Judge Gorsuch and the Dissolution of the Administrative State

The New York Sun ran an editorial today about a New York Times article by two children of left-wing judges.  They claim that the appointment of Judge Gorsuch will threaten the administrative state. The reason is that Judge Gorsuch opposes a decision called Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc  (467 U.S. 837, 1984), and Judge Gorsuch's appointment may lead to  its reversal.  The decision enunciated the Chevron principle, by which the Supreme Court held that when decisions are unclear the courts should defer to administrative agencies.

Repeal of such deference would be a great thing, and if we start a tabulation of costs versus benefits of the Trump administration, curtailing or ending the Chevron principle would add to the benefits side of the ledger.    

I go further.  The Chevron principle is a good argument for the inability of the courts to determine Constitutionality.  That claim was made in the early 19th century, but it was violated by Abraham Lincoln and denied by Andrew Jackson.  

The  Lincoln and Johnson administrations were unwilling to adjudicate the issue of secession. Rather than sue the first seven states that seceded, Lincoln chose to raise an army and illegally threaten them with military power.  The issue of secession was never adjudicated, which is why the North did not punish the leaders of the Confederate States of America for treason. If secession had been adjudicated early on, Chief Justice Taney's Supreme Court may have ruled on the side of the South.  The Civil War may have been averted.  At one point Lincoln issued an arrest warrant for Chief Justice Taney, but it was never carried out.  

The Chevron doctrine exhibits an authoritarian bias that reminds me of of Friedrich Hayek's warning, in The Road to Serfdom, that the bureaucratic state is inherently dictatorial.  By renouncing its own authority in favor of bureaucrats, the Supreme Court has ceded American governance to dictatorship by appointed agency.

The bungling incompetence of the appointed dictatorship that the Times has supported since the 1930s needs little clarification.  From 1830 to 1970 the average American saw wage gains of .5% to 2.0% per year.  Since the expansion of the administrative state under Johnson and Nixon, and especially the abolition of the gold standard in 1971 and the expansion of the powers of the Federal Reserve Bank, economic improvement for the average American has been nil. 

If wage gains had continued at 1.5% per years from 1971 to 2015, the average American would be earning roughly twice what he is earning now.  The administrative state is responsible for the halving of Americans' wages. 

Why I Don't Support the Separation of Upstate from Downstate New York

Following the reelection of Andrew Cuomo as New York's governor, I began thinking hard about separating upstate New York from downstate New York.  Downstate New York includes the five counties of New York City and the four counties that surround it--Westchester, Rockland, Suffolk, and Nassau.   Upstate New York is more Republican than downstate, although it is not as Republican as it was 50 years ago because few retirees can afford to remain here, and most of the productive business--as opposed to real estate developers, Wall Street, and other businesses on public outpatient support--have fled.

The issues of guns, fracking, religion, and regulation divide the state, but views are variable. The upstate urban centers of Albany, Buffalo, Rochester, and Syracuse are Democratic, and the many university-and-college centers sprinkled throughout upstate also are Democratic. Woodstock and Olive, where I live, dominated by  the music, film and art businesses as well as weekend homeowners from New York City, is Democratic too.  Nearby Kingston and New Paltz, home of a state university campus, are also Democratic.  Therefore, upstate New York is variegated; nevertheless, there is a difference because the big-government philosophy dominant in New York City is less prevalent upstate.  The recent gubernatorial election saw small-government candidate Rob Astorino lose in downstate New York but win the majority of the vote and the majority of the counties in upstate New York.  Crooked, big-government advocate Andrew Cuomo, closely linked to super rich real estate developers, hedge fund managers, and other of the privileged rich on government outpatient support, handily won downstate.

I thought I'd write a piece about separating the two regions for the Lincoln Eagle, and I interviewed a leading activist in the separation movement. He told me that there is increasing support for the idea, especially following Cuomo's reelection.  Cuomo's dictatorial approach to guns and his fascistic attitude toward conservatives (he says that they don't belong in New York) stimulated strong opposition upstate.

My thought was that the values and needs of upstate differ sharply enough from New York City that government would be more representative if it were more decentralized.  I've changed my mind.  Having interviewed the separation activist and read an interesting piece in the Rochester Business Journal, I am coming to the conclusion that separation isn't worth the fight.

