If you want a great place to start doing this, and you like law (and isn’t that kind of a prerequisite for enjoying my blog?), go check out the talk “Assorted Canards of Contemporary Analysis Redux” by Amy Coney Barrett and learn why you, too, should hope that she becomes America’s next Supreme Court justice.

But Judge Barrett is not the subject of this blog post. A different woman is:

This is a really good talk. It’s engaging, it tells a good story, the story is important, it’s not a story conservatives have been listening to (until “Tucker Carlson conservatism” suddenly became A Thing a couple years ago)… and, from what I have been able to gather, the story is true.

In the interest of fairness, Matt Bruenig (who is also on the Left) offers a critique of the book this talk is based on here. I have not read Warren’s book, and maybe Bruenig’s critique holds up better there. However, I don’t think Bruenig’s critique holds up against this talk.

Even after adjusting CPI-U to CPI-U-RS (as Bruenig recommends), the degree to which male-earner wages and two-income-household discretionary income have been held down over the past several decades, against the backdrop of skyrocketing productivity gains, is astonishing. He appears to be correct that using CPI-U-RS is more accurate, and that doing so means families today have slightly more discretionary income rather than slightly less. That does wreck one of the bigger headlines from the talk. But the introduction of an entire second income should have resulted in much larger discretionary income, not a virtual wash. We lose the headline, but the dire news for the middle class persists.

Bruenig also suggests that Warren should have adjusted for CPI by category rather than CPI overall. Well, Bruenig and Warren are both more trained than I am, but it seems to me that Warren has the better of the argument here. What we’re interested in here is how the overall family budget has been impacted after factoring out overall changes in nominal price. The fact that nominal home prices grew more slowly relative to other items in the basket of goods is not of interest; we aren’t ultimately trying to find out how much more expensive one square foot of housing is today (which is where the categorized CPI would be the right measurement), but how much cost pressure housing imposes on the average middle-class family, which requires a holistic view of the entire basket of goods.

I dunno, maybe I have that wrong–economists, let me know in the comments–but I’m finding Warren’s analysis in this talk more credible than Bruenig’s critique.

I would never vote for Elizabeth Warren; too many of her views are abhorrent, especially as she has moved left to pick up progressive base voters, and many of her most recent policy solutions to these problems would be a calamity. But, if I were President and could make her my financial regulations, antitrust, and bankruptcy czar, I’d probably do just that In conclusion, this is a good talk. Especially if you watch it at x2 speed.

(Next time on De Civitate: why I’m furious with my friends over on the left side of the aisle, and why I think Congress should impeach and convict President Trump anyway.)

This is a trademark case. The U.S. Trademark Office rejected a trademark for the brand “FUCT” because of a law (the Lanham Act) that says trademarks should not be granted for “immoral or scandalous matter.” The guy who runs FUCT insists that it isn’t obscene, and actually you’re supposed to pronounce it by spelling it out: F-U-C-T.

The U.S. Supreme Court decided today, 6-3, that (1) hahahaha nobody believes you, dude, and (2) nevertheless, this law violates the First Amendment. Therefore, the trademark must be granted to FUCT.

Justice Alito joined that decision. But this struck me as odd. Alito is the Supreme Court’s obscenity-hater-in-chief and its champion against moral relativism. In Snyder v. Phelps, the Supreme Court ruled that Fred Phelps and the Westboro Baptist Church could not be sued for inflicting emotional distress after their obscene protest of a dead soldier’s funeral, because of the First Amendment. In that case, Alito stood alone to dissent. He would have allowed the soldier’s family to sue Phelps for a lot of money. That’s who Alito is. You might call him the Supreme Court’s moral scold. I call him that lovingly, because I tend to agree with him.

The First Amendment protects many kinds of speech, especially political speech and its constituent activities, but also religious speech, art, and the general free exchange of ideas, information, and stories. As American culture becomes more and more polarized into two separate and isolated camps, each increasingly inclined to silence the other, we need a strong First Amendment now more than ever (hence the Court’s correct decision in Citizens United*). But the Supreme Court has repeatedly held throughout its history that the First Amendment’s protections do not extend to obscenity. Obscenity is not free speech per se, in the Court’s view.

Thus, it is perfectly legal to outlaw pornography. It has been illegal throughout nearly all of the country throughout nearly all of its history. Indeed, pornography is technically still illegal in most places today (here is Minnesota’s anti-porn statute; your state likely has a similar one)… but it’s difficult to enforce, thanks to some Supreme Court precedents that make it difficult to prove that something really is porn (not art). The barrier-smashing power of the Internet, too, has made enforcement nearly impossible.

