On Socializing the Constitution of Economic Coordination

On Socializing the Constitution of Economic Coordination

This post is part of our symposium on socialist constitutionalism.

Sanjukta Paul–

Professor Forbath’s essay, drawing from his research into the Weimar Constitution, urges us to reconsider what we mean both by socialism and by constitutionalism. He recovers and makes vivid a socialist vision that is neither about (simply or necessarily) “nationalizing” industry nor only about redistributing the material benefits of economic activity, but about creating participatory structures of decision-making across both the “public” and “private” spheres that empower workers and others who are currently largely excluded from it: in short, robust economic democracy. The essay also hints toward a broader sense of “constitutionalism,” encompassing not only the drafting and interpretation of public constitutions, but also the re-constitution of putatively private or semi-private associations like business corporations and labor unions. These two reorientations are connected by one of the grounding LPE principles: that law constitutes markets. Centering the constitutive power of law destabilizes the usual public/private distinction and enables a vision of socialism that incorporates transformative reforms to “private” entities—and that has room for localism and decentralization, where appropriate.

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Progressive Democracy and Legislative Form

Blake Emerson

Adrian Vermeule recently made a stir with his proposal for a “common-good constitutionalism.” He argued that originalism had “outlived its utility” now that the right had gained power on the federal bench. Instead it was time for a “substantively conservative approach to constitutional law and interpretation.” We got only a few peaks at the substance, however. It included labeling individual autonomy, including abortion rights, as “abominable,” and jettisoning “the libertarian assumptions central to free speech law.”

Responses have examined whether Vermeule’s constitutional theory is defensible, or rather winks more or less subtly at authoritarian or even fascist ideas. But to me the most striking aspect of the argument was not the substance of the values Vermeule would ascribe to the Constitution, but rather the form of his conservative constitutional structure. Vermeule proposes a version of constitutionalism that, much like the Law-and-Political-Economy framework, goes “Beyond the Twentieth Century Synthesis” in abandoning the liberal separation of the state from the “private” spheres of the market and family. In contrast to the LPE approach, however, Vermeule’s constitution puts hierarchy at the center of its moral universe, with a strong executive at the top. In the mirror of Vermeule’s constitutional frame, we can glimpse the progressive alternative.

Common-good constitutionalism “does not suffer from a horror of political domination and hierarchy,” but rather expects that “[s]ubjects will come to thank the ruler” for fostering “more authentic desires.” Vermeule thus emphasizes a pre- or post-liberal form of government in which the people are rightfully subject to the discretionary authority of political leaders. He prioritizes the executive branch over others, favoring “a powerful presidency ruling over a powerful bureaucracy,” which acts as “the strong hand of legitimate rule.”

These structural commitments are in line with the theory of the “unitary executive,” which can be traced back to Alexander Hamilton’s defense of a “vigorous” presidency in the Federalist. That enlarged conception of the office has continued to influence landmark Supreme Court decisions from Chevron to the Travel Ban Case. But there is another thinker who deeply informs Vermeule’s analysis: Carl Schmitt, the conservative critic of Germany’s Weimar Republic who became the crown jurist of the Third Reich before falling out of favor with the Nazis.

For Schmitt, the Weimar Republic showed that liberalism’s commitment to positive law, rational deliberation, and individual rights was too brittle to withstand serious economic and political crises. Parliamentary democracy gave way to a “governmental state” in which the executive rather than the legislature made the important decisions. Schmitt did not bemoan this transition, but rather envisioned a direct connection between the substantive values of the Volk and the bureaucratic apparatus of the state. Vermeule, of course, disavows Schmitt’s Nazism, and instead fastens onto his critique of liberal legalism, as well as his interest in religious-bureaucratic political form. He follows Schmitt in privileging the executive branch as the best vehicle to carry out a conservative ethical vision.

Some of Schmitt’s most prominent opponents on the left offered up models for an alternative, social-democratic economy of political power. Scholars like Hermann Heller and Franz Neumann endorsed the norms freedom, the rule of law, and the separation of powers that constitute the liberal ideal of the Rechtsstaat. But they argued that those norms could only be preserved under the conditions of twentieth-century capitalism by transforming the bourgeois Rechtsstaat into a social Rechtsstaat. Such a social-constitutional state would infuse economic relations with material equality, and ensure that monopoly power did not undermine individual and collective autonomy. In stark contrast to Schmitt, these thinkers prioritized the legislature over the executive, and bound the latter closely to the norms of the former. Because Heller and Neumann’s hope was to institute general, egalitarian norms through democratic processes, the legislature had to play the lead constitutional role. Momentary decisions of a charismatic leader would not suffice to firmly entrench social equality.

