Down with the Administrative State

February 24, 2017

Dear Reader (including all of you who send me fake e-mail saying this "news"letter isn't perfect. Dishonest fake readers!),

I had to take a break from this "news"letter to listen to Donald Trump's CPAC speech. Then, I had to feed the kid, who's home sick. Then I had to . . . well, to make a long story short, I'm sitting in my car outside of Fox News in D.C. and I don't have a lot of time left before the suits in New York start smashing my collection of National Review–themed hummels like Eddie Murphy in 48 Hours when he breaks the glasses at the cowboy bar. Charlie Cooke likes to call me on Skype and pretend to accidentally nudge one off the shelf for every 15 minutes I'm late. ("Oh dear, look at poor Russell Kirk, how shall we ever put him back together again?")

So, I'm going to start fresh here and see how far I can get before I have to go on air.

When President Trump finally got around to talking about his agenda, I thought it was a very good — i.e., effective — speech. I disagree with all of the demonization of free trade and I thought his disparagement of his predecessors was no less shabby than when Obama said similar things. Also, I could do with less of the "blood of patriots" talk — more on all that in a moment. But if he does all the other stuff he talked about, I would be very happy.

Also, Trump delivered a good performance and it's not shocking the crowd ate it up. One of the things the mainstream media doesn't seem to fully appreciate is that just because Trump isn't having a honeymoon with the press, the Democrats, or a good chunk of independent voters, that doesn't mean he's not having a very real honeymoon with Republicans. They want him to succeed and they want his "enemies" not just to lose, but to be humiliated (hence the popularity of Milo in some corners, and a chunk of my least friendly e-mail).

Indeed, I think there's good reason to believe that the honeymoon is more intense precisely because Trump is under such a sustained assault. Something similar happened under George W. Bush when the Left lost its collective mind and did everything it could to undermine a wartime president. Conservatives — me included — out of a sense of both loyalty and anger rallied to Bush and had a tendency to overlook certain foibles and mistakes for the greater good. We may not be at war — at least not like we were in, say, 2005 — but the Left and the media are clearly at war with Trump. And because Trump often makes it difficult for his allies to defend him on ideologically or politically consistent terms, the attachment is often more emotional than rational. Ann Coulter titling her new book "In Trump We Trust" or, as Kellyanne Conway put it yesterday, saying that CPAC should really be called "TPAC" (i.e., Trump-PAC) gets right to the heart of the situation. Politics on the right is increasingly about an emotional bond with the president.

Which brings me to Trump's comments on the media and fake news. Trump said:

Remember this — and in not — in all cases. I mean, I had a story written yesterday about me in Reuters by a very honorable man. It was a very fair story.

There are some great reporters around. They're talented, they're honest as the day is long. They're great.

But there are some terrible dishonest people and they do a tremendous disservice to our country and to our people. A tremendous disservice. They are very dishonest people.

You do see what he's doing right? The guy who once literally pretended to be his own publicist hates anonymous sources? The guy who powered his way into politics by claiming "very credible sources" told him that Obama's birth certificate was fake is upset by "fake news"?

That's the guy who hates anonymous sources and thinks they shouldn't be "allowed" to talk off the record? Trump says that not one of the nine sources in the Flynn story exists. But Flynn was fired anyway. Well, that's interesting.

Trump's White House — like all White Houses — routinely floats stories in the press on background. Will he not allow them to do that?

Now, I think the press relies on anonymous sourcing too much. And I think many of these anonymous sources have been unfair to Trump. But what Trump is doing is preemptively trying to discredit any negative press coverage, including negative polls. According to Trump, the only guy you can trust is Trump. Trump is the way. Trump is the door. In Trump you must Trust.

If you recognize that, great. And if you want to defend it as brazen — and arguably brilliant — political hardball, that's fine too. But if you actually believe that the only source of credible information from this White House and its doings is Trump himself, then you should probably cut back on the Trump Kool-Aid.

