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Sunday, March 29, 2009

Why do conservatives like the non-delegation doctrine?

My inspiration for this question is George Will's column denouncing the Emergency Economic Stabilization Act as an excessively broad delegation of power to the Secretary of the Treasury to spend federal dollars. Quoting Gary Lawson and Jeff Rosen, Will repeats the old saw that turning over a blank check to an executive official to spend money as that official pleases violates Article I, section 1's assignment of "legislative" powers exclusively to the Congress.

I do not want to discuss the objective merits of the doctrine (although, to put my own ideological priors on the table, I think that the doctrine is silly). Instead, I am curious about why any good conservative would endorse the doctrine, especially as applied to executive officials controlled by the President and especially as applied to federal money. It seems to me that George Will's column and the argument that he presses flies in the face of at least three principles of conservatism: (a) textualism, (b) flexibility in spending, and (c) Presidentialism.



First, are not we conservatives supposed to care about limiting judicial review as closely as possible to the enforcement of plain constitutional text? The non-delegation is the smokiest of penumbras, inferring that somehow broad power to make policy is "legislative" power without anywhere identifying the textual basis for this strange equation. As Vermeule and Posner pointed out in Interring the Non-Delegation Doctrine, 69 U. Chi. L. Rev. 1721 (2002), the textual basis for this inference is weak: "Legislative" power might simply be power resulting from any legislation. Just so long as Congress can retract its grant of statutory authority, it has not delegated anything "legislative" to the Secretary of the Treasury. In short, the non-delegation doctrine is the Roe v. Wade of separation of powers doctrine, having only the loosest mooring in text.

Second, are not we conservatives against micro-managing policy through centralized and hard-to-change directives? Conservatives, after all, are the ones who championed block grants against categorical grants during the 1970s, arguing that rigid statutory definition of spending priorities led to bad policy-making. If a block grant to the states is okay, then block grants to the Secretary of the Treasury are equally acceptable, right? When Will denounces TANF, then I'll take seriously the denunciation of EESA.

Finally, I thought that conservatives liked Presidential power. Whatever happened to a robust definition of Article II?

I do not mean to suggest that Will is denouncing EESA only because it gives power to a Democratic Administration. The problem is actually worse than Will's being unprincipled: He has confused principles. Will and other conservatives are confusing their policy priors with their constitutional and interpretative priors. Conservatives like limited government, and they think that the non-delegation doctrine will get them to this goal. But the doctrine flies in the face of their constitutional commitments to a robust executive and textualism and their policy commitment to re-inventing government to be less shackled by centralized red tape.

Posted by Rick Hills on March 29, 2009 at 02:37 PM in Constitutional thoughts | Permalink

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Funny that I chanced upon this thread (too late, I fear) right after teaching Burnham v. Superior Ct, in which Scalia and Brennan duke it out over the proper way to decide what process is due. The thread strikes me as eerily reminiscent, with Rick playing Scalia--i.e., the proper meaning of "conservatism" can't be in contradiction to what conservatives have traditionally valued, because it is necessarily derived therefrom--and Orin playing Brennan--i.e., what "conservatism" means today needs to involve some extrapolation and evolution of the principles underlying the policy preferences of those historical conservatives, such that contemporary "conservatives" might not necessarily agree with policy positions once regarded as such.

Without taking sides in that dispute or spending more than eight minutes on what I'm about to say, here are two lines of argument that strike me as plausibly "conservative" arguments in favor of non-delegation. One is more on the "principled" side, while the other is on the more "results oriented" side. Rather than hearing why they aren't really "conservative," I'd be more interested in hearing why they're clearly wrong:

1) We want federal power over the liberty and property of citizens to be limited. We try to achieve this in various ways, but one of the important ones is accountability of the legislature. Letting the legislature get away with enacting broad policy objectives while sloughing off onto an agency the hard choices as to exactly whose oxen will be gored in service of those objectives dilutes this accountability.

2) It also makes it a lot more likely that the government will engage in broadscale meddling with the economy, for the obvious reason that the whole point of delegation is precisely to facilitate such meddling. Do conservatives necessarily think this is a bad thing? Hard to say these days. Assuming one does, is there still a good reason why he should favor delegation? If every concrete rule governing my conduct had to garner a majority of votes in both houses of Congress, I think I can fairly expect that there'd be fewer of them. (While we're at it, can we also please read into the constitutional meaning of legislative power a requirement that it can't be exercised unless the legislator has actually read the complete text he or she is voting on? Cause that would be, you know, delegation to staffers.)

