The Heritage Insider – The Constitution and the RULE of LAW

The Heritage Insider – The Constitution and the RULE of LAW

December 19, 2015


How to limit the administrative state:
“If we strip down to its essentials where legislation differs from administration, it is this: who makes the choices that constitute fundamental policy?

“As Justice Scalia wrote in dissent in a 1989 case:

“It is difficult to imagine a principle more essential to democratic government than that upon which the doctrine of unconstitutional delegation is founded: except in a few areas constitutionally committed to the Executive Branch, the basic policy decisions governing society are to be made by the Legislature. Our Members of Congress could not, even if they wished, vote all power to the President and adjourn sine die.

“The trouble with this statement is that—as essential as it is to democratic government—there has never been an effective definition of legislation, and hence no agreement on what decisions are committed to Congress by the Constitution. Policy-making occurs at both the level of the legislature, and the level of administration and enforcement. If we are ever able to curb the growth of the administrative state, it will have to come though defining what legislation actually is and where it differs from administration. In addition, that idea—if it is ultimately developed—will have to accepted and used by the courts. We are very far from that point today. [Internal citations omitted.] —Peter J. Wallison, “Limiting the Relentless Growth of the Administrative State,” American Enterprise Institute, December 10

The Supreme Court heard oral arguments in Fisher v. University of Texas at Austin last week, and will announce a decision in June. The case is an opportunity for the Court both to end racial discrimination in higher education admissions and to help minority students.

“When schools ‘relax their admissions policies in order to admit more underrepresented minority students,’ those students end up ‘concentrated at the bottom of the distribution of entering academic credentials at most selective college and universities.’ Any student, regardless of his or her race, ‘whose entering academic credentials are well below those of the average student in a particular school will likely earn grades to match.’

“These students are far less likely to succeed in school, making it far less likely that they will pursue careers in their chosen profession and far more likely that they will switch to an easier major, or worse, drop or flunk out of school. This is a particular problem in the hard sciences, where the students ‘who fail to attain their goal of a science or engineering degree are disproportionately students whose entering academic credentials put them toward the bottom of their college class.’ 

Furthermore, this perverse acceptance of racially discriminatory admissions policies has also led to individuals faking one race or another to gain admission at certain schools.

“Thus, the Supreme Court should revisit its past decisions allowing the use of racial preferences in college admissions. A majority of the Supreme Court justices have questioned the continued legitimacy of racial preferences, and 12 years ago, in Grutter v. Bollinger, Justice O’Connor wrote: ‘We expect that 25 years from now, the use of racial preferences will no longer be necessary….’ Justice O’Connor was wrong 12 years ago when she sanctioned their use, albeit under supposedly limited circumstances and for a possibly limited amount of time. Such preferences are nothing more than a euphemism for government-sanctioned discrimination, and cannot be reconciled with the principle of equal protection embodied in the Fourteenth Amendment.

“As Chief Justice John Roberts said, ‘Racial balancing is not transformed from “patently unconstitutional” to a compelling state interest simply by relabeling it “racial diversity.”… The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.’

“It is time for the Supreme Court to finally put that principle in place by banning racial preferences and other discriminatory practices in college admissions.” [Internal citations omitted.] —Hans A. von Spakovsky and Elizabeth Slattery, “Discriminatory Racial Preferences in College Admissions Return to the Supreme Court: Fisher v. University of Texas at Austin,” The Heritage Foundation, December 3

More on the Constitution and Rule of Law


Things your government spends your money on:

$6.8 million over the past three years for professional sports teams to honor the nation’s military heroes. The tributes include ‘on-field color guards, enlistment and reenlistment ceremonies, and performances of the national anthem, full-field flag details, ceremonial first pitches and puck drops.’

$5 million to get hipsters to stop smoking, much of it spent on parties at nightclubs and bars.

$1.3 million to study how koozies keep beer cans cold.

$3 million for party bus operators to upgrade security at their facilities. [Sen. Jeff Flake, “Wastebook: The Farce Awakens,” December 2015]

More on the Economy


One of the major differences between the Left and the Right is that they ask a different question when assessing public policies. [Prager University, December 14]

Department of Homeland Security Secretary Jeh Johnson resisted calls last year to allow immigration agents to review visa applicants’ social media activity because of fear of “bad public relations,” according to a former agency official.” [Daily Caller, December 14]

Chipotle put its customers’ health at risk by pandering to food faddism. [Forbes, December 14]

If you own a drone—any drone that weighs over .55 pounds—you now have to register it with the Federal Aviation Administration or pay thousands of dollars worth of fines. The FAA drone registry opens December 21.

Milwaukee’s deregulation of its taxi cab and local ride market has survived a lawsuit from the taxi cab cartel, thanks to the Institute for Justice. [Institute for Justice, December 8]

Have a merry Christmas, happy Hanukkah, and happy New Year!
Please look for the next issue of the Heritage Insider on January 9, 2016.

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