The decision to separate or not should not be financial; it should not be based on on net monies transferred from downstate to upstate.  First, no one is clear about the direction in which money actually flows. Second, even if money flows upstate, if the political union doesn't work, then the money isn't worth it.  Readers who posted   on the Rochester Business Journal article claim that upstate could not build roads without New York City's financial support; they might consider turning their heads toward Vermont, Maine, and New Hampshire, whose roads are fine without New York City's help.

Two elements counterbalance each other.  First, New York City probably does subsidize the rest of the state because of the taxes collected from the financial industry, although the subsidization probably benefits two categories: special interests and welfare recipients.  Second, upstate suffers heavily from regulation and political mandates that emanate from the city.  These include a bloated, stupidly managed Medicaid system and heavy demands from public sector unions, to include the Service Employees International Union--which has successfully lobbied for the bloated Medicaid plan--teachers' unions, and statewide bureaucrats' unions like PEF and CSEA.  There is also the current prohibition on fracking, by which the environmental ignorance and superstitions of New York City's ideologues and cranks have deprived New York's Southern Tier of billions in revenue.

The question that remains is whether, given freedom, upstate will repeal the mandates,  regulations, and bloat that the city has imposed.  If it does not, will not, or cannot, there is no point to separation.  Having lived in Albany, Kingston, Potsdam, Binghamton, and New York City, my guess is that the people of New York are unable to overcome the lobbying of the special interests, the unions, the developers,  and crackpot green advocates, who have driven business away from the state.  The same processes of special interest brokerage will continue to dominate upstate New York, just as it has,  and I have no reason to think that upstate New Yorkers will gain 15 IQ points and start to think rationally about the costs and benefits of government policies.  North Dakota, with a population not much bigger than Buffalo's, has, but few states have.

The inner cities in upstate New York, such as the small city of Kingston, which is near me, are as backward as New York City; New Yorkers in rural areas are often co-opted by welfare and Medicaid programs that make them advocates of the bloated state, and a large share of upstate New Yorkers are public union looters.  The result will be, like the breakup of Standard Oil, two behemoth operations rather than one.  In the case of Standard Oil, the oligopoly included Exxon, Mobil, Chevron, ARCO, Sohio, and Pennzoil. In the case of New York, the oligopoly will become the bloated bureaucracy to the north and the bloated bureaucracy to the south. I don't think upstate New Yorkers have the brains to end the bloat that has deprived them of an economic future.

What Is to Be Done?

I just sent this email to an acquaintance who lives in my county and who asks what is to be done:

The conservative movement hasn’t been successful, and the Republican Party has proven itself to be an enemy of liberty much like the Democratic.   One stumbling block is public opinion.  It is not unlike the fall of Rome.  By the first or second century few people living in Rome had any understanding of the republican form of government. They had immigrated there from the conquered provinces, and if they chose to remain in Rome often it was often because of the welfare benefits that Augustus and his successors had developed (bread and circus: free grain, free entertainment, free food).   

America has increasingly become a nation of beggars and welfare cheats; there is little understanding of Jeffersonian individualism, especially among those educated in New York’s and similar public schools; increasingly, Americans are motivated by lust for subsidies and handouts. This starts at the top--on Wall Street.  If the public was comfortable with the bailout and with the monetary policies that have been pursued since ‘08, there is no limit to how much wealth transfer they will accept. 

This is not the America of Jefferson,  of Grover Cleveland, or even of Franklin Roosevelt.  I do not think there is much hope for democratic change.  Secession, nullification, or a breaking off of freedom-loving Americans in a new polity are possible paths, but they can’t be executed now.   Relocation to another country is feasible now, and I am planning at least a partial relocation.  

To do more, there will need to be a further breakdown in federal power.  That might occur as the dollar falls to ever lower levels and America finds that the federal government is not sustainable. That might happen within our lifetimes.  I’m sorry to say it, but there needs to be more chaos before anything important can happen.  Rather than waste time with political activity, it might be more useful to spend your time educating yourself, building a game plan, and winning over others to a vision of an alternative.  There is no point in defending an American system that already has disappeared.  

The Secession Party

The Secession Party

Mitchell Langbert, Ph.D.*

The United States of America has become too large and needs to be broken in two. As well, New York and other states that have an urban-rural split ought to be split. The nation has become too large to manage, as today’s Congress attests. This would be so even if ideological differences did not divide the nation and the states. The nation should be broken up into a red nation and a blue nation and New York should be broken up into upstate and downstate.

The Secession Party would aim to dissolve the union, undoing the work of Abraham Lincoln and reasserting the aims of the anti-Federalists, who opposed the scope and extent of federal power that came to pass under Washington.

