Executive Overreach Meets Resistance

By George Will

Saturday, February 20, 2016

“For every action, there is an equal and opposite reaction.”

 — Newton’s Third Law of Motion

Notice the Newtonian physics of America’s Madisonian system. Barack Obama’s Woodrow Wilsonian hostility to the separation of powers, expressed in his executive authoritarianism, is provoking equal and opposite reactions from the judicial and legislative branches.

The Supreme Court has inflicted on Obama a defeat accurately described as the Court’s most severe rebuke of a president since it rejected Harry Truman’s claim that inherent presidential powers legitimated his seizure of the steel industry during the Korean War. The Court has blocked Obama’s Clean Power Plan, which rests on the rickety premise that the Clean Air Act somehow, in a way unsuspected for four decades, empowers the Environmental Protection Agency to annihilate the right of states to regulate power generation.

It is unprecedented for the Supreme Court to stop a regulatory regime before a lower court has ruled on its merits. This is condign punishment for the EPA’s arrogance last year after the Court held that it had no authority for a rule regulating fossil-fueled power plants in Michigan. The EPA snidely responded with a gloating statement that the Court’s decision came too late to prevent it from imposing almost $10 billion in costs under the illegal rule.

The legislative branch, too, is retaliating against executive overreach. Consider the lethal letter Senator James Lankford (R., Okla.) sent to the Education Department concerning its Office of Civil Rights.

OCR has sent its own letters to, among other targets, colleges and universities, concerning, among other topics, sexual harassment and violence. These letters, Lankford notes in his, although purporting to offer mere “guidance,” clearly are intended to intimidate schools with the implied threat of “inquiry, investigation, adverse finding, or rescission of federal funding.” Furthermore, Lankford says, they fail to identify “precise governing statutory or regulatory language” that empowers OCR to micromanage institutions’ disciplinary practices.

OCR is insisting on practices discordant with constitutional values. These practices include denying persons accused of sexual assault the right to confront accusers, and subjecting the accused to convictions based on a mere “preponderance of evidence” rather than “clear and convincing” evidence.

In an October 2014 letter to the Boston Globe, 28 Harvard Law School faculty members voiced “strong objections” to OCR’s diktats: “As teachers responsible for educating our students about due process of law, the substantive law governing discrimination and violence, appropriate administrative decision-making, and the rule of law generally, we find the new sexual harassment policy inconsistent with many of the most basic principles we teach.”

Accusing Harvard of “jettisoning balance and fairness in the rush to appease certain federal administration officials,” the professors said: “Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.” They cited “the absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.” And: “The failure to ensure adequate representation for the accused.” And: “The lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that the office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial.”

Sixteen University of Pennsylvania law professors have expressed similar concerns. As have two members of the U.S. Commission on Civil Rights, who note “a disturbing pattern of disregard for the rule of law at OCR,” including: defining “perfectly legal conduct as unlawful” (e.g., “telling sexual or dirty jokes” and displaying “sexually explicit drawings”) and squandering resources “to address violations it has made up out of thin air.”

Last Wednesday, OCR, oblivious or indifferent to such learned reproaches, replied to Lankford, saying: Its “guidance” letters do not have the force of law — a distinction without a difference because the letters construe statutes and regulations that have such force. And: The “preponderance of evidence” evidentiary standard is proper because many schools already are using it.

Furthermore, OCR says it must initiate proceedings against an institution “in front of a neutral independent department hearing officer.” So, the department monitors itself neutrally and independently. Lankford will soon use congressional hearings to acquaint OCR with how unpersuaded he is.

OCR and the EPA, representative tentacles of this lawless administration, are inadvertently serving constitutional values by arousing the resistance of rival branches. Madison’s Newtonian system can still stymie Wilson.