Myriad commentators have criticized the Obama administration’s repeated flouting of the law. Professor Bainbridge has a list of some of the greatest hits the law has taken at Obama’s hands. So does Victor Davis Hanson. I wouldn’t go as far as Thomas Sowell in seeing in all this the first steps to the gas chambers or the Gulag, but it’s bad enough.
The $20 billion BP compensation fund is the most expensive, and most egregious, of these transgressions. Taking time off from his day job telling American corporations what they can pay their executives (another extra-legal monstrosity), Kenneth Feinberg assures us that “fairness” is his guidepost:
State laws will have to be made as consistent as possible to ensure that some victims of the Gulf of Mexico oil spill are not treated unfairly, says Kenneth Feinberg, the lawyer chosen by the White House and BP to administer a $20bn claims fund.
Determining which claims are eligible and which are not will be a “challenging” task, says Mr Feinberg, a renowned mediator who will soon take over the day-to-day running of the claims process from BP.
“How do we deal with a restaurant in Boston that can’t get shrimp for its favourite dish or the strip joint in New Orleans where business is off because the fishermen aren’t coming in?” Mr Feinberg asked.
“I think the best way to look at it is the way Congress looked at 9/11 cases. Would your claim be applicable under state and, in this case, maritime law? If the state would recognise it, then I will recognise it. If not, I should not,” he said.
So I see. There are state laws and maritime law that govern liability and damages in such matters. I’m going out on a limb here, but given that, I’m guessing that there are like courts and stuff with established procedures, rules, and precedents that are capable of applying such laws. Indeed, not just capable, but Constitutionally charged with the responsibility of applying them.
Not only does the BP fund trample separation of powers, it also rides roughshod over federalism. Feinberg will, like some imperial vizier, decide which state laws apply and which do not:
Overcoming differences in state laws will be another challenge, and Mr Feinberg’s team is now going through state laws to check for inconsistencies.
Although their initial inspection showed that the laws were “sufficiently similar”, the lawyer is also looking at creative ways to deal with any problems.
For example, if the law is the same in 41 states but not in the other nine, he might choose to apply the law of the majority across the board.
“I am very worried about unfair treatment. I can’t conduct and administer a fund where one person in one state would get their claim and another person in a different state would not,” he said.
I see. It’s all about fairness. Let me wipe this tear from my eye.
No, it’s not all about fairness, actually. In this federal system, there is a demarcation between state law and federal law. Each state has its own laws, duly passed by its legislature, its own courts for interpreting these laws and making judgments under it, and its own executive, for enforcing them. Citizens of those states have access to the courts under established principles of standing and jurisdiction. Individuals have made choices where to live based in part on those laws. They have entered into contracts under those laws. That’s the way it works, and the way it has worked for centuries.
Where does Ken Feinberg, and the Obama administration, get the power to turn this system completely on its head? Under what Constitutional theory does an unaccountable “official” (I use the quotes because the “position” he holds does not appear to have any legal sanction whatsoever) get the power to disregard some state laws to award claims that presumably have a legal basis in these same state laws? Since when does a majority of state laws trump the laws of the remainder? I mean, this is an absolutely bizarre legal doctrine.
This does not exhaust the deep problems with the BP fund. Obama and individual Congressmen have made it plain that BP funds will be used to compensate those who suffered losses from events for which no court likely would hold BP liable. Specifically, BP will pay oil workers for income lost due to the administration’s own drilling moratorium.
A competent court has already found the existing version of the moratorium to be legally deficient. It is remarkable indeed to expect BP to pay for costs arising from a government policy that has no legal basis.
Moreover, to craft a moratorium that passes legal muster, the administration (Interior Department) would almost certainly have to argue that deepwater drilling is so inherently risky that it cannot be countenanced. At most, the BP spill demonstrated the risks of drilling, risks that must exist independently of BP if all drilling is to be stopped: if the administration is correct that the irremediable and indefensible risks of drilling demand termination of the activity forthwith, those risks are inherent in the activity and would exist and have existed regardless of whether the BP well had exploded or not. That is, if the administration’s argument justifying the moratorium is correct, it would be correct regardless of whether the BP spill had occurred or not. How can you make BP pay for people not making money for not performing an activity they shouldn’t be performing in the first place?
Thus, there is no reasonable theory of causation that can attribute the lost income of oilworkers to BP. Given the lack of any colorable case that BP’s actions caused this lost income, there is no way that any court would find BP liable for this loss. The loss arises from the administration’s decision. And if you believe the administration’s justification for the moratorium, you must also believe that there should be no oilworkers in the Gulf anyways. Why provide compensation for the inability to undertake a wasteful activity? (Should the makers of locks pay for the lost income of burglars?)
Shredding federalism, separation of powers, and due process—not bad for a day’s work.
As appalling as this is, it should not be a surprise. It is the natural product of the progressive (and Progressive) legal mindset. Dating back to the dawn of the Progressive movement in the US, adherents to progressivism have viewed the separation of powers, federalism and the resulting patchwork of 50 sets of state laws, and due process as atavistic impediments to the achievement of rational and beneficial public policies. (For a distilled essence of this view, read any one of Tooltime Tom Friedman’s China For a Day wet dreams.) Progressives don’t blanch at the destruction of certain Constitutional principles dating from the birth of the Republic, and legal principles pre-dating that. They revel in it. They believe it is a good thing.
And if you don’t share their belief, you should oppose Obama’s actions, regardless of what you think of BP. There are ways of making sure that BP pays for the damages it has caused without trashing the rule of law; why do you think the country has so many trial lawyers? But if you are a Progressive, this trashing is a feature, not a bug. Progressives have been fighting the law for a long time. Let’s all hope that the law wins.