The Supreme Court should have made members of the SEC subject to presidential removal, and this failure is the central mistake of Free Enterprise Fund.
The diversity office at the University of Michigan has 97 employees, an $11 million payroll and one insurmountable problem: the First Amendment, which, incorporated through the Fourteenth, does not permit a state to restrict speech on the grounds that it is “bothersome” or “hurtful” to someone within earshot. The university’s anti-bullying and anti-bias policies do precisely that.
Early this summer, the U.S. Department of Justice laudably filed a statement of interest in a federal lawsuit challenging these policies on First Amendment grounds. Just as important as what the Justice Department’s statement declares is to whom it said it (to another branch of government) and why it did so: on constitutional grounds.
So broad are the terms under which Michigan’s Statement of Student Rights and Responsibilities prohibits harassment and bullying that one is tempted to admire the school’s audacity. Harassment “includes”—not “is” but “includes,” apparently to make room for the naturally expansionist tendencies of such policies—“repeated or continuing unconsented contact” that would and does cause “a reasonable individual to suffer substantial emotional distress.” Bullying is “any written, verbal, or physical act, or any electronic communication, directed toward a person that is intended to cause or that a reasonable person would know is likely to cause, and that actually causes, physical harm or substantial emotional distress.”
Both definitions carry postscripts meant to fend off constitutional challenges, saying they exclude “constitutionally protected activity or conduct that serves a legitimate purpose.” But exempting constitutionally protected activity would eviscerate the intent of the policy, which is plainly to police speech.
It is a myth that college campuses, or those campuses infected with this nonsense, are populated by snowflakes who cannot bear the emotional strain of disagreement. They are populated by speech-warriors using communications codes and avowals of emotional distress to silence the uncompliant for the higher purpose—dare we say the “legitimate purpose”?—of compelling acquiescence to fashionable views.
It hardly needs emphasis that this is pernicious—that it can be used to police speakers, shut down unpopular expression, and chill conversation from the classroom to the quad—or that it is so broad and vague as to be enforceable only capriciously. If the concern is what is actually properly called harassment, the university could have written the policy for that purpose. Nor is it necessary to specify in the tradition of Socrates that an education that is not “bothersome” is not worthy of the name.
What needs noting is that the Trump administration could have attempted to resolve this administratively but correctly chose not to. When the Obama administration sought to impose itself on campuses, it issued guidance letters that contorted or exceeded statutory language. The Education Department under President Trump seems to have used that method mainly to revoke the letters disseminated by its predecessor.
Christopher DeMuth and Josh Blackman, among others, have noted that the current administration is, whatever its other sins, declining to view the world through the lens of policy preference alone. Process matters. At least with respect to the administrative state, it is taking steps toward making separation of powers great again. In this instance, rather than imposing its will by threatening to withhold federal funds, it is arguing in court in a case that, because an arm of the state is exercising essentially judicial authority against students, is appropriate for judicial resolution.
Since the administration does not control the outcome, that means it is releasing the reins.
Equally important, since the U.S. Code authorizes the Attorney General “to attend to the interests of the United States” in a federal case, the Justice Department is stating that the United States has an interest not just in particular policies but in constitutional maintenance. Thus the Statement of Interest, which begins, “The United States is resolutely committed to protecting First Amendment freedoms. . . .”
Would that all branches of government were similarly committed. A warped view of separation of powers holds that each branch will pursue its powers unreservedly. But all three branches swear oaths to the Constitution and are responsible for following it as they understand it. They are not supposed to under- or over-assert themselves. Their oaths entail a commitment to an idea (even if aggrandized) of their constitutional authority.
In Congress, the failure is at the opposite end: a general trend of delegation and a collapse of self-assertion that has sent members of both parties to the courts to beg judges to impose constitutionalism, which legislators desire, but not yet. The extremities of the judicial branch are in accepting such invitations—and often in not even waiting for an invitation.
This administration can be accused of bad policies, but it has generally pursued them through appropriate constitutional mechanisms. Whereas its predecessor suspended enforcement of the employer healthcare mandate, the Trump administration sought congressional repeal of the penalty for the individual mandate. In the Michigan case, this administration could regulate speech codes out of existence, but is making principled arguments about vagueness and First Amendment implications to a branch of government beyond its reach.
It’s ironic that the worst faults imputed to the Trump administration (see immigration controversies) are uses, fairly criticized, of authority that Congress has ceded to it and could scale back or revoke outright. The fact is that the Trump administration has not generally claimed authority it did not have, even if it would have suited its preferences on policy. It helps, to be sure, to have a Congress that is friendly unto acquiescence—something President Obama enjoyed for only two years. Then again, divided government is supposed to be a different scenario because it indicates the public view is unsettled. To the extent the Obama administration could not easily impose its will without exceeding its authority, the system was working. Where Congress failed was in not pursuing its institutional interests by pushing back.
The current administration, including its Justice Department, has not always acted rightly. But this is the right call on policy—the University of Michigan rules are either a poorly disguised speech code or easily convertible to that purpose—and an even better one on process. Credit where due: The President has appointed several officials who see the Constitution as transcending momentary policy disputes. That is a rarity. It ought to be encouraged.