A Lone Wolf President

Judge Andrew P. Napolitano*

JUDGE NAPOLITANO

JUDGE NAPOLITANO

Can the president rewrite federal laws? Can he alter their meaning? Can he change their effect? These are legitimate questions in an era in which we have an unpopular progressive Democratic president who has boasted that he can govern without Congress by using his phone and his pen, and a mostly newly elected largely conservative Republican Congress with its own ideas about big government.

These are not hypothetical questions. In 2012, President Obama signed executive orders that essentially said to about 1.7 million unlawfully present immigrants who arrived in the U.S. before their 16th birthdays and who are not yet 31 years of age that if they complied with certain conditions that he made up out of thin air they will not be deported.

In 2014, the president signed additional executive orders that essentially made the same offer to about 4.7 million unlawfully present immigrants, without the age limits that he had made up out of thin air. A federal court enjoined enforcement of the 2014 orders last month.

Last week, the Federal Communications Commission -- the bureaucrats appointed by the president who regulate broadcast radio and television -- decreed that it has the authority to regulate the Internet, even though federal courts have twice ruled that it does not.

Also last week, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, whose director is appointed by the president, proposed regulations that would outlaw the only mass-produced bullets that can be fired from an AR-15 rifle. This rifle has been the target of the left for many years because it looks like a military weapon; yet it is a lawful and safe civilian rifle commonly owned by many Americans.

This week, the president’s press secretary told reporters that the president is seriously thinking of signing executive orders intended to raise taxes on corporations by directing the IRS to redefine tax terminology so as to increase corporate tax burdens. He must have forgotten that those additional taxes would be paid by either the shareholders or the customers of those corporations, and those shareholders and customers elected a Congress they had every right to expect would be writing the tax laws. He has eviscerated that right.

What’s going on here?

What’s going on is the exercise of authoritarian impulses by a desperate president terrified of powerlessness and irrelevance, the Constitution be damned. I say “damned” because when the president writes laws, whether under the guise of administrative regulations or executive orders, he is effectively damning the Constitution by usurping the powers of Congress.

The Constitution could not be clearer. Article I, section 1 begins, “All legislative Powers herein granted shall be vested in a Congress of the United States.” Obama actually asked Congress to write the laws he is now purporting to write, and Congress declined, and so he does so at his peril.

In 1952, President Truman seized America’s closed steel mills because steel workers went on strike and the military needed hardware to fight the Korean War. He initially asked Congress for authorization to do this, and Congress declined to give it to him; so he seized the mills anyway. His seizure was challenged by Youngstown Sheet & Tube Co., then a huge operator of steel mills. In a famous Supreme Court decision, the court enjoined the president from operating the mills.

Youngstown is not a novel or arcane case. The concurring opinion by Justice Robert Jackson articulating the truism that when the president acts in defiance of Congress he operates at his lowest ebb of constitutional power and can be enjoined by the courts unless he is in an area uniquely immune from congressional authority is among the most highly regarded and frequently cited concurring opinions in modern court history. It reminds the president and the lawyers who advise him that the Constitution imposes limits on executive power.

The president’s oath of office underscores those limits. It requires that he enforce the laws faithfully. The reason James Madison insisted on using the word “faithfully” in the presidential oath and putting the oath itself into the Constitution was to instill in presidents the realization that they may need to enforce laws with which they disagree -- even laws they hate.

But Obama rejects the Youngstown decision and the Madisonian logic. Here is a president who claims he can kill Americans without due process, spy on Americans without individualized probable cause, start wars on his own, borrow money on his own, regulate the Internet, ban lawful guns, tell illegal immigrants how to avoid the consequences of federal law, and now raise taxes on his own.

One of the safeguards built into the Constitution is the separation of powers: Congress writes the laws, the president enforces the laws, and the courts interpret them. The purpose of this separation is to prevent the accumulation of too much power in the hands of too few -- a valid fear when the Constitution was written and a valid fear today.

When the president effectively writes the laws, Congress is effectively neutered. Yet, the reason we have the separation of powers is not to protect Congress, but to protect all individuals from the loss of personal liberty. Under Obama, that loss has been vast. Will Congress and the courts do anything about it?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Abercrombie’s Hijab Problem

Richard Epstein*

RICHARD EPSTEIN

RICHARD EPSTEIN

This past week, the United States Supreme Court heard oral arguments on a contentious employment discrimination case, Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores. The conflict arose when Samantha Elauf, a Muslim teenager, applied for a position as a sales-floor employee for Abercrombie & Fitch. Abercrombie has always referred to its sales-floor employees as “Models.” Ms. Elauf claimed that during the interview she wore a headscarf, or hijab, as required by her religious beliefs. Ms. Elauf’s religious commitment collided with Abercrombie’s long-standing “Look Policy,” which bans models from wearing any black clothing or “cap” on the sales floor.

Abercrombie’s dress code was not adopted casually. It was done pursuant to its view that its stores all had to project a uniform brand image that in its words “exemplifies a classic East Coast collegiate style of clothing.” The company’s “Look Policy” treated its models as a seamless extension of the basic brand, which turned them into walking advertisements of Abercrombie’s clothes. Violation of that policy could lead to serious discipline, including dismissal.

No one in this case doubted Abercrombie’s critical interest in strong brand promotion. No one thought that its policy was crafted to covertly discriminate against Muslims or members of any other religion. The matter of trade dress assumes especial importance for a clothing chain that has to project an appropriate and consistent image through multiple outlets to give consumers the confidence that they can get the same services and goods wherever they shop. It is indeed just this concern that led McDonald’s to standardize for its franchises all aspects of its business (including trade dress). That business practice has now entered center stage in its conflict with the National Labor Relations Board over the Board’s claim that its brand control somehow makes McDonald’s a joint employer with the individual franchisee.

In this case the conflict between brand and employment practices does not arise in the union arena, but under the employment discrimination laws, which state that, “It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

Title VII offers a clear mandate only in those cases where a firm hangs up a sign that says something like, “No Muslims need apply.” The most sensible reading of Title VII knocks out Ms. Elauf’s case at the opening gate. She was refused employment “because of” Abercrombie’s policy that was made prior to and independent of Ms. Elauf’s case. But unfortunately, the current expansionist view of Title VII rejects that sensible interpretation whenever the particulars of the plaintiff’s status are known to the employer. To see just how restrictive Title VII is, just ask what would happen if, as I have long urged, Title VII were repealed tomorrow.

Here is how it would go. Ms. Elauf would apply for a job. Without Title VII’s external constraints on hiring, the company would ask whether she was prepared to take off her hijab on the floor. At that point, she would have to make a decision. Decide no, and she would be told that no offer could be extended. It would be totally irrelevant whether she insisted on wearing the hijab because of religious, cultural, or personal beliefs. But if she were prepared to do without the headscarf, then she would go through Abercrombie’s normal hiring process, until a final decision were made.

At that point, any contract depends only on the joint consent of the two parties. The deal once struck would thereafter be enforced in accordance with its terms. But if Ms. Elauf refused to follow the rule, she would have to look elsewhere for a job. Abercrombie has no monopoly position in labor markets, or even in clothing stores. Other stores that wish to project different images may well be quite pleased to hire her with or without her headscarf.

One of the great advantages of unregulated labor markets is that they lead to better fits between workers and their positions. Forced associations may externally require accommodations that often prove unstable in the long run. Allowing the voluntary market will reduce the overall cost of hiring and firing and will therefore systematically increase job opportunities across the board. Title VII provides no exception to the general rule that regulated labor markets underperform competitive ones.