However, Justice Alito remembers that, despite barriers to enforcing anti-obscenity laws today, obscenity is still not actually protected speech. He sometimes seems to be the only member of the Supreme Court who does.

And here he is ruling in favor of a brand called FUCT?

So I looked up his concurring opinion. And it’s good! I really like the distinctions he draws. Were I a justice on the Supreme Court, I’d join it. I’m going to reprint the whole thing here. Don’t worry; it’s short.

For the reasons explained in the opinion of the Court, the provision of the Lanham Act at issue in this case violates the Free Speech Clause of the First Amendment because it discriminates on the basis of viewpoint and cannot be fixed without rewriting the statute. Viewpoint discrimination is poison to a free society. But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We reaffirm that principle today.

Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be “immoral” or “scandalous” can easily be exploited for illegitimate ends. Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. The particular mark in question in this case could be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary. The registration of such marks serves only to further coarsen our popular culture. But we are not legislators and cannot substitute a new statute for the one now in force.

The full slip opinion is here; Alito’s concurrence is on pages 14 and 15 of the PDF.

*I know Scalia’s concurrence isn’t the controlling opinion in Citizens United, but it’ll be a cold day in Hell when I link favorably to a Kennedy-penned opinion in a case where literally anybody else in the majority wrote on the central question of the case.

The editor wishes to disclose that he successfully, if barely, resisted the temptation, nearly universal among bloggers this morning, to make this article’s title a “FUCT” pun.

[T]here is no conservative movement. The “Reagan coalition” stopped existing as an operational political force some time ago. The conservative movement cannot use the Republican Party to advance its aims simply because, as a non-existent entity, the conservative movement has no aims to advance.

…

There are three factions within today’s Republican Party, all of them deeply and structurally opposed to one another. All three call themselves “conservative” and berate the other factions for their deviations from “true” conservatism, but each defines “conservatism” according to their own factional priorities.

The populists are nationalist, nativist, and pro-American. They supported Trump almost from the start, and they read Breitbart and Drudge. 

Because they consider giving voice to “Americans” the defining characteristic of conservatism, populist conservatives see support for illegal immigrants as an excommunicable offense, but are open to raising taxes on the rich to keep middle-class entitlement programs running, and are largely indifferent to (or “pragmatic” about) “culture war” issues like religious liberty.

Going by presidential preference polls, populists make up about a third of the Republican party. The other factions pejoratively refer to the populists as “Know-Nothings,” among other things.

The establishment is chiefly concerned with growing gross domestic product at all costs. They supported Jeb Bush or John Kasich at the end of February, and they read the Wall Street Journal and the Financial Times.

Because they view “growth” as the defining characteristic of conservatism, establishment conservatives see tax increases or even tax cuts that do not flow directly to the pockets of so-called “job creators” as grave heresies against conservatism, but they are eager to increase immigration and happy, nay eager, to surrender to the Left on “culture war” issues.

Although smaller than the other factions, the establishment wields disproportionate clout through its well-heeled donor class. The other factions pejoratively refer to members of the establishment as “plutocrats,” among other things.

The grassroots, which fights for a culture that protects life, liberty, and the family, supported Ted Cruz or Marco Rubio by the end of February. They read the National Review,The Federalist, and First Things.

Because they see “culture” as the central feature of conservatism, grassroots conservatives obviously view so-called “culture war” issues as essential. They see economic growth as just one aspect of the movement (and do not take the establishment’s rigid view of how to achieve it), and they take a more nuanced, even “pragmatic” approach to immigration than either of the other two factions. Like the populists, they seem to make up about one-third of the GOP. The other factions pejoratively refer to the grassroots as “religious fundamentalists,” among other things.

…

When the modern conservative movement started out under the political leadership of Barry Goldwater and later Reagan, it was built on centuries-old principles handed down by men like Edmund Burke and Alexis de Toqueville. In 1953, the great intellectual, Russell Kirk, summarized those central premises of conservatism.

In his “six canons,” Kirk articulated a conservativism that embraces “a transcendant order, or body of natural law,” because “[p]olitical problems, at bottom, are religious and moral problems.” Conservatives, Kirk said, reject “uniformity, egalitarianism, and utilitarian aims,” even as they recognize “ultimate equality in the judgement of God and… before courts of law.” They maintain the importance of property rights against Leviathan government, and distrust “sophisters, calculators, and economists who would reconstruct society on abstract designs.” Finally, a Kirk conservative is prudent, recognizing “that change may not be salutary reform: hasty innovation may be a devouring conflagration, rather than a torch of progress.”

The modern “conservative movement” has lost touch with these essentials… Yet those core, conservative ideas, plainly stated and honestly championed, are still popular across a wide swath of American society, including large groups of voters who wouldn’t be caught dead identifying themselves as “conservative.” (I think here of black economic moderates, various first- and second-generation immigrant groups, white union Democrats, and others.)