Posted by: Chris Newman | Apr 3, 2009 1:57:44 PM

I would agree with Orin Kerr that conservatives today are not “pro-President, pro-British, pro-Contract Clause, and pro-Federal government”. Conservatives today are not pro-British, they are thankful that Tony Blair backed Dubya’s neo-con war policies and envious of David Cameron’s success in reforming the Tory Party. Today’s conservatives are not pro-President, if they were, they notion of rejecting stimulus money and tarring the stimulus package as unconstitutional and claiming the President lacks citizenship status would not be in the news. They were pro-Dubya. Nor do they, I imagine, have any knowledge of the Contracts Clause, which is pretty much a dead letter today, anyway. Lastly, today’s conservatives hate the federal government and love states’ rights. Federalism is their favorite topic in constitutional theory, right after separation-of-powers.

As for Rick Hill’s attack on libertarianism, I recollect the oral argument of DC v. Heller, in which Walter Dellinger attempted to trash opposing counsel by pointing out that adopting his position would be a wholesale endorsement of libertarianism. Apparently, libertarianism is enshrined in the Bill of Rights of the United States Constitution, because opposing counsel won. I would note, though, that libertarianism is closer to the ideals of the Founders than the notion that Presidents should have autocratic control over a command economy. I’m not sure when Rick Hills became the Hugo Chavez Chair of Political Philosophy, but that benevolent Venezuelan dictator money must be sweet.

Whether it is Justice Brewer's protecting the extraordinary assertion of Article II power by Grover Cleveland in In Re Debs or Hamilton's defending Washington's Proclamation of Neutrality in his Pacificus essays, conservatives' defense of executive power follows from a certain realist distrust of weak government in an unruly international world and a fear of populist legislatures.

Fear of populist ignorance in foreign affairs has nothing to do with domestic policy. George Will's column concerns the political accountability of the Congress in matters of national commerce; Article II, as Youngstown should make clear, has nothing to do with national commerce. If it did, Truman would have been able to use his Article II power to seize those domestic steel mills for war production purposes.

Posted by: Even George Will Is Right Twice A Day | Mar 30, 2009 7:26:30 PM

By that last comment, I meant to say the sort of "Presidentialism he'd defined. My apologies for the incoherence.

Posted by: Adam White | Mar 30, 2009 5:12:23 PM

Martinned,

The difficulty in the entire analysis is that Rick started the debate without a sufficient definition of "conservative." As I've tried to stress, "conservatives" largely disagree over questions of Executive Power, and they've never been consistent supporters of what Hills described as "Presidentialism."

(Indeed, the conservative who kicks off his post, George Will, has been a critic of the Bush Administration's view of presidential power. See here and here, for examples. Under Rick's analysis, either George Will isn't a "conservative," because he doesn't embrace the "central tenet," Presidentialism, or George Will is a conservative and he disproves Rick's argument.)

Maybe if Rick could have started the post by defining which "conservatives" he was discussing, and limiting that definition only to those conservatives that actually embrace the sort of "Presidential" he'd define (e.g., not George Will), then we'd be able to have a more satisfactory debate of the particulars.

Posted by: Adam White | Mar 30, 2009 4:54:39 PM

Martinned,

You are correct that I did not present rigorous proof: Instead, I stated from past experience that there was probably not much to be gained from trying to debate the point over what "true conservatives" believe. It's kind of like responding to a claim that conservatives like green socks. That doesn't ring a bell with me, and I can't say I have ever noticed conservatives liking green socks. But it's true that I cannot prove to a scientific certainty that the claim is false.

As for evidence to the contrary, I think Adam White's post above is a nice start.

Posted by: Orin Kerr | Mar 30, 2009 4:34:29 PM

@Orin Kerr,

"A real diversity of opinion" is certainly a fair enough counterargument against the original post. My point was, though, that it seemed you were offering nothing more substantial than outliers. I'm glad to hear that that isn't true, but I'm afraid I'm going to have to ask for some evidence beyond the ipse dixit you've offered so far.

Like I said, the approach taken of distilling the nature of conservatism from influential writings seems a reasonable one, and any counterargument would have to include some references to (influential) conservative authors who have taken a contrary view to the one posited.

