The federal judiciary is in great need of expert economic advice, and mercifully some are happy to supply it. “Stop the Anti-Obamacare Shenanigans,” Henry J. Aaron (senior fellow, Brookings), David M. Cutler (professor, Harvard), and Peter R. Orszag (shill, citigroup) plead on the New York Times op-ed page. They urge the Supreme Court to await the D.C. Circuit’s en banc decision in Halbig before granting cert in King v. Burwell. Because if the petitioners’ position and the D.C. Circuit’s ruling—ACA tax credits and mandates apply only under health care exchanges established by states, not to exchanges established by HHS in a state—were to prevail, “it would create total chaos.”
The effects of the vote on Scottish Independence, like the French Revolution, will not be contained within its borders. Whatever the outcome in Scotland, its referendum will reverberate across Europe, energizing the many culturally homogeneous peoples who view themselves as trapped within distantly governed and soulless nation states. The consequences will likely be the creation of more nation states within Europe and certainly more devolution to subunits within nation states. It is a revolution of both cultural solidarity and political subsidiarity.
The European Union, European peace, and the affluence and anonymity of the globalized market economy are the tinderbox for the coming conflagration.
The recent decision by the California State University system to enforce its “all comers” policy against religious groups on its 23 campuses is the latest in a disturbing and (at least in some cases) unprincipled effort to rid colleges and universities of conservative religious groups with creedal faith statements.
The Supreme Court bears much of the blame. In its 2010 decision in Christian Legal Society v. Martinez, the Court unwisely upheld the nondiscrimination policy of the Hastings College of the Law, a public law school in San Francisco. Its “all comers” policy is that student groups must admit as members and even leaders any student who wants to participate. The Republican club must accept Democrats. The pro-choice club must accept pro-lifers. The Jewish club must accept Christians.
President Obama told the nation that he, on his own presidential authority, has committed the American people to actions in the Middle East that common sense calls war. But he did not call it war. He directed those actions against persons who call themselves Islamic but who he said were not Islamic, who rule a state with the (often enthusiastic) consent of its people but who Obama said were not a state. He said that allies largely would carry this campaign’s weight. But the countries he mentioned have made clear that they will do no such thing. This makes no sense, and augurs further disasters abroad.
One of the ways that small government and democratic accountability could be promoted in the modern world is through the reinvigoration of the nondelegation doctrine. Under that doctrine, administrative agencies would be prohibited from making discretionary legislative decisions and therefore Congress would have to do so. If Congress, rather than administrative agencies, were to make the discretionary legislative decisions, this would both reduce the number of regulations that were enacted and would ensure that members of Congress would have to be responsible for their decisions. By contrast, under the current system of delegation, the administrative agencies can use the efficiency of the administrative process to pass large numbers of regulations and members of Congress can avoid accountability for these regulations, always claiming that they did not intend any particular regulation which might turn out to be unpopular or controversial.
One common argument against reinvigorating the nondelegation doctrine is that it is not possible in the modern world. Congress has neither the expertise nor the time to enact all of these regulations. But this is not actually a good argument. There is a method that would allow Congress to make these decisions, even assuming that it does not have the expertise or time to do so.
Under a well known proposal, all substantial regulations would have to receive the approval of Congress to become law. The adminstrative agency would propose the regulation in much the same way it does now. Thus, it would reflect the agency’s expertise as well as the efficiency and speed of the administrative process. But the regulation would not go into effect unless it was approved by the Congress.
The syllogism by which healthcare deadlines may be deferred against laws, recess appointments made without recesses, and international agreements negotiated sans treaties runs as follows: The national government is empowered to pursue the public interest. The power of the national government is vested in the person of the President. Therefore, the President is empowered to pursue the public interest.
Over at Instapundit, I read yesterday that the IRS defended its Breitbart audit with this statement: “The IRS stresses that audits are based on the information related to tax returns and the underlying tax law — nothing else.”
Glenn aptly writes “And who could hear this without laughing?” Actually, I know from personal experience it is false, because a while back I was subject to a “practice audit.”
Finally, here is a definitive discussion of the discipline of psychiatry, from an insider committed to the profession but who does not shy away from its profound difficulties. In Our Necessary Shadow: The Nature and Meaning of Psychiatry, Dr. Tom Burns reveals all even while insisting that at bottom “psychiatry is a major force for good.” Psychiatry is inherently controversial since it claims to know the psyche; but this touches, as he puts it, what “is most human in us,” our being, our “soul” which we cannot be neutral about. Psychiatry is a “hybrid” of “guided empathy” and detached cure—and the profession has swung wildly between them for years.
Last Fall, the excellent Jim Fleming (Boston University Law School) organized a fun conference on “America’s Political Dysfunction: Constitutional Connections, Causes, and Cures.”
Part of the conference was a panel inviting Sotirios A. Barber (Notre Dame) and yours truly to critique each other’s books on federalism—respectively, The Fallacies of States’ Rights (Harvard UP, 2013) and The Upside-Down Constitution (Harvard UP, 2012). Both of us took the assignment quite seriously.
Let’s just say there’s not a lot of common ground; it’s a rather pointed exchange. To my mind, though, the colloquy illustrates the high utility (as well as the entertainment value) of the bilateral critique format, which I think Jim Fleming invented. Kudos.
What struck me on flipping through the essays for purposes of this post is just how much of a game changer the ACA has been, or become.
On Monday Senator Harry Reid introduced an amendment, which would permit both Congress and state legislatures to prohibit the use of resources for political speech at election time. The Republicans did not vote to filibuster it but instead by a substantial majority agreed to open debate. Senator Reid then complained that Republicans were trying to “stall” the Senate from getting to other items on his agenda. Washington has reached a new high in legislative hypocrisy: criticizing the opposition for wanting to debate an amendment that you brought to the floor!
The debate is scheduled to last the week. And nothing is more important than having a debate that brings us back to the consideration of first principles. Political theorists since Machiavelli have been absorbed by the problem of preventing the decay and corruption of the republic as its founding principles gradually recede from public view. The most important safeguard against such decline is the creation of mechanisms that naturally ventilate deep disagreements and renew the citizens’ appreciation of their republic’s first principles. Floor time for divisive constitutional amendments is such a mechanism and this one illustrates three first principles on which our two major political parties disagree.