Nudged Toward the Abyss
For a constitutional republic, America sure puts up with a fair amount of blatant unconstitutionality and administrative rule.
When is a law not a law?
I think most people would say that a law no longer is a law when a challenge to it winds its way through the court system and ends up in front of the Supreme Court and the court rules it unconstitutional.
What happens when the people behind the law, regulation or Executive Order know what they are doing is unconstitutional from the start – or very likely to be found as such – but go ahead anyway? We know that the wheels of justice grind slowly and sometimes it can take a year, two or more than that for a challenge to reach the SCOTUS – if they agree that the plaintiff has standing.
I struggled for a term for this, and thanks to Bard, Google’s linguistic AI, I found that a phrase had already been coined by Cass Sunstein (the husband of Samantha Power and former Obama official) in his 2001 book, Laws of Fear: Beyond the Precautionary Principle.
Sunstein called it “pre-emptive activism”, a strategy of implementing policies that are likely to be struck down by the courts, in the hope that they will have a lasting impact before they are overturned. Sunstein argued that pre-emptive activism is a common strategy in the United States, and that it is often used by both liberals and conservatives.
How is that a legitimate process? How can it be allowed to knowingly implement policies that are extraconstitutional and violate the rights of every person impacted under that process.
Of course, there are many reasons why politicians might adopt a pre-emptive activism strategy. One reason is that they believe that the courts are likely to strike down their policies, but they want to implement them anyway to achieve some immediate benefit. The Biden Administration did it in September of 2021 with the OSHA mandate for vaccination. Knowing that OSHA never had the regulatory power to make this rule stick, they did it anyway and it was expedited to the Supreme Court and overturned in January of 2022 – but by then the damage was done.
This action gave cover to corporations wishing to curry favor with the regime during a period when government handouts was the order of the day, the Biden administration got actions that could not be questioned or changed, and it put employees in the position to take a vaccine they didn’t want or lose their jobs. Many did take it under this coercive policy, but many didn’t, and they did lose their jobs without recourse.
Nothing new under Democrats, the Obama administration implemented the Obamacare, aka the Affordable Care Act (ACA), even though they knew that it was likely to be challenged in court. The ACA has since been upheld by the Supreme Court, thanks to John Roberts redefining the concept of a tax) and even though Republicans have been largely ineffective at repealing it entirely, bit is likely that the court will continue to chip away at it in the years to come.
Politicians might also adopt a pre-emptive activism strategy when they believe that the courts are too slow to respond to changing social and political conditions. The Biden administration has implemented several policies on issues from climate change to “gender affirming care”, even though they know that these policies are likely to be challenged in court. The Biden administration believes that the courts are too slow to take action, and that they need to take action now in order to push society and culture in the direction they believe is correct.
Coincidentally, Sunstein also wrote a book titled Nudge in which Sunstein and his co-author Richard Thalen dealt with the concept of “choice architecture”, which proposes that people can be directed to the “right” decisions if only the choices are structured “correctly”. Sunstein and Thaler noted that people tend to err in predictable ways, and influencers/leaders/regulators should intervene to correct those cognitive failures by nudging individuals toward optimal choices while still preserving the freedom to choose. “Nudge” asserted that people should be prodded toward outcomes that rational people would select if they only knew what the “experts” know, and they only possessed the self-control to “correctly” act on such information.
Pre-emptive activism is a major reason, if not the major reason, that has led to the courts becoming politicized. If the beginning assumption that the policies are going to wind up decided by the courts, it seems logical that politicians are more likely to pass policies that are designed to appeal to their base rather than policies that are based on sound legal principles. Beginning from such a point, it is a certainty that the opposing sides will see any decision rendered in ideological terms.
Some recent examples would be the Dobbs case that led to the overturning of Roe v. Wade, the Harvard/UNC case that overturned raced based college admissions and the free speech case of 303 Creative where the court ruled no government can compel speech. The aftermath of each and every one of these cases has been deeply immersed in ideological anger and have been argued in social media based strictly on politics rather than constitutional grounds.
And this doesn’t even scratch the surface of what happens when the thousands upon thousands of extraconstitutional rules and regulations promulgated by federal agencies – not Congress – never make it through the courts? Does that make them any less unconstitutional?
Phillip Hamburger, author of “Is Administrative Law Unlawful” said:
“Almost all government agencies, ranging from the IRS to the FDA, attempt to bind Americans through administrative rules and adjudications–that is, not through law, but through extralegal edicts.”
It makes one consider how unconstitutional our supposed constitutional republic has become.
Great essay. I loved Trump's rule of ending 7 or 8 regulations for every new one that he put in place.
It seems that the administrative state’s laws and regulations exploit a presumption of legality analogous to the citizen’s presumption of innocence before the courts of criminal law.