For "flexibility in spending", that doesn't seem like much of a problem, but when it comes to the role of the president, my impression is that a strong president is a central tenet of conservatism in much the same way, if not more, than textualism. Just like the latter receives less emphasis when we're talking about gay rights, the former is understandably less popular under a democratic president. But imho both are central to American conservatism all the same, though I'm obviously open to evidence to the contrary.

Posted by: Martinned | Mar 30, 2009 2:58:57 PM

Martinned,

You're certainly free to prefer Marshall over the grass roots, but I don't see how that preference is relevant here. I believe the original post was asking why conservatives today think the way they think. It seems to me that to answer that, you need to confront what conservatives today *actually think*, not create some normative construct for what you think they really should think in order to fit nicely into a theoretical box you have created.

Your example of religion is a loaded example, as you're cherry picking a comparison in which the search is for outliers. I absolutely agree that if there is an identifiable group and then there are outliers, you can tag the group with a defined view without difficulty. (Note that above I recognize that textualism is indeed a conservative approach to constitutional interpretation: Of course there are nontextualist conservatives, but they are a minority.) My point here is that there isn't an identifiable group and outliers, but a real diversity of opinion.

Posted by: Orin Kerr | Mar 30, 2009 2:19:59 PM

@Orin Kerr:

Your comments in this thread remind me of the occasional religion discussion on Volokh. (Most recently this one.) Every criticism of religion is blocked by finding an example of a religion that does not believe in doctrine X or type-of-god Y. While such defenses are of course right - the original comment was invariably too broad sweeping - one cannot help but wonder whether that is a very helpful way to have the conversation.

Pinning down what "conservative" means in American political discourse by starting with the Federalist and Republican parties seems a reasonable enough starting point. From there, the logical next step is the writing of prominent "conservative writers". I'm sure one can find plenty of self-described conservatives in Utah or South Carolina who don't believe in a strong presidency, just like I'm sure there are plenty of catholics who don't believe in papal infallibility. But as a place to start any criticism of the original post, I'd prefer John Marshall over the grass roots.

Posted by: Martinned | Mar 30, 2009 1:50:43 PM

Rick,

You're teaching Youngstown today? Perfect! Don't miss my comment regarding Jackson's Footnote 1, below.

In response to your (helpfully numbered) points:

2. Re Taft, you take two of his decisions in your favor, and I take some of his general writings on the subject in my favor. But the fact that Taft sometimes went both ways on the subject helps *my* case, not yours. You're arguing that there's a longstanding, bedrock conservative of "Presidentialism" exemplified by (among others) Taft. I'm arguing that, in fact, have been and still are on both sides of the issue, and that at times they've been quite anti-Presidentialism. Taft's equivocation only helps to show that "Presidentialism" is not a bedrock tenet for conservatives generally or Taft specifically.

And let's not minimize the difference between Taft's and TR's positions. Taft wasn't a proponent of TR-Lite -- he quite vocally distanced himself from TR's "stewardship" model of the Presidency. In fact, their differences were so stark that Robert Jackson used them to illustrate the twin poles of Presidential-power arguments in Footnote 1 of his Youngstown opinion. ("Professor Taft is counterbalanced by Theodore Roosevelt.") Readers can download Taft's "The Chief Magistrate and His Powers" (1916) for free from Google Books. Chapter VI, on "The Limitations of the President's Powers," states up front that -- far from the Unitary Executive -- "Congress can undoubtedly pass laws definitely limiting [Executive officers'] discretion and commanding a certain course by them which is not within the power of the Executive to vary. Fixing the method in which Executive power shall be exercised is perhaps one of the chief functions of Congress." (Note that Taft also writes, in Chapter III, that the President's power to remove officers cannot be limited by Congress. Taft did not come to that position late in his career.)

3. I completely agree that many conservatives' opinions on Presidentialism fluctuate at least partly in response to political context. That said, I still will not agree that Conservatives uniformly accepted Presidentialism in the 1950s and 1960s. As I noted above, luminaries such as Burnham and Kendall did not.

And I won't even grant you Buckley. In one of his early essays ("Two to Get Ready" (1953), published pre-National Review) he argued that "the servility of Congress is is one of the greatest threats to freedom; and yet, unfortunately, Franklin Roosevelt's notions on the proper function of Congress have affected the thinking of most of us[.]" Now, did Buckley appear to change position (say, in debates over President Nixon's national-security powers? Yes, I think so. But, again, Buckley's equivocations help my argument, not yours.

