June 22, 2014

Lawprof Jonathan Turley ties together the Redskins decision, the IRS denying tax exemptions, and the FEC deciding what counts as "electioneering."

This is an excellent column that goes way beyond what's suggested by the headline, "The patent office goes out of bounds in Redskins trademark case." Here's where he ends up:
When agencies engage in content-based speech regulation, it’s more than the usual issue of “mission creep.” ... [A]gencies now represent something like a fourth branch in our government — an array of departments and offices that exercise responsibilities once dedicated exclusively to the judicial and legislative branches....

What is needed is a new law returning these agencies to their core regulatory responsibilities and requiring speech neutrality in enforcement. We do not need faceless federal officials to become arbiters of our social controversies. There are valid objections to the Redskins name, but it is a public controversy that demands a public resolution, not a bureaucratic one.
Read the whole thing.

58 comments:

campy said...

Henceforth all federal agencies will make the interests of The Party their #1 priority.

Goodbye, GOP.

SomeoneHasToSayIt said...


I blame the people who naively, foolishly, and now disastrously-in consequence, voted for Obama.

The Drill SGT said...

And the 4th branch is deep Blue, and not subject to either the ballot or impeachment...

PB Reader said...

Yes. It's all part and parcel of the same problem. Executives, departments, and agencies taking matters into their own hands and taking actions on perceived justice rather than law.

As opposed to doing the hard work of changing the law or the constitution, this is the lazy way out. And we certainly do have a lot of lazy folks in government. Starting at the top.

Hagar said...

And 9 out of 10 (I can make up numbers as well as any Democrat, in or out of the Government) find the term "Native American" offensive; state that they prefer the name of the nation or tribe they belong to, and if you must use an all inclusive term, they prefer the traditional "American Indian."

Which is consistently ignored by just about all the MSM pundits as well as the politicians and social activists, so whatever this is about, it is not about the feelings or preferences of the Indians.

The Godfather said...

Of course he's right. But it goes beyond agencies. Courts have been doing the same thing: Creating and enforcing public policy. In a democratic republic, the legislature should establish public policy (and the courts should step in only where such policy violates the Constitution).

FleetUSA said...

Yes, an excellent article. Unfortunately the Attorney General won't lift a finger unless Obama agrees. A Republican Senate might help if we get that.

The Dems are too scared to rebel against Obama.

Jupiter said...

"What is needed is a new law ....".

Oh, yeah, that'll fix it.

Gahrie said...

it is a public controversy that demands a public resolution

However, like much of the Left's agenda, (Obamacare, abortion, gay marriage etc) the majority of the people oppose the Left's position, so the Left is forced to rule by non-legislative means. (judicial legislation, executive signing orders, bureaucratic legislation)

SJ said...

For some reason, I'm reminded of Pournelle's law of bureaucracy.

You have three different cases where the bureaucracy is acting to increase its own power and importance, rather than serve the goals it was intended to serve.

And Pournelle's law gives a good explanation as to why.

CWJ said...

"What is needed is a new law returning these agencies to their core regulatory responsibilities and requiring speech neutrality in enforcement. We do not need faceless federal officials to become arbiters of our social controversies. There are valid objections to the Redskins name, but it is a public controversy that demands a public resolution, not a bureaucratic one."

It's charming when law profs think that a new law can stop a naked grab for power.

Anonymous said...

The comments on that page are terrifying.

Iteration after iteration of "They're just doing their job! If conservatives had their way we would never change anything!"

They truly have absolutely no concept of the simple fact that Government is a monopoly on the use of force, and thus must be more heavily restricted than the private sector, which has no such monopoly.

They view Government, with its ability to put the boot on anyone they like now with the administrative state, as more noble than the private sector, which depends on voluntary transactions to stay afloat (insofar as they do not get Govt handouts.)

This is what endless partisan propaganda does to people. It makes them illogical and downright dangerous. It encourages decision making by party and who you are AGAINST, not who you are for.

Just look at the regular Progressives that appear on the threads here. It's nearly always an attack on the 'Other', not a defense of their own policies and results.

This sort of thinking is what enabled fascism and communist extremism in the early 20th century. This is what the political atmosphere in those areas turned into.

Bob Boyd said...

Would you let a member of your household talk you into having the foundation pulled from beneath your house because it was supporting a wall upon which was hanging a painting that person found offensive?

Anonymous said...

Another great example in the comments on the article is that they uniformly focus on the 'racist team name', completely ignoring the other examples the article gave, such as the turning off of water supplies.

