A Constitutional Congress

In an exceptionally important article, Chris DeMuth addresses the deep pathologies of our politics. Chris has written extensively about the fateful drift into executive government, which (he cogently explains) is also a debt-ridden and lawless government (see his website here).  In this piece, he tackles a principal institutional cause of those tendencies: for Congress, legislation has become an unnatural act, to be performed only in extremis. Thus, a constitutional revival will require a cultural revival. Recovering Congress’s lost powers will require relearning legislative skills, redirecting legislators’ energies, and risking the ire of party constituencies who are unfamiliar with the obligations of…

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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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Same-Sex Marriage, the Political Process and Judicial Manipulation

There is a new meme circulating among journalists about the Supreme Court’s decision not to take certiorari in the same sex-marriage cases. According to the left-liberal Jeffrey Toobin, the Court’s decisions allow the “political process to go forward, one state at a time.” Or as David Brooks, a moderate conservative, said at greater length: “Sometimes, you just let the country have its way, and you don’t try to determine the shape of the country. You sort of modestly step back and let the country figure out what it believes. And I think they’re doing absolutely the right thing in just withdrawing and not getting too involved.”

Whatever one thinks of same-sex marriage (and I favor it as a policy matter), these claims completely distort the truth. The Supreme Court is letting go forward a judicial process that permits courts to invalidate traditional marriage laws if they think such a decision would best reflect the signals the Court itself has previously sent on the subject.  In contrast,  a political process would allow states—principally their legislatures and people—to make decisions about same-sex marriage, one state at a time.

The journalists’ claims are even more disingenuous because of the way the Supreme Court has set the stage for the lower courts.

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The Problem of Nonlegislative Rules

One of the big problems involving administrative agencies is that they are often insufficiently checked.  With the relaxation of separation of powers during the New Deal, modern administrative law limits agencies through two principal mechanisms: required procedures and judicial review.  Unfortunately, administrative law allows certain loopholes to these mechanisms that agencies can exploit.

One of the biggest problems these days occurs when agencies regulate through the use “guidance documents.”  Mike Greve recently had a post discussing the Department of Education’s use of one such guidance.  When agencies issue legislative regulations – rules that bind the public – they are normally required to do so after a notice and comment procedure.  Moreover, such rules are often subject to judicial review when they are issued.  Thus, there is a procedural and judicial review check on such legislative rules.

By contrast, guidance documents – which often read like legislative rules in that they appear to tell regulated parties how to act – are not subject to the notice and comment procedure.  While guidance documents do not formally bind private parties, they often operate in the real world to exert a practical influence on the public.  Moreover, while the matter is subject to dispute, there is often not judicial review of such rules.  As a result, agencies love to regulate with such guidance documents since they can avoid scrutiny.

While the courts could possibly address these problems, the best way would be through legislation.  Administrative agencies have enormous influence over the country and the Congress needs to pay attention to them.  Republicans, who have recently been greatly concerned about the abuses of administrative agencies, should attempt to address this problem through legislation.

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Why Iraqi Chemical Weapons Embarrass the U.S. Government

The New York Timesaccount of Washington’s embarrassed secrecy about the U.S. military’s encounter with several thousand chemical weapons in Iraq, and the often callous medical treatment provided to the troops who dealt with them during the 2003-20011 occupation, is incomplete.

Not mentioned by the Times is that our special operations forces had run into these weapons in 2002 during secret, pre-invasion reconnaissance missions under CIA operational command. At least one U.S. officer suffered kidney failure after coming upon a suspect site, ordering his men to stand back as he entered to check it out and collapsing upon exiting. Discharged on medical disability, he has been on dialysis awaiting a kidney transplant since 2004. He and other special forces were warned—more categorically than the occupying troops discussed by the Times—that divulging what happened to them would be treated as a serious breach of “top secret” security.

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Your Credit History (the Accurate Version)

Wallet with cards

The story is a familiar one: Irresponsible consumers and rapacious borrowers collide in a frenzy of consumption that takes down the American economy and banking system. Only heavy-handed government regulation can rein in the excesses, providing comprehensive regulation of the consumer-credit economy and protecting vulnerable groups of Americans from exploitation by lenders who goad consumers to take on more debt than they can handle to sustain a consumerist lifestyle they can’t afford.

