The Bob Zadek Show

Professor Richard A. Epstein’s new book weights it in the balance and finds
it wanting

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Progressives argue that modern problems demand a modern approach to governance – one which is incompatible with the Founders’ view of limited, separated powers. The Constitution, it is held, must accommodate a wider role for administrative agencies to interpret laws and craft rules for unexpected situations that arise due to new technologies and threats to public safety. Since the New Deal era, these progressives have largely succeeded in bringing about their vision of a more expansive “administrative state.”

I’ve done countless shows on the abuses of this fourth branch of government – including its “midnight regulations,” and stealthy rule-changes that turn law-abiding property owners into environmental criminals overnight. But perhaps I’ve been unfair to the proponents of the administrative state. After all, we can’t expect Congress to foresee every contingency when they write laws, and some sort of administrative apparatus is necessary to maintain tax rolls, administer patents and so on.

Professor Richard A. Epstein (aka “the Libertarian”) has kindly agreed to help me distinguish between these vital functions of the administrative state – which co-existed harmoniously with constitutional principles until the 20th century – from the illegitimate lawmaking that characterizes much of the modern administrative state.

Professor Epstein’s new book The Dubious Morality of Modern Administrative Law (published by the Manhattan Institute) is a 200-page tour de force and a must-read for any student of modern American government. After providing context for the history of the administrative state pre-New Deal, Epstein shows how case after case has set dangerous precedents requiring courts to defer to agency actions when the law in question is ambiguous.

If you haven’t been following my long-running series on the administrative state, this Sunday is your chance to catch up. For a primer, be sure to read my free 50-page guide The Shallow State to see what Classical Liberals are up against.

We also discuss the changes brought by the Trump administration regarding the controversial “guidances” issued by administrative agencies – statements that function like final law without granting affected parties the right of de novo review – including the status of the Title IX “Dear Colleague” letters that led to so much confusion around the transgender bathroom issue.

My show has always been about promoting ideas that lead to a flourishing, free society. I try to leverage my resources to spotlight issues that are neglected by shallow politicians and mainstream media (see my free guide to *The Shallow State* for details).

While occupational licensing and rolling back the administrative state may not be the most glamorous causes, I never tire of covering the work of organizations like the Institute for Justice in their fight against the most pervasive and regressive forms of government overreach.

Much like the entrepreneurs they serve, the Atlas Network also leverages scarce resources for maximum impact. They have cultivated a global network of think tanks working behind the scenes to advance free market competition and accelerate international development.

While the “problem” of development has stymied well-funded academics, and supranational government bodies, Atlas has used the same “engage and exchange” formula time and time again to spur growth and entrepreneurship without accepting a penny from any government or quasi-government institutions.
How?

Matt Warner, the Atlas Network’s president, reveals the secrets in his new book Poverty and Freedom: Case Studies on Global Economic Development. Warner recognizes development as an opportunity – not a problem. The case studies from the dozens of Atlas-supported think tanks around the world show that solutions are not handed down from on high by all-knowing government officials but discovered on the ground. Through the broader Poverty and Freedom initiative, Atlas Network is “harnessing local visions for change to free people to carve paths out of poverty.” The secret is property rights, aligning incentives, finding key partners and building bottom-up coalitions. Warner is a dissenter in the world of development economics and a self-described “positive deviant.”

In addition to summarizing uplifting case studies ranging from prison reform in the state of Georgia to innovative land rights reform in Ukraine, each chapter ends with important questions for everyone in the liberty movement (not to mention entrepreneurs, parents, and community leaders) such as:

How can I make the most of my scarce resources?

How can I communicate effectively to politicians and people in power?

How can I be a “positive deviant” and what unlikely innovations could I harness in pursuit of my unique mission?

If I am determined to achieve even more than I am now, what peers can I choose that are most relevant for a motivating comparison—and from whom can I learn the most?

If you need a break from all of the doom and gloom of current events, do yourself a favor and read Matt’s book – or tune in live to the show of ideas (never-ever, not one single time, the show of attitude). The arc of history is long, but it bends toward freedom.

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Atlas Network Matt Warner shares success stories from dozens of case
studies into free-market think tanks around the global. The lessons apply
to us all.

“A Law repugnant to the Constitution is void.”