This correlation between the left and the legislature, on the one hand, and the right and executive, on the other, also has purchase for us in America today. Conservatism of Vermeule’s and Schmitt’s variety is grounded on authority, discretion, and hierarchy. It relies on the obedience of subordinates to the commands of superiors who know better, have keener judgment, or who command greater allegiance. That vision runs like a red line through reactionary models of both economic and political structure. While the rhetoric of freedom, choice, and competition pervades the American right, its legal interpretations and policies often function to preserve various kinds of concentrated power, exercised by some persons and groups over others. The last forty years of conservative ideological dominance has generated stark social hierarchies: employers now exercise arbitrary power over employees, monopolists control consumers and smaller firms, capital accrues the gains from labor; status hierarchies surrounding religion, sex and gender, and race are conceived to reflect a “natural” ranking of superior and inferior.

Executive-centered constitutional structure works in parallel to such legally sanctioned social domination. It subjects the hitherto “independent” civil service to the strong hand of presidential leadership, displacing various forms of disciplinary competence, administrative due process, and public input with assertions of value by the “Chief Executive.” This affinity for an “unbound” executive has animated conservative constitutional scholarship since Reagan. As Bill Barr claimed in his strident criticism of the Mueller Investigation, the president “alone is the Executive branch,” and subordinate executive officers are merely “his hand.”

Progressives, by contrast, should be steadfastly committed to legislative constitutional forms. That is because democracy is concerned not with the command of a single person but with reaching a decision amongst a plurality of persons. That process respects the equal worth of each participant. It models a form of human association that recognizes autonomy and yet brings people together to identify shared goals and values.

Legislation should be viewed as an iterative process of popular will-formation. David Grewal and Jedediah Britton-Purdy have shown how democratic constitution-making is a legislative act of the sovereign people to erect a government that acts on their behalf. Ordinary legislation replicates this process within the government, as it brings together the several representatives of the people to reach binding agreements and empower marginalized groups. Maggie Blackhawk, for instance, has shown how the Indian Reorganization Act of 1934 helped to “foster power and to promote collective action” by sovereign Native peoples. Legislative rulemaking within the executive branch takes this democratic empowerment one step deeper down, giving affected groups a role in deciding how economy and society are regulated. As Matthew Cortland and Karen Tani have documented, progressives have used the public comment process during the Trump Administration to thwart unjust and arbitrary executive actions ranging from approval of Medicaid work requirements to narrowing the definition of sex harassment in education. Kate Andrias has unearthed precedents in the New Deal for establishing workplace democracy in and through the administrative process. I’ve explored in my own scholarship how this legislative version of agency procedure stretches back to the institutions and ideologies of the Progressive Era.

The legislative left therefore does not ignore or sideline the executive branch, but rather aims to recreate parliamentary values, processes, and organizations within the executive. A corollary to this vision is that the president should not be able to fire executive officers at will, as the unitary executive theory would hold. The scope of the president’s removal power is currently before the Court in Seila Law v. CFPB. An executive branch that honors democratic principles should recognize a qualified equality amongst officials. Officers whom Congress has given rulemaking powers should not be subject to implied direction by the president, but rather should lead a broader deliberative process that incorporates affected publics.

Such a legislative constitutional structure, it should be noted, runs counter to strong tendencies and historical traditions amongst American Progressives. From Teddy Roosevelt and FDR to LBJ and Obama, egalitarian programs have often relied on an empowered presidency. And I don’t wish to malign the important persuasive role the president can play as a spokesperson for the people, nor the movement building potential of executive action. But much is lost in pinning our hopes on a particular presidential candidate and what she or he can accomplish once in office. That approach is particularly likely to fail with a conservative Supreme Court that will strike down “novel” administrative actions, or deny deference on “major questions.”

Progressives and social democrats are concerned with freedom, equality, and solidarity. While there might be temporary victories for such values in the hands of a capable and charismatic president, a durable democratic future must take a form that mirrors democratic substance. If we want to recognize and institute the equality of persons, we must all become legislators.

Blake Emerson is Assistant Professor of Law at the UCLA School of Law.

A Law and Political Economy Agenda for Labor and the Constitution

This post is part of our series on the political economy of labor & the constitution. You can find all of our posts on this topic here.

