Impoverished Pontifications, Part II

Many of the world’s religious leaders decry the evils of income inequality stemming from a globalized economy. My first post, based on economic reports from such institutions as the World Bank, showed that recent pronouncements by the Pope, the Ecumenical Patriarch, and the Dalai Lama have followed a conventional wisdom that does not capture what has actually gone on in recent economic history: namely, that even as inequality has widened, extreme poverty has simultaneously decreased. I brought in the economic analyst Nassim Nicholas Taleb and his insights about wealth production in modern societies and the wrong assumptions people make about it.

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Divided America—and How It Heals

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Staid old Gallup knows how to get attention. Its Presidential Job Approval Center recently announced a new report with the provocative title: U.S. Muslims Most Approving of Obama, Mormons Least. The full results of this extraordinarily large sample of 88,000 interviews showed an even more dramatic division. Majorities of Muslims (72 percent), other non-Christians (59 percent), Jews (55 percent) and atheists (54 percent) supporting President Obama faced Catholics (51 percent), Protestants (58 percent) and Mormons (78 percent) opposing him.

It looks like the basis for a religious war. Then it gets even bleaker.

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An Originalist Future

John McGinnis and I have a new essay, An Originalist Future, describing what the world would like if originalism became the dominant method of constitutional interpretation.  See here and here.   It is based in part on the last chapter of our book, Originalism and the Good Constitution, but goes beyond that chapter.

In the essay, we write:

Reviving a comprehensive originalism would greatly improve our polity, creating both better judicial decisions and a more vigorous constitutional politics.  It is a world where constitutional decisions would have good consequences and constitution making would become both popular and future-oriented.  It bears no resemblance to the world which critics of originalism fear—where the dead hand of the past traps the living into a dead end of anachronistic principles.  Only through a systematically originalist jurisprudence can constitutional law become what it must be if it is to act as the true rudder of the nation–simultaneously law that is unchanging and objective, law that is of high quality, and law that is subject to revision by the people of each generation.

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In Praise of Gridlock, Federalism’s BFF

As the 113th Congress winds to a close, there are a lot of complaints about its lack of productivity, not least from the President himself. The Senate and the House are controlled by different parties and do not agree on much. But the resulting gridlock has one great virtue. It promotes federalism by preventing Congress from preempting the policy choices of the several states.

This effect is all the more important in the modern era, because the Constitution’s original protection of the political space for state policy making—the enumerated powers—has been almost entirely destroyed. It is true that the Supreme Court slightly revived constraints on the federal government in United States v. Lopez, but the actual effects of that revival have been more symbolic than consequential. On economic matters, as a matter of positive law rather than the original meaning of the Constitution, the federal government enjoys almost plenary powers.

But happily federalism is also protected by the difficulty of enacting federal legislation—which is more than a parchment barrier. Federal laws can be only be enacted with the agreement of both Houses and the President. This requirement in effect creates a mild supermajority rule, making it harder to enact legislation to preempt the states at a time, like now, when the nation is closely divided between the parties.

For fans of federalism, this division has a silver lining that outshines the clouds of partisan rancor.

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Impoverished Pontifications, Part I

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If there is one thing that religious leaders around the world seem to agree on today, it is the evils of income inequality stemming from a globalized economy.

Pope Francis said last year in his apostolic exhortation Evangelii Gaudium that “we … have to say ‘thou shalt not’ to an economy of exclusion and inequality. Such an economy kills.”

In a 2008 speech at George Mason University, the Dalai Lama asserted: “Economic inequality, especially that between developed and developing nations, remains the greatest source of suffering on this planet.”

Ecumenical Patriarch Bartholomew wrote in his 2012 Christmas encyclical that “the gloomy consequences of the overconcentration of wealth in the hands of the few and the financial desolation of the vast human masses are ignored. This disproportion, which is described worldwide as a financial crisis, is essentially the product of a moral crisis.”

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Halbig and Obamacare: What We Have Learned (Part II)

Herewith, as promised in Part I, a few additional thoughts on Halbig’s lessons. My humble observations aren’t intended as nuanced legal analysis; there’ll be time enough for that as the cases progress. Today’s subject is the broader context of how the doctrines and institutions that have sustained administrative law are coming apart at the seams.

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The Kind of Book Political Theorists Ought to Read

That drip-drip-drip sound you hear is condescension falling from the mouths of skeptics appalled that such as Lynne Cheney, who does not even hold a tenured position on a university faculty and whose hands are sullied by the actual practice of politics, to say nothing of the side on which she has practiced it, and whose previous writings have not always sounded the depths of profundity, has now dared without so much as the permission of a double-blind peer-review process to produce a sober, scholarly biography of James Madison and, what is worst of all, with a prestigious trade press.

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Bill Levin on The Aftermath of Halbig

My friend and former colleague from the Office of Legal Counsel, Bill Levin, has been following the Halbig case closely.  Here are his thoughts on the aftermath of the case. 

The aftermath of the D.C. Circuit decision in Halbig is encouraging.

On the PR front, it has been unexpectedly difficult for Obamacare defenders.  In recorded speeches from 2011 and 2012, Obamacare architect Jonathan Gruber confirms that the central premise of Halbig is correct:  Obamacare provides subsidies for state exchanges only (“[I]f you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.”).  Now in 2014 he says his statement, evidently recorded in varying versions on at least seven different occasions, and counting, was “just a speak-o—you know, like a typo,” which, unintelligible valley speak aside, cannot be accurate unless in the Michael Kinsley sense of accidentally telling the truth.

The multiple Gruber audio and video recordings are truly a smoking gun, readily available for all to evaluate the next time someone claims that Halbig seeks to undermine Obamacare, or in the colorful, but demonstrably unsound words of dissenting Senior Circuit Judge Edwards, “This claim is nonsense, made up out of whole cloth.”

To recap the whole cloth for perspective, Obamacare provides subsidies for an exchange “established by the state.”  Nowhere in its 906 pages does the statute manage to apply these simple words to the federal exchange.  Not once in the legislative history is a federal subsidy mentioned by a single legislator.  And now we have an architect of Obamacare, a distinguished MIT economist, not some random talking head or partisan opponent, plainly stating what the law plainly means.  “[I]f you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.”  It could be a rallying cry, for it truly crystallizes the case, except that the sentence lacks style and cannot fit on a T-shirt.  Yet Obamacare supporters are taking to the barricades and a senior judge feels emboldened to claim the litigation is fanciful.  This could be the stuff of comedy were the stakes not so high. 

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