How about a Liberal Option – And It Could Be Done Through Reconciliation

Could the market help us solve our healthcare problems? Market economists and theorists say of course it could; big government/Progressive types say no. Let’s find out. As Franklin said when discussing his famous Kite, “let the experiment be made.” When the Obama administration was debating just how heavily to regulate America’s healthcare system, many on the Left wanted a truly government-run health insurance scheme, or “public option.” As Progressives’ default assumption is that government programs work better than the alternatives, they believed a “public option” would demonstrate the wisdom of turning to fully socialized medicine in the United States. Average Americans reacted sensibly:…

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Meet the New Boss

oval office

The most revealing executive action of the new administration may have been among the least reported. President Trump, by memorandum, ordered the Secretary of Commerce to “develop a plan” under which all new, retrofitted, repaired or expanded pipelines inside the United States would use U.S.-made materials and equipment “to the maximum extent possible and to the extent permitted by law.”

Cutting to the chase, the extent permitted by law is zero. The president of the United States neither has nor ought to have the authority to tell private companies making private investments where to buy their equipment or materials. He has no authority to encourage them, pressure them or bully them. The conservative response to a comparable order from President Obama would, appropriately, have been apoplexy.

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Vox Populi, Vox Impetu

US Capitol die cast model

The first constitutional test of the new era will be answered less by Donald Trump than by Mitch McConnell (R-Ky.) and Paul Ryan (R-Wis.): namely, whether the congressional leadership delivers to the chief magistrate the news that Capitol Hill is not a subsidiary of the White House.

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After Obamacare: A Conversation with Josh Blackman

unraveledThis edition of Liberty Law Talk discusses with Josh Blackman his latest book, Unraveled: Obamacare, Religious Liberty, and Executive Power. Professor Blackman has been engaged with Obamacare since its creation and discusses the ways the law has impacted our thinking about healthcare, the regulatory state, and religious liberty.

Progressivism Is a Long-Term Threat to the Rule of Law

Many people are concerned about Donald Trump’s commitment to the rule of law, a concern I share. But the other choice in this election is a Progressive one, and Progressivism by its nature lacks that commitment. Moreover, its history shows that it permanently damages the constitutional foundations of the United States. And the United States suffers from the fevers of progressivism more than any time since the 1960s.  Thus, this election pits a candidate lawless by virtue of temperament against one lawless by virtue of ideology and emboldened by the spirit of the times.  The rule of law is under threat, whoever wins.

Progressivism has proved a greater long-term danger than any single individual, because it is born in part out of systematic rather than personal hostility to the Constitution. Federalism and separation of powers are obstacles to the social engineering at the heart of progressivism, and thus progressivism has tried to eviscerate these restraints. Packed with FDR appointees in the 1930s, the Supreme Court gutted the enumerated powers. The administrative state has eroded the separation of powers, making the executive ever more powerful in domestic affairs. The theory used to justify these departures from the original constitution, living constitutionalism, is itself a threat to the rule of law, because it devalues the formal rules laid down by the Constitution.

And today we see all across a society a renewed progressive disdain for the rule of law.

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Regulatory Dark Matter: A Conversation with Wayne Crews

Threat of OverregulationThis interview with Wayne Crews explores the growing lawlessness in the administrative state's exercise of its powers. This regulatory "dark matter" ignores the formal rule-making requirements of the Administrative Procedure Act that mandates publishing a notice of proposed rule-making and allowing public comment. Crews outlines how the agencies of the regulatory state are resorting to the exceptions of using “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” to exert authority informally and without accountability.

Politics in a Post-Modern Republic

Fight, two fists hitting each other over dramatic sky

What is the cause of our polarized politics?  Some blame one party or the other, and that is certainly plausible.  But I wonder if the problem goes deeper.  Our two parties are fighting for the future.   We are polarized because we disagree about what it would mean to make America better.  Beyond that, the arguments are so extreme because in our post-modern age we cannot agree about what it means to be reasonable.

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The President’s Power to Spend

In House of Representatives v. Burwell, yet another big case arising over the Affordable Care Act, U.S. District Judge Rosemary Collyer has ruled that the administration’s implementation of the Act’s subsidy provisions violates the Constitution. Lots of fun here; let’s start with the basics.

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Little Sisters, Would You Please

Mother Loraine Marie Maguire, (C), of the Little Sisters of the Poor, walks down the steps of the US Supreme Court.(Photo by Mark Wilson/Getty Images)

Scenes from an Argument

I’ve perused the argument transcript in Zubik v. Burwell (better known as Little Sisters of the Poor v. Burwell) and some of the press coverage. I’ve also looked at the press pictures and noodled over whose side I’m on—the grim-faced harridans demanding free contraceptives now, or the cheerful Little Sisters.

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De-Rigging Capitalist Privilege

Internet Abstract

When Charles G. Koch, the chief executive officer of his family business, recently wrote an op-ed for the Washington Post saying he agreed with Democratic presidential candidate Bernie Sanders that our economic system is “often rigged to help the privileged few,” it raised eyebrows even among the company-town’s power structure.

The online version was absolutely swamped with comments. Almost all of the commenters agreed about the evils of crony capitalism but most of them unfairly attacked Koch as hypocritical for being a capitalist himself. The examples he presented of Koch Industries’ opposing government subsidies that could have advantaged its business counted for exactly nothing. Pretty tough to crack the capitalist stereotype even when the capitalist supports one of the Left’s core precepts.

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