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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Living under Executive Federalism

National mall sunset, Washington DC

Last week, I visited Boston College for a discussion of the Supreme Court’s recent decisions. Herewith an abbreviated version of my remarks. Comments etc. most welcome because the thoughts (some old, some new) are embryonic: I’m working on a more serious, grown-up presentation.

We are living in an age of Executive Federalism. That form of government has some deeply disturbing features, including several that should prompt a judicial response. So far, the Court has given no indication that it has a clue.

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House v. Burwell

Capitol Flag

Even after the Supreme Court’s lamentable decision in King v. Burwell, litigation over the Affordable Care Act and the administration’s creative implementation of the statute continues. Last week, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia held that the House of Representatives has standing to sue the executive (more precisely, Secretaries Burwell and Lew) over their decision to implement an ACA program with unappropriated funds. While it’s certainly a good thing to keep this excretion of a statute in litigation, from here to eternity, there are reasons to be nervous about Judge Collyer’s ruling.

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There and Back Again (King v. Burwell, Part Two)

gavel, law book, a statue of justice on a white background

As I wrote in an introductory post for Law and Liberty, the roots of King v. Burwell lay in the humble soil of federal tax law.

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