Propaganda, hate, and the 'class consciousness' all this endless shouting creates results in this type of political doublethink. When people have been trained to simply not see the facts that are uncomfortable to them, what is the limit to the corruption and malfeasance? The answer, according to history, is that it will continue to worsen the more of a one-party state the Govt becomes.

Skipper said...

All true, but the underlying problem is the hundred years delegation of rule-making and enforcement authority to the myriad of federal and state bureaucracies (not to mention municipalities) whose power can barely be understood, much less revoked.

jj121957 said...

Ordered a Redskins cap last night and will wear it everywhere. And I'm a 49er fan.

Sam L. said...

Tea Party! Call for Tea Party!

NotquiteunBuckley said...

Well, that made a certain amount of sense to me, based on my understanding, which is limited.

"Any intelligent fool can make things bigger, more complex, and more violent. It takes a touch of genius -- and a lot of courage -- to move in the opposite direction."
"Imagination is more important than knowledge."

But what would Einstein know of patent law today? So what could he contribute to the discussion, now, a discussion outside his specialty?

Am I crazy, or is there something to this "fallacy of authority" concept?

damikesc said...

I agree with him.

Courts need to toss out laws that are so vague as to give agencies enough to power to expand them immensely.

Unaccountable bureaucrats shouldn't have so much power over the country as a whole.

Skeptical Voter said...

Every running dog of a GS 15 in the cesspool on the Potomac hears the commands of the Four Horsemen of civic death and obeys. Who are the four horsemen? Reid, Pelosi, Holder and Obama. Well not so much horsemen as horse's asses, but your mileage may vary.

steve uhr said...

Isn't the problem Congress passing way-too-vague laws that the administration and its agencies have no choice but to enforce? The law says the agency is supposed to make a call on whether a trademark is sufficiently disparaging and they presumably made the call to the best of their ability. Change the law, don't blame the bureaucrats.

SMGalbraith said...

"Democracy is rule by the majority; oligarchy is rule by the minority; and bureaucracy is rule by nobody."

And it's hard to control nobody.

madAsHell said...

The local newspaper, the Seattle Times, is now refusing to use the Redskins reference in their reporting of the Redskins football team.

Why do I feel like a bunch of 14-year-old girls are running things? This is junior high all over again.

MadisonMan said...

I stand and cheer at this column. Bureaucrats do one thing very well: protect their job. To do this they have to be clever in expanding the role of their job.

The public must be vigilant and push back hard when this happens.

This column would be a good litmus test for any politician looking for my vote.

T Rellis said...

I have an idea, let's put the liberals in charge, they love free speech.

RememberHillary? "Im sick and tired of people saying that it's unpatriotic to disagree with this administration"

Scott M said...

Exceptionally well put. However, since it's calls for actually reducing government, it'll probably never happen unless it's one of those liberty tree blood things.

Crazy Jane said...

Unfortunately, it IS a bureaucratic problem embedded in a huge, nasty, crappy system.

It's the local taxi administrator trying to shut down Uber and Lyft when there are no taxis in much of the town. It's bureaucrats taking after BnB even after it agrees to collect local hotel taxes. It's state legislators taking money from car dealership owners and then shutting shut Tesla out of the market. It's regulations that require hair braiders to spend 1,500 hours on overpriced education to get certified to BRAID HAIR.

It's the IRS going after groups that don't like the current regime. It's the Justice Department collecting billions of dollars from JPMorgan Chase for Jamie Dimon's refusal to curtsey for the king. It's U.S. attorneys and state attorneys general choosing whom to prosecute with an eye to future political campaigns.

It's the angry hag at my post office who hates everyone and assures me that yes, she'll fix the problem about not resuming my mail delivery and then doesn't do it. It's her coworker who says yeah, she lied to you and she doesn't care -- tough. It's her boss, who won't return phone calls or answer mailed complaints.

The whole system is manipulated by petty people seeking their own ends.

I'm getting pretty tired of it.

I don't know what to do about it, but it's broke.

NotquiteunBuckley said...

I've wanted to comment on the lack of coverage of Steyn.

I did.

Althouse and Co. don't care about me.

I love them for it.

Mark Steyn's assault on the American Septic Tank known, by themselves and themselves only, as the Justice system is long past due.

The smartest move Althouse ever made was withdrawing Judgmement or judgement or Judgement or judgement as it were.

Y'all know what I be talkin' bout yo.

You know.

Lem said...

Lawprof Jonathan Turley ties together the Redskins decision, the IRS denying tax exemptions, and the FEC deciding what counts as "electioneering... an excellent column...

You are just saying that because his new math, 'tied together', didn't ad up to 19... this time.

Not in a way that could be easily discerned.

Leit Bart said...