This point is brought home with exceptional clarity by looking at the tortured record in Ms. Elauf’s case. First, did Ms. Elauf have a religious belief that prevented her from taking the job on the terms customarily offered? In this case, the parties sparred over whether Ms. Elauf wore the hijab because of religious beliefs or to affirm her cultural and social ties. The issue was complicated by evidence in the record that her friend, Farisa Sepahvand, who had worked at Abercrombie, had mentioned the dress code to Ms. Elauf and stated that the code should not raise any conflict if she wore a white headscarf.

Perhaps for that reason, Ms. Elauf wore her headscarf during her initial job interview, but at no point announced that she wore it to comply with her religious beliefs. Yet when the matter went to an Abercrombie supervisor, he lowered her application score on the critical question of appearance, which made it crystal clear why she did not get an offer. Once it was decided that Ms. Elauf wore the scarf for religious reasons, the outcome in the case turned solely on whether Abercrombie went through all the EEOC’s elaborate hoops governing the hiring process.

For starters, the EEOC has stated that “an applicant’s religious affiliation or beliefs . . . are generally viewed as non job-related and problematic under federal law,” and should therefore not be raised in an interview. But that rule does not mesh well with this basic EEOC guideline: “Unless it would be an undue hardship on the employer's operation of its business, an employer must reasonably accommodate an employee's religious beliefs or practices.” It takes no eagle eye to realize that both undue hardship and reasonable accommodation raise delicate questions of degree that can be resolved only after some detailed factual investigation of each case.

The EEOC guidelines then observe: “When an employee or applicant needs a dress or grooming accommodation for religious reasons, he should notify the employer that he needs such an accommodation for religious reasons.” The exhaustive opinion of the Tenth Circuit majority held that this was a categorical requirement. Ms. Elauf therefore lost at the starting gate by not raising the issue during her interview. The anguished response of the EEOC was that since Ms. Elauf was wearing the headscarf, the interviewer was put on notice to ask about her religious requirement, even though Ms. Elauf did not verbally call the point to the interviewer’s attention. The Supreme Court was asked whether Title VII was triggered “only if the employer has actual knowledge that a religious accommodation was required” by explicit employee notice.

Last week’s oral argument before the Supreme Court was trapped by a lengthy digression as to how certain Abercrombie’s knowledge was that Ms. Elauf needed an accommodation. The transcript reads like an episode straight out the theater of the absurd, with the justices asking tough questions on such delicate niceties matters as whether it must be “that the employer know, rather than just correctly understand, the need for an accommodation.” After that simple remark, the argument veered from bad to worse as the justices struggled to determine whether it mattered that the employer had formed accurate odds about the need for a religious accommodation. Thereafter, the justices speculated whether the employer should take the initiative, or whether that issue should be left to the employee. Chief Justice John Roberts thought that it might be unwise to require the employer to begin the dialogue on the ground that this very question might well “promote the stereotypes” that Title VII is meant to avoid—although why an honest inquiry should have that effect was left unexplained.

It is instructive to note the peculiar way that Supreme Court argument distracts from the central problems of the employment relationship. Looking only at the narrowest issue, it makes no sense for the Supreme Court justices to spend their valuable time speculating about the appropriate rules for conducting job interviews for large and heterogeneous classes of employers and employees. It makes equally little sense for the EEOC to pretend that it has any expertise in dealing with these sensitive human resource issues either. At this point, the EEOC should try to give some general guidance that avoids case-by-case determinations.

A more sensible approach is for the EEOC to create a safe harbor for any employer that posts on its website the simple announcement that any applicant who wants a religious accommodation should just ask for it. It can then supplement that rule by asking employers to pose the question routinely in all interviews. Unless the answer is in the affirmative, the claim is waived. The point here is to forestall repetitions of Abercrombie, not to relive them.

The notice point, however, leaves untouched the larger question of what should be done when the issue is now on the table. Under current EEOC doctrine, the undue hardship constraint is construed so narrowly that Abercrombie will lose if it asks Ms. Elauf to compromise her religious beliefs. The firm can therefore insist on the white hijab, but not on none at all. But that relatively clear outcome ducks the larger question. Why use this, or indeed any other public balancing test, at all? Sadly, any effort to second guess these accommodations reduces the flexibility that every responsible firm needs to run its own business. Abercrombie thinks any relaxation of its Look Policy will generate systematic losses that extend beyond the individual case. It is just absurd for the EEOC to ask lifetime professionals to run expensive independent empirical studies to show that it knows how to run its own business: the firm’s local knowledge is likely to be far more reliable.

Indeed, there is no telling what will happen now that Abercrombie will surely face new pressures to relax that policy in other cases. Yet those system-wide losses never make it onto the EEOC’s radar, which is why Title VII is such a crude and unwelcome system of social control. My own sense is that times are changing, and that in time Abercrombie may change its policy in response to pressure from its own customer base. But that is just the point. I have no idea how Abercrombie should run its business. Sadly, neither does the EEOC. 

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

What if the Government Fears Freedom?

Judge Andrew P. Napolitano*

JUDGE NAPOLITANO

JUDGE NAPOLITANO

What if the current massive spying on Americans began with an innocent secret executive order signed by President Reagan in 1986? What if Reagan contemplated that he was only authorizing American spies to spy on foreign spies unlawfully present in the U.S.?

What if Reagan knew and respected the history of the Fourth Amendment? What if the essence of that history is the colonial revulsion at the British use of general warrants? What if general warrants were issued by a secret court in London and authorized British agents in America to search wherever they wished and to seize whatever they found? What if the revulsion at this British government practice was so overwhelming that it led to the Revolutionary War against the king?

What if the whole purpose of the Fourth Amendment was to outlaw general warrants? What if the Fourth Amendment specifically guarantees the right to privacy to all in America in their persons, houses, papers and effects?

What if, in order to emphasize its condemnation of general warrants, the Fourth Amendment requires the government to obtain a warrant from a judge before invading the persons, houses, papers or effects of anyone and lays down the preconditions for the issuance of such warrants? What if those preconditions are individualized suspicion and articulated evidence of crime -- called probable cause -- about the specific person whose privacy the government seeks to invade?

What if these principles of constitutional fidelity, privacy and probable cause and the unlawfulness of general warrants have been regarded universally and publicly as quintessentially American values, values that set this nation apart from all others?

What if the administration of President George W. Bush was so embarrassed that 9/11 happened on its watch that it fought a useless public war in Iraq -- which had nothing to do with 9/11 -- and a pernicious private war against American values by unleashing American spies on innocent Americans as to whom there was no individualized probable cause so that it could create the impression it was doing something to keep America safe from another 9/11-like attack?

What if the Bush folks took Reagan’s idea of spying on foreign spies and twisted it so that they could spy on not just foreign spies, but also on foreign persons? What if they took that and leapt to spying on Americans who communicated with foreign persons?

What if they then concluded that it was easier to spy on all Americans rather than just those who communicated with foreign persons? What if they claimed in secret that all this was authorized by Reagan’s executive order and two federal statutes, their unique interpretations of which they refused to discuss in public? What if the Reagan order and the statutes authorized no such thing?

