Spend and Regulate

Quick update on Friday’s post, before launching into today’s clueless musings: approximately 10 minutes after I put the blog to bed, the Supreme Court publicly issued its cert grant in American Trucking Ass’n v. Los Angeles. Thanks to occasional contributor Adam J. White for the alert. On to a case argued this past week before the Supreme Court:  Delia v. EMA, presents a Medicaid wrinkle that (if I’m right) poses a constitutional question of considerable import. The justices don’t seem to think so, though. Either they’re wrong, or else I am missing something. The Statute State Medicaid programs will often pay medical expenses for beneficiaries who then seek and obtain recovery from a third…

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Friday Roundup, November 16th

Don't miss the next Liberty Law Talk with Adam White on the significant power of independent federal agencies. The NLRB is just the tip of the iceberg. Garett Jones of Econ Log: To live undaunted in the face of spending cuts! Did the election save Obamacare? Healthcare policy meister, John Goodman, says call me skeptical. The ACLU, yes the ACLU, is suing Morgan Stanley over adjustable rate mortgages. Mission Creep? Nice post from Walter Olson at Cato@Liberty on Sandy and the soft terror of occupational licensing. Olson writes In a sane world, if occupational licensure existed at all, it would be automatically relaxed at a…

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The Rise and Rise of Independent Federal Agencies

Boeing 737This next edition of Liberty Law Talk is a discussion with Adam White, a lawyer in Washington with Boyden Gray & Associates, about the increasing policy significance of independent agencies. White discusses how these agencies have assumed increasing power for implementing policy items that are politically unpalatable but are favored by key segments of a president's political coalition. Analyzed by White in this podcast are the NLRB-Boeing episode, the derailing of the Yucca Mountain nuclear  repository project, and the avalanche of independent agency power delegated by the Dodd-Frank Act.  

Obamacare: What Can One Wish For?

Adam White has a characteristically insightful piece in the Weekly Standard on the Obamacare litigation. After a concise summary of the legal issues and their trajectory in the lower courts, Adam notes that NFIB v. Sebelius “is the latest case in a remarkable string of cases confronting the Roberts Court with an unprecedented assertion of government power, and leaving the Court with the difficult task of how to preserve our constitutional structure.” The earlier cases include Citizens United; the Gitmo cases; and Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB) (2009), where the Court held that the congressional creation of an independent agency within another independent agency (the SEC) violated the Constitution. Adam correctly identifies the common thread among these disparate cases:

In each, the government had attempted to ground an unprecedented assertion of power in the letter of old precedents. In each, the change involved a fundamental innovation in the structure of government… And in each, the justices lacked useful rules guiding their decision, leaving them to exercise judgment rooted in more fundamental principles. The Court responded in each case by exercising prudence, drawing a new line in the constitutional sand, and requiring the government to step back to a more limited assertion of power…The Court’s review of the individual mandate poses no less a challenge, and merits no less a response.

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