I first met Professor Derthick in the early 1980s, when she directed the governmental studies programs at the Brookings Institution. She had previously taught at Harvard and Boston College (among other institutions) and, after her Brookings engagement, moved on to the University of Virginia, where she taught until her retirement in 1999. She remained a prolific author and an engaged participant in public debate in her post-retirement years. In those years I directed AEI’s Federalism Project. Martha was a frequent, enthusiastic, and well-nigh irreplaceable participant in our events, even as the trek from Charlottesville became increasingly traffic-snarled and time-consuming.
The Wall Street Journal, among other news outlets, reports that egg prices in California have risen sharply and are way out of line with prices elsewhere in the West. In 2008, California voters passed an initiative requiring chickens to have much, much bigger cages. California egg farmers protested about the attendant disadvantages. In 2010, the California legislature enacted a law requiring the layers of imported eggs—some four billion per year—to have equally spacious accommodations. The hens have since taken out home improvement loans and installed wall-to-wall carpets. For poorly understood reasons, however, there are fewer of them, and therefore fewer eggs, and therefore…
I haven’t had much time to parse the government’s reply brief in King v. Burwell. A few quick reactions:
They Know They Lose. Start of the brief (“Statement”):
The Affordable Care Act was enacted to provide “Quality, Affordable Health Care for All Americans.” Tit. I, 124 Stat. 130 (emphasis added).
An all emphasis, without more (and Congress ensured that comprehensive reach …) signals that the rest is junk. (You’re trying to make a single word trump the entire instrument.)
The oral argument transcript in Armstrong v. Exceptional Child Center—subject of my preceding post —is here. Edwin S. Kneedler’s argument for the feds starts on page 16. ‘Tis a thing of beauty: it articulates the correct theory (mine J) almost verbatim, without any hedging or equivocation. This is remarkable for several reasons:
Today (Tuesday, January 20) the Supreme Court is hearing arguments in Armstrong v. Exceptional Child Center. It’s a hugely important case that will shape the contours of federal spending statutes (here, Medicaid) and of federalism. While the dispute is between a state (Idaho) and Medicaid providers, there is more to learn from two amici: the administration, which gets the case admirably right; and the Chamber of Commerce, which gets it horridly wrong.
Earlier this week the Supreme Court heard oral argument in Mach Mining LLC v. Equal Employment Opportunity Commission (transcript and briefs). It’s a fairly big deal for employers, and another small window in the administration’s quaint views of administrative law.
The case concerns the EEOC’s enforcement practices. After the agency files a notice against an employer, conducts its investigation, and finds “reasonable cause” to proceed, it “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. 20002-5(b). What happens if they don’t do that prior to filing suit, or do a snow job on the employer? Nothing, says EEOC. The provision is unreviewable.
This past Saturday, Walter Berns died at the age of 95. Walter Berns was one of the truly great constitutional scholars and political theorists of his generation, or any generation since. A student of Leo Strauss’s, he taught at Louisiana State University, Yale University, and (beginning in 1959) in Cornell University’s Department of Government, which he chaired for several years. He resigned his position in 1969, when a feckless university administration caved in to armed thugs who had occupied university buildings. Cornell exposed faculty members who urged a defense of liberal education and resistance to mob rule—Walter Berns and Allan Bloom…
Professor Cass R. Sunstein has unearthed a new –ism: partyism, meaning an animus or aversive reaction to someone based solely on party membership. As in: “I don’t care if people think I’m a racist or a child molester. But I’d die if they thought I’m a Democrat.” (I think Ann Coulter said that long ago. If she didn’t, she certainly could have.) Partyism, Professor Sunstein writes, is on the rise, and it contributes to political gridlock.
The Federalist Society just held, and concluded, its 17th Annual Faculty Conference, running alongside (as always) the meeting of the American Association of Law Schools. Said events include a riveting debate between Jonathan Adler and Nick Bagley on (what else?) King v. Halbig. They further include two splendid back-to-back panels: one on “The Executive Power to Not Enforce the Law” (featuring John Harrison, Gillian Metzger, Zachary Price, and Nick Rosenkranz; moderated by Tara Grove); the other on “The Administrative State: Within the Bounds of Law?” (featuring Philip Hamburger, Kristin Hickman, Richard Pierce, and yours truly; moderated, with Teutonic punctuality, by our very own John…
Since my last post on state attorneys general George Will has chimed in on Oklahoma Attorney General Scott Pruitt and his leadership role in reviving federalism. And The New York Times has published an extended piece on the joined-at-the-hip connections between Democratic state AGs and the trial bar. Plaintiffs’ lawyers peddle cases against this, that, and the other industry to state AGs, who then sue and cut the trial lawyers in on the proceeds. A portion of those proceeds in turn ends up in the AGs’ campaign coffers. Amazing stuff.