members of the Democratic Party. And we’re grinding them to dust.

Public Sector Union Membership

It’s often said that public sector union membership is picking up the slack, but there are many fewer government workers (22 million) than there are private sector workers (120 million). More importantly, public sector unions aren’t increasing their unionization rate: they’ve merely held their numbers constant while private unions of crumpled. Public sector union membership was at 35.9 percent before Reagan took office, went up under him to 36.6 percent, was at 37.4 percent when Scott Brown won, and is at 35.7 percent now. Wisconsin and Indiana have led a charge against them, too, obviously (I bet no one has read this far without knowing about Wisconsin’s Act 10). Along with the right to work reforms, these measures will only further unions’ decline.

The Future if a Republican Wins in 2016

There’s more to follow; Scott Walker may be the only candidate to have a solid labor reform platform and an indisputable record of achievement, but he’s not the only candidate on the right side of the issue. Bush and Rubio fought teacher’s unions indirectly in Florida. Kasich has a record for fighting, if not defeating, unions. Our Congressional leadership is more anti-labor than any Congressional leadership in a half century. Jim Geraghty talks about the way that Huckabee immediately trashed Walker’s plan for being excessively anti-labor, but Jim’s excellent piece misses the magnitude of the change. We used to have a lot of labor-friendly Republicans. We just don’t any more. The last time we had a majority, we couldn’t pass Davis Bacon reform because labor could count on Santorum, Kit Bond, Mike DeWine, George Voinovich, Mel Martinez, Gordon Smith, Ted Stevens, Chuck Hagel, Olympia Snowe, Arlen Specter, and Lincoln Chaffee. They’re all gone now, and they haven’t been replaced. Sen. Susan Collins is a moderate, but even she’s better on labor than any of those guys. There’s simply no place in today’s elected GOP for Huckabee’s identity politics only style of Republicanism that devoid of conservatism, or at least there wasn’t in 2010, 2012, or 2014. Even this year, I don’t believe Huckabee could get elected as governor or to congress.

Walker’s approach in Wisconsin was to liberate workers as a way to cut budgets, and his federal plan follows this model. This means that it can be passed with reconciliation. Unless we lose five seats in the Senate, any president can follow Walker’s model. He puts it better than I could, but basically he would: 1) Remove the NRLB as a way of immediately undoing all of Obama’s bad labor rules and to divert mediation to a more efficient system (the one used by railway workers, for historical reasons); 2) Enact a raft of reforms to make it harder for federal unions to raise money for politics, protect whistleblowers, make every state right to work (with the ability for states to opt out of that); and 3) Most importantly, repeal the Davis-Bacon Act, a law originally passed in the 1931 to keep African Americans out of the Northern states and Mexicans out of border states, and that now cripples American infrastructure, actively increases inefficiency, and provides massive cash payments to Democrats. A Davis-Bacon repeal is straight-up cash left on the table, even before you look at its moral costs. The gig economy — Uber and such — creates a space in which the elimination of labor as a non-trivial force becomes ever more plausible.

The Future If We Lose

Regardless, we shouldn’t pop the champagne yet. If we lose, the NLRB rules will take hold and stick. McDonald’s, for instance, would be far more likely to unionize. Other expansion seems likely. Obama’s reforms have been delayed, but they’re ready to bite, and a Clinton (or Sanders) Administration would give them the space to expand unions. A Supreme Court with Kennedy replaced by a 100% liberal would reverse decisions like Harris v. Quinn, which would mean that home-care assistants could be forced to join unions. And then, Uber drivers. And a host of other guys who won’t even know that there’s an election on, but will be notified by text message that they’ve chosen to join a union. The gig economy expanded under the wrong SCOTUS and the current NRLB could see massive expansions of the involuntarily unionized. Without Congress passing a new law, union membership would skyrocket to unheard of levels: 40, or even 50 percent of the country wouldn’t be impossible.

With that, we wouldn’t just lose general elections, although that would be one consequence. Union funding would go back to not merely dwarfing the other sources, but doing so to an absurd degree, and then rise beyond that to unprecedented height. Part of the impact would be that we would start losing primary elections to friends of labor again.

2016 looks set to be the election that decides the electoral and business future of the country for decades to come. Both victory and loss would have irrevocable and decisive effects.

Image Credit: “TAA Rally in the Capitol, 2012 (6879367837)” by Peter Patau. Licensed under CC BY-SA 2.0 via Commons.

