Mike Rappaport’s latest post on the dormant Commerce Clause makes an excellent and hugely important point. (It has to do with a potentially exclusive Commerce Clause, and how that plays out in a statutory setting.) I swear I’ll get around to commenting on it, the minute I come up for air. For now, as previously threatened, a link to an exchange of views on the Supreme Court’s forthcoming (November 12) argument in Comptroller v. Wynne, published by the Vanderbilt Law Review En Banc. As previously described, Maryland imposes local taxes on residents’ income wherever earned, without crediting taxes already paid to other…
At the height of the Iran Contra scandal in Washington, “Saturday Night Live” had a funny skit about Ronald Reagan. It showed the President’s folksy, out-to-lunch personality to be a façade. Behind closed doors, he was a worker bee, driving younger staff members to exhaustion. Liberals could only entertain such a possibility fictionally. To them, Reagan was a lazy leader, “sleepwalking through history.”
Liberal avoidance of such a possibility tracked back to Dwight David Eisenhower’s 1953-1961 administration. To the liberals of that era, he was a disconnected President, more interested in his golf game than in leading the nation. Worse, he lacked political courage, specifically with regard to halting a rampaging Joe McCarthy.
There are no permanent partisan victories. The gains of the Republicans on Tuesday are likely to give more opportunities for victories for the Democrats sometime in the future as the party in power exhausts it agenda, makes mistakes, or is blamed for issues over which it has little control. But elections can have more enduring effects on policy and social structures.
One of the most notable consequences of this election was the setback it dealt to public sector unions. Importantly, the losses came at hands of both parties. Republican Scott Walker was reelected in Wisconsin after rolling back the power of public sector unions. Gina Raimondo gained the governorship of Rhode Island despite using her position as that state’s Treasurer to restructure public pensions and thereby earning the enmity of public sector unions. In my own home state of Illinois, Governor Pat Quinn lost in state where the most important mainstay of his party is public sector unions, whose pensions and other exactions have made Illinois the state with one of the lowest credit ratings and worst business climates in the nation.
The decline in political power and legal privileges of public sector unions would be the single most salutary structural improvement in the states where they enjoy such privileges.
Election Day was, no doubt, a great night for Republicans and for those resisting the progressive agenda. But I think much of the rhetoric about this and past contests is overheated. My view about these matters is primarily structural or cyclical.
It was the sixth year of a two term President and therefore the President’s party was likely to lose a significant number of seats. The President is unpopular and so that makes it even more likely.
Of course, this is not meant to downplay the results. Rather, the point is that the Republicans should have won and probably would have still won (with a smaller victory) even if the President was more popular than he is.
I had a similar reaction to Obama’s reelection in 2012. It is difficult to defeat a sitting President and the economy, while weak, was good enough to allow him to be reelected. He was not challenged in the primaries and there were no other enormous problems that would lead him to be defeated. Still, Romney might have won had he run a more competent campaign – had he, for example, been better in the second debate – but probably that debate did not decide the election.
Recently stumping for his cooperative federalism model of government-funded preschool, Barack Obama claimed that more money should be spent on these programs so that, in effect, women wouldn’t have to stay at home to take care of children. They should be working as the family’s core functions should be institutionalized by the state. This, of course, confirms what many on the Right think about these types of programs. They are back-door ways to ensure government gets more time with your children and you get more time at work, which you’ll need to pay the taxes for this program and the many other progressive bureaucracies.
Taking a different tack is Indiana Governor Mike Pence who says “This is a heart issue for me” when he urges renewal of his pilot program for government-funded preschool education.
Does that mean evidence-based debate on the subject is heartless? Well we’ll see.
This op ed piece in the New York Times by David Schanzer and Jay Sullivan argues that midterm elections should be eliminated. I could not disagree more.
The piece offers a variety of reasons for eliminating the midterm elections and replacing them with elections every four years, with House members serving four year terms and Senators 8 years terms. These reasons include a smaller number of people voting during midterms, consisting of whiter, richer, and more educated voters, and the midterms weakening the President. Under the reform, politicians would have more independence from voters, and there would be less gridlock.
Here are my reasons for supporting midterms and opposing this reform.
1. Several years ago, I wrote an article arguing that the Constitution’s original meaning placed significant limits on ordinary political actions that change the pattern of institutions in the country. Even if a single party controlled the Congress and the Presidency, it could not transform the country. That changed with the modern Court’s departures from the original meaning.
My favorite title of all the books that I possess is A Brief Introduction to the History of Human Stupidity. It’s by Walter B. Pitkin, and was published in 1932 in nearly 600 closely printed pages. The author promised a 40-volume encyclopedia of the subject. While he never got around to starting, let alone completing, that project, the title of the book he did finish is sufficient in my opinion to confer immortality upon Walter B. Pitkin.
On the day of midterm elections, it is worth taking the time to admire the Founders’ design. Gratitude does good for the soul at any time, but it is particularly warranted now, when a number of progressives have argued that midterm elections are a mistake, principally because they get in the way of powerful Presidencies that can transform American society through national politics.
The Framers kept government on a short leash because they were more realistic about what federal politics could accomplish and more pessimistic that any particular idea of national reordering would be good. They built a system of checks and balances to constrain the dangers from excessive power. Those restraints in turn protected other forms of more decentralized political ordering like the market, voluntary associations, and state and local government.
An op-ed in in The New York Times yesterday argued that it would be a good idea to eliminate the midterms and the amend the Constitution in favor of longer terms for members of Congress. They analogize the federal offices to state and local offices, like school boards, which have longer tenure. This argument gets things perversely backwards. We put checks on the power of the federal government in part to make it harder for the government to displace the more local ordering of state officials, thus preserving federalism. The more potentially powerful their political agents, the more opportunities the people need to check them.
Housing analyst Thomas H. Stanton displayed amazing prescience in 1991 with a book whose subtitle read: “Will Government-Sponsored Enterprises Be the Next Financial Crisis?” Stanton spent years detailing his concerns about Fannie Mae and Freddie Mac potentially coming a cropper. Throughout the 1990s and early 2000s, he was a lonely voice on this issue accompanied by a small group of fellow analysts such as Peter Wallison and Bert Ely.
Mike Ramsey has another post about the Dormant Commerce Clause (DCC), following up on my previous post and this post by Mike Greve. Mike Ramsey attempts to set forth the strongest arguments against the DCC, with which I agree. There is no good original meaning argument for the DCC.
There is, however, a somewhat stronger argument for an exclusive Commerce Power. Unlike the DCC, one could conceivably conclude that the Commerce Clause provides exclusive authority to the federal government to regulate interstate commerce. That would differ from the DCC because the exclusive authority would take away from the states all authority to regulate interstate commerce, not just the power to discriminate against interstate commerce.
While Chief Justice Marshall toyed with this argument, and there us something textually to be said for it, I still don’t think it works for three reasons. First, the Commerce Clause does not say that it is exclusive and one would not normally infer from the language that the power was exclusive. Second, as Mike Ramsey notes, the Constitution seems to provide for exclusive power by doing so expressly, as when it states that Congress shall have the power “to exercise exclusive legislation in all cases whatsoever” over the District of Columbia. Third, the Constitution seems to recognize that the states can pass laws involving interstate and foreign commerce, as it provides that “no state shall, without the Consent of the Congress, lay any Imposes or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws” (although there is a complicated counterargument involving this provision).