The Constitutional Mandate of 2014

rugby scrum

The political puritans who control most editorial boards will doubtless mourn the tragically short life of the ardently sought détente between the White House and the ascendant Republicans in Congress. The good-government words were trotted out the day after the election—cooperation; grease the Capitol’s rusted legislative skids; we can hold hands to pass legislation and sing folk songs while we do—only to collapse under the President’s threat of unilateral action on immigration. Good. The good-government shtick—let us, said the President, “explore where we can make progress”; Mitch McConnell chimed in that “maybe there are things we can agree on to make progress for the country”—was nonsense to begin with.

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The Ghosts of Presidents Past: A Conversation with Stephen Knott


Presidential power scholar Stephen Knott discusses in this latest edition of Liberty Law Talk his book Rush to Judgment: George W. Bush, the War on Terror, and His Critics, recently released in paperback form by University Press of Kansas. Knott has a point in this book. He argues convincingly that the vituperative critics of George W. Bush’s use of executive power, in many instances, were willfully ignorant of the historical use of these powers. Past presidents, ranging from George Washington, Thomas Jefferson, James Madison, Abraham Lincoln and certain presidents in the twentieth century, defended and exercised powers similar to those…

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How Federalism Makes Increasing Partisanship Work for the Public Good

Many people worry about our democracy today because our political parties have become more purely ideological. But federalism harnesses such partisanship and puts it to good use. Because of greater partisanship, we are seeing more states with a unified government in which Democrats or Republicans control the governorship and both houses of the legislature. They are then able to enact a relatively pure version of their parties’ very disparate political positions. With the support of a Republican legislature, Wisconsin Governor Scott Walker has reduced the power of public sector unions.  Kansas Governor Sam Brownback has very substantially cut personal and business taxes.  In contrast, Connecticut Governor Dan Malloy was reelected after raising taxes and making no substantial changes to union power.  In California, Jerry Brown was victorious with much the same policies.

Such partisan federalism now gives us the chance to observe the results of such policies over the longer term.

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Commerce, Interrrupted

Business Background

Herewith (as promised) a brief comment on brother Rappaport’s splendid earlier post on the “exclusive” Commerce Clause. Here’s the key paragraph:

It is too bad that Congress does not have the exclusive commerce power, because I believe it would be better than the original meaning.  An exclusive power would make it less likely that the states would have agreed to the New Deal expanded, concurrent commerce power.  Thus, the exclusive power would have been unlikely to have been expanded into the broad scope that the current commerce power has.  With a more limited scope, the federal government would have limited authority, as would the states.  There would not be two governments exercising the same authority and neither would have complete power to create cartels.  This arrangement came close to being followed in the pre New Deal era, when the Court came pretty close to recognizing a limited federal Commerce Power that was largely exclusive.   But it is now, sadly from a policy perspective, gone with the wind.

I think there’s pretty powerful evidence to the effect that the Founders did mean the Commerce Clause to be exclusive; it’s just that their idea of what constitutes “commerce among the several states” was so much narrower that ours.

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Don’t Get Your Hopes Up

President Obama Hosts Congressional Leaders For Lunch Meeting

Far from marking the Republican Party’s rebirth, the elections of 2014 foretell the possibility that the law of supply and demand—which operates in politics as well as in economics—will kill it in 2016. That is because the Republican Establishment has no intention of meeting the American people’s pent-up demand, expressed so forcefully in the mid-term elections, to turn America away from the direction in which government, under both parties, has shoved it over the past generation.

The Republican Establishment, reading the results as a mandate to continue doing what it has been doing, will proceed as normal, and then be as challengeable as the Democrats in two years. The 2016 political marketplace will reward whoever promises to satisfy the voters’ continually unmet demands.

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Yet More on State Taxes and Dormant Commerce

Mike Rappaport’s latest post on the dormant Commerce Clause makes an excellent and hugely important point. (It has to do with a potentially exclusive Commerce Clause, and how that plays out in a statutory setting.) I swear I’ll get around to commenting on it, the minute I come up for air. For now, as previously threatened, a link to an exchange of views on the Supreme Court’s forthcoming (November 12) argument in Comptroller v. Wynne, published by the Vanderbilt Law Review En Banc. As previously described, Maryland imposes local taxes on residents’ income wherever earned, without crediting taxes already paid to other…

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Ike’s Mystique


ike 1

At the height of the Iran Contra scandal in Washington, “Saturday Night Live” had a funny skit about Ronald Reagan. It showed the President’s folksy, out-to-lunch personality to be a façade. Behind closed doors, he was a worker bee, driving younger staff members to exhaustion. Liberals could only entertain such a possibility fictionally. To them, Reagan was a lazy leader, “sleepwalking through history.”

Liberal avoidance of such a possibility tracked back to Dwight David Eisenhower’s 1953-1961 administration. To the liberals of that era, he was a disconnected President, more interested in his golf game than in leading the nation. Worse, he lacked political courage, specifically with regard to halting a rampaging Joe McCarthy.

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A Happy Result of the Elections: The Blow to Public Sector Unions

There are no permanent partisan victories. The gains of the Republicans on Tuesday are likely to give more opportunities for victories for the Democrats sometime in the future as the party in power exhausts it agenda, makes mistakes, or is blamed for issues over which it has little control. But elections can have more enduring effects on policy and social structures.

One of the most notable consequences of this election was the setback it dealt to public sector unions. Importantly, the losses came at hands of both parties. Republican Scott Walker was reelected in Wisconsin after rolling back the power of public sector unions. Gina Raimondo gained the governorship of Rhode Island despite using her position as that state’s Treasurer to restructure public pensions and thereby earning the enmity of public sector unions. In my own home state of Illinois, Governor Pat Quinn lost in state where the most important mainstay of his party is public sector unions, whose pensions and other exactions have made Illinois the state with one of the lowest credit ratings and worst business climates in the nation.

The decline in political power and legal privileges of public sector unions would be the single most salutary structural improvement in the states where they enjoy such privileges.

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Elections and the Electoral Cycle

Election Day was, no doubt, a great night for Republicans and for those resisting the progressive agenda.  But I think much of the rhetoric about this and past contests is overheated.  My view about these matters is primarily structural or cyclical.

It was the sixth year of a two term President and therefore the President’s party was likely to lose a significant number of seats.  The President is unpopular and so that makes it even more likely.

Of course, this is not meant to downplay the results.  Rather, the point is that the Republicans should have won and probably would have still won (with a smaller victory) even if the President was more popular than he is.

I had a similar reaction to Obama’s reelection in 2012.  It is difficult to defeat a sitting President and the economy, while weak, was good enough to allow him to be reelected.  He was not challenged in the primaries and there were no other enormous problems that would lead him to be defeated.  Still, Romney might have won had he run a more competent campaign – had he, for example, been better in the second debate – but probably that debate did not decide the election.

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Exiting the Progressive Matrix: Preschool Edition

man running trough round window opening

Recently stumping for his cooperative federalism model of government-funded preschool, Barack Obama claimed that more money should be spent on these programs so that, in effect, women wouldn’t have to stay at home to take care of children. They should be working as the family’s core functions should be institutionalized by the state. This, of course, confirms what many on the Right think about these types of programs. They are back-door ways to ensure government gets more time with your children and you get more time at work, which you’ll need to pay the taxes for this program and the many other progressive bureaucracies.

Taking a different tack is Indiana Governor Mike Pence who says “This is a heart issue for me” when he urges renewal of his pilot program for government-funded preschool education.

Does that mean evidence-based debate on the subject is heartless? Well we’ll see.

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