Published in Domestic Policy, Economics, Law
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  1. James Of England Inactive
    James Of England
    @JamesOfEngland

    Bryan G. Stephens:

    Mike H:

    Most of what the government does now is both immoral and unConstitutional so I don’t see why we’re picking nits on how we stop immoral action. For instance, Obamacare. It shouldn’t need an act of Congress to stop it. It should just be stopped because it’s wrong. Everyone should simply stop following the law, but the reason is because it’s simply wrong to force people to act like that, not because the Commerce Clause was misinterpreted. I have a post to write on how the Constitution has largely failed, why that is, and what perhaps could be done to have a more enforceable document, but as you can imagine, that’s not something that can be banged out in an hour.

    We are on the same page, I think.

    Much could be done without breaking the “law”, simply by saying that Congress cannot pass legislation that gives away its power to legislate under the Constitution. The POTUS could disband most of the regulatory state and tell Congress “you pass all these as laws”. Of course, he could then veto the crap out of them.

    Right, but not here. The NLRA on its own terms is a heavy burden. Removing precedential value from the NLRB’s decisions doesn’t seem like it would help much. Excessive delegation of legislative responsibility is often a key problem, but it’s not the only problem in government.

    • #61
  2. James Of England Inactive
    James Of England
    @JamesOfEngland

    Sabrdance:As to the main article, I’m not so convinced of the comparison. Yes, private sector union membership is dropping, and Government union membership is constant as a share of employment -but government has been growing in size over the relevant period until very recently, and there’s also a lot of de-facto unionization through enforcement of Davis Bacon on government contracts. All these executive orders Obama issues about how federal contractors have to do this, that, and the other thing are things the unions already demand.

    The Bureau of Labor Statistics believes that in 1980 there were a little over 16 million government workers, counting local, postal, state, and federal workers; not sure why postal gets its own category, except that it’s much more unionized. In 2014, there were a little over 20 million. With the population growing from 226.5 million to 318.9 million, that’s a shift from 8.8% of Americans being public sector workers to 6.3%.

    If you prefer the labor force statistics to total population, (107.4 million in 1980 to 156.1 in 2014), it goes from to 14.9% to 12.8% over that time. You may have been misled by your focus on state government, which really does appear to have grown (these numbers only go back to 1983, but they’re interesting). Basically, Local fell somewhat*, Federal employment more, and postal employment is down in absolute numbers, not just as a proportion. There was a boom with the supermajority, but Ss. Mitch and John have cut the numbers down substantially.

    *I do not know how much of this drop was due to the efficiency gains from unified county executives; as I understand it, claims about the resulting drop in labor force are often overstated.

    • #62
  3. James Of England Inactive
    James Of England
    @JamesOfEngland

    Matt Balzer:

    The King Prawn:

    Right, but the NLRB is the enforcer of the NLRA. If the NLRB is dismantled the laws it is meant to enforce will still be on the books, only there will be no body to oversee them, and they would still be a limit on state ability to write their own labor legislation.

    I recognize that this isn’t responsive to KP’s plan, but the Walker plan allocates the quasi-judicial functions of the NLRB to the actual judicial system, and the lower level arbitration, administration of union elections, and such to the National Mediation Board, which was created by Calvin Coolidge to administer resolution of disputes between railway employees and their bosses.

    Go ahead, KP. Attack Calvin Coolidge for not being a conservative. ;-)

    • #63
  4. James Of England Inactive
    James Of England
    @JamesOfEngland

    Qoumidan:We’ve been experiencing public teacher strikes in my state, so the conversation of unions has come up.The comments and follow-up questions seems to mostly be “we support the teachers, of course” and “without the union how would the poor little teacher on their own take on their evil overlords to prevent them from forcing them to work more for less (or the same) pay?” Both of those things are ridiculous and severely limit the discussion, but I am not a debater and often must go ponder for a while before being able to gather my thoughts on an issue.How does one briefly argue against unions in that context? Also of note is that it is apparently illegal in Washington state for teacher’s unions to strike so why are they getting away with it?They certainly appear to have in Pasco.

    Who are the teachers being protected from? The government, particularly school boards. Instead of having the government have laws limiting the government’s freedom to act, why not just have the government do the right thing? Teachers are an appealing constituency, so straight government without union interference would likely treat them well. University professors are generally non-union, but they get treated pretty well by the state.

