The (Limited) Case for Executive Authority
Plus: Adam Smith writes about the knowledge problem, an escaped slave finds freedom, and singing Texas Jews.
This “news”letter will now advocate an extension of executive power. It proves Ecclesiastes right: For everything there is, indeed, a season.
President Donald Trump seems determine to traverse far and wide across the terrain his executive power, ford its rivers, scale its mountains, explore its outer reaches, until he has found the edge of the world, as it were. In places, he has discovered, much to his annoyance, he has overstepped; unilaterally, he employed dubiously legal — and even more dubiously constitutional — means to impose staggering new tariffs.
Elsewhere, however, President Trump has strong claim to the authorities he has undertaken to wield. I explained recently:
“The executive power shall be vested in the president of the United States of America,” the first clause of the first section of Article II of the Constitution dictates. Not a fragment of the executive power; not most of the executive power; not the executive power besides the portions which Congress sees fit to place elsewhere. Nor did the Constitution enumerate certain discrete executive powers that attach to the Presidency, as it enumerates the limited and defined legislative powers that Congress wields. “The executive power,” the compact says — all of it, in its entirety, without reservation.
The question of whether the Constitution meant what it said in the executive vesting clause became salient when President Donald Trump fired Rebecca Slaughter and Alvaro Bedoya, the two Democrat commissioners at the Federal Trade Commission (FTC). Since James Madison won the argument in 1789, the power to dispose of executive-branch officers has been considered to rest squarely within the executive power — a position with which President Trump seems to agree. However, Congress contravened Article II in the FTC Act, which created the titular agency, forbidding the president to fire commissioners save for “for inefficiency, neglect of duty, or malfeasance in office.”
In conflicts between statute and Constitution, the latter — “the fundamental law,” as Alexander Hamilton put it in Federalist No. 78 — must prevail. The FTC escaped death-by-judge only narrowly in Humphrey’s Executor v. United States (1935), in which a Supreme Court hostile to Franklin Roosevelt deployed dubious reasoning to uphold the statute and thwart the president. Whatever the merits of that case, the FTC has morphed since the New Deal era, and the judicial standard crafted in 1935 cannot likely save the modern agency (particularly given the recent cabining of that standard). Trump’s firings will almost certainly reach the Supreme Court, whose originalist justices will almost certainly find them constitutional.
…
The government now in Washington, D.C. is as much Woodrow Wilson’s as James Madison’s. The cause is not lost, but reassembling the Madisonian machinery will require more elected officials to reassert firmly the plain meaning of the Constitution’s text. President Trump is right to claim the rightful prerogatives of his office. Next, Congress must follow suit.
Some Wisdom
Speaking of tariffs, Adam Smith had this to say about the knowledge problem, which in the Scottish economist’s day had yet to be worked out in full by Friedrich Hayek.
The man of system…is apt to be very wise in his own conceit; and is often so enamoured with the supposed beauty of his own ideal plan of government, that he cannot suffer the smallest deviation from any part of it. ... He seems to imagine that he can arrange the different members of a great society with as much ease as the hand arranges the different pieces on a chess-board. He does not consider that the pieces on the chess-board have no other principle of motion besides that which the hand impresses upon them; but that, in the great chess-board of human society, every single piece has a principle of motion of its own, altogether different from that which the legislature might [choose] to impress upon it.
And further:
What is the species of domestick industry which his capital can employ, and of which the produce is likely to be of the greatest value, every individual, it is evident, can, in his local situation, judge much better than any statesman or lawgiver can do for him. The statesman, who should attempt to direct private people in what manner they ought to employ their capitals would...assume an authority which could safely be trusted, not only to no single person, but to council or senate whatever, and which would nowhere be so dangerous as in the hands of a man who had folly and presumption enough to fancy himself fit to exercise it.
Some Beauty
In 1838, Joseph Tapper, an American slave, escaped to Ontario, Canada. There, he lived the good life: a wife, a son, the chance to work as a free man, etc.
Taper wrote a letter to his former master, excerpted below:
Dear Sir,
I now take this opportunity to inform you that I am in a land of liberty, in good health.
…
Since I have been in the Queens dominions I have been well contented, Yes well contented for Sure, man is as God intended he should be. That is, all are born free & equal. This is a wholesome law, not like the Southern laws which puts man made in the image of God, on level with brutes.
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We have good schools, & all the colored population supplied with schools. My boy Edward who will be six years next January, is now reading, & I intend keeping him at school until he becomes a good scholar.
...
My wife and self are sitting by a good comfortable fire happy, knowing that there are none to molest [us] or make [us] afraid.
Joseph Taper enjoyed the right to pursue his own happiness, which the American Founding had promised him. It is a stain on the nation’s history that he could not do so in America.
Taper’s simple, yet penetrating, language; his joy in his simple, happy life and in his family; his joy in freedom; these are things of uncommon beauty.
Some Humor
Kinky Friedman, the brilliant singer, humorist, and politician (among many other things), recently released a posthumous album, which I’ve not yet heard. Until I mend myself, below is one of Kinky’s finest, “We Reserve the Right to Refuse Service to You.”
Sundry Links, &c.
John Adams on defending the British soldiers after the Boston Massacre.
Correction: An earlier version of this post attributed both Adam Smith quotes above to The Wealth of Nations. In fact, the first quote is from Smith’s The Theory of Moral Sentiments; the second, from The Wealth of Nations.