What if The New York Times caught the Bush administration in its massive violation of the Fourth Amendment, whereby it was spying on all Americans all the time without any warrants? What if the Times sat on that knowledge during, throughout and beyond the presidential election campaign of 2004? What if, when the Times revealed all this, the Bush administration agreed to stop spying? What if it didn’t stop?

What if President Obama came up with a scheme to make the spying appear legal? What if that scheme involved using secret judges in secret courts to issue general warrants? What if the Obama administration swore those judges to secrecy? What if it swore to secrecy all in the government who are involved in undermining basic American values? What if it forgot that everyone in government also swears an oath to uphold the Constitution? What if Edward Snowden violated his oath to secrecy in order to uphold his oath to the Constitution, which includes the Fourth Amendment, and spilled the beans on the government?

What if all this spying by the feds has spawned spying by the locals? What if more than 50 local police departments now have received false cell towers from the FBI, but have sworn not to tell anyone about them? What if these towers trick cellphone signals into exposing the content of cellphone conversations to the police? What if the police have done this without the knowledge of the elected representatives who are their bosses? What if they do this without any warrants? What if the Supreme Court last year outlawed police invading cellphones without warrants?

What if both Bush and Obama have argued that their first job is to keep America safe, and they will twist, torture the plain meaning of and even break laws in order to accomplish that job? What if the presidential oath is to enforce all laws faithfully, including ones the president may hate?

What if Bush and Obama have been wrong about the priority of their constitutional duties as president? What if the president’s first job is to preserve the Constitution? What if that includes the Fourth Amendment? What if the president keeps us safe but unfree?

What if invading our freedoms keeps us less safe? What if the president has failed to keep our freedoms safe? What if the government doesn’t like freedoms? What if the government is afraid we will exercise them?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Greece On The Brink

Richard Epstein*

RICHARD EPSTEIN

RICHARD EPSTEIN

Germany and Greece have both wisely blinked on how best to renegotiate Greece’s outsized debt to its reluctant playmates inside the European currency union. The present fix will last for only four months, which means that the unresolved issues will surge to the fore yet again if some long-term solution is not crafted in the interim. In dealing with bailouts of this sort, financial gurus unduly rely on macroeconomic principles. In my view, that approach overlooks the gritty transactional challenges that routinely arise when parties attempt to work out delinquent loans in the shadow of bankruptcy. The picture is not pretty.

To see how the process unfolds, start with a simple situation where a lender advances $1 million to a debtor who at the appointed hour is unable to repay the loan in accordance with its terms. At this point, the lender first looks to foreclose on any specific collateral that the borrower has given to secure the loan. But specific assets do not secure many loans, like those made to Greece.

In dealing with these unsecured debts, one option open to the lender is to insist that all the money be repaid, come hell or high water. But if the current funds are not available, these futile and aggressive demands could easily disrupt the debtor’s productive capacity, so that the lender will cut off its nose to spite its face. Backing off on these onerous collection demands, by taking some reduction to the principal or interest, or both. Typically, these revised deals also require delay in repayment, but that haircut, as it is usually called, ultimately works to the lender’s benefit. To see why, do the math: backing down results in a higher probability of collecting a smaller amount. Its present value is often worth more than some lower probability of collecting the original debt with interest in full.

Similar calculations influence the position of the debtor. At one level, it would like to pay no money back on principal or interest, but it knows that if it takes the nuclear option it will cut itself off from all future funds and thus will be worse off than if it negotiated some peace with its creditor.

The net effect of these two forces, both between private parties and between nations, tends to result in a legal composition of claims that has two components. First, the debtor agrees to pay some fraction of the overall claim, while the various co-creditors agree on some division among themselves of the reduced revenues. The hard question is which of the many possible permutations will be the final resting point. Here, basic bargaining theory is clear on only one point. There is no unique solution which states in present value terms how much of the debt will be forgiven and how much will be kept in place. Much of this depends on how the two parties play the game of chicken where each knows that the only question is how many concessions it will have to make. Notwithstanding these stresses, the uniform legal response is to enforce the settlement as written—at least until it falls apart a second time.

One key question concerns the overall implications of these awkward settlements for the financial health of both the creditors and debtors, each of whom have taken a financial hit. The answer depends on the size of the implicit wealth transfer between the parties. In general, the entire process leads to unhappy result. These transactions are costly to negotiate, and the transfer at the end of the game does nothing to improve the productive capacity of either the lender or the borrower, except to stave off disaster.

The hope for some upward bump in output improves when and if the debtor accepts certain conditions on how it will best run its business—or its nation. At the very least, the borrower has to do two things. It must set aside some reserves for repayment, and, more importantly, reorganize how it does business in order to improve output. In dealing with nation states, liquidation in bankruptcy is just not an option. The long-term success of the reorganized country depends on choosing sensible negotiated conditions.

We can now isolate the nub of the confrontation that arises in the case of Greece. There is no magic number that tells how much of the debt should be forgiven this time when some debt has already been forgiven. But two other problems lurk in the background. The first is that in any sensible private transaction, the lender will advance capital to a borrower for it to purchase durable assets that will generate the income for the repayment of the loan.

The recent events in Greece, however, make it painfully clear that the funds it received from other nations in the European Union were largely used to bolster its elaborate internal transfer system, the aim of which is to stoke consumption. The borrowed funds generated income to repay the interest and principal on the debt.

That situation is not sustainable. If Germany and the other lenders make financial advances on the same terms as the previous advances, they will be throwing good money after bad. The Greeks will again fund short-term consumption not long-term investment. One possible way for the lenders to collect their pound of flesh is to demand today a continuation of the austerity regime that the newly elected Greek Prime Minister Alexis Tsipras and his finance chief Yanis Varoufakis have steadfastly resisted. Their successful campaign was based on the promise to repudiate the heavy austerity regime that has led to massive dislocations inside Greece, whose high unemployment rates are untenable in the long run. It is easy to see in this scenario some grim historical patterns. In the aftermath of World War I, the Treaty of Versailles imposed such onerous obligations on Germany that its enforcement contributed to the massive social unrest that led to the catastrophic rise of the Nazi party.

Yet at the same time, to back off of austerity will lead to yet another round of debts that will be written off. The advantageous consequences to Greece of that forgiveness are thus set off by the disadvantageous consequences to Germany and its lending partners. It is no part of a sensible policy to have Greece live beyond its means in the long-run, and then fight over how much of its debt it can export to its lending nations in the next financial showdown. It no wonder that Wolfgang Schäuble, the German finance minister has decided to play it tough by making virtually no long-term concessions. It does no good to bailout the Greeks if that action sinks, or even destabilizes the German economy.

So what then should be done to get out of this death spiral that threatens to envelop both sides to this deal. There is only one answer. The Greeks must heal themselves. The solution here does not depend on austerity, which imposes suffering without positive consequences. Nor does it depend on budgetary and financial reforms of the sort that Greece seems willing to make, notwithstanding rising internal discontent. The solution is to undertake a comprehensive top-to-bottom structural reform of the Greek economy that rests on one simple position: Full steam ahead on deregulation in all markets dealing with capital and labor, which will unlock the productive capacity of the nation. It is here that the rubber hits the road. Greece is legendary for its elaborate set of entry barriers to various trades and professions. It is notorious for the extensive protections that it offers its current workers. And it cannot escape the grim wreckage of a 25 percent unemployment rate that stems as much from these dysfunctional market regulations as anything else.