Something similar is at work with the delightful show put on by Reince Priebus and Stephen Bannon. It is entirely possible — even likely — that reports of their seething existential animosity for one another are exaggerated. But if you watched that performance yesterday and came away believing that these two guys are ripe candidates for a buddy-cop movie then you should probably avoid watching infomercials or you'll find your garage full of Tanzanite and ShamWows.

What struck me during the Reince-Bannon show was when they both insisted in various ways that they always knew they would win the election (not true) and that everything they are doing has been carried out with flawless precision. This is an addendum to the "In Trump We Trust" argument. The upshot here is that they want you to think that any bad news is fake news because they've been right about everything so far. Conservatives — far more than liberals — should understand that politicians make mistakes and never have complete mastery of the details or the facts on the ground. That is at the heart of the conservative critique of government and it does not go into remission when Republicans are in office. Blind faith in experts and politicians is unconservative no matter who is in power.

Down with the Administrative State

The most interesting thing about CPAC so far wasn't Trump's speech but Bannon's performance. He removed all doubt (even before Trump's speech, which re-confirmed it) that he is the Mikhail Suslov of this administration (Suslov was the chief ideologist of the Soviet Politburo until he died in 1982).

I have been very hard on Bannon of late, but let me say that I thought he did a very good job. Charles Krauthammer is right that merely coming on stage without horns was a PR victory.

I will also say that I loved his comments about "deconstructing the administrative state" — though I do wonder what's wrong with the term "dismantle"?

Deconstructing the administrative state is a kind of nightingale's song for many intellectual conservatives, particularly my friends in the Claremont Institute's orbit. It's been great fun watching mainstream journalists, who are not fluent in these things, talk about the administrative state as if they understand what Bannon means. The "administrative state" is the term of art for the permanent bureaucracy, which has come untethered from constitutional moorings (please read Phillip Hamburger's Is Administrative Law Unlawful?, or Charles Murray's By the People, or my forthcoming book — which as of now has some 75 pages on this stuff). Most of the law being created in this country is now created on autopilot, written by unelected mandarins in the bowels of the government. It is the direct result of Congress's decades-long surrender of its powers to the executive branch. The CIA is not the "deep state" — the FDA, OSHA, FCC, EPA, and countless other agencies are.

If Bannon and Trump can in fact responsibly dismantle the administrative state and return lawmaking to Congress and the courts (where appropriate), then I will be ecstatic, and I will don the MAGA hat. But that is a very big if. The bulk of that work must be done by Congress, not the presidency. And any attempt to simply move the unlawful arbitrary power of the administrative state to the political operation of the West Wing will not be a triumph for liberty, it will simply amount to replacing one form of arbitrary power with another.

The Wages of Nationalism

And that brings me to Bannon's other Big Idea: "Economic nationalism."

Rich Lowry and I have been going back and forth on nationalism vs. patriotism quite a bit. I'm not going to revisit all of that because it's already gotten way too theoretical. But what I do want to say is that when nationalism gets translated into public policy, particularly economic policy, it is almost invariably an enemy of individual liberty and free markets. This should be most obvious when it comes to trade. The Trumpian case for economic nationalism is inseparable from the claim that politicians can second guess businesses about how best to allocate resources. For instance, Trump boasted today:

We have authorized the construction, one day, of the Keystone and Dakota Access Pipelines. (APPLAUSE)

And issued a new rule — this took place while I was getting ready to sign. I said who makes the pipes for the pipeline? Well sir, it comes from all over the world, isn't that wonderful? I said nope, comes from the United States, or we're not building it. (APPLAUSE)

American steel. (APPLAUSE)

Now, you may think the command to buy American steel is a great policy or that the statism implicit here is a small concession in light of the benefits it creates. It certainly seems that the applauding crowds at CPAC think that. But let's take a moment and recognize what that applause represents: The flagship conference of the conservative movement rose to its feet to cheer protectionism and command-economy policymaking. That is a remarkable change of heart.