4. I think I can name at least one Federalist who does not satisfy your definition of "Presidentialist": in his now-famous letter, he expressly disclaimed the authority to undertake "offensive expedition[s] of importance" without Congress's green light. Now, of course, he did support many "Presidentialist" positions. But his criticism (at least in that letter) of expansive Presidential authority should leave us at least suspicious of the notion that he was ideologically arm-in-arm with Hamilton, or with modern conservatives. (After all, how many times did we hear Washington's letter quoted in criticism of the Bush Administration?)

And what about another Federalist, John Marshall? Of course we hear his "sole organ" speech misapplied in support of executive foreign-policy power. No "Presidentialist" would have declared (in Little v. Barreme) that the President's authority to intercept foreign ships could not be exercised in a manner inconsistent with the acts of Congress.

5. My disagreement with your statement can be expressed no more clearly than as in my specifc responses to your particulars. Many conservatives have supported Presidentialism, and many have opposed it. (And some have done both.) I'd venture that it's impossible to make your case without, basically, begging the question -- either defining "conservatives" as those who supported Presidentialism, or vice versa.

And you need not read the writings of dead Agrarians for conservative arguments against "Presidentialism" -- just read the last few years of, The American Conservative. Among the magazine's various stances is nothing but utter disdain for "Presidentialism."

Posted by: Adam White | Mar 30, 2009 1:18:33 PM

Rick,

If I can make one more contribution, it would be really interesting if you went to some conservative strongholds like Utah or South Carolina and walked up to people and asked them if they are conservatives. If they say yes, you could then ask them their views of Elihu Root, William Howard Taft's opinion in Myers (1926), and whether they missed the Whigs. Could be an enlightening conversation all around.

Posted by: Orin Kerr | Mar 30, 2009 11:49:31 AM

Adam White says that "[a]t risk of being a bit aggressive," he thinks I misrepresent "the great majority of 20th Century conservative thought" in claiming that conservatives tend to be in favor of strong Presidential powers. According to Adam, I get the latter part of the 20th century right, but I mess up the mid-20th century. The conclusion? "Taken as a whole, the overwhelming body of conservative intellectual thought in the 20th Century was set against the 'Imperial Presidency,' *especially* during the FDR/Truman years."

Five quick thoughts:

(1) You must be new around here: There is zero risk of being too "aggressive" with me: I certainly have no room to complain about off-the-cuff provocation! And, as a matter of principle, I see no point to a quiet blog: If one wants the decorum of a scholarly discussion laden with footnotes, go to SSRN.

Having given the matter at least 8 minutes of deep thought, I think that Adam overstates his case. Adam grants me that late 20th century (i.e., post-Reagan) conservatives like a strong executive. That leaves the mid- and early 20th century conservatives to explain.

(2) But the early 20th century conservatives (mossback Republicans) were led by William Howard Taft, the President who made the executive decision upheld by SCOTUS in Midwest Oil, one of the most striking assertions of executive power ever affirmed by the Court. As Chief Justice, Taft invented the unitary executive when he wrote Myers (1926). To call Taft an opponent of a strong executive because he did not go as far as Teddy Roosevelt in asserting Presidential power is like calling Arnold Rothstein a pacifist because he killed fewer people than Al Capone.

(3) Sure, there is a revulsion against Presidential power among conservatives during the New Deal, because FDR holds the White House. (Likewise, neo-Federalists abandon Presidentialism during the Jackson Era, becoming the anti-Presidential Whigs). But this lasts as long as the New Deal and no longer: Conservatives revert to type during the Cold War, lauding executive power during the 1950s and 1960s as a necessary antidote to Communist aggression. (As Bill Buckley wrote in 1952, "we have got to accept Big Government for the duration [of the Cold War] for neither and offensive nor a defensive war can be waged except through the instrumentality of a totalitarian bureaucracy within our shores"). So I'll grant you, say, 1932-1952, if I can claim the balance of the century for Presidential conservatives who laud executive power.

(4) As for the 18th century, Adam accuses me of "cherry-pick[ing]" High Federalists in claiming the the Federalist Party supported a strong executive. This mystifies me: Name one Federalist between 1789-1800 who did NOT support a strong executive. Being pro-President, pro-British, pro-Contract Clause, and pro-Federal government defined the Federalist ideology, no?

