Election Year Like No Other Down Under and Amerika

Washington Post “Fact Checker” Glenn Kessler awards Three Pinocchios to prominent Senate Democrats for claiming their body is constitutionally obligated to act on a Supreme Court nomination [earlier]

Michael Gordon: colossal gamble PM had to take

Mark Kenny: Malcolm Turnbull is not bluffing 

Malcolm Turnbull has transformed his prime ministership at one stroke

The picture emerging from his first six months was that he was wasting his time. We now see that he has been biding his time Election

How the PM used an obscure part of the constitution to recall parliament 

Election live blog double dissolution election

The 15-week unofficial election campaign has begun 

(Roy Morgan): For the first time since Malcolm Turnbull became Prime Minister, a poll records Labor with a lead on two-party preferred, albeit a very narrow one. Thefortnightly result from Roy Morgan, conducted over the last two weekends by face-to-face and SMS from a sample of 2948, has Labor moving from a 53-47 deficit to a lead of 50.5-49.5, on both the previous election and respondent-allocated measures of two-party preferred. On the primary vote, the Coalition is down three points to 40%, Labor is up three-and-a-half to 33%, and the Greens are up one to 14%.

Double Dissolution

Question Turnbull wouldn’t cop

The LNP, with Turnbull as frontman, will be campaigning on the Abbott government’s record and policies. Apart from a few symbolic and rhetorical shifts (the re-abolition of Knights and Dames, for example), Turnbull has neither deviated from, nor added to, Abbott’s policy program.

There’s a notion being pushed in the media that a big win for the LNP would constitute a mandate to “let Malcolm be Malcolm”. This is nonsense. A mandate isn’t a free pass. It is, literally, a command, to implement the policies on which you have campaigned [1]

Turnbull can’t campaign on Abbott’s policies, then say he has been commanded to implement his own (whatever they might be). So, unless he breaks with Abbott before the election, he might as hand back the job to someone who really believes in the program he is proposing.

fn1. The mandate idea is most powerful in a bicameral system with an unelected or highly unrepresentative upper house. In Australia, the unrepresentative aspects of the Senate (equal state representation and long terms) are matched by the spurious lower house majority produced by single-member constituencies. So, senators have just as much a mandate to block legislation they have campaigned against as the government has to push it forward. The Double Dissolution is, of course, the way we can resolve this 

Abbott is right

Looking for America WaPo. “In an election year like no other, one question has dominated the discussion: What’s happening in America? Underlying that question is another, more profound and more personal one: What does it mean to be an American?” Four-part series, perhaps a deeper dive than talking to the cab driver.

The Slate Star Codex blogger decided to read, and belatedly review, The Art of the Deal (1988) by real estate developer and now-GOP nomination frontrunner Donald Trump. Trump and his campaign aside, the book affords insights into the legal and regulatory side of the development business. Following a funny description of the role of the real estate developer in coordinating deals, Alexander writes:

…The developer’s other job is dealing with regulations. The way Trump tells it, there are so many regulations on development in New York City in particular and America in general that erecting anything larger than a folding chair requires the full resources of a multibillion dollar company and half the law firms in Manhattan. Once the government grants approval it’s likely to add on new conditions when you’re halfway done building the skyscraper, insist on bizarre provisions that gain it nothing but completely ruin your chance of making a profit, or just stonewall you for the heck of it if you didn’t donate to the right people’s campaigns last year. Reading about the system makes me both grateful and astonished that any structures have ever been erected in the United States at all, and somewhat worried that if anything ever happens to Donald Trump and a few of his close friends, the country will lose the ability to legally construct artificial shelter and we will all have to go back to living in caves.

But if you are waiting for new proposals from Trump about reforming regulation, you might need to go on waiting:

Here is a guy whose job is cutting through bureaucracy, and who is apparently quite good at it. Yet throughout the book – and for that matter, throughout his campaign for the nomination of a party that makes cutting bureaucracy a big part of their platform – he doesn’t devote a lot of energy to expressing discontent with the system. There is no libertarian streak to Trump – in the process of successfully navigating all of these terrible rules, he rarely takes a step back and wonders about a better world where these rules don’t exist. Despite having way more ability to change the system than most people, he seems to regard it as a given, not worth debating. … the rules are there; his job is to make the best deal he can within those rules.

Tyler Cowen's very worried:

I hope we always will have non-vindictive Presidents in this country.  One reason is because the regulatory branch reports to the Executive.  And if you own a large company, it is virtually impossible to be in accordance with all of the regulations all of the time.  If there were a President who wished to pursue vendettas, the regulatory state would be the most direct and simplest way for him or her to do so.  The usual presumption of “innocent until proven guilty” does not hold in many regulatory matters, nor are there always the usual protections of due process.

I do know that Philip Hamburger’s book Is Administrative Law Unlawful? occasioned some critical reviews.  I certainly don’t think the title frames the argument properly and by no means do I agree with everything he said.  But these days, the notion that the regulatory state could prove dangerous to individual liberties, and not just to economic growth, needs to be taken more seriously, and he has written the “go to” book on that topic.

I wonder if this is one reason why some of the leaders in the Republican Party have been somewhat reluctant to challenge Donald Trump.  Perhaps they fear regulatory reprisal.

I also believe that many of Trump’s strongest critics — often Democrats — are ill-suited to understand or admit this side of the problem.  They have plenty of good arguments against Trump, but I haven’t heard this one yet.

Here is an excerpt from the Vermeule review of Hamburger:

One reaction to Hamburger’s book might be that it is interestingly wrong, in an unbalanced sort of way. On that view, the book could be seen as offering a kind of constitutional fiction, an oddly skewed but engagingly dystopian vision of the administrative state — one that illuminates through its very errors and distortions, like a caricature, or the works of Philip K. Dick. The book might then be located in the stream of legalist-libertarian critique of the administrative state, the line running from Dicey, through Hewart and Pound and Hayek, to Richard Epstein. That work is nothing if not interesting, if only because it is so hagridden by anxiety about administrative law.

On further inspection, though, this book is merely disheartening. No, the Federal Trade Commission isn’t much like the Star Chamber, after all. It’s irresponsible to go about making or necessarily implying such lurid comparisons, which tend to feed the tyrannophobia that bubbles unhealthily around the margins of popular culture, and that surfaces in disturbing forms on extremist blogs, in the darker corners of the internet.

Whether you agree with Vermeule or Hamburger or stand somewhere in between, the disturbing reality is that Hamburger’s perspective could become more relevant rather more quickly than many of us had expected.

Chris Walker points out that uncertainty about what Trump would do is itself worrying:
To appreciate the breadth of power the President can exercise unilaterally via the regulatory state, we need look no further than the executive actions undertaken by Obama and Bush 43 administrations.
Cowen highlights a number of liberty-constricting measures that a Trump administration may consider based on Trump’s comments on the campaign trail—including the FCC banning National Review editors from television, shutting down parts of the Internet, and demonstrating the power of strength like the Chinese government did in response to the Tienanmen Square protests. To be sure, there are statutory and constitutional checks in place that would reign in many of these executive actions; even Chevron deference is not that elastic. But a vindictive President could still utilize the regulatory state as a weapon against those who disagree with him. What would Trump do as Regulator-in-Chief?