More on this later.  (Soon, I hope!)  For now, go read the article.

I’ve been working quietly on the next phase of the New Party for a couple of weeks, but in the meantime I was interviewed by reporter Gwynn Guilford for an article that was just published today.

It’s called “How the Republican elite tried to fix the presidency and instead got Donald Trump,” and I think it’s pretty great, both as a chronicle of the Ron Paul 2012 insurgency and as an explanation of how the Republican Party set itself up for self-defeat in 2016. Gwynn did her homework with the GOP rules nerds, and it shows:

…the big changes to the 2016 delegate math still changed the race’s strategic dynamics in a way that wound up favoring Trump. The binding of previously unbound caucus-state delegates made it impossible for grassroots activists to rally their support behind a challenger to Trump. The newly bound delegates included the hundred or so RNC representatives from each state—party insiders that, had they not been bound to vote for Trump, might have coalesced around a consensus candidate, giving that candidate motivation to stay in the race. Without Rule 40, more candidates might well have had the impetus to stay in the race longer. That could have given national convention delegates—the majority of whom don’t like Trump—a better chance of supporting a challenger to the party’s new orange-haired overlord in Cleveland.

By shutting up a vexingly vocal minority, GOP leaders may have summoned forth Trump’s “silent majority.” Though Minnesota’s James Heaney is avowedly anti-Trump, he still relishes what he sees as “poetic justice” in what resulted from the Republican elite’s rules overreach in Tampa.

“That line from Star Wars comes to mind,” he says. “‘The more you tighten your grip, Mr. Ginsberg, the more star systems will slip through your fingers.’”

Read the whole thing; she earned the clicks.

I am now officially on record comparing Ben Ginsberg to Grand Moff Tarkin, so I guess my career in the Republican Party as presently constituted (where I am currently clothed in immense power as precinct vice chair) is doomed whether or not the New Party takes off. I can’t say I’m the least bit sorry.

Overall, Mr. Masnick agrees with me (and I with him).  He has one quibble with my presentation: its title (“Why Free Marketeers Want To Regulate the Internet”).  He writes:

…[T]he underlying claim about all of this [is] that Title II is somehow “regulating the internet.” It’s not. It’s never been about that at all. Quite the opposite, in fact. It’s about choosing which form of regulation internet infrastructure will be ruled by. The anti-net neutrality crew like to make this mistake (and they make it often), trying to pretend that internet infrastructure is the internet. It’s not.

This is a good point.  Internet infrastructure is just a “series of tubes“, and it tends toward natural monopoly.  The actual Internet — perhaps, more properly, the World Wide Web — is an infinite space where any entrepreneur can hang out his shingle to sell any good or service, with no permits, no regulation, and no limits except his imagination.  It is closer to the fabled “perfectly competitive free market” than anything else mankind has ever seen… probably ever will see.

Despite the title of my piece, free marketeers don’t want to regulate the Internet.  We want to regulate the infrastructure that undergirds the Internet precisely in order to preserve the freedom of markets and peoples who are actually on the Internet.  The distinction is important, it is too often forgotten, and it has recently been exploited by ISPs making the specious argument that invoking Title II against Internet infrastructure providers (say, Comcast) would force the FCC to also invoke it against World Wide Web content providers (say, Google), destroying the freedom and innovation of the online marketplace.  The reality is just the opposite: if we don’t regulate internet infrastructure, the infrastructure monopolists will attack the online free market… and win.

Mr. Masnick goes on to observe that internet infrastructure has always been both regulated and heavily subsidized by governments at all levels.  As free marketeers know, government subsidies are just another form of regulation, no less disruptive to markets than price controls.  The big ISPs are only discovering the beauty of markets now that regulation might hurt their bottom line. I don’t know that that adds anything to our economic case — I doubt it — but it sure does make me feel less guilty about throwing the book at them.

The only other thing I’d like to mention from the pingbacks is that, contra the good folks at Engine.is, I am not Cleveland State University Lecturer Dr. James J. Heaney — although, looking at his publications list, I’m certain we’d get along famously.  I am the mere Mr. James J. Heaney, Minnesota software developer, founder and director of the James J. Heaney Institute for the Inquiry into Natural Philosophy and Science-y Things, and Star Trek audio drama producer (and, yes, that site is long overdue for an upgrade).

Q: Genesis shows us that creation is a process.  Everything takes place step by step.  “It is not good”, God saw in the course of this process, “that man should be alone.  I will make him a helpmate for a partner.”  So next God made from the earth all the different animals of the field and all the birds of the air and brought them to the man to see what he would call them.  A good opportunity, actually, to talk about animals, our closest companions.  Adam gave each of them a name.  Are we allowed to make use of animals, even to eat them?