Turley makes excellent points about executive overreach at this CATO event, too. The video is long but well worth it. The panelists are excellent.

http://www.cato.org/events/suspending-law-obama-administrations-new-approach-extending-executive-power-evading-judicial

Ann Althouse said...

LOL on the 19.

I'd forgotten that.

Quaestor said...

This is quite a turnaround for Turley, who heretofore has been content to be a water carrier for the Progressive Cause of the Week. Regulatory and judicial fiat have been the Left's weapon of choice since the Mesozoic Era. By advocating what amounts to unilateral disarmament for the Left Turley has made himself a de facto agent of originalism.

Has Turley had a face/palm epiphany? Or does he foresee a rough road ahead if conservatives gain ascendancy in the next few election cycles (which seems likely given America's evident disgust with Obama and all His Works) and begin to turn the regulatory WMD back on its creators?

Hagar said...

campy et al.,
Wrong again. These people are not loyal to the Democratic Party; they expect the Party to be loyal to them.

broomhandle said...

Jane,
Well said.
Unusually, my local post office has great, very helpful staff.

Pianoman said...

Quick, we need to force Oklahoma (literally, "Red People") to change it's name too! *Someone* is obviously offended!

I propose that we only call it "Sooner State" until their state legislature does The Right Thing by doing what Harry Reid says.

Quaestor said...

The Drill SGT wrote: [The] 4th branch is deep Blue, and not subject to either the ballot or impeachment...

True. But they are subject to other pressures.

While it is almost impossible to fire a government employee (Incompetence is irrelevant to whether a bureaucrat keeps his job or not. They're immune to everything except absenteeism and/or child molestation.) the Administration can dictate the circumstances under which they must work.

If the next president is a conservative there are things he can do to make government service so onerous that many will resign or seek early retirement. Those openings can then be filed with the right people who know their place, or left vacant, which is probably better.

STEP ONE: No more cushy offices. Comfortable office space makes hardened autocrats out of the merely officious. Force everyone in a rogue agency like the IRS to vacate his office and shitcan his high-backed leather chair. 8x8 cubicles for everyone. And no doors. Everybody sits in the same cloth-upholstered stenographer's chair. Put everyone over GS-7 as far away as possible from windows and washrooms. Remove change machines from vending spaces. No Windows, either. Everybody uses Linux. The operative concept here is stress maximization.

STEP TWO: Greener than thou. Everybody in every agency not under the Department of Defense, but especially the EPA, over GS-11.5 must dedicate 16 hours of each week to proactive environmental management, i.e picking up litter along I-95, rain or shine, summer and winter not withstanding.

STEP THREE: Pilloried for Hillary. Agencies are requires by statute to be functionally non-partisan. This needs to enforced much more than rigorously. Therefore, install an incentive system to encourage "ratting" on colleagues who step out of line, and the line must be as broad and fuzzy-edged as possible. Water-cooler remarks like "I hate Limbaugh" must be seen verboten politicking. Reward the rats with promotions and perks. The "rattee" gets passed over. Occasionally reward and punish at random to create suspicion and gossip.

These steps are guaranteed to create a psychotic work environment, which is better than the Fourth Branch deserves. Think of Philip Francis Queeg in command of the USS Caine -- an agency in the grip of mass paranoia won't have the time or energy to trouble the rest of us.

SteveR said...

And the 4th branch is deep Blue, and not subject to either the ballot or impeachment...

Civil Servants many of them, spoiled and secure, either uncontrollable or running out the clock to retirement.

chillblaine said...

This phenomena has trickled down to the state level in California. There is the Coastal Commission, a "quasi-judicial regulatory" agency that has overstayed it's mandate. There is also CARB, the Air Resources Board. CARB is the father of the EPA. Unelected and unaccountable to the voters. Four Democratic state senators under indictment. Doesn't matter. Anyone who votes libertarian/conservative is pretty much throwing away their vote.

David said...

Congress created them, so Congress will have to restrain them.

Problem is, restraining the agencies would require Congress to do more work and make more decisive votes, rather than punt to the bureaucrats. This Congress has been unwilling to do.

Original Mike said...

"Congress created them, so Congress will have to restrain them."

Congress has no desire to restrain them. Broad, vague laws administered by bureaucrats gives the Congress Critters cover from the consequences of the laws they pass. Its not a bug, it's a feature.

J Lee said...

madAsHell said...

The local newspaper, the Seattle Times, is now refusing to use the Redskins reference in their reporting of the Redskins football team.


They're going to have fun in October, when the Seahawks travel to Washington for a Monday night game. Wonder how they're going to deal with the Seattle players' quotes before and after the the face the football version of Voldemort, if the Seahawks or coach Pete Carroll use the name?

mtrobertsattorney said...

