Where will this social sorting end? Proposition 16’s aim is to see that there is no end to the industry of improvising remedial measures to bring “social justice” to a fundamentally unjust state, and nation. The aim is to dilute, to the point of disappearance, inhibitions about government using group entitlements — racial, ethnic and gender — for social engineering. Most important, Proposition 16 greases the state’s slide into the engineering of young souls.
Sunstein and Vermeule optimistically claim that by and large the constraints built into the administrative state respect [Lon] Fuller’s commands, and thus bolster the “internal” morality of administrative law. But their point breaks down almost immediately because the modern administrative state gives little or no protection against retroactive legislation and related abuses. Likewise, the modern deference to administrative agencies allows for dramatic flip-flops in administrative law whenever political control shifts from one party to the other. To give an example, the innocent phrase “waters of the United States” was once interpreted to mean navigable waters on which boats or logs could float. But after a collusive 1975 settlement between the Secretary of the Army and the Natural Resources Defense Council, the Army Corps of Engineers issued a new definition which covered not only navigable and nonnavigable waters, but also lands adjacent to navigable waters. Ten years later, a deferential Supreme Court, relying on Chevron, sustained those regulations. So vindicated, the Corps imposed a fine of $37,500 per day, later doubled, on a landowner for filling in dirt on a dry lot separated by several built-on lots from any navigable river. While that excess was ultimately rebuffed in the Supreme Court on ad hoc grounds, similar extravagant claims are still being made. On these developments, Sunstein and Vermeule remain silent.
However you feel about this specific issue, it’s important to recognize that we are a long way from national security decisions being made by philosopher kings. Once you grant the government the power to enact an industrial policy, don’t expect the decisions to be free of political/personal considerations. On balance, I trust the market more than I trust any government.