A: That is a very serious question.  At any rate, we can see that they are given into our care, that we cannot just do whatever we want with them.  Animals, too, are God’s creatures, and even if they do not have the same direct relation to God that man has, they are still creatures of his will, creatures we must respect as companions in creation and as important elements in the creation.

As far as whether we are allowed to kill and to eat animals, there is a remarkable ordering of matters in Holy Scripture.  We can read how, at first, only plants are mentioned as providing food for man.  Only after the flood, that is to say, after a new breach has opened between God and man, are we told that man eats flesh.  That is to say, a secondary way of ordering life is introduced, and it comes in second place in the story as we are told it.  Nonetheless, and even if someone feels hurt by our using animals in this way, we should not process from this to a kind of sectarian cult of animals.

For this, too, is permitted to man. He should always maintain his respect for these creatures, but he knows at the same time that he is not forbidden to take food from them. Certainly, a sort of industrial use of creatures, so that geese are fed in such a way as to produce as large a liver as possible, or hens live so packed together that they become just caricatures of birds, this degrading of living creatures to a commodity seems to me in fact to contradict the relationship of mutuality that comes across in the Bible.

Q: Certainly, the animal world itself presents a strikingly brutal aspect of creation.  We all know how dear little kittens may, from one moment to the next, hunt down, torment, and kill others of their own kind.  The one that survives is the one that obviously has the greatest capability of destroying others.

A: It is in fact one of the great riddles of creation that there seems to be a law of brutality. The Catholic writer Reinhold Schneider, who himself was inclined to suffer from depression, exposed all the horrific elements in nature and in the animal world with the truly microscopic vision of someone who suffers himself. He let himself be brought by this to the point of despairing of God and of creation.

In her faith the Church has always seen it in this way: that the destructive effect of the Fall works itself out in the whole of creation. Creation no longer simply reflects the will of God; the whole thing is somehow distorted. We are confronted there by riddles. The dangers to which man is exposed are already made visible in the animal world.

 

The last few days have seen an almost unbroken litany of conservative voices condemning the Roberts decision in NFIB v. Sebelius for being political, opportunistic, and incoherent. It has been embarrassing enough to be on the wrong side of Mark Steyn, Bill McGurn, and John Fund.

Far more embarrassing, however, have been those praising Roberts with me.  They aren’t praising him for the correctness of his legal reasoning, folks.  They’re praising him for being political, opportunistic, and incoherent.  This they term “statesmanship.”  That is what it means to be a “moderate” in America: you believe principles are a handicap, all law is sophistry, and utility is the chief good.

Worst of all has been the fallout from Jan Crawford’s CBS News piece revealing the whens and whats of Roberts’ decision to uphold the law.  The piece itself is lousy with innuendo and speculation as to the whys; I disregard most of it on the grounds that her guessing games are almost entirely unsourced.  Even Ms. Crawford’s off-the-record sources were unable or unwilling to confirm her “it was all politics” angle.  Still, it was deeply discouraging to see this coming from Roberts’ staunchest defenders:

Some informed observers outside the court flatly reject the idea that Roberts buckled to liberal pressure, or was stared down by the president. They instead believe that Roberts realized the historical consequences of a ruling striking down the landmark health care law.

Man.  With friends like these…

Well, I’m with Roberts.  His opinion was the correct one in this case.  Even if Roberts comes out and says he did it all for politics and didn’t believe a word he wrote, I still believe it was correct.  Only two things could persuade me otherwise: (1) an argument articulating why the mandate can not be construed as a tax, or (2) an argument articulating why the Court should not construe it as a tax, given that it is fairly possible.

Thomas Sowell got it exactly right, albeit unintentionally:

The legislation didn’t call it a tax, and Chief Justice Roberts admitted that this might not be the most “natural” reading of the law. But he fell back on the longstanding principle of judicial interpretation that the courts should not declare a law unconstitutional if it can be reasonably read in a way that would make it constitutional, out of “deference” to the legislative branch of government.

Boom.  Dr. Sowell has nailed it in one. The rules of judicial construction in a constitutional republic that has no supreme interpretive authority — that is, in the United States of America — do not suggest judicial deference when it seems practical, valuable, or congenial to a natural reading of the statute.  They demand deference, wherever at all possible, as a matter of law.

Unfortunately, Sowell, unwilling to embrace the unpleasant conclusion the Constitution demands, goes on to spout irrelevancies:

But this question, like so many questions in life, is a matter of degree. How far do you bend over backwards to avoid the obvious: that Obamacare was an unprecedented extension of federal power over the lives of 300 million Americans today and of generations yet unborn?