Add to this the militarization of these agencies under Obama and you have a "standing army"* under complete control of the executive branch ready to impose its will on American citizens.


*It was the founding generation's great fear of a standing army that gave rise to the Second Amendment.

James Pawlak said...

A copyright is property. Was "due process" given the Redskins owner by the Feds before taking away that property.

Perhaps, he should change the name to "Sherman's Raiders", with a US horse trooper of the 1870s as the "mascot" and the team motto, "I saw some good Indians...".

Joe said...

The only viable solution is to reduce the size of government. First step is to simply eliminate most of the agencies and departments, starting with the Department of Education and HUD.

The Crack Emcee said...

Stop playing the victim(s). Your fears are not America's and, if they come to bear, we'll deal with them when we get there.

In the meantime, you'd rather talk than act - that's your "public option" for everybody else - which is already taking place centuries too late, so tough.

You lack leadership abilities and a moral compass, damn it,...

Hagar said...

and it was Phil Sheridan, not William Sherman, who said that.

Larry J said...

The bureaucracies are the real federal government. The 537 elected officials (House, Senate, POTUS and VP) are mostly for show. Politicians come and go but the bureaucracy is forever. The bureaucrats know they can wait out any politician and actively undermine him if they so choose (see: Bush, W.) with no consequences.

In addition to laws restricting the authority of the bureaus, there needs to be serious reform of the Civil Service (an oxymoron, for most aren't civil and provide little service) laws.

broomhandle said...

I know many ardent liberal NFL fans. It will be laugh-out-loud funny to watch them avoid using the Redskins name with an air of great self-righteousness.

Hammond X Gritzkofe said...

What is needed is a new law....

No, what is needed is an electorate more ready to accept personal responsibility, less ready to shuck problems onto "Government"...

...and more cognizant that politicians and bureaucrats are no different from anyone else looking to get hired or keep a job. Some - really *all* to greater or lesser degree - will lie, cheat, and steal to get and to keep employment.

Quis custodiet ipsos custodes? Apparently nobody, in the minds of many voters.

If you don't like what they do with the poser, don't give them the power.

Matthew Sablan said...

"The law says the agency is supposed to make a call on whether a trademark is sufficiently disparaging and they presumably made the call to the best of their ability."

There's a list of other offensive trademarks that are pending or accepted [and when I say that, I mean they have actual built in racial slurs, as opposed the "debatable" Redskins term, that are MEANT to be offensive.]

If all of these also get canceled, then they're making judgment calls. Otherwise, ho hum.

AJ Lynch said...

Maybe Snyder should announce he has decided Native American so-called leaders have been whining losers for so long that he does not want his team represented by such a sorry group any longer.

Kirk Parker said...

James Pawlak,

1. This is about trademark protection, not copyright.

2. Copyright is NOT property, it's a government-granted limited-time MONOPOLY.

Todd said...

I don't mind the board having the authority to not grant a trademark on a mark found offensive. I question their retroactive ability to rescind one that was already approved.

If the government wants to "take back" their protection for that mark, they should have to compensate the business for the full value of the lose.

Anthony said...

Does anyone still read the Seattle Times?

Well I guess the local contingent of liberal know - nothings might.

Drago said...

Todd: " I question their retroactive ability to rescind one that was already approved.

If the government wants to "take back" their protection for that mark, they should have to compensate the business for the full value of the lose."

LOL

Such quaint pre-2008 notions.

Don't you know that obama's admin HAD to act unilaterally and in ways never before imagined?

I mean, don't you know that there are folks who do not toe the PC/dem/lib/left line and, in fact, sometimes actually voice that disagreement?

Forward!

damikesc said...

As has been said, scrap civil service and go back to spoils.

Then SOMEBODY is responsible for wrongdoing (the President who appointed that person)

Hyphenated American said...

"Stop playing the victim(s). Your fears are not America's and, if they come to bear, we'll deal with them when we get there. "

This is bizarre coming from the guy who spends every day demanding a handout because he believes all white people made him poor.

JamesB.BKK said...

And yet no apparent concern by these people about the abysmal lives led by most of those folks that, or whose ancestors, were labeled as such years ago when they were issued their tribal papers - due solely to political organizations imposed on them by the federal government and exclusion from the broader US society - again by policies of the federal government - and its opportunities. Those without tribal papers do ok (and this is not a reference to Betsy Warren's egregious claims and opportunism). Any concern expressed about these folks by those wielding federal power are frankly posing. See http://www.lewrockwell.com/lrc-blog/american-indians-in-bondage-thanks-to-the-government/