Kate Andrias

Arizona Teachers Go On Strike And March To State Capitol

(via Jacobin)

At the end of September, labor law scholars gathered at a conference focused on “Labor and the Constitution: Past, Present, and Future.”  There, a group of us considered the problem of “Political Economy and the Constitution”—and the extent to which the Law and Political Economy (LPE) analytical frame can be useful in building a more democratic and egalitarian future for workers.

As readers of this blog know, LPE represents an emerging approach in legal scholarship—or at least a return to an old approach that had long been dormant.  Yet, in contrast to other areas of the legal academy, attention to questions of economic power never disappeared from view in labor law.  Maybe more than in any other field, people who study the history of the workplace and workers’ position in society have long recognized the importance of power. They have been acutely aware of connections between the political and the economic, between markets and law. Continue reading

To Democratize Environmental Law, Let Ordinary People Decide

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

Conor Dwyer Reynolds

Environmental law has never felt so undemocratic. On nearly every aspect of environmental protection, the federal government is disconnected from the desires of its citizens. Despite overwhelming public support for increased government action on the environment, the Environmental Protection Agency’s workforce is shrinking, industry lobbyists increasingly regulate their former employers, and polluters face fewer and fewer inspections and criminal prosecutions. And while the majority of Americans believe climate change is an “urgent” problem the government needs to do “a lot” about, the Trump Administration proposes rules which will exacerbate greenhouse gas emissions, like its methane rollback plan.

It’s easy to feel powerless in the face of this delay and destruction. Petitions can be signed, protests can be attended, but at day’s end, those actions don’t seem to direct or decide environmental policy. Government officials do. The best most citizens can hope for is that a still-distant election will produce a friendlier administration, one that will manage to embrace our priorities despite the immense influence of industry.

There’s an irony beneath that sense of powerlessness, one that reveals a tragic flaw in modern environmental law. I want to both explore that flaw and introduce a tool from environmental law’s past that might help fix it. It’s a tool that entrusts ordinary people to decide: the jury.

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The democratic political economy of Administrative Law

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

K. Sabeel Rahman-

The modern administrative state has always faced ongoing debates about the appropriate balance between administrative authority and procedural constraint. But we are in a new moment of political peril in this debate. A newfound skepticism of administrative power has shaped recent judicial decisions exploring limiting previous deference regimes and even suggesting a revival of the non-delegation doctrine. The defense of administrative agencies takes on even greater urgency in the current political moment, as the Trump administration, from its very outset, has sought the “deconstruction of the administrative state.” These critiques have more in common with the arguments made by conservatives in the 1930s that found a welcome audience in the early Hughes Court than they do with the critiques that followed the New Deal. Indeed, academic and journalistic defenders of the administrative state have warned about the risks of what Gillian Metzger has dubbed the new “anti-administrativism” movement.

But this moment of debate is about more than just the familiar clashes between “big government” and “free market” visions of political economy. These attacks on the administrative state—and the historical and current efforts to (re)build administrative institutions—are a critical frontline for our substantive moral values of democracy, equality, and inclusion.

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Policymaking as power-building

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

K. Sabeel Rahman-

Economic inequality and political inequality go hand in hand. American government is empirically more responsive to wealthy citizens, who are better organized and more represented in policymaking institutions. These findings, coupled with an increasingly blatant and troubling attack on democracy and voting rights more broadly, have helped fuel a renewed push around democracy reform. But an often-overlooked dimension of institutional democracy reform lies within the administrative state itself. It is in the administrative state that many of the critical day-to-day governance decisions—from zoning to civil rights enforcement to worker protections, financial regulations, and consumer rights and more—all take place. Without a greater degree of democratic responsiveness and accountability within the administrative process, these substantive rights are unlikely to be vindicated or equitably enforced. This means that policymakers and administrative law scholars alike need to start approaching the task of administrative institutional design with a greater attention to power disparities—what I call, “policymaking as power-building”.  In this post, I outline the idea of power-building as a focus for administrative policy and institutional design, and use the last decade of financial reform debates, particularly around the Consumer Financial Protection Bureau and the Financial Stability Oversight Council, as examples.