These are the people that Chief Justice Roberts betrayed when he declared constitutional something that is nowhere authorized in the Constitution of the United States…

One of the chief justice’s admirers said that when others are playing checkers, he is playing chess. How much consolation that will be as a footnote to the story of the decline of individual freedom in America, and the wrecking of the best medical care in the world, is another story.

Chief Justice Roberts did not deny that Obamacare is an unprecedented extension of federal power.  He did not deny that it is bad policy.  He did not deny that it would wreck the best system of medical care in the world.  If his opinion is any evidence, the Chief believes all those things. None of that makes a whit of difference to him, because his role is not to fix bad law, but to judge cases based on what the law is.  In his words, “Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.”

In 2005, we practically canonized the man for professing judicial restraint.  Today, Sowell, in a miasma of rhetorical questions and policy claims, accuses Roberts of “betray[ing] his oath to be faithful to the Constitution of the United States” for following his own professed rule.  He accuses him of “declaring constitutional what is nowhere authorized in the Constitution” while glibly passing over Roberts’ argument that it is authorized in the Constitution by the Taxing and Spending clause:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Sowell mouths the Constitution’s praises, but, when faced when a serious constitutional question, begs off answering it so he can spout spout Progressive-era truisms about the Bill of Rights.

Though Sowell is among the worst offenders, he is hardly the only fair-weather friend of judicial restraint among conservatives.  Fortunately, there many more in conservatism who are a little more serious, expressing their disappointment as a matter of policy but either politely deferring to the dissenters, stating no opinion on the ruling as law, or, in the best cases, engaging Roberts’ arguments head-on.  Others simply misunderstand what happened.  Take Michael Gerson:

Roberts has emerged as the great institutionalist, concerned primarily about the place of the Supreme Court in American political life. In this view, the court maintains its power by exercising it sparingly — deferring whenever possible to the legislative branch. Institutionalism embodies a temperamental conservatism — a commitment to continuity, humility and prudence.

The main constitutionalists on the court are Antonin Scalia and Clarence Thomas, focused on the rigorous application of the words of the founding document. In this view, the meaning of the text is primary, whatever the political consequences of applying it. Constitutionalism is often accompanied by an understandable complaint: If the conservative response following every period of liberal activism is humility and continuity, then the ideological ratchet turns only leftward…

The problem is that Roberts’s interpretation is not fairly, or even remotely, possible. If the law had been written in the Roberts version — as a regressive federal tax on the uninsured — there is no chance it would have passed Congress. More to the point, the law that Roberts describes would have covered a different number of the uninsured. Academic studies indicate that people respond differently to tax penalties than they do the legal mandates. “When the imperative to buy insurance,” notes Yuval Levin, “is instead presented as a choice between two options, more people will likely choose the cheaper option (which, for almost everyone, will be paying the tax rather than buying the coverage).”

Mr. Gerson has this backwards, because he, like so many others, has mistaken the role of the judiciary.  The court’s conservatives, in this case, acted as what Gerson terms “institutionalists”.  They sought to secure the Court’s place in American political life as the guardian of liberty and freedom — and, perhaps, as the arm of righteous retribution striking down a deceitful president’s arrogant “mandate-that’s-definitely-not-a-tax-but-is-for-legal-reasons.”  In so doing, they departed from rigorous adherence to the text of the Constitution and began to look at something else (what, I dare not speculate).  For his part, in place of the Constitution, Gerson substitutes legislative hypotheticals and academic studies, which, while valuable policy tools, are remotely connected, at best, to the task of proper judicial construction.

Meanwhile, Chief Justice Roberts looked at the statute in question and the Constitution.  He rigorously applied the maxim that what can be constitutional, must be constitutional, which is demanded by the text, structure, and history of the Constitution itself.  He drew a conclusion.  To borrow a phrase, he made “the meaning of the text primary, whatever the political consequences of applying it.”

In nearly a week of furious post-Sebelius commentaries by the conservative commentariat, no one (that I’ve seen) has made a serious, constitutional case for why Roberts was wrong.  More disturbing to me is the fact that virtually nobody has tried.  So, for now, I’m standing by my man.  Because the Constitution demands judges bend over backwards to construe a statute so that accords with the Constitution, Roberts was right.

While writing this post, however, I have received some email pushback on that last point.  To wit, it has been put to me that the maxim of presumptive constitutionality is not in conflict with, but actually is limited by the presumption in favor of the “most natural reading” of a statute.  A justice, according to this thinking, is not only not required to bend over backward on behalf of a statute, but is actually forbidden from doing so by the force of the “natural reading” principle.  This principle requires (in the words of my interlocutor) only a “good faith effort” to reconcile a statute with the Constitution under its obvious interpretations, not an exhaustive attempt to reconcile it under all possible interpretations before invoking the power of judicial review and rejecting it.