    In Washington, teacher’s salaries were almost 20% above the average salary. They arguably should get more than the average person, since they’re more educated and such, but the powerful do not need stronger protections than the weak. When the state decides whether to pay its poorest employees more, or its wealthier employees more, teachers unions are there to push for greater inequality. If the unions were not there, market forces, concern for quality of education, and other pressures from politically active teachers would mean that teachers were still protected and still treated better than some other employees, but the imbalance would not be artificially enhanced.

    There’s nothing wrong with teachers having unions, but giving those unions legal powers to change the way that budgeting is done is unfair to the other recipients and beneficiaries of government efforts who do not have that benefit. It’s also just an obviously terrible way of running a government; it maximizes the role of lobbying money in budgeting.

    • #64
  5. James Of England Inactive
    James Of England
    @JamesOfEngland

    The King Prawn:

    James Of England: In both cases we should emphasize, as Walker did, that we don’t want to get rid of unions. We just want to reduce union abuses while retaining the good stuff they do

    Same plan for Obamacare?

    So you’re saying that there’s no useful role for unions?

    The King Prawn: I love unions as a concept….  The real choice we have is to attempt to thread the needle legislatively to maintain liberty and ameliorate this natural occurrence, or to just ban them outright — which is antithetical to higher principles, at least in my humble(ish) opinion.

    Then later you suggest that there is a useful role. I think that we’re on the same page.

    The King Prawn: but if a pinkish state like Missouri with Republican supermajorities can’t override a veto to bring their state out of the early 20th century, then what will electing more of the same class of Republicans accomplish?

    I didn’t argue that we need to elect more people like the Missouri State House Republicans. I argued that if we elect the people standing for election in 2016, we’ll get this sort of result; precisely this result if Walker wins, steps towards it if someone else does. I went through the Senators who opposed this stuff last time we had a majority by name. I don’t believe that there are any new Senators to replace them (maybe Kirk, but he’s probably going to be gone by then anyway); it is possible we’ll get one out of the upcoming Senate primaries, but it seems unlikely that we’ll get many; there aren’t many competitive primaries for us this cycle.

    We already have the Congress we need, Federally, we just need to keep it. Apparently, we already have the Missouri legislature, too.

    I also argue that if we retain our control in the states, the good things already happening there will continue to happen. I don’t know if the next Missouri governor will feel the same way, but the nation will continue to see measures being taken against labor in state after state, and Missouri may or may not be a part of that. In the states, all our matches are wins or draws, some of them big wins. That seems like good news to me.

    • #65
  6. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    James Of England:

    ryan G. Stephens:

    Mike H:

    Most of what the government does now is both immoral and unConstitutional so I don’t see why we’re picking nits on how we stop immoral action. For instance, Obamacare. It shouldn’t need an act of Congress to stop it. It should just be stopped because it’s wrong. Everyone should simply stop following the law, but the reason is because it’s simply wrong to force people to act like that, not because the Commerce Clause was misinterpreted. I have a post to write on how the Constitution has largely failed, why that is, and what perhaps could be done to have a more enforceable document, but as you can imagine, that’s not something that can be banged out in an hour.

    Right, but not here. The NLRA on its own terms is a heavy burden. Removing precedential value from the NLRB’s decisions doesn’t seem like it would help much. Excessive delegation of legislative responsibility is often a key problem, but it’s not the only problem in government.

    I disagree. I think the NLRB is perfect thing to eliminate. And any regulations from the NLRA that were not written into statute.

    • #66
  7. James Of England Inactive
    James Of England
    @JamesOfEngland

    Bryan G. Stephens:

    James Of England:

    I disagree. I think the NLRB is perfect thing to eliminate. And any regulations from the NLRA that were not written into statute.

    Can you outline specifically what you believe the impact would be? I should note that removing delegated legislation from the NLRA is not remotely the same thing as eliminating the NLRB; the NLRB is an executive agency that overseas union elections, holds arbitrations, and engages in non-legislative actions. Even the stuff that is reported as legislative is generally more judicial than legislative in character.

    Any executive agency has to have some rules. To take a recent case at random, Browning-Ferris Industries looked at employment agencies and decided that both the company whose work was being done and the company that supplied the workers were employers of the joint employees. That decision was necessary to deciding if they could unionize, a determination that was necessary to its performing its role of administering union elections.