(5) Perhaps there is no conservative principle whatsoever concerning Presidential power: Conservatives simply endorse executive power depending on who holds the White House, condemning Presidentialism when Jackson and FDR are President and otherwise celebrating it. But I'd say that a strong strain of thought conventionally understood as "conservative" celebrated a powerful executive as a source of law and order in a disorderly world. Whether it is Justice Brewer's protecting the extraordinary assertion of Article II power by Grover Cleveland in In Re Debs or Hamilton's defending Washington's Proclamation of Neutrality in his Pacificus essays, conservatives' defense of executive power follows from a certain realist distrust of weak government in an unruly international world and a fear of populist legislatures. Yes, sure, there is another strain of Allen Tate-style conservatism that I'd call Agrarianism cropping up during the New Deal. But it withers and dies during the McCarthy Era.

Or so I'd argue, as a bloggably defensible position, after my allotted 8 minutes of measured and non-aggressive consideration. And now I've got to prepare a class on Youngstown Sheet & Tube.

Posted by: Rick Hills | Mar 30, 2009 11:33:18 AM

"But Presidentialism -- meaning the promotion of a chief executive who is independent of the legislature with a set of strong policy-making powers to guarantee such independence -- is as close to a central tenet of American conservatism as any principle can be."

At risk of being a bit aggressive, I must say that your description of "conservatism" is simply at odds the great majority of 20th Century conservative thought.

Yes, the latter part of the century included much conservative support for the theory of the unitary executive and the theory of "inherent" constitutional executive/commander-in-chief authority. But to the extent that "Presidentialism" is a "central tenet" of even recent forms of conservatism, that is a relatively stark departure from even mid-20th-Century conservatism, to say nothing of its previous incarnations.

Many if not most of the intellectual leaders of mid-20th-Century conservatism strongly opposed presidential supremacy: Take James Burnham, for example. He co-founded National Review; Bill Buckley later observed that, "[b]eyond any question, he has been the dominant intellectual influence in the development of [NR]." Burnham wrote an entire book in support of Congressional supremacy.

Or Willmoore Kendall, another of the major conservative publiuc intellectuals of the mid-20th Century. Kendall was a majority-rule conservative who believed that the Constitution was created to protect Congressional supremacy.

These are just two of the most obvious examples. Taken as a whole, the overwhelming body of conservative intellectual thought in the 20th Century was set against the "Imperial Presidency," *especially* during the FDR/Truman years.

And a great amount of conservative 19th-Century thought was similarly set against Presidential authority. Of course it's hard to translate labels like "conservative" or "liberal" in days long passed, but anyway you slice them, the antebellum Democrats and postwar Democrats and Republicans each included severe critics (and, of course, proponents) of Executive Power.

Your roster of prominent conservatives ignores all of this. You cherry-pick High Federalists. You simply mischaracterize at least two others: Russell Kirk consistently opposed notions of expansive presidential power, and William Taft expressly rejected TR's model of the presidency. And I'm skeptical of other selections: was Henry Cabot Lodge -- the major foreign-policy thorn in the side of President Wilson -- a supporter of expansive Executive Power? What about Root, who in 1916 called for increased statutory regulation of the administrative agencies?

In short: There can be no doubt that "Presidentialism" found great support among conservatives in the last few decades. But to say that "Presidentialism" is something close to a "central tenet" of American conservatism for the century or two prior to that is simply unsupported.

Posted by: Adam White | Mar 30, 2009 10:00:16 AM

Rick, we've been in this position before: You say that there is a group called "conservatives" that have a set of beliefs, and yet what you say doesn't match my experience or understanding. My recollection is that we never got very far on this in past threads. Rather than debate the true meaning of conservativism, I'll just reiterate my view that I don't see what you call "presidentialism" as an identfiably conservative viewpoint.


Posted by: Orin Kerr | Mar 29, 2009 8:04:05 PM

Orin writes: "Finally, I don't recall learning that 'Presidentialism' is a principle of conservatism. Some self-described conservatives promote it, and some don't -- many depending on who the President is."