I think this contention misunderstands the origin, nature, and immense responsibility of the “power” of judicial review.  The judicial capacity to declare a law unconstitutional and unenforceable is not in the Constitution, which presumes that all laws passed by the Congress and signed by the President are constitutional.  The “power” is not a power at all — it is a compulsion imposed by the logic of the Constitution solely in extreme circumstances when a statute is at utterly irreconcilable variance with our founding law.

But I will have to write more on this at a later date, when I have the time to pull some quotes from Marbury v. Madison, The Federalist, and Joseph Story’s Commentaries.  I only had time for one tonight, and I just used it — I stole that “irreconcilable variance” phrase from Federalist #78.

Two more short posts about the health care ruling should be forthcoming in the meantime.

Under Article II, Section 3 of the Constitution, the president has the duty to “take Care that the Laws be faithfully executed.” This provision was included to make sure that the president could not simply choose, as the British King had, to cancel legislation simply because he disagreed with it. President Obama cannot refuse to carry out a congressional statute simply because he thinks it advances the wrong policy. To do so violates the very core of his constitutional duties.

There are two exceptions, neither of which applies here. The first is that “the Laws” includes the Constitution. The president can and should refuse to execute congressional statutes that violate the Constitution, because the Constitution is the highest form of law. We in the Bush administration argued that the president could refuse to execute laws that infringed on the executive’s constitutional powers, particularly when it came to national security — otherwise, a Congress that had a different view of foreign policy could order the military to refuse to carry out the president’s orders as Commander-in-Chief, for example. When presidents such as Jefferson, Jackson, Lincoln, and FDR said that they would not enforce a law, they did so when the law violated their executive powers under the Constitution or the individual rights of citizens.

Full comment at National Review Online.

Now that you know everything I read this weekend, here’s the piece I’m actually calling out [ellipses omitted]:

The idea that our system is paralyzed by disagreement is very common, especially on the left. But it has very little to do with the crisis of governance we actually face.  In the last decade, we have seen the enactment of, among other things, a large tax reform (the Bush tax cuts), a large education reform, a huge reorganization of our domestic security agencies, a reform of corporate governance (Sarbanes-Oxley), a new Medicare benefit, a massive response to the financial crisis (including several stimulus bills, an unprecedented bank rescue, a bailout of auto companies, and more, crossing two administrations of different parties), a huge health-care reform, a huge financial-regulation reform, and a budget deal with 10-year sequestration spending caps. That is a very active period of federal legislation–certainly more active than the prior decade or the one before that. It’s true that much of what Friedman wants to see has not been enacted, but that’s because it’s too foolish even for Congress to do.

The fact is that the legacy of the Great Society, especially but not exclusively in the form of the two health-care entitlements of the Great Society, Medicare and Medicaid, now threatens the fiscal future of the government and therefore the economic future of the country. The design of those two entitlement programs was not well thought out in the mid-60s, and in more recent times has been a primary driver of the inflation of health costs that is at the core of both the health-care financing crisis and the government’s fiscal woes. It is far worse than the usual kind of legislative screwup. Medicare and Medicaid, structured as they are, are just the kinds of “bad laws” passed “through haste, inadvertence, or design” that Alexander Hamilton warned against in Federalist 73, and thought the constitutional system’s various restraints would protect us against. The elite governing consensus of the mid-60s represented a failure of those constraints that resulted in a number of costly errors. It was that period, not our own time, that marked a breakdown of our constitutional system.

Full article.

COMMENT: In the sea of Facebook status updates complaining about how bad Congress is at “coming together” and “getting things done,” I’ve been that one guy praising both sides of the aisle.  Both sides should be putting their feet down and preventing the advance of the opposite party’s agenda.  Both parties really believe the other party’s legislation du jour is going to cost too much, have unintended side effects, and make things worse for the country.  For them to acquiesce for the sake of a soundbite would be a betrayal of their oath and their conscience.  More importantly, the dissenters are almost always right.