When the United States was established in 1789, there were approximately four million Americans and 65 members of the House of Representatives. That is 60,000 Americans for every Representative. Today the nation’s population is 310 million and there are 435 members of the House of Representatives, 713,000 Americans for every Representative. Only special interests and financial donors have full access to Representatives. Increasing the number of Representatives would be administratively difficult because a House as representative as it was in 1789 would have 4,800 Representatives.

Historical Precedent

One nation in western history has been equal to the United States in terms of its power: Rome. By the late third century Emperor Diocletian established a rule of four, whereby two senior and two junior co-emperors oversaw a quarter of the Roman Empire each. He also began a shift of power from Rome to other cities. Ultimately, Byzantium, later named Constantinople, survived the western Roman Empire by nearly one thousand years. Diocletian could not have anticipated that quartering the Empire would allow part of it to survive. I claim that halving the United States into free and social democratic halves would allow the free half to survive as the social democratic half sinks into a dark age.

American Decentralization

The forces that encouraged Diocletian to think in terms of decentralization are at play here. Management theorists recognize that there are limits to rationality. The way to run a large firm is to break it into operating divisions. Likewise, the Founding Fathers or Federalists, including Alexander Hamilton and James Madison, believed that the federal government needed to be combined with decentralized states. Under the Constitution the states are responsible for much administration. Part of the reason is that the states are better able to represent their citizens. Large scale leads to complexity which makes management and representation difficult from the center. The federal government suffers from centralization without representation.

The Civil War began an assertion of federal power that has escalated past the point of diminishing returns. The Civil War’s cause, prevention of the expansion of the “slave power” was just. But a side effect of the Civil War was squelching of important aspects of states’ authority. It was not and is not clear that states do not have the right to secede or to nullify their participation in the union.

Progressivism a Form of Insanity

Recently, I had a discussion with an attorney who believes that regulation is desirable. I pointed out to him that workers’ compensation does not work. He agreed. I pointed out that the Employee Retirement Income Security Act of 1974 (ERISA) has not worked well. He did not know much about it, but he was willing to agree. I pointed out that the Sherman Anti-Trust Act, which was meant to limit monopoly, has had the effect of expanding the size and power of big business. I pointed out that the Federal Reserve Bank has massively subsidized the wealthy at the expense of the poor. I pointed out that Social Security turned out to be a wealth transfer vehicle from the 21st century’s workers to the 20th century’s retirees. He offered no meaningful counter-arguments, only to say that the sub-prime crisis was due to the repeal of the Glass-Steagall Act. But he could not explain how, after 75 years of securities regulation Wall Street is more destructive than it was in the 1920s.

Despite the long list of regulatory failures, the left-wing attorney believes that regulation must be increased. He suffers from a religious mania with which it is impossible to argue.

A recent study found that about two or three percent of government agencies are ever terminated. In contrast, 80 percent of businesses fail within their first five years. People who believe that government programs, no matter how destructive, cannot be terminated are incapable of rational discussion.

Since there is no common ground between those of us who believe in freedom and those who believe in socialism, there is no longer common ground required for a single nation. The United States was founded on a belief in freedom. But half the nation believes in the slavery of social democracy, in tyranny of the majority. The union is no longer tenable.

Large Scale Has Advantages

Large scale has advantages. These include the ability to support a strong military and to permit large scale economic activity. However, there are limits to these kinds of advantages, and there is no reason why independent units cannot permit large scale economic activity across borders.

The advantages of large scale have limits as do the advantages of small scale. There needs to be balance. But under the influence of New Deal Democrats and Rockefeller Republicans the nation has discarded the notion that small scale offers any advantages. When government employees are paid 40 percent more than private sector employees, it is just in the centralizers’ opinions. When private sector firms innovate, it is greed and must be regulated. No degree of centralization is sufficient for America’s big government mono-maniacs.

Party System Committed to Large Scale

Left-wing Democrats and the Rockefeller Republicans claim to hate each other. But both favor large scale. The Democrats have ritualized regulation. The Republicans have ritualized big business. The fact is that big business would not exist without big government, and vice-versa. Just as regulation has repeatedly failed even as the Democrats mindlessly chant its mantra, so has big business repeatedly failed as the Republicans chant its mantra.

Need for a Pro-Secession Party

The election of Barack H. Obama has proven that American democracy no longer functions. The nation is too large to represent its citizens. Smaller units are needed now. The two party system is too corrupt to permit the decentralizing impulse. A new, pro-secession movement needs to energize America.