Bannon is desperate to launch a multi-trillion-dollar infrastructure program in the name of economic nationalism. He thinks it will be as "exciting as the 1930s."

Well, "exciting" is one word for the 1930s, but it's not the one I would use and it's not one that conservatives — until five minutes ago — would have used. FDR was a proud economic nationalist. The National Recovery Administration (NRA) was slathered in nationalism. It was run by Hugh Johnson, the man who ran the draft during the First World War and who tried to literally militarize the economy. Under the NRA, a dry cleaner, Jacob Maged, was sent to jail for charging a nickel under the mandated price for pressing a suit. Under the NRA, big businesses created a guild-style corporatist political economy.

Economic nationalism taken to its logical conclusion is socialism, with pit stops at corporatism, crony capitalism, and the like. When you socialize something, you nationalize it and vice versa.

Now I don't think that Trump and Bannon want to go nearly that far. Many of their proposed tax and economic policies will help the free market. But nationalism has no inherent limiting principle. The alt-right nationalists despise the Constitution precisely because it is a check on nationalism. For the unalloyed nationalist mind, it's us over them, now and forever — and the definitions of "us" and "them" can get dismayingly elastic. ("This is the core claim of populism," writes Jan-Wener Muller in What is Populism, "only some of the people are really the people.")

In their initial essay, Rich and Ramesh write:

Nationalism should be tempered by a modesty about the power of government, lest an aggrandizing state wedded to a swollen nationalism run out of control; by religion, which keeps the nation from becoming the first allegiance; and by a respect for other nations that undergirds a cooperative international order. Nationalism is a lot like self-interest. A political philosophy that denies its claims is utopian at best and tyrannical at worst, but it has to be enlightened. The first step to conservatives' advancing such an enlightened nationalism is to acknowledge how important it is to our worldview to begin with.

Not to repeat myself, but in this telling, nationalism is a passion — one that Rich and Ramesh believe needs to be tempered by adherence to certain principles about the role of government and other enlightened understandings about society and man's place in it. It seems to me that when that nationalist passion runs too strong, when the fever of us-over-everything lights a fire in the minds of men, the thing that Rich and Ramesh want to use to temper that passion could rightly and fairly be called "patriotism." And therein lies all the difference.

The G-File That Was to Be

So now that I've gotten that out of my system. I'll return to this regularly scheduled G-File, though I've had to cut some of it out for length, which will sound like a circumcision joke in a minute.

Every Friday morning, I stare at a blank screen like Homer Simpson watching Garrison Keilor: "Stupid keyboard, be more funny!"

The hardest thing about this "news"letter is the first sentence. The second hardest is the last sentence.

Once I break through the dam, though, I have a hard time stopping the flood. Indeed, the reason this logorrheic epistle runs so long is that once I get going, I have no idea how to stop. Like Bill Clinton's attitude toward interns, I always feel like more is more.

Since you brought up Bill Clinton, let's talk about penises.

Some of you may know that I went to an all-women's college. I wouldn't call myself the Rosa Parks of gender integration — I'll leave that to the historians — but it was a heady experience. I learned more about Foucault than The Federalist Papers and got into a lot of arguments with feminists of every stripe (and there are quite a few stripes).

Back in the 1980s, one prominent wing of feminism was very big on the whole "sex is rape" thing. "No woman needs intercourse; few women escape it," Andrea Dworkin famously argued. Some uncharitably — if not entirely inaccurately — said that this was a particularly convenient argument for Ms. Dworkin. Though I think Zardoz was more pithy: "The penis is evil":

I bring this up because yesterday the noted scholar Chris Cuomo said that twelve-year-old girls who don't want to see a penis in their locker room are intolerant.

One Twitter user on Thursday morning asked Cuomo to respond to a twelve-year-old girl who "doesn't want to see a penis in the locker room."

Cuomo called such an attitude a "problem" and wondered if she is not the issue but "her overprotective and intolerant dad."

