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Five Poems by Simon Perchik

In Arts & Letters, Creative Writing, Poetry, Writing on August 24, 2016 at 6:45 am

Simon Perchik

Simon Perchik is an American poet with published work dating from the 1960s. Perchik worked as an attorney before his retirement in 1980. Educated at New York University, Perchik now resides in East Hampton, New York. Library Journal has referred to Perchik as “the most widely published unknown poet in America.” Best known for his highly personal, non-narrative style of poetry, Perchik’s work has appeared in numerous books, websites, and print magazines, including The New Yorker, Partisan Review, Poetry, The Nation, North American Review, Weave Magazine, Beloit, and CLUTCH.
You still land belly-down
though the mailbox has no key
—what you yank is an envelope

and your hand already in flames
—why now these patrols
waving the children back

while you gag on the gust
and what’s left from your hand
—why only in the rain

then headlong the way each step
moves closer to the sea
becomes those rocks that expect sacrifice

and where you can be found
terrorized by streets boldly in print
yours and theirs, waiting in the open

—you vomit as if its stench
could clog the wound all these years
between one letter and another.

 

*
Now that the sky is homeless
you make your own season
and each morning for just a minute

the snow is not mentioned
—even in summer you set aside
one window for tracks, covered over

and the wind hiding in bells
—you use this makeshift silence
the way a rifle is still aimed

with a deep breath and hold
—it’s not for long, your season
sets up and from its rivers

a blackness flowing, gathering
first as a rain that is not the sky
—it’s new for you, a sister-season

open and bleeding :a minute
rescued from the others
and at each funeral it shows up

ready to party, still young
though you cry out loud for a mouth
for the air that will not come.

 

*
What more proof do you need! jagged
left behind—a beautiful stone
torn to pieces and near its heart

a tiny rock half drift, half moonlight
that blossomed to become the opposite shore
—all these years in the open

though every wave still smells from stone
the way this sea from its start
was never sure, even now a doubt

splashing as your blood or throat
or better yet next time at breakfast
reach out with just your breath

and god-like touch the boiling tea
hold up the evidence, the first wave
and the emptiness it counted on.

 

*
Runners train by it, both my fists
and at the finish line
snap open the way each new moon

still unbeaten uses this flourish
to poke inside these stones
—you can’t hide much longer

and years mean nothing now
dropping back from exhaustion
dragging the dirt behind

—wherever you are I can find you
handful by handful broken apart
for just two fingers calling out

and in front the unyielding ribbon
suddenly dark I can snatch
the breath letting me through.

 

*
Battered though its wings
disappear under your eyelids
and more smoke—this lever

lost its touch, wants out :rusts
the way this wall is kept in place
pulled down on all sides

by old wiring and wrong turns
—always one slice that can’t be saved
though you wear gloves

yank the smoldering cord
so that still warm jacket
is torn open, lets the sun fall

as rain and later—this toaster
reeks from your head thrown back
to see if both eyes move

and the other slice the North Sea
pressing against your hand
for a little more time.

How Unelected Bureaucrats Became ‘Liberty’s Nemesis’

In America, Book Reviews, Books, Jurisprudence, Law on August 17, 2016 at 6:45 am

Allen 2

This post originally appeared here in The Federalist.

Whether they realize it or not, Americans are subject to the soft despotism of administrative law. The common-law system of ordered liberty and evolutionary correction that the United States inherited from England is hardly recognizable in our current legal system. Bureaucratic administrative agencies that are unaccountable to voters now determine many of the rules and regulations that have palpable effects on the everyday lives of ordinary citizens.

In many important respects, we no longer live in a constitutional republic—we’re subject to the rule of an unaccountable administrative state. This the problem confronted in Liberty’s Nemesis: The Unchecked Expansion of the State, edited by Dean Reuter and John Yoo.

Although the U.S. Constitution does not expressly endow them with legislative prerogative, or even contemplate their current form and function, administrative agencies issue and enforce binding rules. They arrogate to themselves powers nowhere authorized by the Constitution or validated by historical Anglo-American experience. These agencies, moreover, govern quotidian activities once left to local communities and small businesses—everything from managing hospital beds to issuing permits to liquefied petroleum gas dealers. On both the state and federal level, administrative agencies have intruded upon local customs and practices and have imposed burdensome regulations on resistant groups, trades, neighborhoods, and civic associations.

