Just give it to the Lizard People

Writing in The New York Times, mathematics writer Charles Seife says the Minnesota Senate race is too close to call:

So in some precincts, we have not just a recount but a re-recount. Both auditors and recounters were hypervigilant to possible sources of error, and yet they disagree on their tallies by about 20 thousandths of a percent.

In an ordinary race, errors this tiny wouldn’t be a problem. But the Coleman-Franken race is so close that this error rate is more than double the margin between the two camps. And that’s just taking into account the precincts where there are no challenges. Throw in the weirdo ballots with lizard people, stray marks and indecipherable dots, and the error rate grows even more. Throw in the missing ballots, and the situation is hopeless. In truth, the counting errors dwarf the tiny numerical difference in votes between the two candidates. If, at the end of the recount, Mr. Coleman or Mr. Franken is ahead by a few dozen or a few hundred votes, that would be because of errors rather than voter preference.

Seife notes that MN law allows for ties to be decided by lot. I’m not sure if the election board can declare a statistical tie though. Here’s the section of the law I’ve found:

In case of a tie vote for nomination or election to an office, the canvassing board with the responsibility for declaring the results for that office shall determine the tie by lot.

Perhaps it’s too late to do so in this election, but I still think deciding extremely close races by chance could prove more legitimate than endlessly contested recounts.

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A cause for delegation

The editors at The New York Times are amused by the irony of seeing congressional Republicans suddenly calling for oversight of the executive branch now that the Treasury is asking for $700 billion to play with:

As delighted as we were to hear Republicans talk about oversight and accountablity, we couldn’t help but wonder where they were for the last seven years as the Bush administration essentially operated without Congressional oversight…

We can’t help but wonder how much the Republicans’ newfound zeal for regulating the executive branch and the equally out-of-control financial sector will last.

Probably until the elections are over.

All valid points. Congressional deference to the Bush Administration on matters of security has been shameful. But before calling out Republicans for their hypocrisy, the board ought to consider a little history. Congress has a long tradition of passing vague delegations of power and letting administrative agencies sort out the details. It’s a neat trick that lets them appear to address problems while washing their hands of responsibility when the execution goes awry. The practice goes back at least to the Great Depression with attempts to grant Roosevelt unprecedented power to regulate economic activity.

As Robert Levy and William Mellor document in their new book The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, the Court initially ruled against these delegations as violations of the Article 1 requirement that “All legislative Powers herein granted shall be vested in a Congress of the United States.” In Schechter, for example, the Court struck down a portion of the National Industrial Recovery Act because it under it “The discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered.”

There, unfortunately, the Court stopped. Not a single statutory program since then has been struck down as an impermissible delegation of congressional authority. As long as there is an “intelligible principle” to guide agencies’ discretion, they’re allowed to make and enforce new law — and these “intelligible principles” can be remarkably vague. The laws created by unelected administrative agencies now dwarf those passed by Congress. The Federal Register runs more than 77,000 pages long, listing rules from more than 300 agencies. The FCC, FDA, EPA, SEC, and countless other agencies derive their sweeping authority from the Court’s long history of letting Congress foist responsibility for costly regulations onto unaccountable bureaucracies. Levy and Mellor conclude that:

…delegation buttresses the power and influence of special interests. Ordinary citizens are even less well equipped to press their case before administrative agencies than before Congress. National legislators– but not agency heads — are responsive to the needs and desires of voters, who can exact retribution at the polls. By contrast, individual voters have no direct representation in the administrative process, nor do they typically have access to trained legal counsel, expert witnesses, and consultants…

Delegation has become a political narcotic — hooking Congress on more and bigger regulatory schemes with scant regard for their costs, little concern over the political repercussions, and most of all, disrespect for a Constitution expressly designed to prohibit what Congress has eagerly promoted.

Over at Volokh, David Bernstein speculates that approving a blank check for Paulson could provide the Court a fresh opportunity to revisit the non-delegation doctrine and the limits of what counts as an intelligible principle. If it does so, I expect the NYT editorial board will be among the loudest defenders of broad regulatory power.

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“The Libertarian” speaks

Forbes.com launched a new column this week called “The Libertarian” featuring Richard Epstein. I’d rather see libertarian ideas mainstreamed than walled off into their own cage at the ideological zoo, but I’m glad that Epstein is contributing regularly. He’s a fascinating scholar and his book Skepticism and Freedom is one of the most rigorous defenses of classical liberalism there is. The introduction to the column is light but the coming articles about labor markets promise to be interesting.

[Via the University of Chicago Faculty Blog.]

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For the lawyers in the audience

In the insane legal brief linked here, Minnesotan Ed Felien petitions the court to order Hennepin County Attorney Michael Freeman to arrest George W. Bush when he arrives in Minneapolis for the Republican National Convention. Felein alleges that Bush has committed crimes against the residents of Hennepin County and that Freeman has a duty to arrest him. These crimes include murder, the fixing of gas prices, and conspiracy to distribute heroin. Freeman, the coward, says he lacks jurisdiction.

Discuss.

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