Faithful Execution

At Harvard Law Review, Andrew Kent.Ethan J. Leib, and Jed Handelsman Shugerman have an article titled "Faithful Execution and Article II."  The abstract:

Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed,” and take an oath or affirmation to “faithfully execute the Office of President.” These clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons.

This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up to the original meaning in the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices—especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but also to a vast number of more ministerial officers, too. We contend that it imposed three core requirements on officeholders:

(1) diligent, careful, good faith, and impartial execution of law or office;

(2) a duty not to misuse an office’s funds and or take unauthorized profits; and

(3) a duty not to act ultra vires, beyond the scope of one’s office.

These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution, for example, that limit presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal reasons. So understood, Article II may thus place some limits on the pardon and removal authority. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes, and perhaps constraining agencies’ interpretation of statutes to pursue Congress’s objectives. Our conclusions undermine imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring the President's faithful execution.

Urban-Rural Divide on News

Elizabeth Grieco at Pew:

Roughly six-in-ten self-described urban residents (62%) say their local news media mainly cover the area they live in, while a majority of those who describe themselves as rural residents (57%) say the opposite is true – their local news media mostly cover some other area, a concern raised by many journalism watchers following newsroom cutbacks and media consolidation. Self-described suburbanites are more evenly split, according to the survey conducted Oct. 15-Nov. 8, 2018, among nearly 35,000 U.S. adults.

Urban residents are also more likely than those in rural and suburban areas to feel that their local news media have a lot of influence on their communities: 44% of urban residents say so, compared with 30% of those in rural areas and 38% in suburban areas.

The United States is a Democracy

Jonathan Bernstein at Bloomberg:

One of this age’s great crank ideas, that the U.S. is a “republic” and not a “democracy,” is gaining so much ground that people in Michigan are trying to rewrite textbooks to get rid of the term “democracy.” And the discussion is such a mess that a New York Times article about the fight manages to get it wrong.

The truth is actually simple: For all practical purposes, and in most contexts, “republic” and “democracy” are synonyms. 1 The big difference is that the first comes from Latin and the latter from Greek. To say that the U.S. is a republic, not a democracy, is like claiming to eat beef and pork but not cows and pigs.

The debate may seem like hair-splitting, but it is important in the same way all assaults on knowledge are important – it’s part of the never-ending fight against attempted partisan intervention into education, whether it’s denying evolution or pretending the Civil War wasn’t about slavery. But it’s most important because opposing the idea of democracy can be a step toward opposing the reality of democracy, at a time when voting and other structures of formal equality are at risk.

Dueling Fact Perceptions

Morgan Marietta at Psychology Today

Most words can be schmade easily. It costs too much money? Money, schmoney. You have evidence? Evidence, schmevidence. The Schma is a rhetorically powerful argument specifically because it is not an argument. It is a dismissal without grounds. One can argue against an argument, with evidence, logic, or threats, but it is hard to argue with a blanket emotional rejection. Our book on the dueling facts phenomenon—One Nation, Two Realities (recently released at Oxford University Press)—discusses many of the psychological mechanisms that lead to such a rejection. These psychological effects are not new, but several changes in the political environment have ratcheted them up in recent times. We offer the term dueling fact perceptions (DFPs) for the common disputes over facts, whether the existence of climate change, or the prevalence of racism, or many other disputed realities. Some scholars prefer the term partisan facts, but our evidence suggests that the origin of dueling perceptions is not merely partisan leadership by politicians and pundits, but also the inclinations of ordinary citizens driven by the mechanisms of their own minds.

This means that regardless of what political leaders say or do, ordinary citizens will project their preferred values onto their perceived facts. The perceptions that lionize their values (and hence themselves) will be the ones they seek (selective attention), believe (selective acceptance), repeat (selective reinforcement), and remember (selective memory). This adds up to a highly selective set of perceptions, reinforced by social networks that provide great payoffs to conformity.

Top One Percent Now Has Greater Share of Net Wealth

Alexandre Tanzi at Bloomberg:

Newly available net worth data from the Federal Reserve suggests that the “left-behind” contagion has spread to all Americans aside from the top 10 percent. While still wealthier overall than most other groups, even the upper-middle class is feeling the pinch of income stagnation. The growth rate of this group’s incomes is lagging behind that of those both lower and higher on the socioeconomic ladder.
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As of the end of 2018, net worth as a share of the U.S. total had shrunk considerably for the upper middle class. In one generation, U.S. wealth held by households from 50th to the 90th percentiles fell from 35.2 percent of the total to 29.1 percent. Most of this wealth has transferred to the top 1 percent of U.S. households.

Vaccination and Religion

Forty-seven states have religious exemptions from vaccination requirements.

Ginia Bellafante at NYT:

They are problematic for a number of reasons. First, there is virtually no canonical basis for vaccine avoidance among the world’s major religions, most of which came into being before Edward Jenner developed the first widely used vaccine, against smallpox, at the end of the 18th century. Rabbis since then have repeatedly stressed the importance of protecting children through vaccination. Regardless, religious waivers provide cover to those who resist vaccines simply because they chose to question established science.

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A few years ago after a measles outbreak linked to Disneyland, California got rid of its belief exemptions, leaving no parent able to excuse a child from certain shots because of hippie misconceptions or arguments about religious necessity. In November a study looking at the effects of the legislation found immunization rates of children entering kindergarten in California to have reached a near all-time high.

People Don't Trust Government

From Pew:

The survey finds that Americans’ trust in the federal government remains at a historic low: Just 17% say they trust the government in Washington to do the right thing always or most of the time; 71% say they trust the government only some of the time and 10% volunteer that they “never” trust the government.