Healing the Damage: Truth & Repudiation in the Agencies
posted by Frank Pasquale
I have tried to keep track of executive failures over the past eight years in financial, health, and safety regulation. But I have been overwhelmed. As James Galbraith argues in The Predator State, the past administration appointed the most extreme anti-regulatory voices it could find, across the board. Now the Center for Public Integrity has released a report on the results: the “eight-year tenure of the Bush administration was marked by more than 125 systematic failures across the breadth of the federal government.” As they note,
[T}he failures are rooted in recurring themes: agency appointees selected primarily for ideology and loyalty, rather than competence; agency heads who overruled staff experts and suppressed reports that did not coincide with administration philosophy; agency-industry collusion; a bedrock belief in the wisdom of deregulation; extensive private outsourcing of public functions; a general failure to exercise government’s oversight responsibilities; and severely slashed budgets at understaffed agencies that often left them unable to execute basic administrative functions.
The question now is, what to do about it? Responding to the administration’s torture policies and other human rights violations, Jack Balkin and Bruce Ackerman have suggested two approaches. Both of them are worth looking into with respect to some Bush-era holdovers who will be on independent agency boards for years to come.
Ackerman argues that federal judge Jay Bybee should be impeached because of his role in the politicization of the OLC:
When he was promoted to head the Justice Department’s Office of Legal Counsel, he became the final judge of legal matters within the executive branch. Yet his opinion on torture was so poorly reasoned that it was repudiated by his very conservative successor, Jack Goldsmith.
Under the Constitution, impeachment requires a finding of “high crimes and misdemeanors.” This is a high standard. Although Bybee’s opinion fails minimum tests of legal competence, he may have acted in good faith. This should protect him from conviction. But his legal distortions might also be evidence of the abdication of his fundamental legal responsibilities. Instead of engaging in a good-faith interpretation of the War Crimes Act and the Geneva Conventions, he may have merely been responding to political pressures from the White House to liberate the CIA and the military from the rule of law.
The lines between strained interpretations, incompetence, and intentional wrongdoing can be fine. But anyone familiar with the Supreme Court’s discussion of the term “modify” in the ATT v. MCI decision can grasp the limits of agency authority. Agency leadership appointed by Bush (and especially those burrowed in) should be held accountable for crossing that line.
Unfortunately, given the downward spiral of the economy, impeachment proceedings for such players would likely just distract from pressing business at hand. That’s where Jack Balkin’s idea of “Truth and Repudiation” commissions may come in handy. We need to illuminate exactly how industry ties influenced critical decisions in the Bush administration–and how its administrative leaders and allies get rewarded for those decisions later on.
I believe that our economic recovery may well depend on the emergence of commissions like Pecora‘s in response to an utterly corrupted financial order. Ordinary citizens increasingly feel that Wall Street is a shell game, and they are becoming reluctant to invest in anything. We need to fully understand and shame the players who racked up incredible wealth from schemes that skirted the very edge of fraudulence. When criticized, finance leaders now enjoying tens of millions of dollars in bonuses tend to plead, “Well, everything we did was legal.” Perhaps so, but if ordinary citizens believe it can happen again, all dreams of a democratized investor class are kaput.
PS: Charles Fried wins the “setting high standards for our leaders” award:
If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking.
PPS: Hat tips to Brian Leiter and Frank Rich.
January 15, 2009 at 10:09 am
Posted in: Administrative Law, Consumer Protection Law, Economic Analysis of Law, Law and Inequality
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Responses (4)
A.J. Sutter - January 15, 2009 at 8:14 pm
“Ordinary citizens increasingly feel that Wall Street is a shell game”: Having spent a chunk of my career as a securities lawyer, I suggest this reflects not a change in Wall Street, which has pretty much always been a shell game run for the benfit of insiders, but actually an increase in citizen awareness of the realities. The journalistic literature on this is of course quite large, but for a less hysterical view see Bernard Malkiel’s 1989 defense of the efficient market hypothesis in the journal Science, in which the only way he admitted it was possible to make an extraordinary return on the stock market was by insider trading.
As for T&R commissions, these are at best useful after the fact. But what about going forward? I’m surprised that none of the authors on this blog has yet commented on the reported (and acknowledged, by CS) nomination of Cass Sunstein as head of the Office of Information and Regulatory Affairs, a/k/a “regulatory czar”. That means we’ll be seeing a lot more cost-benefit analysis. As historian Theodore Porter has pointed out, the main reason for the adoption of CBA in the US government was to shield administrative decisions from democratic scrutiny.
AYY - January 17, 2009 at 2:17 am
Isn’t the Center for Public Integrity funded by Soros?
As for the Charles Fried quote, the rest of the paragraph reads: “It is not just a difference of scale, but our leaders were defending their country and people — albeit with an insufficient sense of moral restraint — against a terrifying threat by ruthless attackers with no sense of moral restraint at all.”
That puts a little different light on the matter, no?
Quidpro - January 17, 2009 at 3:11 pm
When was the Bush administration found (by persons other than the New York Times Editorial Board) to have engaged in torture “and other human rights violations”? Is the mere accusation by one’s political opponents, now accepted as fact?
Calling for the impeachment of a federal judge for what he allegedly did before he took the bench is also interesting. If you cannot get your opponents go after their lawyers. Does Obama really want to support such nonsense?
A.J. Sutter - January 18, 2009 at 11:04 am
AYY: No, it doesn’t, actually. The point of the quote in this context wasn’t to say that Cheney & al. were the same as Hitler et al.; quite the opposite. The point is that the bar (sc. of comparison) to be overcome was set so low.
In addition to the difference in context, the rest of the quote from Fried also seems to suggest that the ends justify the means. That simply is not consistent with traditional American ideals of democracy.
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