    Executive agencies cannot be agnostic about that sort of thing. If they do nothing, they say that these people are not employees. If they do something, they say that they are; since those decisions are logically necessary and since they are important, there should probably be a process for deciding them. No?

    • #67
  8. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    James Of England:

    Bryan G. Stephens:

    James Of England:

    I disagree. I think the NLRB is perfect thing to eliminate. And any regulations from the NLRA that were not written into statute.

    Can you outline specifically what you believe the impact would be? I should note that removing delegated legislation from the NLRA is not remotely the same thing as eliminating the NLRB; the NLRB is an executive agency that overseas union elections, holds arbitrations, and engages in non-legislative actions. Even the stuff that is reported as legislative is generally more judicial than legislative in character.

    Any executive agency has to have some rules. To take a recent case at random, Browning-Ferris Industries looked at employment agencies and decided that both the company whose work was being done and the company that supplied the workers were employers of the joint employees. That decision was necessary to deciding if they could unionize, a determination that was necessary to its performing its role of administering union elections.

    Executive agencies cannot be agnostic about that sort of thing. If they do nothing, they say that these people are not employees. If they do something, they say that they are; since those decisions are logically necessary and since they are important, there should probably be a process for deciding them. No?

    Executive agencies have no business deciding any of that.

    There should be no executive rules, which end up being laws. Let Congress pass each one.

    • #68
  9. Mike H Inactive
    Mike H
    @MikeH

    James Of England: As Christians, we should obey the secular authorities.

    This is the absolute worst part of Christian thought.

    • #69
  10. James Of England Inactive
    James Of England
    @JamesOfEngland

    Bryan, If an executive agency exists, it is literally impossible for it to neither act nor refrain from acting. It has to make that choice.

    • #70
  11. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    James Of England:Bryan, If an executive agency exists, it is literally impossible for it to neither act nor refrain from acting. It has to make that choice.

    What I am saying is, none of those departments should be doing anything other than enforcing statute. So, no regulations, no rules, only law.

    Oh, they can have rules and regulations in how they operate, but not in how other entities operate. No regulations that have the force of law, in other words.

    I hope that is more clear.

    • #71
  12. James Of England Inactive
    James Of England
    @JamesOfEngland

    Bryan G. Stephens:

    James Of England:Bryan, If an executive agency exists, it is literally impossible for it to neither act nor refrain from acting. It has to make that choice.

    What I am saying is, none of those departments should be doing anything other than enforcing statute. So, no regulations, no rules, only law.

    Oh, they can have rules and regulations in how they operate, but not in how other entities operate. No regulations that have the force of law, in other words.

    I hope that is more clear.

    Sure. I think if you look at the rules that the NLRB issues, though, you’ll find that almost all of them could reasonably described as deciding how the DoL will act. To analogize; if the law didn’t set numerical speed limits, but simply made it a crime to go “too fast” on a highway, the police and the traffic courts would work together to decided how fast was too fast within the meaning of the statute. Whatever boundary they set would be the de facto law, and would have the power of law.

    • #72
  13. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    James Of England:

    Sure. I think if you look at the rules that the NLRB issues, though, you’ll find that almost all of them could reasonably described as deciding how the DoL will act. To analogize; if the law didn’t set numerical speed limits, but simply made it a crime to go “too fast” on a highway, the police and the traffic courts would work together to decided how fast was too fast within the meaning of the statute. Whatever boundary they set would be the de facto law, and would have the power of law.

    You are still not understanding my point, but I think using your example will do:

    Let’s assume for the sake of this example that the Constitution gave Congress the power to set speed limits (clearly it does not in its current form).

    Now, let’s further say Congress passed a law saying “Drivers may not travel “too fast”, and that the Department of Transportation shall set the limits.

    My argument is as follows:

    No where is Congress given the power, in our Constitution to legislate away its power to the Executive branch. Only Congress, with the consent of the President, or overriding his veto, can pass laws.

    Therefore, no rule passed by the Executive branch, even one authorized by statute, should be treated as a law. If the speed limit in this case is not set by Congress, it is not valid.

    Hope that makes my argument clear.

    • #73
  14. Amy Schley Coolidge
    Amy Schley
    @AmySchley

    Bryan G. Stephens: Therefore, no rule passed by the Executive branch, even one authorized by statute, should be treated as a law. If the speed limit in this case is not set by Congress, it is not valid. Hope that makes my argument clear.