– Chief Justice John Marshall, Marbury v. Madison

Constitution geeks, rejoice. The book you’ve been waiting for has arrived. Repugnant Laws by Keith Whittington (William Nelson Cromwell Professor of Politics at Princeton) takes readers under the hood of our system of checks and balances – examining “Judicial Review of Acts of Congress from the Founding to the Present.”

Whittington, who writes for my favorite legal blog the Volokh Conspiracy, joins me live. He has written a great deal about impeachment lately, but his real constitutional expertise is the main check that the judiciary exercises over the legislature – its ability to overturn state and federal laws which it deems unconstitutional.

The power of judicial review was first discovered by the Supreme Court in the infamous case of Marbury v. Madison, in which Chief Justice John Marshall opined that “A Law repugnant to the Constitution is void.” (Who else but the courts could decide when a law enacted by Congress is repugnant to the Constitution?)

Since then, the makeup of the courts has influenced the direction of policy in subtle but powerful ways. Whittington’s book analyzes thousands of cases in which the Supreme Court either upheld or overturned federal laws. He applies the precision of a scientist (a political scientist, that is) to questions of politicization and examines whether an activist judiciary is antidemocratic.

RealClear Politics reports that President Trump is “Remaking the Federal Judiciary at a Historic Rate”. According to Whittington’s data, this will influence political outcomes for decades to come. But while judicial appointees may tend to side with the dominant political coalitions, he notes that they do not make their decisions along strict ideological lines.

I have previously explored whether the courts should exercise restraint in allowing lawmakers to craft a wide range of legislation (see Overruling Government Overreach: Damon Root on the Libertarian Legal Movement).

I have also argued in favor of a more activist judiciary, which defends individual rights from being overridden by majority rule, and believe that the courts are the last bulwark against excessive democracy. However, everyone seems to be in favor of judicial activism when it favors his or her politics. That explains why restraint and “minimalism” are in vogue among liberals when the conservatives are in power, and vice versa.

Find out why Randy Barnett says Repugnant Laws is “Simply a must-read for any serious student of our Constitution and how it actually works.”

Advanced Topics in American Government with Keith Whittington

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As Robert Higgs trenchantly observed in his book Crisis and Leviathan, central planning is a one-way ratchet. Governments take advantage of a crisis to introduce previously unimaginable restrictions on freedom in the name of public safety. We allow permanent erosions to the bedrock of liberty under the guise of temporary expediency.

In responding to the Coronavirus outbreak, China has ratcheted up its totalitarianism – forcibly taking people from their homes and committing them to “hospital cities,” built overnight using eminent-domain-on-steroids.

Marxist philosopher-clown Slavoj Žižek sees in Wuhan’s state of emergency a silver lining. He writes of “an unexpected emancipatory prospect hidden in this nightmarish vision.”

Brace yourself.

Not only does the crisis provide a pretext for “a new kind of communism,” Žižek suggests that the “half-abandoned streets,” and “stores with open doors and no customers,” actually “provide the image of non-consumerist world at ease with itself.”

If that’s the shot, then the chaser is Jeffrey Tucker’s recent article for the American Institute for Economic Research on the virus. Tucker, AIER’s editorial director asks, Must Government Save Us from the Coronavirus? In short, the answer is no.

While it’s easy to think of Chinese quarantines as something distinctly un-American, he points out that “the US government already has the power to create sick camps, kidnap and intern people upon suspicion that they are diseased, and keep people in camps for an undetermined amount of time.”

Tucker points out that the abuse of these powers is far more common than their discerning use.

What then is to be done?

Tucker has made a career of writing boldly and beautifully in defense of free market institutions and the power of individuals to provide superior solutions to the government. He joins me this Sunday to discuss the tragic history of forced quarantines and surprisingly effective voluntary alternatives.

We also relate the expectation that government will save us from pandemic as a symptom of a much greater problem – America’s acceptance of bigger government when it suits their political fancies or addresses a perceived threat.

Listen now to hear Jeffrey explain how markets – i.e., individuals – can improvise a more orderly solution to disease outbreaks than the chaotic spasms of a failing authoritarian state.

Jeffrey Tucker, editorial director of the American Institute for Economic
Research, brings integrity, research and principles to the coronavirus
issue.

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We know the two-party system is flawed. Is it completely busted?

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This Sunday, Lenore Skenazy - aka the “World’s Worst Mom” - returns to the
show to discuss the latest trends in coddling vs. free range parenting.

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