Roving Bandits: A Discussion with Paul Nolette on the Power Wielded by State Attorneys General

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Paul Nolette comes to Liberty Law Talk to discuss his book Federalism on Trial, which demonstrates how state attorneys general quietly became significant national policymakers. What was once a rather staid position in state government has become the source of entirely new regimes of conduct impressed on companies and industries. Incredible evidence of this legal revolution can be seen in the Master Settlement Agreement with the tobacco industry, which, courtesy of the attorneys general, sent $200 billion to the states and negotiated an entirely new cartel for the industry without a single vote in Congress. While some attorneys general have challenged…

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Indiana Wants Me, or Maybe Not

I just returned from a speaking engagement with the National Association of Attorneys General (Midwestern) in Indianapolis. The city used to be a dump; now it’s thriving. (In these pre-Final Four days, it’s the place to be.) The NAAG event was tremendous: it’s a shame they don’t transcribe or podcast the discussions. The panelists (yours truly included) yell at each other on the blogs but lo, they’re actually is a trans-party, Yale-to-GMU constituency for the rule of law—and they meet in a hotel room and learn from each other. The NAAG’s Dan Schweitzer, who called this thing together, is a…

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Generals of Regulation

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Over the past few years, state attorneys general have brought dozens of lawsuits challenging the Obama Administration’s regulatory initiatives. In addition to leading constitutional challenges to the Affordable Care Act, AGs have sued to block new environmental regulations, implementation of the Dodd-Frank financial law, and a host of other federal policies. For those concerned about the size and scope of federal power, this is a welcome development. Who is better positioned than the states’ top litigators to use law as a bulwark to protect the rights of states against an expanding federal government?

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Con “Law” Theory, New Haven-Style

Word cloud for Dual federalism

Yale law professor Heather K. Gerken is among the country’s most prolific and creative federalism scholars. In cooperation with two co-authors (Ari Holtzblatt and James T. Dawson—hereinafter, “Gerken & Co”) she has embarked on a project to develop a theory of “The Political Safeguards of Horizontal Federalism.”

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Fusionism and Federalism

I spent the weekend at an excellent conference on the work of Frank S. Meyer, a leading post-war thinker of the right.  His major effort has generally been called fusionism –an attempt to marry classical liberalism and traditional conservatism. But he himself did not claim the term “fusionism”: that was a label others affixed.  He saw himself as revealing the complementary nature of liberty and tradition rather than creating a new alloy out of disparate materials.   For Meyer, liberty was the end of politics, and that fact could be apprehended by reason. But because of the constraints of human knowledge, traditions were important as  a guide for the appropriate realization of liberty. And traditions help men choose virtue when political freedom appropriately gives them that choice.

Besides its importance in reconciling liberty with tradition analytically, fusionism had and continues to have important political implications.

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Trust Us, We’re the IRS

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I am a faithful subscriber to the Washington Post: morning after morning, it makes for merriment. Its editorial and op-ed pages, for instance, have been given over for weeks to the regurgitation of ACA defenses cranked up in New Haven or in the PR offices of the country’s health care lobbies (interspersed with an occasional George Will column). Then yesterday, the Post (printed version) conveniently supplied a long piece detailing “Five Myths About King v. Burwell”—written by a pro-ACA advocate in the litigation, who nonetheless earnestly professed to sort “fact from fiction” in the case. That was a good one.

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Burke, Historical Experience, and Change

At the Federalist Society national student symposium, my colleague Josh Kleinfeld was the deserving recipient of the Paul Bator Award given to an outstanding law professor under 40. His beautiful acceptance speech focused on the importance of Burkean conservativism.  And Kleinfeld is correct: the right owes an enduring debt to Burke’s skepticism of ordering society according to the abstractions of the kind advocated by the French philosophes. That debt is all the greater, now that these types of philosophes have gone global.

But I do wonder whether one aspect of Burkean conservatism—deference to past historical experience—deserves quite as much weight today as it once did.  Burke had both religious and more instrumental reasons for valuing that experience. For Burke, history was “the known march of the ordinary providence of God.” More secularly, it was also the best repository of human prudence and wisdom and thus the best guide to policy in an uncertain world.

But the value of historical experience as a guide for policy depends on the technological and social rate of change and on the availability of alternative methods of sifting experience.

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James Buckley at 90: Still a Hero of the Republic

I had the good fortune to be asked to review Saving Congress from Itself by James L. Buckley, a statesman I have long admired.  As I say in the opening of the review that appears in this week’s print edition of National Review: My first vote remains my best. It was for James L. Buckley’s reelection as a United States senator from New York. In six years in office, he had shown himself fearlessly principled, whether in calling for Nixon’s resignation in the Watergate scandal before any other conservative in Congress or in opposing a taxpayer bailout for New York City,…

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We the People of the United States: The Madisonian View

In my last post, I argued that “We the People of the United States” is best understood as referring to a single people consisting of separate states.  It is not a single people in a single undifferentiated nation like France, but instead is a country that consists of individual states that are united together.

This interpretation of the preamble views it as adopting an intermediate view between the nationalist view of a single people in an undifferentiated nation and the states rights view of multiple peoples in multiple states.

If the preamble adopts an intermediate view, does it fit with the remainder of the Constitution and what specifically is that view?  The intermediate view of the preamble accords with the analysis of the Constitution adopted by James Madison in Federalist 39.  In that number, Madison was responding to critics who argued that the Constitution was a national document and should have been a federal one.  Madison wrote:

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Federalism’s New Defenders: Obamacare Supporters

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Thirty amicus briefs have been filed in support of the government’s position in King v. Burwell. Tim Jost, a leading academic champion (after the late Jonathan Gruber’s self-inflicted defenestration, the leading champion) of the ACA, summarizes them here. This may be a bit of overkill (the justices generally don’t like to be bullied or harangued), but we’ll see.

Numerous briefs come from hospital associations, doctors’ groups, and of course America’s Health Insurance Plans. By helping the ACA over the hurdle, AHIP signed its corporate members’ death warrant in exchange for the individual mandate, risk corridors, and a few other placebos. AHIP had the railroad cars to the camps neatly lined up; now, some plaintiffs are messing—after NFIB, a second time—with the tracks: how dare they.

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