Deregulation does two things at once. First, it reduces the administrative costs of running a state, which in turn should allow the government to lower the tax burden needed to maintain internal order. Those savings can go to enhance both the Greek standard of living and to reduce the foreign debt. Second, deregulation increases overall output, so there is again more wealth available for debt repayment, current consumption, and the future investment that is sorely needed to return Greece to prosperity. The simple point here is that the only way to avoid the endless cycle of first incurring and then forgiving debt is to create wealth through deregulation and lower taxes.

But Greece—and the European Union—face a major roadblock. The ruling party Syriza is left-wing. Like the progressives in the United States, its members think that the way to create wealth is to support unions, to impose higher minimum wages, and to stifle various forms of competition. That orthodoxy runs throughout all of Europe. So long as the creditor nations of Europe cling to their own allusions that the full panoply of worker protections is an essential condition for both growth and for social justice, the entire enterprise is doomed. The so-called growth measures will just double down on the same failed interventionist polices that got the European Union into the current mess.

No one wants Greece to leave or be expelled from the European Union. That scenario will lead to a rapid devaluation of the new Greek Drachma, to a precipitous fall in living standards in Greece, and to major political distress that will give resurgent Marxist forces yet another rallying point for still further government regulation of the economy. It may be too much to expect Syriza to understand that its long-term success depends less on debt forgiveness than on fundamental structural reform. Marxist habits die hard. But hopefully Greece’s leaders will soon come around to this iron law of economics: you cannot redistribute what you do not produce.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

You're Invited: The Affordable Care Act in 2015

The Journal of Law & Liberty and the Classical Liberal Institute at NYU School of Law cordially invite you to a symposium on the Affordable Care Act in 2015 on Tuesday, March 10, 2015. The conference will be held from 9:00am to 3:00pm in the Lester Pollock Colloquium Room, located on the ninth floor of Furman Hall at 245 Sullivan Street, New York, New York, 10012.  

The event is open to the public and free to attend. For those seeking CLE credit, up to 4.5 CLE credits will be available, and the event is appropriate for both newly admitted and experienced attorneys.

The symposium will feature three panels on current issues surrounding the ACA, including Hobby Lobby and the contraceptive mandate, the King v. Burwell case, and concrete plans for continued health reform.  The detailed schedule is attached.

Please RSVP here.

Jon Stewart and Me

Judge Andrew P. Napolitano*

JUDGE NAPOLITANO

JUDGE NAPOLITANO

About six years ago, one of my producers at the Fox News Channel received a call out of the blue in which the caller asked if I’d be interested in coming on "The Colbert Report." At the time, I was generally unfamiliar with the genre of late-night comedy because I am usually in dreamland when it airs.

Colbert was hilarious in his haughty imitation of the excesses of my Fox colleague Bill O’Reilly. I did not and do not know what his personal politics are, but his shtick was playing O’Reilly to a T. In fact, at one point during our back-and-forth, I inadvertently called him “Bill.” He stopped the act, came out of character and kissed me. Later he claimed it was one of the most novel and show-stopping uses of a single word he had experienced.

A few months later, my producer received a call from a producer for Colbert’s boss, Jon Stewart. That caller asked if I wanted to be on Jon’s show to discuss my latest book. That was five books and five appearances ago.

The on-air experience with Jon Stewart is unlike anything I do at Fox. First, when you are Jon’s guest, you are his only guest. Second, as the only guest, you are on the show for about 15 minutes. In TV time, and by Fox standards, 15 minutes as an on-air guest is an eternity. Third, Jon spends the first 15 minutes of the show bashing you or your ideas or your employer -- and he did this to me all five times I was on with him. So, by the time I first walked onto his set, the 400 or so folks in his live studio audience were expecting me to have two horns and a tail. I decided to push the envelope a bit. Before Jon could question me, I told him my purpose in coming on his show was to out him as a closet libertarian. “Go ahead, Your Honor. Give it a try. This is ridiculous.” OK, here goes… “Is it any of the government’s business whom you marry or what you put into your body or to whom you speak on the phone?” “Of course not.” Good. “Should the U.S. be traveling the globe looking for monsters to slay?” “No; never.” Excellent. “Can the feds constitutionally capture the content of your phone calls and emails without a search warrant from a judge based on evidence about you?” “No.” Terrific.

I should have stopped there, but I was having too much fun with America’s funniest comedian. “Are you a secret admirer of Rand Paul?” OK. I blew it. He exploded with his characteristic inanity, and the audience roared with Jon and me, thinking we had rehearsed this.

So began a happy friendship during the course of which we have discussed and analyzed on air nearly every aspect of the proper role of the government in our lives. We were and are admittedly an odd couple. He is the progressive Jewish funnyman with a tongue as sharp as a serpent’s tooth, trying to sound smart. I am the libertarian traditionalist Catholic defender of the Constitution, trying to be funny.

Well, a strange thing happened. We agreed more than we disagreed, and I learned what most of his fans do not know: Jon does not need to try to sound smart; he may be the smartest personality on television. He is as well read in the works of those with whom he disagrees as he is in the works of those who reinforce his own views.

During last winter’s version of the polar vortex, a bit like the weather this week in the northeast, I left a restaurant in lower Manhattan one night and was waiting for a car to pick me up when I saw a man wearing two overcoats and a hoodie walking a three-legged dog. I couldn’t see the man’s face, but I recognized the dog, and the dog recognized me. Then I heard the man, who was on his cellphone, spell my last name in a loud booming voice to whomever was on the other end of the call.

It was Jon. His dog jumped up to lick my face. Jon hugged me and said, “Judge, please come on the show next week. Let’s talk about something that we will not disagree on.” “What?” “Lincoln…” Oy. We disagreed profoundly. Jon had a black actress about a foot and half taller than I am playing Lincoln and three leftie-loony professors who were blind to historical truths trying to rough me up. It was hilarious.

I was saddened when Jon announced his retirement last week. Jon is a comic genius. His ratings are the envy of all in cable TV. He is the principal news source for millions of young people, who are the principal targets of TV advertisers -- and God love him, he is his own boss. He has five dogs who run around that studio, and also a lot of love. Agree with him or not, he is intellectually honest, sharp as a tack, and so warm and engaging that you just don’t want your time with him to end.

I hope mine doesn’t.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

America’s Foreign Policy Amateur

Richard Epstein*

RICHARD EPSTEIN

RICHARD EPSTEIN

When it comes to foreign policy, President Barack Obama’s intentions and plans are unclear even to himself. The President’s indecision can be seen in his effort to authorize the use of military force “against the Islamic State of Iraq and the Levant,” a plan that has been met with strong opposition on both sides of the aisle.

On one side sit many Republicans who think that his weak resolution is tantamount to an unprecedented surrender of military power to the Congress, which is institutionally no more capable of running a war than of running the Post Office. On the other side lie the conflicted Democrats who are convinced that this resolution amounts to a wholesale of surrender of power to the President to enter into foreign adventurism on an unprecedented scale in ways that are sure to lead to future embarrassments. In the meantime, the hardened criminals of ISIL can bask at their good fortune of facing a tormented enemy whose collective psychological meltdown is worth several ground divisions.