Administrative agencies are creatures of legislation but directed by the executive branch, which has no constitutional authority to pass laws. Their powers derive from statutes that delegate the quasi-legislative authority to issue binding commands in specified contexts. Administrative agencies generally operate independently from Congress and the courts and possess discretionary rulemaking authority.

They conduct hearings and investigations and adjudicate disputes between parties. Some agencies are household names, such as the Federal Trade Commission and the Environmental Protection Agency; some are less known, especially within state government. For instance, state personnel boards manage employment disputes involving state employers and employees, and smaller agencies regulate all sorts of activity—from cosmetology and barbering to translation services and historical preservation efforts.

The justifying theory underlying the creation and existence of administrative agencies is that they consist of qualified experts in a specialized field. Whereas the legislature is made up of elected generalists who come and go, an agency is peopled by nonpartisan specialists with unique training and experience who hold permanent positions. Administrative agencies should thus be more reliable and efficient than legislative or executive bodies in promulgating or enforcing rules and regulations. Moreover, they should be isolated from political processes and partisan pressure. Yet this institutional independence that is touted as a virtue has in practice resulted in widespread unaccountability.

It’s axiomatic that an agency may not be sued without the consent of the state. Such consent, when given, is typically limited in scope so that any potential substantive liability is narrowed. Administrative proceedings only approximate the processes and protocols recognized in courts of law. An administrative adjudicatory forum seldom replicates or reflects the procedural and functional characteristics of a courtroom. When an administrative tribunal enters a final order, the non-prevailing party may seek redress through judicial review, but the tribunal’s decision carries a presumption of correctness on appeal—both on findings of fact and matters of law—except in rare circumstances when a statute prescribes otherwise.

F. A. Hayek warned about administrative agencies—and what he dubbed the “public administration movement”—in The Constitution of Liberty.

He explained that the public administration movement had adopted slogans about government efficiency “to enlist the support of the business community for basically socialist ends.” “The members of this movement,” he cautioned, “directed their heaviest attack against the traditional safeguards of individual liberty, such as the rule of law, constitutional restraints, judicial review, and the conception of a ‘fundamental law.’” Hayek then traced the history of public administration to show that “the progressives have become the main advocates of the extension of the discretionary powers of the administrative agency.”

Philip Hamburger’s Is Administrative Law Unlawful? (2014) echoed Hayek’s criticism that, in Hayek’s words, “the widespread use of [administrative] delegation in modern times is not that the power of making general rules is delegated but that administrative authorities are, in effect, given power to wield coercion without rule, as no general rules can be formulated which will unambiguously guide the exercise of such power.”

Hamburger reframed Hayek’s criticisms in deontological terms by suggesting that administrative law is not, in fact, law—it is inherently lawless. Hayek and Hamburger both make the compelling case that administrative agencies routinely undermine the rule of law, or the principle that the general rules of society apply equally to all citizens as well as the sovereign.

In addition to Hamburger, several recent books have charted the slow growth of administrative law in the United States. Chief among them are Jerry L. Mashaw’s Creating the Administrative Constitution: The Lost One Hundred Years of Administrative Law (2012), Joanna L. Grisinger’s The Unwieldy American State: Administrative Politics Since the New Deal (2012), and Daniel R. Ernst’s Tocqueville’s Nightmare: The Administrative State Emerges in America (2014). These studies are indispensable and together form a comprehensive history of how ordinary citizens succumbed to the supervisory powers of administrative regulators.

Liberty’s Nemesis follows in the wake of these rigorous works, though it is perhaps more polemical. The book includes essays by highly visible and influential figures who range from legal practitioners to politicians, academics to activists, jurists to jurisprudents. The book’s primary focus is on administrative agencies, but certain essays—such as former congressman Bob Barr’s discussion of threats to the Second Amendment or John Eastman’s concerns about same, sex marriage—widen the topical scope.

Reuter and Yoo have collaborated before. In 2011 they published Confronting Terror: 9/11 and the Future of American National Security, an edition that featured disparate essays by prominent conservatives and libertarians, some of whom have also contributed to Liberty’s Nemesis.