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Reclaiming Notice and Comment: Part II

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

Nancy Chi Cantalupo, Matthew Cortland & Karen Tani –

In an earlier post in this series, two of us (Cortland and Tani) described how the notice-and-comment process has entered the arsenal of a range of groups and organizers, many seeking to challenge the policies of the current administration. We made the case by highlighting grassroots efforts to explain to the public what notice-and-comment is and how to participate in it. The effects of these efforts seem clear. Note the more than 1,800 comments on Kentucky’s 2016 request for a Medicaid Section 1115 waiver (seeking to impose a work requirement, among other changes). Or consider the 266,000+ comments to the Department of Homeland Security after the agency proposed a rule that would make an immigrant’s use (or likely use) of public benefits grounds for inadmissibility.

Here we discuss a type of organizing that has followed in the wake of mass commenting efforts, focused on analyzing the content of comments and ensuring their due consideration. Our central example comes from the Department of Education’s recent notice of a proposed rulemaking (NPRM) regarding the meaning of Title IX for complaints of sexual harassment (an umbrella legal term that includes sexual violence). Perhaps unsurprisingly, given the activism around the ED’s interpretation of Title IX in the Obama years, the agency recorded over 124,000 comments—and spurred the creative cataloging initiative we spotlight here. By analyzing comments themselves, participants in this initiative seek to support public engagement with administrative law and vindicate the democratic values at the heart of notice-and-comment mandates.

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Reclaiming Notice and Comment

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here

Matthew Cortland and Karen Tani –

In June 2016, five months before the election of President Donald Trump, Senator Elizabeth Warren wrote a post for the Regulatory Review on “corporate capture of the regulatory process.” It highlighted myriad opportunities in the rulemaking process “for powerful industry groups to tilt the scales in their favor.” The “notice and comment” process offered a key example: “industry insiders and their highly-paid allies” produce “an avalanche of detailed, well-funded, well-credentialed comments,” Warren observed, which administrators must consider if the eventual rulemaking is to survive judicial review.

Fast forward three years, into an administration that has besieged the administrative state—questioning its legitimacy, demoralizing its personnel, slowing the pace of regulation, and  withdrawing from important regulatory realms. In this anti-regulatory moment, notice-and-comment might seem a quaint artifact from a bygone age: with such meager regulatory output, especially aimed at industry, what is left to comment on?  Instead, however, notice-and-comment has become a key tool of opponents of the current administration—a vehicle for mobilizing “grassroots experts” and enabling marginalized voices to speak against dehumanizing agency action.

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Law and Politics in Employee Classification

Benjamin Sachs – 

As has been widely reported, the U.S. Department of Labor issued an “opinion letter” yesterday concluding that an unnamed “virtual marketplace company” does not employ the workers who make the company viable. Instead, the letter finds that these workers are independent contractors. The letter is flawed in multiple ways. As Sharon will explain, deciding a major issue of employment law – maybe the major contemporary issue of employment law – through an informal process that allows one party to present all the facts is decidedly inappropriate. There are also multiple substantive problems: as Charlotte pointed out, the letter considers relevant to the control inquiry the fact that this VMC’s workers can also work for other VMCs. I suppose the fact that Wal-Mart workers can also work for Target suggests that Wal-Mart workers are independent contractors of Wal-Mart. Generalizing, I suppose if low wage workers must rely on multiple jobs to make ends meet this should incline decisionmakers to conclude that those workers are all independent contractors.

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The Procedure Fetish

Nicholas Bagley

That’s the title of a new article of mine, slated for publication in the Michigan Law Review. It’s more polemical than most of my work, and it aims to disrupt some of the tidy stories that organize modern administrative law. Although I hope it finds an audience across the political spectrum, its primary target is my friends on the left, many of whom I fear are playing into the hands of those who want to strangle the administrative state.

The article opens with a puzzle. Knowing full well that onerous procedural rules will hamstring federal agencies, Republican policymakers have pushed “regulatory reform” bills like the Regulatory Accountability Act, the REINS Act, and the Separation of Powers Restoration Act. By tilting the scales against agency action, Republicans hope to end job-killing regulations and invigorate the free market. It’s a libertarian’s dream.

Democrats get it. They understand that the tangle of new procedural rules, if adopted, would bind the administrative state as effectively as Lilliputian ropes bound Gulliver. And they’ve generally (though not universally) opposed what they view as brazen anti-statist measures, which would frustrate their efforts to forestall environmental degradation, protect consumers, and empower workers.

So here’s the puzzle. If adding new administrative procedures will so obviously advance a libertarian agenda, might not relaxing existing administrative constraints advance liberal ones? What if Gulliver is already bound?

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