*Mitchell Langbert is associate professor of business at Brooklyn College. He blogs at http://www.mitchell-langbert.blogspot.com/.

Do or Die Election 2010: Toward Freedom or Secession?

I have not been blogging because I have been busy with electoral politics. Like many who have been activated this year in response to the suicidal policies of America's selfish elite,  I have not done so much on a practical level in many years.  Like many, I do not love the mechanics of elections such as sign placement, phone banking, petitioning and the like, but do it as a calling.  My friend Glenda McGee suggested that we are throwing pebbles in the large American lake, and causing ripples just as others are causing ripples that together will form waves and then a tsunami that will overwhelm the centralized power elite. Or so we hope.

The Republicans in Ulster County, New York have never been more visible. Signs are everywhere to the extent that one Republican in the Hudson Valley suggested that too many signs were placed. County Chair Robin Yess noted in response that the Democrats have vandalized numerous signs. Indeed, many of the Paladino signs I put up have been removed, undoubtedly by people who believe themselves to be more right and more intelligent than we are.  This indeed raises doubts in my mind about the universalizability of ethical belief, the foundation of Immanuel Kant's philosophy.  More murder has been committed by people who believe themselves to be the most right and to be the universal standard bearers of historical right than by psychopaths and sociopaths in the normal sense.  The difference between someone who believes himself to know the absolute historical and universal right and someone who does not know what right and wrong are may be nil.

Our congressional candidate's, George Phillips's, performance has been amazing.  Socialist extremist Democrat Maurice Hinchey has never had an opponent this visible.  I am told that our congressional district, the New York 22nd, was set up by Pataki as a kind of toxic waste dump of college campuses from Vassar to Cornell and inner city districts (Binghamton, Ithaca, Poughkeepsie, Liberty and Monticello) that are left wing. In response, Representative Hinchey painted himself as a progressive; aimed to turn the Hudson Valley into a socialist park, and repeatedly attacked Israel.  Even in a toxic waste district like New York's 22nd CD there are enough normal, decent people to resist.  This is despite the pro-bailout left's domination of the local media.

On Wednesday, Thursday and Friday I put up dozens of signs in the Town of Olive and distributed calling lists to four or five members of the Town of Olive Republican Party.  On Thursday McGee and I gave out handbills.  On Friday night McGee and I helped local entrepreneur Mike Marnell stuff his Lincoln Eagle newspaper into saran wrap-like sleeves so that they can be tossed into thousands of driveways in the Hudson Valley.  On Saturday we drove around the Towns of Olive and Marbletown distributing the Lincoln Eagle to two dozen diners, farm stands, supermarkets and other stores.  As well we distributed the hand bill to farm stands and health food stores, many of whose proprietors said that they would give the handbills to their friends.

The response to our handbill was varied.  On Friday several of us distributed them in Woodstock and the hard leftists there were often hostile, although many others were interested.  Then, we went to Adams Fairacre Farms, a specialty store, and distributed them for about an hour until the proprietor chased us away.  The reaction there was positive.  In other words, all but the hard, ideological left were open to the handbill. The handbill was targeted at the left concerned with food issues.

The big news for us in Ulster County was George Phillips's national support in his run against Representative Maurice Hinchey.  Phillips has received more than $500,000 from American Crossroads and television advertisements have been flooding the cable lines and air waves. In addition, Phillips was aided by Mayor Edward Koch, who endorsed him over Hinchey because of Hinchey's aggressively anti-Israel position.  Given the toxic nature of the 22nd district, a Phillips victory will be amazing.

My prayers are with all of the Republican candidates this year, even the RINOs, because we need to take back the government from the extreme left and the Democratic Party and repeal the socialist laws that have created growing income inequality, a declining economy and an increasingly dictatorial government.  My good friend Cortes de Russy is running as a GOP write-in candidate in New York's 18th CD against extremist socialist crank Nita Lowy. I blogged about their debate about two weeks ago. Lowy is ignorant about economics and about what America is.  Lowy and her supporters have increasingly made it clear that we need to begin to think about secession.  This is no longer a long term question, but one that we need to start planning for.  The current state of America is unacceptable and many do not share any commitment to the type of government that the social democrats have created and favor.  The Untied States government is stupid garbage, and unless we can free ourselves through the ballot box, more direct political action leading to greater instability will be necessary. In a sense then, this is a do or die election.