Reuter, who serves as vice president for the Federalist Society, has supplied the introduction to the book. His contribution is a primer on American civics with an emphasis on the subtle tyranny of administrative law. Yoo, a law professor at the University of California, Berkeley, who’s perhaps best known for authoring legal memoranda regarding torture and the War on Terror during the George W. Bush administration, offers a brief conclusion to the book that calls for conservatives to “recalibrate their revolution” by turning their activist energies against administrative agencies rather than Congress.

In my view, the most intriguing essays in the book belong to Jonathan H. Adler, Gerard V. Bradley and Robert P. George (coauthors), and Patrick Morrisey and Elbert Lin (also coauthors). Some subjects, such as Ronald A. Cass’s appraisal of the so-called Chevron doctrine, under which courts defer to the decisions of administrative agencies, may seem predictable in a text that assails administrative regulation. However, they are no less insightful or important for their predictability.

Other subjects include immigration, financial regulation, and campus speech. An edition with such diverse chapters defies simple summary and ready classification. Doing it justice in this space is impossible. When the authors of such wide-ranging chapters include sitting senators like Orrin Hatch and former commissioners of federal agencies like Harold Furchtgott-Roth, Daniel Gallagher, F. Scott Kieff, Maureen Ohlhausen, Troy Paredes, and Joshua Wright, the reviewer’s task becomes daunting if not impossible.

So permit me a few brief remarks about just three chapters and accept my general endorsement of the book as reason enough to buy it and read it in its entirety. I’ll start with Adler, who details, among other things, the manner in which the Obama administration exceeded the scope of its authority by delaying the implementation of the employer mandate found in the Patient Protection and Affordable Care Act, a.k.a. Obamacare. The first time his administration announced this delay was in a blog post.

Similar announcements followed from the Internal Revenue Service (which was under fire for the politicization of its activities) and the Treasury Department. Obamacare itself was silent as to any executive authority to waive the requirements of the employer mandate, which, as its name suggests, mandated the implementation of its terms. Ignoring that mandate, President Obama and his executive officers enjoy the unique distinction of being the first violators of the law they championed and swore to uphold. In light of the foregoing, Adler concludes that President Obama implemented Obamacare through “unlawful administrative action” carefully calculated to avoid Democratic losses in the 2014 midterm elections.

Bradley and George, for their part, argue the Obama administration has “remapped” religion and society by erasing (or at least by seeking to erase) religious exercise and expression from the public sphere while subjecting private religious exercise and expression to novel and intrusive regulation. Bradley and George argue the Obama administration is erasing religious exercise and expression from the public sphere. For example, the Obama administration promulgated rules that compel religious employers to subsidize not just contraception but abortifacients for their female employees. The exception to this requirement was crafted such that no religious institution could qualify to opt out. The Obama administration promulgated another rule that may effectively eliminate government contracts with religious-based humanitarian organizations that provide care and counseling for crisis pregnancies. Executive Order 13672, which became effective in April of last year, adds sexual orientation and general identity to the non-discrimination categories or classes under Title VII of the Civil Rights Act of 1964. The list could go on—and does go on in Bradley and George’s sustained critique.

Finally, Morrisey, and Lin present a firsthand perspective on the overreach of environmental regulations that have crippled the economy in West Virginia and Appalachia more generally. They target the Environmental Protection Agency, which used Section 112 of the Clean Air Act as a pretext for regulating power plants in West Virginia.

Morrisey is the current Republican attorney general of West Virginia, having defeated the five-term Democratic incumbent Darrell McGraw in 2012. Morrisey’s political rise in West Virginia, which coincided with the Republican takeover of that state’s government, has generated national attention in addition to speculation about his future in higher office.

The fresh-faced Lin, a graduate of Yale Law School, is the Solicitor General of West Virginia, making him the chief appellate lawyer for the state. His experience includes a stint in private practice in Washington DC as well as clerkships with Justice Clarence Thomas, Judge William (“Bill”) Pryor, and Judge Robert E. Keeton. Morrisey and Lin, who actually practice what they preach, give the following warning that sums up the message of the book: “The worst that can be done with respect to an overreaching federal agency is to simply accept it and allow it, through sheer inertia, to remake this country according to the preferences of a handful of unelected bureaucrats.”

