Though Constitution Day has come and gone (it was September 17), it may still be appropriate to honor the enactment of our Founding charter by looking into the question of “civic literacy” and “civic engagement.” By the first, I mean knowledge largely about American history and political institutions. The second is meant to denote participating in the political process, passively by voting and actively by contributing to and working on campaigns, trying to influence others’ votes, attending political events, contacting officials, signing petitions, and writing letters to the editor.
Now that the D.C. Circuit has granted rehearing en banc for the Halbig case, there is speculation about whether the case will make it to the Supreme Court. Halbig, of course, is the case addressing whether federal health care exchanges are allowed to receive federal subsidies.
The defenders of the subsidies for the federal exchanges are hopeful that the case does not reach the Supreme Court. Before the D.C. Circuit granted rehearing en banc, there was a split between the circuits, with the D.C. Circuit ruling against the legality of the subsidies and the Fourth Circuit ruling in favor of them. Cert seemed assured.
But the future decision of the en banc court of the D.C. Circuit changes things. With the three new Democratic appointees to the Court, there is now a Democratic majority and it seems extremely likely that the panel decision will be reversed – in which case, there would no longer be a split. Of course, there are other cases – a District Court in Oklahoma just held that federal exchanges cannot receive subsidies – but those circuit court decisions may take some time and there is arguably a strong need for this issue to be resolved expeditiously.
I wonder whether the Supreme Court will feel constrained from taking cert if the full D.C. Circuit decides in favor of federal exchange subsidies. Every circuit court judge who has decided the matter has voted on party lines in these cases. If the Democratic D.C. Circuit reverses, that trend will continue. And there is controversy about whether the D.C. Circuit should have taken the case en banc. In these circumstances, one might wonder whether at least four of the five Republicans on the Supreme Court will decide to hear the case, notwithstanding the lack of a circuit split.
There’s a terrific new blog out there, under the umbrella of the Yale Journal on Regulation. Cleverly entitled Notice & Comment, it’s the brainchild of Chris “Just-Because-We-Teach-AdLaw-Doesn’t-Mean-We’re-Boring” Walker. The blog follows the AdLaw literature, so we don’t have to. It also has posts on ongoing events, and they’re darn good. Among the recent entries: a fun piece by Peter Conti-Brown, an occasional contributor to this site, on how POTUS can fire the head of the Secret Service (“head” is a metaphor here) but not the President of the New York Reserve—and how stupid is that? And Jeff Pojanowski has an…
Eighty years ago this week, Herbert Hoover published a book of political philosophy entitled The Challenge to Liberty. Although little remembered today, it deserves scrutiny, especially by those interested in the history and theory of classical liberalism in its American context.
When President Hoover left the White House in 1933, he and his wife returned to Palo Alto, California to live. At first he maintained a public silence about the new chief executive and his shimmering New Deal. He did not wish, by any premature, partisan outburst, to jeopardize or appear to jeopardize economic recovery during a national emergency. At any rate he doubted that comments of his would have an effect in the current public atmosphere, poisoned as he considered it to be by the incessant “smearing” of his record by the opposition. He hoped also that, as New Deal measures failed (which he expected them to do), the American people would learn from disillusioning experience and return to their traditional values.
In republican constitutionalism, the people make a firm precommitment to a particular form of governance. Thus, they pass a constitution whose provisions prohibit certain actions in later periods. This process of self-constraint can be seen in republican terms as an exercise in popular sovereignty. In addition, if the constitution is originally enacted under a good process, such as one having relatively stringent supermajority rules, it is likely to improve the welfare of the people over the course of the nation’s history. The distinctive interpretative method of republican constitutionalism is originalism: the meaning chosen by the people when the constitution is passed binds the people at later times.
In contrast, living constitutionalism is the distinctive interpretive method of the constitution of a mixed regime, which includes an aristocratic element.
Earlier this week, John McGinnis and I appeared at the Cato Institute to make a presentation on our book, Originalism and the Good Constitution. The event was moderated by Trevor Burrus of Cato and commentary was supplied by Roger Pilon of Cato and by Brianne Gorad of the Constitutional Accountability Center. You can watch the video here. Roger took issue with our book from a natural rights perspective. He accused the book of endorsing Borkianism and modern constitutional law, not the original constitution, on the ground that we left too much room for democracy. But I believe that Roger is mistaken. …
In a relatively brief, concise Order and Opinion, U.S. District Judge Ronald A. White (Eastern District, Oklahoma) has set aside a notorious IRS rule declaring that subsidies and mandates under the Affordable Care Act apply in states with federal as well as state-run health care “Exchanges.” The Order and Opinion in Pruitt v. Burwell agreed with the D.C. Circuit’s holding in Halbig v. Burwell, currently pending on en banc consideration, that the statutory language—an exchange “established by the State”—could not be read to include exchanges established by the federal government in and on behalf of the state. The District Court disagreed…
The attempt by the media and the political elites of the three major political parties in the United Kingdom to heap contempt on Euroskepticism no longer possesses the same power. With the victory of the United Kingdom Independence Party in local and European Parliamentary elections, the prospect of the UK leaving the European Union is a live one. Indeed, Prime Minister David Cameron has agreed to a public referendum on this question in 2017 should the Conservatives be returned to power in 2015. I recently discussed the case for a UK exit with David Conway, a frequent contributor to this…
It seems like everyone–but especially conservatives–is talking about Peter Thiel these days. One sees his name all over. The traditionalist conservative Intercollegiate Studies Institute has made the venture capitalist and PayPal cofounder this year’s speaker defending Western civilization. I met Peter (and sat cozily beside him for two days) at a theology conference sponsored by First Things, where he shared his quite singular interpretation of Genesis. Last December, I went to a Straussian conference on Burke and Strauss, funded, of course, by Peter Thiel.
I (and 60,00 or so others) recently got an email from Jonathan Last of the Weekly Standard, who began by saying that he often disagrees with Thiel; he thinks his praise of the innovative benefits of monopolies, for instance, applies “only in the narrowest cases.” Still, “right or wrong, or somewhere in between,” Peter’s writing is always “interesting,” and he is “one of our more important public intellectuals.” Thiel’s big claim, that “the collapse of technological progress over the last 40 years is the root of our cultural, political, and economic malaise,” is worth arguing about.
You know, it really is.
What does federalism have to do with the administrative state, and vice versa? Everything. Statutes typically confer authority on a federal agency (or several) in the first instance. However, practically all federal regulatory programs are “cooperative,” meaning they’re implemented by state and local officials. Entitlement programs from Medicaid to education are likewise run through states. So states will participate in the federal agencies’ process. Federalism isn’t shaped in once-in-a-generation enumerated powers cases; it’s shaped in millions of daily administrative interactions. How does that work?