Wheeler of Fortune

Last week, FCC Chairman Tom Wheeler announced a plan to extend federal subsidies for low-income Americans from landline and mobile phone services to broadband. The Internet is so cool, the FCC wants to a) regulate it under Title II of the ancient  (1934) Telecommunications Act and b) make sure everyone has access to whatever is left of the Net once the agency is through with it. Republicans in Congress are moping that the FCC has horridly mismanaged even the existing subsidy program (called “Lifeline”), so they’re reluctant to support the broadband extension. There’ll be hearings.

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Wrong About Rights

Recently an American acquaintance of mine told me that, when asked, he informed a group of students that he did not believe animals had rights, and this deeply shocked them. They did not merely disagree with him: they simply could not take on board that any intelligent, sane, and civilized person could hold such a view. It was as if someone had gone to Mecca and said there is no God and therefore Mohammed could not have been his prophet.

One of the characteristics of our age that may surprise future social historians (if there are any) is the speed with which ideas go from being generally regarded as ludicrous and unthinkable to being conceivable, then accepted, then ensconced as unchallengeable orthodoxy. This makes it difficult for satirists; satire becomes prophecy and, in practically no time at all, mere description.

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Fast Track for the Trans Pacific Partnership Accords with Democracy

The left and even some Republicans have argued that the procedures for agreeing to the Trans Pacific Partnership are undemocratic. A leading argument is that voting for “fast track” for the TPP violates democratic principles because Congress is changing its rules now in order to later ratify an agreement it has not yet seen.

The arguments are wholly misplaced. “Fast track” simply permits Congress under its ordinary procedures to commit to a future majority vote of Congress to vote up or down on an agreement that the President has negotiated. Representative democracy is thus served by the later vote on an agreement whose text is known.

It is true that fast track eliminates certain procedural obstacles like the filibuster rule in the Senate and the requirements of committee approval. But there is nothing sacrosanct about a set of procedural rules to democracy.

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One Man, One Vote in Texas

Hand of a person casting a ballot at a polling station during voting.New litigation in Texas threatens to undermine a basic principle of our constitutional design: that our elected officials represent all of us. The President of the United States represents all of us—even if we didn’t vote for him; even if we didn’t vote at all, even if we were not yet born when he was elected, and even if we just moved here a few months ago. Our representatives in Congress, in the state legislature, and in local government do the same, within their respective jurisdictions. It would be a rather cramped view of representative government to think that representatives only represent those whose votes they won and nobody else’s.

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The Statutory Limitation on Recess Appointments

I know that interest in Recess Appointments has waned since the Supreme Court decided the Noel Canning case last year, but I have been brought back to the subject, since I have been doing the final edits on an article I wrote last year (that was cited several times by Justice Scalia’s concurrence).  The article – Why Nonoriginalism Does Not Justify Departing from the Original Meaning of the Recess Appointments Clause – focuses on the practice of recess appointments over the 225 years since the enactment of the Constitution.

Unfortunately, Justice Breyer’s opinion for the majority has, for now at least, misinterpreted the Recess Appointments Clause.  But one feature that the article discusses is of continuing relevance.  In 1940, Congress passed a statute, codified at 5 U.S.C. 5503, which restricts payment of salaries to recess appointees when the vacancy that they fill existed while the Senate was in session.  The statute then permits three limited exceptions to the prohibition on payment.

Depending on how one interprets the statute, the statute could have had a significant role in limiting the President’s recess appointment power.  As with all things involving the recess appointments issue, the Executive Branch has been exceedingly aggressive in interpreting the statute to favor its interests.

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Fragility of the Republic

In a curious way, Julius Caesar isn’t the most important figure in The Death of Caesar: The Story of History’s Most Famous Assassination. The moral of Barry Strauss’s story, the point of it all, belongs instead to a thin, sickly young man in Caesar’s entourage—a grandnephew named Octavian—who would wend his way through the political crisis of Julius Caesar’s murder in 44 B.C. to become Caesar Augustus, ruler of the known world. The irony is almost unbearable: In the name of ridding the republic of a dictator, the incompetent assassins managed only to give Rome an emperor. “The Ides of March changed the world,” as Strauss notes, “but not as the men who held the daggers that day planned.”

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The Disappeared: A Conversation with Roger Scruton

disappearedRoger Scruton discusses with Richard Reinsch in this edition of Liberty Law Talk his newest novel, The Disappeared. The story revolves around sex-trafficking in a northern city in present-day England, similar to the horrific disclosures of the recent Rotherham Report. It is also about the kind of society Britain has become. Interwoven in the novel is the fallout from the enthronement of multiculturalism, the welfare state, the cult of autonomy, and the loss of religious faith, all of which have brought a host of (unintended?) consequences. Many things have disappeared.

Federalism, Upside-Down and Executive

The Upside-Down Constitution isn’t for the faint of heart, or for people who actually work for a living. So some time ago, the Mercatus Center nudged me to write up a more digestible version of the federalism argument—the political economy piece, sans the ConLaw and FedCourts jazz—for wider distribution. The product, a sixty-off page essay on “Federalism and the Constitution: Competition versus Cartel,” is now available from Mercatus. It’s a quick, convenient introduction to the subject. The essay contains a few new riffs. Among them: our upside-down cartel federalism has become an executive federalism: increasingly, federal-state relations are shaped in one-off…

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A Culture of Authenticity versus a Jurisprudence of Principle


Our literary, journalistic, and thespian culture is, to put it mildly, not hospitable to conservatism in general or the legal formalism with which conservatives have long been associated. The obvious, but shallower reason, for this clash, is that our cultural elites of every kind are overwhelmingly left-liberal. The deeper reason is that much of our culture is so driven by questions of personal identity and authenticity that it has trouble even comprehending the impersonality of the principles that are at the heart of republican constitutionalism.

The Originalist, a play about Antonin Scalia, at the Arena Stage illustrates both of these problems. The conceit of the play is that Scalia has hired a liberal law clerk, Cat, and they argue about different cases. But the author does not spend nearly enough time explicating originalism or for that matter any other jurisprudence to make the play a battle of ideals. As I say in my review for City Journal, the playwright John Strand is no Tom Stoppard and “has written an intellectual ghost story, in which shadows of ideas fret their minutes on the stage.”

It almost goes without saying that play trots out the usual stereotypes of conservatives.

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What Would Happen if the Dormant Commerce Clause Were Overruled?

With the debate in the Wynn case over the Dormant Commerce Clause, Michael Greve has once again criticized originalists for their views on the matter.  Michael likes the Dormant Commerce Clause.  As a policy matter, so do I.  What’s not to like about a doctrine that prohibits or restricts states from engaging in protectionist and other similar actions?

But I am not so sure how important the doctrine really is as a practical matter.  Unlike other constitutional law doctrines, that of the Dormant Commerce Clause does not restrict Congress.  If Congress wants to authorize states to engage in protectionist legislation, it can do so.  And Congress has, most famously in the case of insurance with the McCarran-Ferguson Act.

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