From the Rule of Law to the Triumph of the Will

 

shutterstock_203668402The arguments by which the Obama administration is countering lawsuits that seek to limit Obamacare subsidies to participants in “exchanges” established by states—a limit that is specified in the Obamacare law itself—have raised the outcome’s stakes. Administration officials argue that the plain, unmistakable, uncontested language of the Affordable Care Act (ACA) is less important than what they want the law to mean, and that hewing to its words would deprive millions of people of the subsidies that the administration had granted them regardless of those words. Therefore the courts should enforce what the administration wants rather than what the law says.

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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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A Star is Torn

In the Energy Star Program, the Energy Department rates energy-efficient and otherwise green appliances. The New York Times has reported that government officials in charge of Energy Star did not do a good job of monitoring compliance with the program’s standards and valorized a host of products that fall far short of the proclaimed criteria. In addition, some of the companies actively misled government officials.

Trial lawyers are now in the wings, ready to sue companies that  they allege were serpentine rather than stellar.  According to the Times, a congressman who represents a district where a company that used the Energy Star program has a large factory has introduced legislation to prevent class action lawsuits from being brought in connection with the Energy Star program.

In general, I believe that class actions for failure of a product to meet its quality claims are a mistake. 

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Originalism and Positivism: The Problem of Interpretive Contestation

I have written various posts about originalism and positivism.  Perhaps the academic who has written the most about interpretive approaches and positivism is Matt Adler from Duke, but I have relatively neglected his articles.  It is not a mistake I will make again. I strongly recommend a recent article of his – Interpretive Contestation and Legal Correctness –that lays out the issues clearly and admirably.  In particular, the puzzle for him is how there can be law when there is significant disagreement about interpretive matters (such as the disagreement between originalism and nonoriginalism).  He explores how various theories would address the…

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The Deflation of Rights

Supreme Court Hears Oral Arguments On Arizona Immigration LawPrint up a bunch of money, and the value of money is almost sure to decline. Make up a host of new rights and the value of rights is likely to plummet as well. As our modern experience demonstrates.

Simplifying, we might imagine three stages in the devaluation of rights. In stage one (which, like the “state of nature,” probably never quite existed), a right would be categorical. If you have a right to freedom of speech, say, this would mean that you can say whatever you want (at least within the scope of the right’s coverage) and the government cannot sanction or restrict you. Period. Justice Black sometimes talked as if freedom of speech were or should be an absolute right. The average lay person may sometimes think this is what a right means.

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The Thirteenth Amendment as a Conservative Counterrevolution

  In “If Slavery Is Not Wrong, Nothing Is Wrong,” I proposed that the Civil War was fought to restore the original unity of the Declaration of Independence and the Constitution, and that the Thirteenth Amendment, adopted in 1865, was the culmination of that colorblind restoration. In the antebellum period, opponents of slavery could not specify what would result once slavery was ended. Would free blacks have equal rights? Vote? Intermarry with whites? Thus did Stephen Douglas mock Abraham Lincoln. The post-bellum answer of universal freedom nonetheless preserved much of the antebellum distinction between being anti-slavery and being anti-black. While Black Codes prevailed…

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Where are Special Interests When You Need Them? The Problem of Unwanted Phone Calls

One problem with the political decisions, including those in a democracy, is the importance of special interests. Special or politically concentrated interests have an advantage in the political process and therefore are able to obtain special privileges and advantages that impose inefficient costs on the society. This is, of course, an old story. But the world seems to be more complicated than this. Sometimes one wonders why special interests do not seem to be pursuing their interests. And as a result, other special interests prevail when it seems they should not. I thought of this the other day when I picked up…

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Penseurs Extraordinaires

A friend over at NRO’s Postmodern Conservative blog recently asked which contemporary French authors might profitably be read by American conservatives. As a Francophone who has translated French philosophers from this and previous centuries, I thought I’d contribute my two cents.

My criteria were: 1) What could help American conservatives better understand Europe, the evolving nature of liberal democracy, and the pathologies of the age, both abroad and at home? and 2) Who are the contemporary French authors who could speak to a fairly diverse cohort?

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Eleven Propositions that Sum to Zero

2014 Democratic State Convention

Over the weekend Elizabeth Warren, the Senator from Massachusetts and a former professor at Harvard Law School, outlined eleven propositions, dubbed by the National Journal as “eleven commandments” for progressives.  Warren is a very bright leader of today’s progressivism. Her propositions provide a window on the future trajectory of the Democratic party and its approach to law, three aspects of which seem particularly notable:

1.Opposition to crony capitalism. Warren wants government to make sure the banking system and Internet are run for the benefit of the people not big corporations.

2.Use of the regulatory system rather than tax system. Nowhere does Warren expressly call for higher taxes. But she does endorse a slew of regulatory interventions—a higher minimum wage, stronger protections for unions and “equal pay” provisions for women.

3. A relentless focus on equality.  In marriage, in pay, and in access to higher education and contraceptives paid for by the government.

If these are the tenets of future progressivism, friends of liberty need to sharpen their critique.

1. They need to co-opt the attack on crony capitalism.

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Post-Hobby Lobby Illusions

My late leader of days long gone, the first Mayor Daley of Chicago, once poured out his heart about life in the political arena: “I have been vilified, I have been crucified, I have been ….criticized!” Well, I haven’t been vilified or crucified, but I have been criticized vigorously for my writings in this space on the reasoning in the Hobby Lobby case, and criticized by a long-time friend, the Editor of the Public Discourse, Ryan Anderson. My response reveals his critique, while at the same time it may sharpen and deepen the argument.

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