    This may be a claim of how you think things ought to be, but it’s not how it is. And we have to work with the administrative sector we have, not the one (or lack thereof) we might wish existed.

    • #74
  15. James Of England Inactive
    James Of England
    @JamesOfEngland

    Bryan G. Stephens: Let’s assume for the sake of this example that the Constitution gave Congress the power to set speed limits (clearly it does not in its current form).

    Okay, lets clarify that this is about freeways on Federal land. You’re right that I was wrong to choose a law that needed that sort of disclaimer without giving one.

    Would you say that it was legitimate for Congress to outlaw “Reckless” driving on Federal land without specifying what was meant by reckless?

    When the first Congress specified that “Madeira” wine was to be taxed at 18 cents a gallon, while other wine was taxed at only ten cents, was this law to be ignored on the basis that it was not clear if would apply to wine from Porto Santo, to wine from other areas that was fortified and cooked and made using Malvasia, or to “Madeira” wines from the Crimea?

    Almost all statutes have ambiguities in them that leave at least some people in genuine disagreement about the content of the law. Each time such an ambiguity exists, it must be resolved, and initially so by the executive branch, since Article III is a problem for advisory opinions.

    • #75
  16. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Amy Schley:

    Bryan G. Stephens: Therefore, no rule passed by the Executive branch, even one authorized by statute, should be treated as a law. If the speed limit in this case is not set by Congress, it is not valid. Hope that makes my argument clear.

    This may be a claim of how you think things ought to be, but it’s not how it is. And we have to work with the administrative sector we have, not the one (or lack thereof) we might wish existed.

    A new President, could, as head of the Executive branch, make an executive order that all regulations not spelled out in statute, specifically, are unconstitutional and therefore eliminated. That is totally within the power of the POTUS.

    Eliminating the NLRB is a bit more sticky, since in theory, it is not under the direct control of the President. However, this same theory applies. It would get more push back, however the precedent now set by Obama is that the President can choose which laws to enforce and which to ignore. Ignoring a law that is unconstitutional is far more reasonable than ignoring one because you feel like it. 

    • #76
  17. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    James Of England:

    Okay, lets clarify that this is about freeways on Federal land. You’re right that I was wrong to choose a law that needed that sort of disclaimer without giving one.

    Would you say that it was legitimate for Congress to outlaw “Reckless” driving on Federal land without specifying what was meant by reckless?

    When the first Congress specified that “Madeira” wine was to be taxed at 18 cents a gallon, while other wine was taxed at only ten cents, was this law to be ignored on the basis that it was not clear if would apply to wine from Porto Santo, to wine from other areas that was fortified and cooked and made using Malvasia, or to “Madeira” wines from the Crimea?

    Almost all statutes have ambiguities in them that leave at least some people in genuine disagreement about the content of the law. Each time such an ambiguity exists, it must be resolved, and initially so by the executive branch, since Article III is a problem for advisory opinions.

    It looks like the law was very specific. Based on what I am talking about, it appears to do exactly what I am calling for.

    I am saying nothing about what is, or is not constitutional on a state or local level, just Federal.

    • #77
  18. James Of England Inactive
    James Of England
    @JamesOfEngland

    Bryan G. Stephens:

    James Of England:

    Okay, lets clarify that this is about freeways on Federal land. You’re right that I was wrong to choose a law that needed that sort of disclaimer without giving one.

    Would you say that it was legitimate for Congress to outlaw “Reckless” driving on Federal land without specifying what was meant by reckless?

    When the first Congress specified that “Madeira” wine was to be taxed at 18 cents a gallon, while other wine was taxed at only ten cents, was this law to be ignored on the basis that it was not clear if would apply to wine from Porto Santo, to wine from other areas that was fortified and cooked and made using Malvasia, or to “Madeira” wines from the Crimea?

    Almost all statutes have ambiguities in them that leave at least some people in genuine disagreement about the content of the law. Each time such an ambiguity exists, it must be resolved, and initially so by the executive branch, since Article III is a problem for advisory opinions.

    It looks like the law was very specific. Based on what I am talking about, it appears to do exactly what I am calling for.

    I am saying nothing about what is, or is not constitutional on a state or local level, just Federal.

    I get that you’re not talking about state and local constitutions, but I think that you’re imagining a brighter line between reasonable interpretations of the law decisions that carry the force of law. It is possible that what you’re arguing for is individual interpretations, rather than a consistent interpretation published by the agency, for inconsistent enforcement. Other than that, I’m not sure how one can end the current system of agencies doing their best to interpret the laws that they are given.