The problem with Washington is not that the two parties are unwilling to get together and push through compromise legislation.  It’s that, when push comes to shove, they are all too willing to push and shove and finagle and compromise until we end up with terrible omnibus legislation absolutely nobody likes.  They do this partly because they see all social problems as requiring the “urgent” intervention of the U.S. federal government and partly because, right and left, they all secretly wish they were members of the great, decisive liberal Congresses of the ’60s rather than, say, the deeply divided and highly effective Congresses of the ’80s and ’90s.  Relatively little major legislation was enacted during Newt Gingrich’s control of the house, but what little ran the Gingrich-Clinton gamut was (for the most part) broadly effective and widely popular: tax cuts, welfare reform, balanced budgets, a federal marriage definition, the Family Medical Leave Act, Gramm-Leach, and a host of cybersecurity and commerce laws dealing with the emergent Internet.  It took years of work to get (for example) welfare reform into a package that the whole nation embraced (liberals albeit grudgingly), but the effort has paid substantial dividends, has it not?

Contrast with the Affordable Care Act, which barely survived passage, despite historically overwhelming Democratic control of Washington and a filibuster-proof Senate majority.  It started out unpopular and has only lost ground since.  It has now mired the nation in a confusion of regulations, the Department of Health and Human Service’s war against the liberties of Catholics, and now faces summary execution before the Supreme Court because it isn’t constitutional.  Obamacare is the grossest example of a series of legislative dysfunctions, all of which came about because legislators’ desire to put a “major legislation” chit in their scrapbooks outweighed both their heartfelt ideological hatred of compromise and their Hamiltonian caution about relying too heavily on one’s own faction.  If either of those senses had been functioning properly in our legislators, they couldn’t have passed Medicare Part D — and we would be better off for it.

Imagine if, instead of Obamacare, Congress had passed a bill that did three things:

(1) require insurers to cover dependents to age 26,

(2) provide some funding (properly offset by spending cuts elsewhere) to close the Medicare doughnut hole, and

(3) require states receiving Medicare funds to use some of that money to set up high-risk insurance pools for people who can’t get coverage because of pre-existing conditions.  These pools are broadly popular: the Obama administration is using them as a stopgap measure until the (wildly unpopular) insurance mandate kicks in in 2014, and the McCain campaign proposed high-risk pools as his permanent solution to the problem, not a stopgap.

A small, relatively inexpensive bill, built on three very popular ideas, which would have fixed some problems in our health care system without fundamentally transforming it — or making taxpayers pay for abortions! Wouldn’t everyone be happier right now if we’d done that?  President Obama might even have a governing majority right now.

Read the whole Levin piece.  It’s pretty good.

In the meantime, as long as I’m riling up conventional wisdom, I may as well get started on my piece about why centrists are destroying America.

First up, the New York Times proves it still has a reporting division with a fascinating (and only slightly unfair) breakdown of the breakdown in the debt limit talks last year:

Budget deals happen in much the same way you might haggle over the purchase of a house: one side bangs out a proposed contract and sends it to aides on the other side, who cross out some numbers and phrases and insert new ones in their place, until the two sides ultimately iron out their differences, or until someone delivers a final offer and walks away. In this case, Obama’s principal negotiators — Jack Lew, then his budget director, and Rob Nabors, his top aide on legislation — sent a proposal to Boehner’s team that included $1.5 trillion in new revenue over 10 years. The White House negotiators knew this had about as much chance of happening as a meteorite falling on the Capitol, but the real question was whether Boehner was willing to go some distance toward meeting them on the revenue side of the ledger, or whether he would stick to Cantor’s hard line against any form of new taxes.

When the response came back to Nabors, Boehner’s aides had, as expected, struck the $1.5 trillion from the offer. But in its place they had inserted a strange formulation: they were proposing to reduce federal revenue, “compared to current law,” by $2.8 trillion. On the surface, this sounded like a flagrant rejection of what the White House was proposing — “You’re asking for more in taxes, we’re giving you less” — but in fact Boehner was speaking in complex code.

Full Article

COMMENT:  I’m not sure the piece is entirely fair to Mr. Boehner toward the end, when it notes that Mr. Obama eventually managed to “get” his caucus behind the deal, but Mr. Boehner did not. Actually, President Obama just barely got his legislative leaders behind a deal revised, wholly on the president’s terms, that was obviously going to be unacceptable to Speaker Boehner Republicans on a number of different fronts. Mr. Boehner never even had the chance to present the original deal — his deal — to his people.  By the time that deal was back on the table, the trust was broken and the political window for it had passed.

Still, it looks like the original “Sunday deal” was actually pretty dease (at least to me, a guy who has no real problem with revenue increases through tax reform, especially if part of that mix is fuzzy-math macro projections). It’s unfortunate that it didn’t get through… but I seriously question that House and Senate Democrats would have accepted it, given the cuts to entitlements. It’s entirely possible that the terrible compromise we ended up getting is actually the best we could do, given the budgetary commitments on both sides of the aisle and the mad fiscal priorities of the Average American Voter (who appears to sincerely believe that all we have to do to balance the budget is cut foreign aid and eliminate ‘fraud and waste’, whatever that means).