To grasp the level of decline in American governance on foreign policy matters, we can compare the unified response to 9/11 to today’s tortured impasse. The original AUMF was passed by Congress on September 14, 2001 and signed into law by President George W. Bush on September 18. The scope of that text was thought at the time to be broad because it authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Alas, even with the benefit of hindsight, this language does not quite cover the rise of ISIL, which is not a lineal descendant of Al-Qaeda, even though it shares Al-Qaeda’s all-consuming desire to rain as much death and destruction down on the United States and its allies as it can possibly muster. My own cautious view is that the badness of fit under the AUMF should not strip the President from the ability to attack an enemy whose activities are so close to the original target that they could reasonably be thought to fall within its ambit. The fine points of radical Islamic political divisions should not hamstring military efforts against such a malevolent foe.

Others, most notably law professor Bruce Ackerman, give ample reason to disagree with my assessment. Under such murky circumstances, there is widespread agreement that the nation needs some definitive Congressional action today to legitimate the President’s actions. Nonetheless, this open political wound has been allowed to fester for months.

Meanwhile the overall situation on the ground has deteriorated in the past six months. Notwithstanding sporadic U.S. and allied air attacks on ISIL positions, the group continues to maintain its savage territorial grip over large segments of Iraq, and has the ability to act inside Syria and surely other places as well, such as Afghanistan, Africa, Egypt, Lebanon, Libya, and Pakistan. Witness the Egyptian air strike against ISIL in Libya in response to its purported beheading of 21 Coptic Christians.

Right now, ISIL is able to finance some of its activities with oil that it sells from its controlled territories. The President acknowledges ISIL’s repeated barbarity in the preamble to the new resolution, which speaks of ISIL’s “despicable acts of violence and mass executions against Muslims,” its “depraved, violent, and oppressive ideology,” and its “threated genocide against Christian Yezidi and Turkmen populations.” This indictment is no clarion call to immediate and decisive action, but only a limp announcement, some day and in some way, “to degrade and defeat ISIL.”

Ironically, the President’s proposed reauthorization is not only weak, but it is also sneaky. Bruce Ackerman has recently picked up his pen to denounce the President’s latest initiative for seeking to have it both ways: keep the 2001 authorization on the books while asking for a more specific resolution for three years directed precisely to the ISIL problem. Ackerman is correct that the President’s current request may be read to add to, not detract from, his powers such that its three-year limitation means that in 2018, we are back to all the original ambiguities in the 2001 AUMF.

In my view, Ackerman understates the presidential confusion. What is completely unclear is which of the two resolutions would control when both are in effect. One possible reading is that the 2015 resolution would suspend the President’s right to rely on the 2001 AUMF, which will only roar back to life when the new resolution expires in 2018. At the same time, Congress dare not repeal the 2001 resolution without making sure that the President has the necessary authority to act against Al-Qaeda and against ISIL outside that narrow geographical region.

Faced with this bizarre and unstable situation, what should the Congress do to set matters right? One initial complication is whether the reauthorization is itself constitutional. The simple reading of the Congress’s power to “declare war” is that it is just that. It is an on/off switch that allows Congress to declare war against some nations but not others. In modern times, it makes sense to allow us to declare war against ISIL, perhaps by calling that terrorist operation the Islamic State.

But it is less clear to me whether or not the doctrine of separation of powers allows the Congress to do the President’s bidding by having Congress micromanage the President by declining to authorize “enduring offensive ground combat operations.” As the President explains, he does not want the ability to launch a long-term war like the ones in Iraq or Afghanistan, which he has so badly mismanaged over the past six years.

Unwisely, our conflicted President tries to have everything both ways and, as a result, ties himself in knots. His added authorization is intended to provide the flexibility to conduct ground combat operations in more limited circumstances, such as rescue operations involving U.S. or coalition personnel or the use of special operations forces to take military action against ISIL leadership. It would also authorize the use of U.S. forces in situations where ground combat operations are not expected or intended, such as intelligence collection and sharing, missions to enable kinetic strikes, or the provision of operational planning, and other forms of advice and assistance to partner forces.

To my mind, if Congress had come up with the tortured articulation of Presidential powers in its own declaration of war, the President would have had every right to squawk that these ad hoc limitations are seriously compromising his position as the Commander-in-Chief of the armed forces. We all know that words like “expected and intended” have unexpected and unintended interpretations, that “kinetic strikes” are not a known term of art, and that various forms of “advice and assistance” could mean that American officers take leadership positions on ground operations that might overstep the grounds of this authorization.

It is equally true that the courts will go to enormous lengths not to inject themselves into any such potential squabble. Nor does Congress have the institutional capabilities to monitor each perceived violation of this convoluted interbranch treaty. Nor does it help that the President’s successor will. as of January 20, 2017, be bound by a resolution to which he or she has not given consent. Under the new President, this entire debate would be opened up again during a crisis.

So what should be done? The first job is to remove the clutter. In general, it is a mistake in war time for any nation to telegraph its punches to the enemy. So all the self-imposed limitations on what the United States should and should not do should be eliminated, which would simplify the constitutional analysis and at least put the President in a position where he could take forcible action, which he desperately wants to avoid. At this juncture, no events in the last six months have led me to change my views of this past summer when I lamented the death of the Pax Americana—a death that makes it virtually certain that one hotspot after another will erupt into flames. Our enemies will show us no respect, and our friends will have no confidence that we will stand beside them as we had done from the end of the Second World War.

Here is one suggestion: Congress need not vote on this resolution at all. The Republicans are in control of both Houses, and they can pass whatever resolution that they want. Indeed, it is far from clear that the President could constitutionally veto a resolution of Congress, which need not take the form of legislation. But whether or not that point is true, there is no good practical or constitutional reason for these self-inflicted limitations to hamper the President.

I agree with John Yoo that, constitutional issues to one side, the gravity of the situation calls for a more pointed response than the one that the President wants to give, and that the President should be given the flexibility to act as he sees fit in wartime, be it against Al-Qaeda, ISIL, or any new offshoot or rival, so long as Congress has approved the basic mission. There is always the possibility down the road to alter the authorization if that should be fit, but I think that it is a mistake to try to tether the authorization to the current configuration of enemies. Ackerman is again correct to note that the phrase “associated forces” is something of a wiggle expression that allows for the expansion of authority. Even under its newly honed statutory definition, that the term means “individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.”

Yet the problem with this definition is that it only carries the older ambiguity over to the new resolution, which leaves it unclear whether an independent organization with aims parallel to those of al-Qaeda or ISIL but at odds with both, should be covered by the resolution. By now we should know that the peril to the United States and its allies only gets greater as the enemy morphs through intrigue or violence. What possible reason is there to hold back authorization now for the next ISIL clone that adopts similar tactics in Africa, the Middle East, or elsewhere? Back in November, I criticized an earlier version of the AUMF reauthorization on the grounds that it contained too many restrictions relating to matters of time, place, and manner of authorization.

Sadly, it is very clear that there is massive disagreement on this issue, as many experts in the area have countless variations on the basic theme. But during the intervening months, my views on this issue have hardened. Early on I thought that the mixed strategies were constitutional but unwise. Now I am sure about the dangers of indecision, but less sure about the constitutionality of the form of divided authority that the President is seeking. It has become all too clear that the President’s effort to use half-moves will raise many problems down the road. A simple up or down decision on the use of force against our Islamist enemies, present and future, is all that Congress can and should supply.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

A Worthless Piece of Paper

Judge Andrew P. Napolitano*

JUDGE NAPOLITANO

JUDGE NAPOLITANO

President George W. Bush was fond of saying that “9/11 changed everything.” He used that one-liner often as a purported moral basis to justify the radical restructuring of federal law and the federal assault on personal liberties over which he presided. He cast aside his oath to preserve, protect and defend the Constitution; he rejected his oath to enforce all federal laws faithfully; and he moved the government decidedly in the direction of secret laws, secret procedures and secret courts.