Although the composition and character of the U.S. Supreme Court is undoubtedly the most important issue in the 2016 election because of the president’s power to appoint a successor to Justice Scalia—and possibly other justices nearing retirement—voters must also bear in mind the rapid and steady expansion of the administrative managerial state under President Obama. Conservatives now populate state legislatures in vast numbers; state attorneys general collaboratively have begun pushing back against federal agencies; state supreme courts have welcomed traditionalist jurisprudents who revere their state constitutions and the federalist system envisioned by the American Founders.

It will take a new kind of president to roll back the administrative state altogether. State resistance alone is no longer enough. Without any pressure from the executive branch, Congress will remain content to pass off touchy political decisions to administrative agencies, which, unlike politicians, cannot be voted out of power. Congress, in turn, can blame the agencies for any negative political consequences of those choices.

We may never recover the framework of ordered liberty that the Founding generation celebrated and enjoyed. But for the sake of our future, and to secure the hope of freedom for our sons and daughters, our grandchildren and their children, we must expose and undo the regulatory regime of administrative agencies. It’s our duty to do so.

Those concerned must applaud Reuter and Yoo for their efforts at publicizing the complex problems occasioned by administrative agencies. But there’s still much work left to do. Practical solutions will not come quickly or easily. Yet they’ll be necessary if we’re ever going to reverse course and remain a nation of promise and prosperity.

Make America Mobile Again

In America, American History, Arts & Letters, Book Reviews, Books, Humane Economy, Humanities, Law, Politics on August 10, 2016 at 6:45 am

Allen 2

This review originally appeared here in The American Spectator.  Note that some of the references to the presidential election are now dated but were timely when this review was originally published.

This election season has proven that, regardless of who becomes the Democratic or Republic nominee for president, the American political landscape has been reshaped. Candidates expected to have a smooth path to their party’s nomination have met, instead, a bumpy road. The rise of Donald Trump and Bernie Sanders as viable candidates reflects the growing feeling among ordinary Americans that the system is rigged, that they’re stuck in conditions enabled and controlled by an amorphous cadre of elites from Washington and Wall Street.

Income inequality is higher today than it’s been in nearly a century. Middle and lower class citizens of other First World countries enjoy more economic mobility than do middle and lower class Americans. The United States has fallen behind managerial and quasi-socialist governments in Europe in empirical rankings of economic freedom. The gap between the so-called 1% and the rest of America is growing, and recent college graduates, saddled with student loan debt and poor job prospects, are financially behind where their parents were at the same age.

Things don’t look promising. But one law professor, F. H. Buckley of the freshly named Antonin Scalia Law School at George Mason University, outlines ways to repair structural, systemic burdens on the American economy. His new book, The Way Back, published today by Encounter Books, provocatively advocates for socialist ends by capitalist means.

Although the word socialism recalls revolution, stifled competition, attacks on private ownership, abolition of the price-system and sound economic calculation, hunger, mass-murder, off-brand goods and low-quality services, among other demonstrable horribles, Buckley has something less vicious in mind. By socialism, he does not mean a centralized government that replaces the market system with economic planning and state control of the means of production. His “socialism” is not socialism at all.

Leaving socialism undefined, he suggests that free-market economics (a term he avoids but implies) and the dismantling of the regulatory state will do more than actual socialism and its variants to lift people out of poverty and maximize their quality of life. The Left, in short, has asked the right questions about income inequality and economic mobility but supplied the wrong answers or solutions. “Sadly,” Buckley complains, “those who loudly decry income disparities often support policies which make things worse.”

It’s the aristocratic elites, in Buckley’s view, who benefit from mass bureaucracy, the welfare state, a broken immigration and public-school system, trade barriers, a flawed tax code, and a general decline in the rule of law. These unjust institutions, policies, and conditions, with their built-in advantages for a select few, cause and sustain economic immobility. They solidify the place of aristocrats — what Buckley also calls the New Class — at the top of the social stratum. Those with high levels of wealth game the system through special favors, government grants, shell companies, complicated tax schemes, offshore banking, and other loopholes designed to ensure that the 1% are excluded from the regulatory barriers imposed and administered by government at the expense of the 99%.

