Ebola’s Bureaucracy Lesson

CDC2Questioning the effectiveness of the Center for Disease Control and Prevention has become the national pastime ever since two nurses in Dallas became infected with Ebola after following CDC protocols. Yet, one overriding fact rarely sees the light of day: CDC does not deliver medical care, none at all, and rarely ever sees or touches it. It is a data collection and analysis agency that makes recommendations to those who actually live with and treat the diseases.

CDCs legitimacy comes from its claimed abstract scientific expertise. President Barack Obama defended CDCs recommendation against state quarantine efforts to control the disease by insisting “We don’t just react based on our fears. We react based on facts and judgment and making smart decisions.” We rely on the “best science.”

Read More

Pass Fast-Track Legislation for the Trans-Pacific Partnership

As one of its first acts, the Republican Congress should give President Obama fast-track authority for the Trans-Pacific Partnership, a proposed trade agreement between the United States and most important Asian nations with the exception of China. This free trade zone can help boost economic growth and help balance growing Chinese power in Asia.  Negotiations have been ongoing for some time, but fast-track is needed to throw them into high gear.

Under fast-track authority, Congress suspends its rules and guarantees the President an up or down vote on a trade agreement that meets certain conditions. These provisions can help the agreement succeed by preventing interest groups from picking it apart.  When the United States uses fast-track authority, other nations are more likely to summon the political will to make concessions in negotiations.

Read More

The Fatal Conceit

juengling_kappes

“Have you heard of the wonderful one-hoss shay, that was built in such a logical way, it ran a hundred years to the day?” If you haven’t, you’ve missed one of the most amusing poems of the nineteenth century, Oliver Wendell Holmes Sr.’s splendid satire of the American constitution. Shays or carriages break down, said Holmes, when one joint is stronger than the next. “There’s always somewhere a weakest spot, … and that’s the reason, beyond a doubt / A chaise breaks down but doesn’t wear out.” And so the Deacon built a carriage that wouldn’t break down because each part was a strong as the rest. On and on the carriage went, until 100 years from the day it was made it all turned into dust. “End of the wonderful one-hoss shay, logic is logic, that’s all I say.”

The poem was written three years before the outbreak of the Civil War, when the defects of a logical constitution seemed all too apparent to Holmes’ fellow Bostonians. Not that the Framers were logicians, of course. They were almost all practical politicians and simply strove to give us something better than what they had had.

Read More

Bill Levin on The Worm Turns: King v. Burwell

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 Supreme Court’s cert grant.  For his previous thoughts on the case, see here

First, election night and now the highly significant decision by the Supreme Court to grant cert in the Obamacare tax subsidy case, King v. Burwell.

After such a week, it is justifiable to speculate as to why the court accepted King.

The initial item of interest is timing.  The case was considered by the Court in normal course at its October 31 Conference, but relisted to November 7 when cert was granted.  It is utterly plausible, though unprovable, to assume the Court did not want a high profile determination released just days before the mid-term elections.

The conventional wisdom was that the Court would deny cert since there is presently no split in the circuits, following the D.C. Circuit grant of en banc review vacating the Halbig decision.  In days to come it will surely be repeated ad nauseam on the left that the Court is indulging in politics by taking King out of normal order.

Professor Rappaport on this site correctly bucked the conventional wisdom in predicting cert acceptance.  His reasoning, that four of the five conservative justices would refuse to let stand the D.C. Circuit end run to vacate Halbig, is appealing from a visceral perspective.  The D.C. Circuit vacated the decision in Halbig, but not the panel’s well-reasoned opinion.  From every practical perspective, a fully litigated split in the circuit currently exists with respect to the correct statutory construction of the ACA.

Regardless, King independently justifies expedient resolution on standard grounds.

Read More

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.

Read More

The Ghosts of Presidents Past: A Conversation with Stephen Knott

rush

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…

Read More

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.

Read More

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.

Read More

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.

Read More