During his presidency, Congress enacted the Patriot Act. This legislation permits federal agents to write their own search warrants when those warrants are served on custodians of records -- like doctors, lawyers, telecoms, computer servers, banks and even the Post Office.

Such purported statutory authority directly violates the Fourth Amendment to the U.S. Constitution, which guarantees the right to privacy in our “persons, houses, papers and effects.” That includes just about everything held by the custodians of our records. Privacy is not only a constitutional right protected by the document; it is also a natural right. We possess the right to privacy by virtue of our humanity. Our rights come from within us -- whether you believe we are the highest progression of biological forces or the intended creations of an Almighty God -- they do not come from the government.

This is not an academic argument. If our rights come from within us, the government cannot take them away, whether by executive fiat, popular legislation or judicial ruling, unless we individually have waived them. If our rights come from the government, then they are not rights, but permission slips.

The terms of the Patriot Act were made public, and those of us who follow the government’s misdeeds could report on them. After all, this is America. We are a democracy. The government is supposed to work for us. We have the right to know what it is doing in our names as it is doing it, and we have the right to reveal what the government does. Yet, under this law, the feds punished many efforts at revelation. That’s because the Patriot Act prohibits those who receive these agent-written search warrants from telling anyone about them. This violates our constitutionally protected and natural right to free speech. All of this has been publicly known since 2001.

Then, in June 2013, Edward Snowden, the uber-courageous former CIA and NSA official, dropped a still smoldering bombshell of truth upon us when he revealed that the Bush administration had dispatched the NSA to spy on all Americans all the time and the Obama administration had attempted to make the spying appear legal by asking judges to authorize it.

Snowden went on to reveal that the NSA, pursuant to President Obama’s orders and the authorization of these judges meeting in secret (so secret that the judges themselves are not permitted to keep records of their own rulings), was actually capturing and storing the content of all emails, text messages, telephone calls, utility and credit card bills, and bank statements of everyone in America. They did this without a search warrant based on probable cause -- a very high level of individualized suspicion -- as required by the Constitution.

Snowden revealed that Obama’s lawyers had persuaded these secret judges, without any opposition from lawyers representing the victims of this surveillance, that somehow Congress had authorized this and somehow it was constitutional and somehow it was not un-American to spy on all of us all the time. These judges actually did the unthinkable: They issued what are known as general warrants. General warrants were used against the colonists by the British and are expressly prohibited by the Fourth Amendment. They permit the bearer to search wherever he wishes and seize whatever he finds. That’s what the NSA does to all of us today.

Last week, we learned how deep the disrespect for the Constitution runs in the government and how tortured is the logic that underlies it. In a little-noted speech at Washington and Lee Law School, Gen. Michael Hayden, the former director of both the CIA and the NSA, told us. In a remarkable public confession, he revealed that somehow he received from some source he did not name the authority to reinterpret the Fourth Amendment’s protection of privacy so as to obliterate it. He argued that the line between privacy and unbridled government surveillance is a flexible and movable one, and that he -- as the head of the NSA -- could move it.

This is an astounding audacity by a former high-ranking government official who swore numerous times to uphold the Constitution. He has claimed powers for himself that are nowhere in the Constitution or federal statues, powers that no president or Congress has claimed, powers that no Supreme Court decision has articulated, powers that are antithetical to the plain meaning and supremacy of the Constitution, powers that any non-secret judge anywhere would deny him.

If the terms and meaning of the Constitution could be changed by the secret whims of those in the executive branch into whose hands they have been reposed for safekeeping, of what value are they? No value. In such a world, our Constitution has become a worthless piece of paper.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

McDonald's vs. NLRB

Richard Epstein*

RICHARD EPSTEIN

RICHARD EPSTEIN

Under the Obama Administration, the National Labor Relations Board has taken strong pro-union stances on collective bargaining. One of its most salient initiatives has been its recent effort to expand the definition of an “employer” under the National Labor Relations Act. Thus on December 19, 2014, Richard Griffin, the NLRB’s General Counsel, issued a short announcement that it would file unfair labor charges against both McDonald’s and its franchisees for “making statements and taking actions” against those employees who participated in nationwide fast food worker protests.

That decision has set the stage for one of the most contentious management labor disputes of recent years. In the two weeks following the announcement, some 61 new complaints were filed, and more are coming in steadily. And why not, with such a huge target to shoot at? McDonald’s, of course, runs a major operation with its many independent franchisees. Its standard business arrangements are, in broad outline, typical of other franchisee operations, of which there are today, according to the International Franchise Association—whom I have advised on these matters—about 750,000 outlets, employing some 8.1 million workers, whose direct economic output is about $770 billion per year, and whose indirect impact is surely larger.

The most obvious explanation for the growth of the franchise system is that it works economically, wholly apart from any direct concern with labor relationships. The standard economic set-up is needed to create a system of optimal incentives for all its participants. The basic job of a franchisor is to create a standardized product that will allow its strong and reliable brand to lure in customers across the franchisor’s entire national or global base. Customers want the ironclad assurance of consistent quality of both product and service, no matter what franchise they attend. A franchisor that allows its franchisees to work without explicit guidance or close supervision is in mortal danger of brand deterioration.

The business set-up is yet another variation of the common pool problem. Each individual franchisee knows that it will pocket the full gains from any small decline in the quality of its goods or services. At the same time, the astute franchisee knows that it will bear only a tiny fraction of the overall system loss. Without close supervision, every franchisee will be tempted to cut corners, at which point all franchisees—and all their customers—are worse off than they would have been if uniform standards had been enforced against each of the outlets. No individual franchisees can police all the others, so it falls to the franchisor to police them all, not only for its own benefit, but also for that of all franchisees and consumers.

In response, it may be said that if quality control is the dominant issue, let the franchisor take direct control over the operations, which gives it ample means to curb cheating. But that possible response overlooks the huge business drawbacks inherent in such a monolithic arrangement. Individual outlets operate in different markets, with different workforces, different consumer tastes, and different local and state regulations on everything from waste disposal to signage.

A remote company could easily find it difficult to manage thousands of different outlets on a daily basis, because of the difficulties in first finding and then motivating the managers of the individual outlets to make the best business decisions. It would of course be foolish to ban direct ownership of some or all outlets. But the huge popularity of the franchising arrangement with its long-term franchisees gives strong empirical evidence that better execution at the local level comes from independent franchisees who have their own cash in the game and thus stand to suffer the direct consequences of faulty business execution.

In effect, taking the system as a whole, the complex division of control allocates to the franchisor those activities that it does best, and to the franchisees those activities that they do best. The overall improvement of the business operations translates into lower prices and better products for consumers, greater opportunities for ordinary men and women to start their own businesses, and increased jobs for workers seeking full or part time employment. Tampering with a successful business model by ad hoc regulation is a recipe for disaster.

The NLRB does not deny that there are powerful efficiency advantages to the creation of a franchise arrangement. Nor does it deny that there are no cases on the record in which franchisors under the standard business arrangements have ever been treated as employers of the workers of the individual franchisees. Indeed, virtually the only way under current case law for a firm to be treated as a joint employer is for it to fire employees who are under the divided control of the two firms in question, which never happens under standard franchisee arrangements.

