The president of Amherst College, Biddy Martin, alerted the community at once to the traumas set off by the outcome of the presidential election: She reported on letters from students who asked her to cancel classes for the next day. “They cite,” she said, “the understandable feelings of anxiety and stress they are experiencing about the election and the impossibility of completing work or focusing in class tomorrow.” Classes would not be canceled, but the president wished to alert us to feelings she regarded as quite “understandable” — that young people should be disturbed by the outcome of this election. It was to be taken for granted that the students at this prestigious school would be quite bereft of any sense of why thoughtful people could have principled grounds for finding fault with the record, at every level, of the “progressive” administration that Hillary Clinton was promising to preserve and extend. The students were affecting to be threatened by the outcome of this election as only the privileged and the coddled could summon the sensitivity to feel endangered when the world does not contrive to serve up precisely what they expect. For myself, I came to my class the next day with champagne.
Since that remarkable Tuesday night, writers have been trying to compare the political situation now to that of other times when a Republican president came in with a Republican Congress. The freshmen this year at Amherst were born during the year of Bill Clinton’s troubles over Monica Lewinsky, and so they may not have much historical perspective on the matter. But for those of us who are much older, the most appealing analogy may not be Eisenhower coming in with a Republican Congress in 1953, or Harding in 1921, ready to roll back the wartime controls on wages and prices. The most apt analogy, remembered with fondness, was the Congress that did such wondrous work in that glorious year of 1947.
But as a child, in those years, I remember that year of turning, 1947: Goods reappeared on the shelves at groceries. Household appliances made a dramatic reappearance with new products (such as mechanical devices for squeezing oranges!). But even those gadgets paled when compared with the revival of production for the private purchase of automobiles. I recall that, as a youngster of seven years, I just had the sense of “plenty” — of abundant provision now, with people not worrying so much about making a living. The air was alive with possibilities — including the possibilities for children. After a wartime dearth, where no children were added to the family, my sister was born at the end of December 1947, a distance of seven years between our births, and that interval was replicated with two of our cousins.
Nineteen forty-seven was also the year of Taft-Hartley: It was the first notable move to roll back the New Deal by amending the Wagner Act of 1935, the Act that brought the federal power to a new level of penetration in ordering the relations between unions and the owners of private businesses in peacetime. Is it really so long ago that we have utterly forgotten that there was a serious constitutional question? Namely: How does the distant federal government claim the authority to intervene in private firms, to prescribe the conditions of equity between unions and employers? The answer, of course, fixed then and lasting to our own day: the Commerce Clause. And the familiar bromide, of course, was that the flow of commerce could be gravely interrupted by prolonged strikes. The federal government would ease the problem by providing peace — mainly the peace of settling on terms closer to the terms set down by the unions. The ever-unpleasant Justice McReynolds caught, as usual, the core of the matter when he raised this unsettling question: With the same reigning logic, could the federal government impose a reduction of wages in any firm if that were the only way of keeping the firm in business and allowing the goods to keep flowing in interstate commerce? As the late Joe Sobran once put it, “Think of what Stalin might have done if he only had the Commerce Clause.”
Nothing in this Act . . . shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.
The states were free now to pass laws to protect workers from being conscripted into closed union shops. Which is to say, Congress brought forth the possibility of enacting those “right-to-work laws,” the laws that have produced, in our own time, the most striking difference in the vibrancy and growth in the economies of those states that have adopted them. If we find it hard now to imagine what this country would be like today in the absence of these reforms of Taft-Hartley, that is another way of saying that Taft-Hartley was one of those laws that changed the regime. Or more accurately, it helped to bring the regime closer to what it had been before the unprecedented extension of federal power under the New Deal. And that comes closer to the situation of this Republican Congress than the advent of any Republican administration with a Republican Congress since the days of Warren Harding and Calvin Coolidge.
Barack Obama and his party made a virtual nullity of the separation of powers.
Barack Obama and his party made a virtual nullity of the separation of powers. Obama was willing to govern — with his party in Congress willing to become complicit in this mode of governing — through executive orders that bore at times no thread of connection to any statute that would give them the color of legal authority. The mystery here is why it took 220 years and Barack Obama to show how the scheme in the Federalist Papers could virtually subvert itself: The same Madisonian system that made it hard to gather a majority in a plural body in order to legislate also made it hard to summon a majority to resist a president who was willing to be quite brazen in extending his authority without the benefit of any authorizing statutes. And that became decisively the case when the members of the president’s party in Congress gave up any sense of the institutional interests they might have, as members of Congress, to preserve the powers of Congress. But with this new, unencumbered way of governing, the federal power was extended to bring more domains of the private economy under political direction from the center. And, once loosed, there was no containing it or even noticing the limits: The federal power could be flexed in claiming power over wetlands, closing down coal plants, or doing in the bondholders of General Motors. It will require now a surge of governance, equally focused and determined, to bring the American regime back to some semblance of what it was meant to be. That is the mission now of this new coupling of a Republican Congress and a president willing to sign its measures into law.And that is what seems now so remarkably foretold as Mr. Trump fills out his administration with the people who have done the work and prepared the plans to undo the palsied works of the Obama administration: Representative Tom Price of Georgia, selected for Health and Human Services to undo the structure and incentives of Obamacare; Steven Mnuchin at Treasury, to undo the suffocating effects of Dodd-Frank in discouraging banks from lending to small businesses; or Elaine Chao for the Department of Transportation, possibly rolling back the “mileage standards” for autos and freeing our companies to devote more of their production to the cars that Americans actually want to buy. Can we have that world again as we knew it? Or have we come so far that such a world, of the most normal motives and the most common fruits of freedom, seems almost a fantasy? And yet these things are not beyond our reach. The people are now in place; they understand precisely what they must do. It is, in substance, what Robert Taft would have set about doing if he had been elected president in 1948 or 1952 with a Republican Congress. The work is already underway. Let us, with conviction reborn, cheer it on, and lend our hands.
— Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the founder/director of the James Wilson Institute on Natural Rights & the American Founding in Washington, D.C.