Cooperative Federalism is the Handmaiden to the Administrative State

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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?

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The Sounds of Allied Evasion

Ruling class pundits make much of the fact that Saudi Arabia, Qatar, the Emirates, Bahrain, and Jordan have joined the Obama administration’s campaign of bombing the Islamic State. Also noted by the same talking heads is that some 5,000 so-called moderate Syrians are being trained to fight against Islamic State next year. Most admit the obvious: no one can imagine how these air strikes—few, against structures, mostly when these are unoccupied—can inconvenience the Islamic State seriously, never mind destroy. Yes, Sunni Arab counties have decided to take military action against the Sunni Arab Islamic State. But what is consequential about actions that have illusory consequences? What explains our government’s pretense that an alliance to accomplish un-consequential things is itself consequential?

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There’s No Such Thing as a Constitutional Free Lunch

Constitutions are supposed to create a framework of good government that cannot be easily upended. As Justice David Brewer remarked, the Constitution is supposed to protect “Peter sober from Peter drunk.” Or to use the canonical analogy from classical literature, a good constitution functions like the ropes that prevent Ulysses from throwing himself into the sea in response to the sirens’ call.

Frequently, however, the United States Constitution is criticized for its inability to accommodate the current preferences of the people.

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The Truth is Marching On

The universal human rights régime, under which we live, originated in response to the racial and other atrocities committed by Nazi Germany and its allies. The architects of the post-War system intended to institutionalize the liberal and egalitarian vision that had animated the Allied war effort. Drawing from the constitutional practices of liberal Western societies, they placed the rights-bearing individual at the center of the new global order.  They thus refashioned the pre-War states system in four major ways.

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Another Genius Who Was a Poor Student

I am presently reading this biography of Friedrich Hayek by Alan Ebenstein.  The book is not an intellectual biography, but more focused on the events of Hayek’s life – which is where I have biggest gaps in my knowledge of Hayek. One interesting aspect of Hayek’s early years, that I had not known, is that he was a poor student.  Ebenstein writes: He showed little interest in any subject except biology.  Once, at age fourteen, having failed Latin, Greek, and mathematics, he was required to repeat a grade. . . . He would generally “swot up in a few weeks before the…

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Originalism and Ideology

I missed this article – Originalists, Politics, and Criminal Law on the Rehnquist Court by Rachel Barkow – when it came out, but I thought this part of the abstract was interesting: By reviewing all of the Rehnquist Court's criminal opinions in argued cases during the ten-year period from the October 1994 Term through the 2003 Term, this Article shows that the Justices' votes in criminal cases do not fit neatly into the attitudinal model. [Mike Rappaport insertion: the attitudinal model holds that the votes of the Justices are based on their political views, not the law.]  While a review of…

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David Brooks, Lincoln, and the Ties that Bind

David Brooks’ recent column on the relative friendlessness of Americans’ lives captures something of the way we live now. But his idea of establishing summer camp-like meetings of diverse people to plant the seeds of friendship seems clumsy. Abraham Lincoln had civil society thoughts, too; Brooks quotes philosophers but misses out by not referencing Lincoln, who saw the potential in such get-togethers as county fairs, lyceums, and Fourth of July gatherings. Whereas Brooks focuses on the here and now, Lincoln thought of this socializing as rooted in a past that deserves veneration.

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The Boss Turned 65

In a temporary obsession over the mysteries of interstate taxation (a subject of forthcoming posts—skip alert!), I missed an important event until my twelve-year-old reminded me today: on September 23, Bruce Springsteen turned 65. Happy birthday, and God bless! And do let’s celebrate. Mick Jagger famously intoned that he’d rather be dead than sing “Satisfaction” at 45; how’s that working out for you, Mr. Geezer? Mr. Ezekiel Emanuel, who’s not much into revving up young people but would rather have government force them to subsidize others, wants to be dead at 75; let’s see how that plays out. Say about the…

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A Government Agency Tries to Succeed by Failing

The Secret Service has a difficult and important job but, like other government agencies, it appears to use failure as an excuse to grow its powers. The Secret Service has recently suggested screening tourists in a facility blocks away from the White House to detect threats and enlarge the buffer zone around 1600 Pennsylvania Avenue.  The agency floated this proposal immediately after an event of breathtaking incompetence.  

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Rationalizing Discrimination

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When I was young, discrimination had a good name. It was the ability to distinguish between the good from the bad and to prefer the former to the latter. My teachers tried to form my taste so that I could discriminate, and I am grateful to them – more grateful than I seemed at the time – for that.

Since then, of course, the emotional charge of the word discrimination has changed. It is now entirely negative. It means to treat people not according to their individual merits, but badly because of the supposed characteristics of their group as assumed by brute prejudice. To discriminate is to be unfair, unjust and cold-hearted. Discrimination is at the root of many ills, not least of them poverty and inequality.

But is it ever rational to discriminate on the basis of group characteristics?

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