The standard franchisor is not, as union lawyers like to say, “the boss” of the franchisee’s employee. Nor does the relationship between the franchisor and franchisee, as union supporters claim, exist in "a make-believe world in which responsibility for wages and working conditions falls squarely on the shoulder of franchisees." That rhetorical flight of fancy cannot be sustained in light of all the tasks that franchisors donot take on with respect to the franchisee’s employees. Franchisors do not recruit, interview, hire, fire, promote, or discipline individual employees. They do not set wages or individual terms of employment. They keep no records of any kind on any franchisee employee. They are only in the standards business. Consciously and sensibly, they leave all personnel decisions to the franchisee, who is in the best position to make those judgments, and faces potential liability under the labor acts if it crosses the line.

It is no secret that these arrangements are structured in this fashion in part to ensure that the franchisor will not be treated as an employer under the NLRA. But these franchise contracts are not sham arrangements that say one thing and mean another. Their explicit terms are scrupulously observed, and there is no obligation whatsoever for any firm to sacrifice its business efficiency in order to maximize union power and influence.

The decision of General Counsel Griffin to prosecute these cases does not mean that in each and every case a franchisor will be treated as if it is an employer. It is rather the case that, as the NLRB’s General Counsel and the Service Employees International Union (SEIU) have separately argued in briefs before the NLRB, that the Board should return to some “traditional” standard that “would make no distinction between direct, indirect, and potential control over working conditions and would find joint employer status where ‘industrial realities’ make an entity essential for meaningful bargaining.”

It is important to note that this supposed standard drips with uncertainty as to which franchisors should be responsible in which particular cases. The term “potential control” has no clear meaning, for it could easily be stretched to include any situation in which a franchisor could demand direct control over employee relations even if it has no desire to exercise it. Any case-by-case determination on franchisor power is not possible in an industry this complex, where the basic franchising structure is subject to small variations in individual cases which may—or may not—tip the balance under this test for or against the franchisor’s alleged employer status. In addition, this open-ended standard allows for SEIU and other labor organizations to file constant claims against franchisors like McDonald’s, which are costly to defend even if the claim is dismissed years later.

These charges of unfair labor practices, moreover, need not command the support of the particular workers at any given franchisee who, given the rapid rate of turnover in this business, may much prefer to work in an environment in which they do not have to pay stiff initial membership fees and annual dues as a condition of employment. Indeed, the high rate of turnover in many franchise businesses means that a large fraction of the mandated union members will have had no say whatsoever in deciding whether to join the union approved by workers, many of whom have already left their jobs.

It is also critical to note that if the NLRB General Counsel does prevail after challenge in court, it will necessarily undo many of the advantages of the current business relationships. Put yourself in the position of a franchisor that is told in no uncertain words that it is jointly liable for an unfair labor practice for each and every decision made by its franchisee/joint employer.

At this point, it becomes foolhardy for the franchisor to remain indifferent to the behavior of an individual franchisee who can expose the high visibility franchisor to major damage awards and much adverse publicity. But once the franchisor decides that it has to take over much of the business, then the entire business model is at risk. After all, what individual franchisee wants to be saddled with additional costs of coordination while facing higher wages and less business flexibility?

At this point, the shrinking pie will lead to frantic efforts to renegotiate the basic deal in ways that both sides can live with, fully knowing that any new arrangements have to be far worse than the ones that they have displaced. The union profits handsomely from fees and dues, but individual workers are likely to be displaced in larger numbers, as everyone looks for various automated devices to reduce the dependence on unionized workers under a collective bargaining agreement that imposes onerous and unnecessary working conditions. Right now, the SEIU knows that the workers of any one individual outlet will not sign on to a union, because those workers fully understand that the competitive conditions in the franchise business mean that successful unionization is a pyrrhic victory from which they will never recover.

Unfortunately, this point is often lost on writers like David Weil, who in condemning “The Fissured Workplace,” treats the breakdown of the monolithic form as some kind of neglected social problem. But any new form of organization is no more of a problem than is the decline of Life Magazine after the rise of specialized and niche publications, each of which is better able to serve its targeted constituency than one all-purpose magazine. The simple point here is that more powerful metrics mean that transactions across independent firms have made it less costly to run a dispersed network, with or without unions. Contracting out allows the business to concentrate its efforts on its core competence, without having to take on duties that are more cheaply and effectively handled by others. Heavy-handed efforts at regulation to block these innovations can only make matters worse.

The NLRA imposes a heavy tax that hurts employers and employees alike. Ironically, the rise of independent contracting generally is an effort to escape these explicit or implicit taxes that the government imposes on the employment relationship. The irony should not be lost. In undertaking the effort to expand the scope of unionization, the NLRB General Counsel will only add new fissures to the workplace that is reeling under the onslaught of ever more onerous regulations. The law of unintended consequences applies with full force to the NLRB’s ill-considered flirtation with an expanded joint employer doctrine.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Forecasting the 2016 Republican Primaries

The grueling 2012 primary ended with Mitt Romney's victory. Who will enter the ring this cycle?

The grueling 2012 primary ended with Mitt Romney's victory. Who will enter the ring this cycle?

*Thomas Warns and **Nick Beek

The next President won’t be inaugurated until January of 2017, but that doesn’t mean the 2016 Republican primaries haven’t begun (here and now, in 2015). Where does the field stand at the moment, and who is likely to run? Here is a brief profile, with Nick’s insight and Tom’s verdict on who joins the fray.

mitt romney.jpg

Mitt Romney – The 2012 Republican Presidential nominee enjoyed a small lead in most polls of Republican primary voters, but that may have been a result of his name recognition more than anything. With Jeb Bush securing high-dollar donors and political operatives before a potential 2016 campaign could get off the ground, Mitt Romney announced on Friday that he would not be running

Nick’s Prediction: Had Mitt Romney decided to run again I do not believe voters would have been receptive to a third Mitt Romney run. Once someone loses a general election (especially if it is not particularly close) voters are less likely to give them another chance.

Verdict – Not Running.

Rand Paul – The libertarian hero has not publicly announced whether or not he would run, but he has made a number of visits to early primary states, and also has tried to expand the Republican block with a speech before the NAACP, among other attempts. For the third cycle in a row, the Republican primary will feature a Dr. Paul.

Nick’s Prediction: Rand Paul is going to enter the race. There have been high profile reports about Rand Paul securing political operatives for a presidential run. He is going to be competitive in the early states and can learn from his father’s previous runs. The Paul brand is well known but the question is can Rand Paul reignite the base his father created, and then expand it to the broader populace? If Rand Paul can do this, then he can win the nomination. My early prediction is that if Paul loses Iowa, he loses the entire nomination contest.

Verdict – Will enter the race.

Scott Walker – Scott Walker’s stock has been on the rise lately, particularly in Iowa. After sending out feelers in regards to a 2016 run, he has found that the signs are all positive – donors are backing him, and so do the conservative readers of Drudgereport.com. He has stared down adversity before, including most famously a brutal recall election in 2012, and has become a national icon in the fight against organized labor. He will enter the ring as a formidable foe.

Nick’s Prediction: I’m undecided about Scott Walker’s chances in the primary. I think while having gone through an election pretty much every 2 years for the past 6 years has given him valuable experience, the guy has got to be tired of it. He’s tested on the campaign trail, but I don’t know if he can handle the national scrutiny. Being a sitting Governor is also another point that makes it seem harder for him to win. Campaigning is a full time job; it’s easy for a Senator to miss a vote, but a Governor really needs to be present in his or her state. I think he’ll perform well in early primary states, but I think he would lose the general election in a landslide.

