George Will’s Legal Extremism

GEORGE WILL’S LEGAL EXTREMISM…. Noted climatologist George Will shifted gears to constitutional law yesterday, arguing that the Emergency Economic Stabilization Act of 2008 (EESA) (i.e., the bailout) is unconstitutional. The specific claim is that it violates the nondelegation doctrine, which holds that “legislative” acts cannot be “delegated” to other entities, particularly the executive branch.

There are at least two interesting aspects of Will’s column. First, it reminds us why it’s always important to understand the logical implications of Will’s (and his ideological comrades’) seemingly innocent legal arguments. The column sounds reasonable enough on first read. The EESA, Will argues, is too broad, and it gives the executive too much power. Fair enough.

However, the doctrine that Will wants to use to kill the EESA would have the added benefit of effectively destroying the post-New Deal administrative state. It’s always the New Deal with these people.

Today, the doctrine is essentially toothless — and hasn’t been used to invalidate a statute since the New Deal. (Good short summary on the doctrine here). But for decades, the more extreme elements of the legal conservative world have been trying to revive it from the dead. As the summary above indicates, both Thomas and Rehnquist have tried — but no such luck thus far.

It’s also no surprise that Will cites law professor Gary Lawson for support. In addition to being a “founding member” of the Federalist Society, Lawson thinks the post-New Deal administrative state is unconstitutional. And that’s the whole point — it’s not about the bailout, but about federal regulation more generally.

In short, this is a doctrine with extreme implications that has been pushed by the most extreme members of the conservative legal community. (And, rather wankerishly, by Cass Sunstein).

Moving on, the second interesting aspect of the column is that it illustrates the tension — if not schizophrenia — in conservative legal thought with respect to deference to the political branches.

On the one hand, the rise of “the movement” was inspired by the view that liberals had circumvented the legislature. People like Bork argued that, because liberals can’t win things like abortion rights at the ballot box, they politicized the Constitution and imposed their preferences into its text. So this strain of conservative thought emphasizes the political process.

At the same time, however, there’s a deeply anti-democratic strain running through legal conservatism as well. As illustrated by Will and Lawson, this strain wants to ignore the political branches entirely and invalidate big pieces of the regulatory state. (Thomas is the most extreme on this issue — Roberts and Alito have been much more respectful of precedent).

In short, legal conservatives like Will can’t make up their mind about whether they like the ballot box. For instance, in yesterday’s column, Will offers a hypothetical about a truly absurd and vague statute (the Goodness and Niceness Act) that would delegate a lot of undefined power to the executive.

And yes, I would disagree with that statute — but that doesn’t mean it’s necessarily unconstitutional. The political branches play a role here too in protecting us from such absurd statutes. We don’t necessarily have to rely on courts for protection from this terrible statute. One would hope that this bill wouldn’t make it very far.

Anyway, the point is that Will’s example shows virtually no faith in the political process — the glorification of which is, ironically enough, the raison d’etre of the modern conservative movement.