The aristocracy that Buckley targets is not the natural aristocracy celebrated by certain American Founders for its virtue and political disinterestedness. It’s an artificial aristocracy that has little to do with merit or talent. The Founders — probably all of them — would have been appalled by the likes of Bill and Hillary Clinton: figures who became multi-millionaires through partisan politics. The Clintons embody the new artificial aristocracy. They amassed their wealth by championing programs that have slowed economic mobility while purporting to do the opposite. The Founders, by contrast, believed that benevolent aristocrats would be free from economic pressure and thus would not succumb to the temptations to use government positions or privileges for personal gain.

The Founders would have cringed to learn that public service has become a vehicle to riches. For all his many faults, Donald Trump appeals to disenfranchised Americans because he declares he’s financed his own campaign and admits that a rigged system — exemplified by our federal bankruptcy laws — has worked in his favor. He knows the government system is unfair and claims he wants to change it.

“America was a mobile society for most of the twentieth century,” Buckley says, citing statistics and substantiating his claim with charts and graphs. Trump’s supporters no doubt long for those days of economic mobility that Buckley locates in the exuberant 1950s.

When Trump announces that he wants to make America great again, people stuck at the bottom of the rigid class divide respond with enthusiasm. On a subterranean level, they seem to be hoping that America can once again become a mobile society, a place where a lowly pioneering frontiersman like Abraham Lincoln (Buckley’s favored symbol of social and economic mobility) can rise from humble beginnings to become the President of the United States. Buckley believes that “the central idea of America, as expressed in the Declaration [of Independence], became through Lincoln the promise of income mobility and a faith in the ability of people to rise to a higher station in life.”

Class structure is more settled in America than in much of Europe. Yet America has always defined itself against the European traditions of monarchy, aristocracy, dynasty, and inherited privilege. Buckley states that “America and Europe have traded places.” The trope of the American Dream is about rising out of your received station in life to accomplish great things for yourself and your posterity. What would it mean if U.S. citizens were to envy, instead, the European Dream? What if America is now the country of privilege, not promise? If the American financial and economic situation remains static, we’ll learn the answers to these questions the hard way.

Perhaps the most interesting and unique feature of Buckley’s book is his embrace of Darwinian theory — including the genetic study of phenotypes and kin selection — to explain why American aristocrats combine to preserve their power and restrain the middle and lower classes. In short, people are hard-wired to ensure the survival of their kind, so they pass on competitive advantages to their children. “American aristocrats,” Buckley submits, “are able to identify each other through settled patterns of cooperation called reciprocal altruism.” People organize themselves into social groups that maximize the genetic fitness of their biological descendants. If certain advantages are biologically heritable, then “a country would have to adopt punitive measures to handicap the gifted and talented in order to erase all genetic earnings advantages.”

Eugenics measures were popular during the Progressive Era, before we learned about the horrors of Nazi genocide and eugenics, but surely the Left does not want to return to such inhumane and homicidal practices to realize their beloved ideal of equality. Yet Buckley reveals — more subtly than my summary suggests — that biological tampering is the only way for egalitarians to transform their utopian fantasies into a concrete reality.

To those who might point out that Buckley, a tenured law professor living in the handsome outskirts of D.C., is himself a member of this self-serving aristocracy, Buckley declares that he’s a traitor to his class. Without bravado or boast, he presents himself as the rare altruist who recognizes the net gains realized through reasonable cooperation among disparate groups.

Trump and Ted Cruz ought to have Buckley’s book on hand as they make their final case to the electorate before this summer’s convention. Buckley explains why conservatives, libertarians, and Republicans alike should care about economic mobility and inequality. By ignoring the problem of economic disparity, he warns, “the Republican establishment has handed the Democrats a hammer with which to pound it.” Buckley identifies the types of cronyism and economic barriers to entry that have caused social immobility and inequality. To resolve our troubles, he advocates “easy pieces of useful and efficient legislation” that he dubs his “wish list.”

The final section of his book describes this “wish list” and sketches what Americans can do to reinvigorate their economy and make their country mobile again. By facilitating educational choice and charter schools, streamlining the immigration system, curtailing prosecutorial overreach and the criminalization of entrepreneurship, and cutting back on the financial regulations, tax loopholes, and corporate laws that are calculated to benefit rather than police those at the top, Americans can bring back the conditions necessary for the proliferation of individual liberty and prosperity — or, in Buckley’s words, restore the promise of America.

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