Verdict – Will enter the race.

Jeb Bush – Many in the media are quick to call the son of 41 and brother of 43 the “favorite” in this crowded Republican field, but many Republicans aren’t listening. He is a moderate who tracks left on issues like immigration reform, which could cause headaches in the primary. For now though, the weight of the Establishment seems to be coalescing around him, and he has secured many Romney donors and staffers. We may be subjected to another Bush-Clinton election in 2016.

Nick’s Prediction: Jeb Bush benefits from the Bush brand (i.e. experience in running for President, name recognition, donor base, political operatives) in both the primary and general. Bush is a moderate, and his brother has a poor record, which will hurt him in the primary (although being a moderate would help in the general). I think ultimately being tied to his brother’s record will be his downfall in the general if his moderate flavor does not doom him in the primary.

Verdict – Will enter the race.

Ted Cruz – The fiery Texan is a darling among the more conservative wing of the Republican Party. His aversion to compromise and dedication to ideological purity will endear him to many, though his ceiling looks limited. Still, the Republican primaries have room for Cruz if he decides to enter, as he is widely given credit (or blame) for shutting down the government for two weeks in a showdown to repeal the Affordable Care Act.

Nick’s Prediction: I don’t know if he enters the race. I think if he does, he flames out quicker than Rick Perry did. He might be better served waiting, as this year’s field is overcrowded.

Verdict – Not running.

Marco Rubio – The Florida Senator’s poll numbers have cooled somewhat of late (though it may be partially a by-product of a more crowded field), but some conservative donors still feel confident in the energetic Hispanic-American, who has begun laying the groundwork for a run in 2016. He seems to have an adept handle of social media, which could catapult him quickly into the top tier of GOP candidates. His time may ultimately come in 2020 or later, but he seems serious about a run now.

Nick’s Prediction: I know the guy has young kids, I wonder if that’ll stop him from seeking the Presidency. I know from one of his staffers that he likes to put his kids on the bus, and generally finds it very important to spend time with his family. That’ll stop if he runs. Is he ok with that sacrifice?

Verdict – Will enter the race.

Chris Christie – Christie’s waist has been shrinking, but his ambitions are growing. The New Jersey Governor has a moderate record, and has proven popular in his deep blue home state. With “Bridgegate” firmly in the rearview mirror, Christie looks poised for another run, this time for President. The only thing that could derail him is another scandal.

Nick’s Prediction: Christie runs but there’s a lot of baggage underneath the surface that is waiting to be drudged up during what is likely to be a hard fought and lengthy primary; that I think ultimately sinks him.

Verdict – Will enter the race.

Paul Ryan – Paul Ryan is the GOP counter to charges that they don’t have ambitious plans. His budget bills are always a hot debate topic in Washington, and it appears it will stay that way – Ryan has signaled that he will be staying in Congress rather than seeking the White House.

Nick’s Prediction: I think he’s the most ideologically pure and smartest of the Republican contenders. I think he would have a decent shot at winning the primary if he ran. I don’t think he’d be as competitive as Bush in the general election though.

Verdict – Not running.

Rick Perry – Rick Perry enjoys widespread popularity in Texas, and has been an able fundraiser. After a gaffe-filled campaign in 2012 however, in which he couldn’t remember which parts of government he wanted to slash, donors are likely to steer clear of the former Governor. Rick Perry might be forced to sit on the sidelines.

Nick’s Prediction: Rick Perry is going to run.

Verdict – Not running.

Donald Trump – The eccentric billionaire is all talk and no game. He only flirts with running for President to improve ratings for The Apprentice.

Nick’s Prediction: I would love for him to run but he’s not. He’s in it for the publicity and money.

Verdict – Not running.

Ben Carson – The retired neurosurgeon has a cult following, but he will suffer due to lack of name recognition. His claim to (modest) fame is a speech he delivered in front of Obama from 2013; he doesn’t appear to have much staying power, but he appears ready to throw his hat in the ring anyway, and has shown an enthusiasm for brushing up on a variety of topics.

Nick Prediction: Herman Cain 2.0. These random non-political types always run and fail. They’re untested, unknown, and don’t know how to run a campaign. You can’t stumble your way into the Presidency by way of a highly contested primary and then general election. Plus, he’s has said some crazy things, like saying Obamacare was the worst thing to happen to America since slavery.

Verdict – Will enter the race.

Sarah Palin – The former Alaska Governor rocketed to fame (and infamy) when she was tapped to be John McCain’s Vice President during the 2008 election. She is surprisingly popular among many (including influential media member Matt Drudge), but is despised but a much larger part of the country. Further, she is largely a single issue candidate who wishes to promote drilling to cut oil prices – the U.S. has largely already done that over the last 8-10 years. She has been more successful in runs on FoxNews, as well as on reality TV, and may be best served by staying there.

Nick’s Prediction: Same reasons as Donald Trump.

Verdict – Not running.

Rick Santorum – The Pennsylvania politician and noted social conservative gave Mitt Romney his most sustained challenge in 2012, as he won a number of primaries and caucuses, including Iowa’s. Rick Santorum however doesn’t really move the needle, and isn’t well liked. Donors may think twice before putting on the sweater vest to support him. He also fails the “google” test for a President. He dropped out in 2012 when he daughter became ill; her health may play a role in his decision this time around as well.

Nick’s Prediction: All signs point to yes for running. If you bet on historical trends for the GOP nomination (he came in second in 2012) then you should be betting on Santorum.

Verdict – Not running.

Mike Huckabee – A much more reasonable and likable social conservative than Rick Santorum, the former Arkansas Governor quit FoxNews last month, which ramped up speculation that he was looking to enter the race. Huckabee made a strong showing in 2008, and seems to have a lot of good will. He will push the party to the right on social issues during the debates.

Nick’s Prediction: He’s going to run. He has the likability factor too, and appeals to both evangelicals and Tea Party conservatives. I’d like to think he has a good shot at winning the nomination but in 2008, his appeal seemed to top out at a similar level as Santorum in 2012.

Verdict – Will enter the race.

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Bobby Jindal – The Louisiana Governor has signaled that he is at least considering a run for President, though Louisianans aren’t so enthusiastic. He has his supporters, but his star has dimmed since his response to the State of the Union in 2009 (to be fair, Bill Clinton also delivered a clunker of a response speech in 1985, and became President less than a decade later). Perhaps he will get a close look as a Vice Presidential candidate.

Nick’s Prediction: If Jindal runs, the rest of the candidates will suck the operatives & money right out from under him at the first sign of trouble. He then drops out Tom Vilsack style.

Verdict – Will not be running.

The RestCarly Fiorina – former CEO of HP; John Kasich – Governor of Ohio; Mike Pence – Governor of Indiana.

Nick’s Prediction: I think Kasich would be a serious contender in the primary and general, but I have a feeling the Bushes keep him out. Fiorina I think plays with the idea and then endorses Bush.

Verdict: Will not be running.

*Thomas Warns is a J.D. Candidate in the Class of 2015 at New York University, and the Editor-in-Chief for the N.Y.U. Journal of Law & Liberty.

**Nick Beek works in politics in Washington, DC and graduated from Northeastern University with a degree in political science.