"Teach tolerance," Cuomo added.

This is a classic example of having such an open mind that your brain falls out. Cuomo, I assume, believes it was wrong for Anthony Wiener to tweet pics of his man-business at young women, but he apparently thinks if you have any problem with the potential exposure of the Organ Formerly Known as Evil to even younger girls — in actual 3D space — you're a bigot or were raised by one.

Against Nationalizing the Transgendered

Look, I'm a bit of a squish when it comes to the transgendered. Interpersonally, my belief in the importance of good manners trumps some of my ideological and scientific commitments. When I meet someone who was born a man but lives as a woman, I may have some opinions she doesn't like but I'm going to show some common courtesy and respect her desire to be something biology says she's not.

But where I get off the bus is on statements like this: "We must acknowledge and come to terms with the implicit cissexism in assuming that only women have abortions."

The claim that men can get pregnant is a funny one coming from a Left that constantly insists the Right is "anti-science." Now, it may be true that some women who decide they want to be men can get pregnant, but that's because they are women. The idea that there are 56 different genders is not one found in science, but in smoky dorm rooms and in academic seminars where the fluorescent lighting eats away at brain cells. It is a modern form of romantic rebellion against the allegedly oppressive constraints of science and reason. The old romantics had it much easier. When the French poet Gérard de Nerval famously walked his pet lobster through the Tuileries Garden — "It does not bark and it knows the secrets of the deep" — it was easier to shock the bourgeoisie.

I firmly believe that society should have some compassion for the transgendered. And that's true whether you take transgenderism on its own terms or if you think it's a disorder of some kind. Cuomo is right that people should err on the side of tolerance.

But you know who else we should have tolerance for? Twelve-year-old girls who don't want to see male junk in the girls' locker room. We should also have tolerance for parents who do not like the idea of their daughters going into bathrooms with cross-dressers or any other grown man who insists that he has a right to use the little girls' room. And there are, by my rough calculation, 1 million times more people who fall into these latter categories.

Hard cases make for bad law. Life deals a lot of hard cases to people. The way the Founders got around the problem of hard cases is by pushing most questions down to the most local level possible. They were wary of trying to nationalize every issue. The Trump administration was entirely right to change the federal government's guidance on this issue. They would be wrong, in a spirit of nationalism, to declare that every school, city, and state should follow a single "right-wing" policy toward the transgendered, just as it was wrong for the Obama administration to impose a single "left-wing" standard. If some communities come to different conclusions about how to handle the question, based upon local values, limited resources, etc., so be it. Who is to say that even the Wonder Twins of policymaking — Bannon and Priebus — can know better than a local school board or city council?

Various & Sundry

There's still time to sign up for the National Review Institute Conservative Summit (where I will no doubt be condemned in absentia). Details, here.

For those interested and in town, the great Kathryn Lopez and the somewhat suspect Ryan Anderson (I kid, I kid) are doing some important events on assisted suicide.

My take on CPAC and Milo.

The media are not the enemy, but they also aren't objective.

Canine Update: As I am running extremely late and even more long, I'll be brief. Longtime readers may recall that when we first introduced Pippa, the Spaniel, to Zoë the Dingo, it did not go well. Zoë was determined to kill Pippa for about two very stressful months. Pippa is a lover (mostly of tennis balls and laps) not a fighter. Zoë is a death-dealing Carolina swamp dog. They now seem to love each other. But my wife, the Fair Jessica, has a worrisome, Agatha Christie–like theory or concern. The last two times she's taken them to Scott's Run in Virginia (a big park), Zoë has chosen a very worrisome moment to announce a surprise wrestling session. She's waited until they were on a very high cliff or ridge to suddenly pounce on the poor Spaniel. Pippa doesn't mind the wrestling, normally. But Jess is concerned that this is an elaborate scheme to do-in the Spaniel while maintaining plausible deniability. "It was accident!" doesn't work when you've mauled a spaniel. But, it just might get a sign off from the canine homicide unit.

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