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Two Political Theory Courses

As I have mentioned before, I am a big fan of listening to college courses from The Great Courses (previously known as the Teaching Company) and from other sources.  I have listened to hundreds of courses, which has greatly expanded my learning.

While I enjoy listening to courses in a great variety of areas, I especially like it when it is an area of my scholarly interests, such as political theory.  Happily, there are two courses – one recent, one out several years – that I strongly recommend in the political theory area.

The first course is “The Modern Political Tradition: Hobbes to Habermas,” given by Professor Lawrence Cahoone of Holy Cross.  There is a lot to like about this course, especially for those on the right. It is clear, enjoyable, and fair minded: for a significant portion of the course, I was not even sure what Cahoone’s politics were.  Perhaps the best feature is the coverage.  He covers both the historically important thinkers as well as modern ones.  Concerning the modern thinkers, he spends significant time on the right, discussing Oakeshott, Hayek, Rand and Nozick.  But he also discusses important continental thinkers about whom I knew less, such as Habermas and Foucalt.  And he does not slight other important thinkers, like Michael Walzer.  Overall, a great course.

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Eliminate Missouri Plans for Judicial Selection

It is election season again. And that means it is time for complaining about electoral campaigns against retaining justices who sit on state supreme courts. These campaigns are said to be inconsistent with judicial neutrality because judges are forced to take positions on jurisprudence. Big money is said to buy judicial favoritism.

I am no fan of subjecting judges to elections. In my view, the far superior system is one, like the federal structure,  in which the elected chief executive of the jurisdiction appoints judges for a term of years upon confirmation of a legislative body. But judicial elections are necessary, if the appointments are made according to so-called Missouri plans, an arrangement that permits  lawyers to create a power center of their own in the judiciary.  Indeed, while elections provide some corrective to the democratic deficit of those plans, they are an insufficient corrective, because voters do not  generally focus on judicial elections. The better solution would be trade the end of the judicial elections for the termination of Missouri plans.

The classic Missouri plan works like this:

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The Taxman Cometh, Twice

Abstract Businessman in Tax Ball and Chain

Among the cases teed up for the Supreme Court’s current Term is Comptroller v. Wynne, arising over the state taxation of personal income earned and taxed in other states (and therefore, in interstate commerce). The vast majority of state and local jurisdictions credit residents’ taxes paid to “foreign” jurisdictions, meaning other states. Maryland credits such taxes against state but not against local income taxes (which are collected by the state). Through an S-corporation, the Wynnes (Maryland residents) earned a ton of income in thirty-plus states and paid income taxes there—and then again paid the local tax on that income, without receiving a credit. The Maryland Court of Appeals deemed the arrangement unconstitutional. The Comptroller asked for and received cert. Briefs etc. can be found here.

Boring? Maybe (unless you live in Maryland and earn income elsewhere). But there are reasons to pay attention.

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Assessing the Blowback from Hobby Lobby

Supreme Court Hears Arguments In Case Challenging Affordable Care Act

The Hobby Lobby case, “one of most publicized controversies in decades involving a religious claim,” in the words of Columbia law professor Kent Greenwald, prevented the Obama administration from mandating under the Affordable Care Act (ACA) that all employers cover all contraceptives approved by the Food and Drug Administration—even those drugs and devices that objecting employers believe “cause the demise of an already conceived but not-yet-attached human embryo.”

The U.S. Supreme Court held that the Religious Freedom Restoration Act (RFRA) prohibits the government from forcing closely held, family-owned corporations to cover such drugs and devices if a less restrictive means is available. One less restrictive means available to the administration, the Court noted, was to extend to such corporations the significant concessions the Obama administration already made for objecting, religious non-profits. This is a step the administration is now taking.

It was a high-profile win for religious objectors. Nonetheless, the highest percentage of Americans in a decade, according to the Pew Research Center, see religion’s influence as waning. How can this be?

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