How to Avoid Argentine Federalism

James L. Buckley is a former U.S. Senator, federal judge, and real-life saint. The Federalist Society’s 2014 Annual Convention featured a presentation and panel discussion on his most recent book, Saving Congress from Itself. As the title suggests, Jim Buckley—even at age 91—is into tasks that are kind of biggish. His key proposal is to phase out any and all federal transfer payments to state and local governments.

Robert R. Gasaway (Kirkland & Ellis—once upon a time, Judge Buckley’s law clerk) chaired the panel composed of Senator Buckley, John Eastman (Chapman Law School), and yours truly. Pending FedSoc’s posting of the video, my humble remarks appear below. More fodder for my friend Linda Greenhouse, I suppose.

Saving Congress from Itself is a must-buy and must-read. I wish I could write like that.


God bless Senator James Buckley.

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What Tocqueville Can Teach Us About the Culture War

The culture war rages on. Recently the New York Post reported that the state of New York has fined a couple for refusing to host a same-sex wedding on their farm. This provides some context for, in Ezra Klein’s words, “the politicization of absolutely everything.” The complaint has its ironic dimensions, and leads us to ponder what caused that politicization—and what can we do about it. Klein points to surveys showing that Americans are growing increasingly partisan. In one study he cites, participants were given resumes to review. The results showed that, as Klein writes, “race mattered. But political orientation mattered…

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Three Reasons to Reform Old Age Entitlements Now

In my last post, I showed that the younger generation is likely to live longer in a wealthier nation. If the younger generation is likely to be better off, why shouldn’t we transfer resources to the old and forget about reform to Social Security and Medicare? There are three reasons.

First, because of human nature each generation wants the next generation to be better off. It is distinctly odd to redistribute against the preferences of the beneficiaries. Most people have children and others have nieces and nephews. They are committed to these youngsters’ welfare even at the expense of their own. This is clear not only from polling, but from actions. People of any means almost invariably try to leave their children an inheritance rather than party down into old age.

One might ask why nevertheless old people often vote against reform of entitlements. First, most people are rationally ignorant of politics. Polls regularly show that many people do not recognize the amount of money spent on entitlements, thinking instead that foreign aid makes up a greater portion of the budget.

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Another Argument for Originalism

In the past, I have noted that there are three main arguments for originalism: 1. Originalism as an interpretive theory (the most accurate meaning of the original document); 2. Originalism as a normative theory (the most normatively desirable interpretation of the Constitution); and 3. Originalism as positivism (the original meaning is the law).

Here I want to explore a type of theory that intersects between the second and third categories: a theory that views the original meaning as the law, not based on positivism, but based on a normative or idealized conception of the law.

If one looks back at some of the old originalist theories, I think it is possible to read them as adopting an idealized conception of the law.  The law is not what the rule of recognition requires, as in the positivist theory.  Nor is the law what would lead to the best results in general, as some versions of the normative theory hold.  Instead, the law is determined through an idealized conception of the law.

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Chevron Deference About to Hit a Snag


A recent Supreme Court order portends interesting limits on the Securities Exchange Commission and on Chevron deference. Earlier this fall, I observed how the SEC evades jury rights and other rights of criminal defendants by proceeding against them in SEC hearings. Now, as noted by Ed Mannino, the Supreme Court is beginning to focus on a related danger.

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D.I.G. King v. Burwell?

GruberThe hubbub over the ACA is getting weirder and weirder. Amidst other revelations, there appears to be an extensive but as-yet undisclosed legislative history bearing on the pending Supreme Court litigation in King v. Burwell. One surprise at a time, though:

Professor Jonathan Gruber has by now well earned the George Washington Cherry Tree Award. Congenitally incapable of telling a lie, he blurts out an inconvenient truth about the act every time he opens his mouth. In today’s Wall Street Journal, Tevi Troy unveils “Another ObamaCare Deception” cheerfully revealed by Professor Gruber, this one having to do with an artfully disguised tax on “Cadillac” health plans that will eventually encompass Chevys.

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Would George Washington Mourn NATO?

Meetings of the Defence Ministers at NATO Headquarters in Brussels - North Atlantic Council Meeting

Celebrating the North Atlantic Treaty Organization as the cornerstone of U.S. foreign policy was an obligatory ritual for two generations of American statesmen. As the decades passed however, mention of it and of “our European allies” has come with decreasing conviction and increasing embarrassment. Few dispute that, today, the alliance’s formalities are a pretense likelier to get its members into trouble than to pull anyone out of it. Civilizational changes have emptied it of substance. Readjusting American strategy to take account of those changes makes far more sense than talking about “revitalizing” or “rebuilding” an alliance on bases that no longer exist.

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To Be Young Is Very Heaven

Last Friday I had the great pleasure of participating in a panel at the Federalist Society’s National Convention with Chris DeMuth of the Hudson Institute, David Weisbach of the University of Chicago Law School, and Judge Frank Easterbrook on intergenerational equity and old age entitlements, like social security. My talk had two parts. I first rejected a common claim about old age entitlements: that they transfer resources from a poor generation to a richer one, because young people today will be less well off than their elders.  I, then, nevertheless showed that old age entitlements as presently structured raised substantial problems for the young and old. In this post I summarize the first part of the speech.

The history of economic growth in the United States suggests that, as they age, the young today will be much better off than the old are today. Since 1950 – less than a lifetime – real GDP per capita in the U.S. has tripled. And economic growth continues, even if the statistics suggest that it is slowing down. But this slowdown is to a substantial extent an illusion, because it fails to fully account for the two greatest ongoing revolutions of our time—the improvements in health care and the exponential increases in machine intelligence that are rapidly expanding throughout the economy.

First, take improvements in health care and longevity: they do not even show up in the GDP. And yet they are massive: as Larry Summers once remarked, it is not at all clear that one would choose to have the health care of 1950 and the income of today rather than the income of 1950 and the health care of today.

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More on the Consequences of a Supreme Court Decision in the Obamacare Case

In my last post, I wrote about the consequences if Obamacare loses in the Supreme Court in King v. Burwell.  My basic point is that a Supreme Court decision holding that federal exchanges cannot receive subsidies will create an enormous fight between President Obama and the Republican Congress. Bill Levin, who recently wrote a post on the cert grant at this site, now has a post at Powerline addressing the same issue. I strongly recommend his post.

Bill is more optimistic than I am about the effects of such a Supreme Court decision. One of his main arguments is that the public understands that the Democrats are responsible for Obamacare and that any problems it has will be seen as the fault of the Democrats. Perhaps, but this would have to be true even though the five Republican justices decide that the subsidies are illegal over the votes of the four Democratic justices.

Ultimately, the biggest advantage that the Democrats have is that the media is on their side. They will portray the dispute as having been caused by the five Republican justices and will argue that the Republicans can easily fix the problem by simply returning to the status quo. It may be that the Republicans can prevail, but they will have to do so over the heads of the media.

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