Greg Weiner

Greg Weiner, who teaches political science at Assumption College, is the author of Madison’s Metronome: The Constitution, Majority Rule and the Tempo of American Politics. His book American Burke: The Uncommon Liberalism of Daniel Patrick Moynihan will be published by University Press of Kansas in early 2015.

Halbig and the Nonchalance of Six Small Words

New legislation

The psychology of legislative draftsmanship involved in the six words at stake in Halbig v. Burwell—“an exchange established by the State”—reflects a short-odds gamble that did not hit. The bettors first wanted the IRS to rescue them from the consequences, and now they want the courts to do it.

The gamble was that states, enticed by subsidies for their citizens or intimidated by the threat of losing Medicaid funds, would establish healthcare exchanges. The Obama administration is surely right that the whole idea of the Affordable Care Act (ACA) was that such subsidies be provided, and that the consequences that have ensued from those six small words were probably unintended.

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Corporate Conscripts

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The syllogism used to run as follows.

The state should provide good things. X is a good thing. Therefore, the state should provide X. This is fraught with problems, to be sure—but it is also clear, debatable and honest. Now, on November’s ballots, comes the purportedly market-oriented version, which, debauching the name of Adam Smith, reframes it as follows: The state should guarantee good things. X is a good thing. Therefore, the public sector should compel the private sector to provide X. This is opaque, indirect and pernicious.

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It’s Time for a Free Market NFL

Pro Football Hall of Fame in Canton, Ohio. Built in 1963.

First the obligatories: The nauseating video of former Baltimore Ravens running back Ray Rice punching his then fiancée, now wife, into unconsciousness in an Atlantic City casino should have landed him in the New Jersey state prison system. NFL Commissioner Roger Goodell so badly bungled the case and the communications surrounding it that he ought to be disabused of the delusion that his very public job is a personal right to which he is entitled until conclusive evidence of actual wrongdoing separates him from it. And the number of domestic-violence cases in the NFL suggests a culture of lawlessness, not to mention simple indecency, among at least some of its players.

All true. And all of it was established, and was being vigorously and effectively debated, in the Tocquevillian sector—namely, civil society—without members of Congress queuing up to offer rhetorical interventions, from calls for official inquiries to demands that teams sit players under investigation. Some of their criticism was right, but on what authority—according to which of the 18 enumerated constitutional powers—were they acting? The moral-preening clause?

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The Post-Constitutional Presidency Turns Inward

White House Wasghington DC view

The syllogism by which healthcare deadlines may be deferred against laws, recess appointments made without recesses, and international agreements negotiated sans treaties runs as follows: The national government is empowered to pursue the public interest. The power of the national government is vested in the person of the President.  Therefore, the President is empowered to pursue the public interest.

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Post Collegium, Ergo Propter Collegium: On the Destruction of Higher Education in America

open book

My first child having come with no manual, as evidently no child does, my wife and I arrived home with her somewhat bewildered, which was nothing compared to our confusion upon entry into the teenage years, but I digress. In any event, I blame college. Not a single class in parenting was required at the University of Texas at Austin.

This is, of course, absurd—an instance of what might be called the post collegium ergo propter collegium fallacy: the idea that the purpose of college is to prepare students for anything that comes after college. It is now pervasive. Students need careers; college must train them. Students do not know how to find jobs; college must teach them. The world is diverse and the economy is integrated; college must prepare students for both.

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The Very Definition of Tyranny

federalIt is a close contest which recent assertion of executive authority crowns the rest, but the Administration’s potential skirting of the Senate’s treaty power in negotiating an international agreement on climate change ranks high in the running. The Constitution’s explicit partnering of the Presidency and the Senate in binding the nation in global agreements, combined with the two-thirds majority needed in the upper chamber of Congress to affirm them, points to the unique dangers of cutting one institution out of the process. President Obama is not the first to do this.

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The Case Against CIA [REDACTED] John [REDACTED]

CIA

I used to think I wanted the job security of the tenured professor but now I think what I really want is to run the CIA. Nothing, but nothing, gets those guys fired. John Brennan, for one, has retained his position after presiding over a formal, frontal assault on a coordinate branch of government. He has kept it after further mocking the principle of the separation of powers by redacting a Senate report on CIA interrogation practices so thoroughly that even already public material is blotted out.

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The Kind of Book Political Theorists Ought to Read

That drip-drip-drip sound you hear is condescension falling from the mouths of skeptics appalled that such as Lynne Cheney, who does not even hold a tenured position on a university faculty and whose hands are sullied by the actual practice of politics, to say nothing of the side on which she has practiced it, and whose previous writings have not always sounded the depths of profundity, has now dared without so much as the permission of a double-blind peer-review process to produce a sober, scholarly biography of James Madison and, what is worst of all, with a prestigious trade press.

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The Road to Lawlessness

court 2There will be a Republican President again someday. This will happen. Democrats, having forgotten that fact, would do well to remember it. Suppose this happens too: Congress cuts taxes, stating in the preamble to the law that it intends to spur economic growth and, Laffer-style, boost revenue. The cuts fail to achieve that goal, so the President—on the grounds that a law should not be implemented in a manner contrary to its stated overall purpose—unilaterally orders the IRS to cut them some more.

After the arguments made to the D.C. and Fourth Circuits to justify the subsidies for coverage on federal Obamacare exchanges, the howls of indignation might be hard to separate from the howls of righteous vengeance. Because while the tax-cut scenario takes the case to eleven, the species of argument is the same: that the President is authorized to violate—or, more politely, let us say, reconceptualize—the letter of a law in the name of achieving its overriding purpose.

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