    If you look at the cases on the non-delegation doctrine, you will see that most regulations really are good faith efforts to apply reasonably precise laws. For laws to respond to all the potential confusions that might arise, they would have to be massively more complicated and lengthy than they currently are, and it seems unlikely that Congress has sufficient expertise (executive agencies are able to roll out and adjust regulations over an extended period of time, with considerable influence from stakeholders and knowledge of changed circumstances).

    Bryan G. Stephens: Eliminating the NLRB is a bit more sticky, since in theory, it is not under the direct control of the President. However, this same theory applies. It would get more push back, however the precedent now set by Obama is that the President can choose which laws to enforce and which to ignore. Ignoring a law that is unconstitutional is far more reasonable than ignoring one because you feel like it.

    The President has lost this argument in court, repeatedly. Whether the issue is amnesty blocking or rejecting his recess appointees, the President has set the opposite precedent; Unconstitutional enlargements of the Executive Branch are likely to be rebuffed.

    Bryan G. Stephens: A new President, could, as head of the Executive branch, make an executive order that all regulations not spelled out in statute, specifically, are unconstitutional and therefore eliminated. That is totally within the power of the POTUS.

    He could do this with time, but to the extent that laws are unenforceable without guidelines to interpretation, he would have to replace those regulations with others. The due process rights of regulated entities protect them from the arbitrary enforcement that would be the only alternative to non-enforcement or the publication of guidelines.

    • #78
  19. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    James,

    If the item being regulated is so complex that Congress cannot pass the laws needed, then it does not need to be regulated by Congress.

    The way to end regulatory overreach, regulatory capture and every American breaking the law daily and not knowing it, is to end the regulations. Don’t tinker around the edges: wipe them all out.

    We don’t need all these regulations. We don’t need most of them. In fact, every labor law beyond “you will abide by the terms of your contract” is an intrusion on Freedom. Every EPA rule that is more than “you may not damage the guy next to  you or his property” is an intrusion on Freedom.

    You are for a regulatory state. I am not. I am not because I see no example in history when the power to regulate does not get used to hurt the little guy. Sometimes the big guy. And it always ends up damaging the growth of the economy.

    • #79
  20. James Of England Inactive
    James Of England
    @JamesOfEngland

    I believe that we should cut back on the regulatory state. I agree that there would be many advantages to repealing the last century and a bit of labor laws. I don’t believe that ending the publishing of regulations would advance that goal. So long as the President complies with his oath to faithfully execute those laws, complicated things will be regulated.

    The CFR is long and complex, but it is a good deal easier to understand than bare statute. We should absolutely work to reduce the regulatory burden on Americans, as most candidates plausibly promise to do, but we have to do it through the hard work of rewriting them and passing laws that repeal the intrusions. There is no Constitutional trickery that will let us skip to the end result.

    • #80
  21. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    James Of England:I believe that we should cut back on the regulatory state. I agree that there would be many advantages to repealing the last century and a bit of labor laws. I don’t believe that ending the publishing of regulations would advance that goal. So long as the President complies with his oath to faithfully execute those laws, complicated things will be regulated.

    The CFR is long and complex, but it is a good deal easier to understand than bare statute. We should absolutely work to reduce the regulatory burden on Americans, as most candidates plausibly promise to do, but we have to do it through the hard work of rewriting them and passing laws that repeal the intrusions. There is no Constitutional trickery that will let us skip to the end result.

    The President is in charge of the Executive Branch. He could suspend the regulations written by the executive branch with out any trickery.

    • #81
  22. James Of England Inactive
    James Of England
    @JamesOfEngland

    Those regulations are implementing laws. He can remove the regulations, but that would not remove the regulatory state. The enforcement of the statutes would still be there, it would just be more arbitrary. The President can repeal, say, Davis Bacon implementing regulations, but if he does not also get Davis Bacon repealed, he will have a different set of de facto regulations implementing it in every field office.

    The President can reduce the regulatory state on the margins, and significantly do so with the help of Congress, but he cannot dramatically reform America unilaterally, for precisely the non-delegation reasons you note. His job is to faithfully execute, rather than be the primary creator of, American law.

    • #82
  23. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    We disagree. Have to leave it at that.

    • #83
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