I suppose that "conservatism" (like "liberalism") is a slippery term. But Presidentialism -- meaning the promotion of a chief executive who is independent of the legislature with a set of strong policy-making powers to guarantee such independence -- is as close to a central tenet of American conservatism as any principle can be. All of the most hard-core Federalists were suspicious of legislatures and pressed for Presidents with broad powers to make policy even without clear statutory authorization. Between 1837 and 1854, the Whigs (heirs to the Federalists) departed from this Federalist principle of Presidentialism in the wake of Jackson's removing deposits from the Bank of the United States (Hence, their anti-royalist sobriquet). But Lincoln, Taft, and Teddy Roosevelt brought the Republicans (heirs to the Whigs) back to the Presidential fold, where they have largely remained ever since.

One might argue that the common principle of Federalists and Republicans do not define American conservatism. But I think that such an argument would likely fail: Those political parties were rooted in an alliance between morose New England Puritans skeptical about human nature and hard-nosed Mid-Atlantic capitalists skeptical about populist attacks on corporations. They defined the American conservative mindset of seeking to safeguard property and religion from the excesses of democracy. I'd suggest that any principle held in common by writers that everyone identifies as part of the American conservative tradition (e.g., Alexander Hamilton, Gouverneur Morris, Fisher Ames, Henry Cabot Lodge, William Howard Taft, Elihu Root, Clinton Rossiter, Russell Kirk, Antonin Scalia) counts as a "conservative" principle. Presidentialism is precisely such a concept -- far closer to the center of conservative thought than, say, libertarianism.

Posted by: Rick Hills | Mar 29, 2009 7:05:10 PM

Rick Hills writes: "the argument that he presses flies in the face of at least three principles of conservatism: (a) textualism, (b) flexibility in spending, and (c) Presidentialism."

I think you can fairly argue that textualism is a commonly held principle of conservative constitutional interpretation. However, I have never heard of "flexibility in spending" as a conservative theory of constitutional interpretation. To the extent it is a conservative *policy* argument, it runs into the core principle of conservative constitutional interpretation that there is an essential distinction between constitutional law and good public policy. Finally, I don't recall learning that "Presidentialism" is a principle of conservatism. Some self-described conservatives promote it, and some don't -- many depending on who the President is.

Posted by: Orin Kerr | Mar 29, 2009 6:26:53 PM

It's a great post, but I think the real problem for conservatives is the unitary executive (perhaps you think that is also problematic). If the governments that govern best govern least, then it's okay to have a nondelegation doctrine to ensure that things are confusingly constrained by courts.

And yes, I doubt conservatives would endorse block grants if they were used to nationalize industry or whatever.

Posted by: David Zaring | Mar 29, 2009 4:46:25 PM

The non-delegation doctrine serves two purposes: One, it will achieve limited government by paring down discretion granted to the Executive that the Legislature should properly exercise; and, two, it forces the Legislature to exercise that power directly and shoulder the burden of its exercise, enhancing political accountability. It is one thing to favor a strong Executive, but it is something else to favor an Executive wielding self-defining discretionary authority in areas totally removed from foreign affairs or military excursions. If one is going to trust national commercial issues to the Congress, and the federal Constitution does, then the Congress should be responsible for and accountable for the policy it creates. Congress ought to hold hearings and Congress ought to debate the laws it passes and Congress ought to draft and pass finely detailed and specific laws that can be executed cleanly in concrete cases. And once we know who voted for what we can throw out the bums who voted the wrong way in the next two years. If Congress is passing vague and broad laws that hand over capacious authority to the President to dictate every minute detail of the economy, then Congress is passing the buck and avoiding paying the price – through electoral returns – for its mistakes.

If a block grant to the states is okay, then block grants to the Secretary of the Treasury are equally acceptable, right?

No. The Secretary of the Treasury is a federal official, not a state. The states, a conservative could argue, burnishing his federalism credentials, are supposed to be our laboratories of invention and engines of economic growth, while the federal government is supposed to streamline policy and provide uniformity and standardization. Much like state courts are courts of general jurisdiction but federal courts are courts of limited jurisdiction, one could argue state governments should receive unrestricted funds but the federal government’s powers should be narrowly construed and its monies tightly controlled by a vigilant Congress.

First, are not we conservatives supposed to care about limiting judicial review as closely as possible to the enforcement of plain constitutional text?

There is precedent, and the precedent is old. Voila!

Posted by: Even George Will Is Right Twice A Day | Mar 29, 2009 4:26:56 PM

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