Moving right along, some guy named Lee has a fine piece about Obamacare and the insurance mandate up at the American Enterprise Institute today, taking the anti-mandate “what-if” questions out of the realm of thought experiment into plausible possibility:

Does anyone really think that Congress is going to pass a law making people buy a pound or two of broccoli a day? My guess would be no… Unfortunately, there is more at issue here than just broccoli…

Imagine that our current recession goes on, or even takes a turn for the worse. As John Maynard Keynes argued, in a time of economic anxiety and uncertainty, individuals will invariably act in a way that secures their own personal welfare, but which is disastrous to the overall economy: They will sit on their money and refuse to spend it. The bulk of Keynesian economics was to figure out how to get people back to spending their money on stuff, i.e., to increase the aggregate consumer demand. For example, Keynes told governments that they could cut taxes, lower interest rates, decrease the real value of wages through imperceptible inflation, provide stimulus packages, or build highways and even pyramids, all of which were ultimately designed to get people to go back out shopping for things. For decades, Keynesian economics seemed to work like a charm. But for some while, and especially since the crisis of 2008, it would appear that we have exhausted the Keynesian bag of tricks. We can’t make interest rates lower. We can’t inflate. We can’t stimulate by more deficit spending. We can’t afford grand building schemes. We have reached the point where American presidents have used the bully-pulpit to beg consumers to go out and start spending again.

But what if the president had a new super-Keynesian tool—a Congress that had been granted unlimited power to regulate economic activity and/or economic decisions? Under these circumstances, in the midst of a deepening and intractable depression, there would be a temptation to create a legislative solution that would be quite simple in principle. According to an index of their income, people would be mandated to purchase a certain amount of consumer goods. If they fell below this amount, they would then be compelled to pay the government a penalty. Those who abided by the mandate and did their fair share of consuming would help the economy get back on its feet. Those who had made the anti-social economic decision to save their money would have a reasonable portion of their savings taken away from them, to be spent on stimulus packages or building projects. Of course, the government would not need to tell us what to buy—only how much of it. Later, other economic emergencies might come along that required more governmental fine-tuning of our individual economic decisions. But there would be no need for a confrontation with the Supreme Court over whether Congress had the power to regulate these decisions, because, according to my scenario, we are imagining an America where ObamaCare had already established this principle once and for all, after being upheld by the Supreme Court.

Full Article.

COMMENT: The argument the Supreme Court’s liberal wing yesterday offered over and over again yesterday, during oral argument over the insurance mandate, was two-pronged:

Prong one: Congress cannot just go around mandating participation in any old market.  It can’t make you buy a cell phone just to benefit cell phone manufacturers, for example.  But, Justices Kagan and Ginsburg argued, health insurance is a unique market, where refusal to participate transfers cost burdens onto your fellow citizens.  (This is because uninsured people still get treatment, usually at the expense of the insured.  I won’t go into the federalist implications of that particular mandate.)

Prong two: everyone is part of the health care market, because everyone eventually needs health care.  Justice Kennedy: “All citizens are in the market, in the sense that they’re creating a risk that must be accounted for.”

Because everyone is going to act within the health care market at some point, and because acting in the market in one manner (waiting to buy insurance until you’re sick) rather than acting in another manner (carrying insurance at all times) has negative economic consequences for everyone (especially under the Obamacare regime), Congress has the power to compel all persons to act in the more economically favorable manner, thanks to the graceful conjunction (or Gordian knot, take your pick) of the Interstate Commerce and Necessary & Proper clauses.  This is the government’s “limiting principle,” and it’s why Congress can force you to buy insurance but not broccoli.

Only it doesn’t hold up, as the AEI piece illustrates, because it doesn’t limit much of anything.

For example: food is also part of health care, as obesity experts remind us on a daily basis.  Prong one: Since everybody eats, we are all actors in the food market, both in itself and as part of the health care market.  Prong two: If Jim acts in one manner (eating lots of cookies and no broccoli) rather than another (eating no cookies and the FDA-recommended daily portion of broccoli), he is likely to be more obese and unhealthy, which has negative consequences for everyone (especially, again, under the Obamacare regime of mandatory and highly regulated insurance). This constitutes a cost transfer, wherein the economic costs of Jim’s failure to eat broccoli are borne by everybody else (especially under Obamacare’s “community rating” rules, which forbid Jim’s insurer from simply hiking his premiums).  Conclusion: as an extension of its broad power to regulate even economic inactivity, Congress has the power to compel all persons to act in the more economically favorable manner, forcing all persons to purchase a quota of broccoli every month and limiting the amount of cookies one is allowed to legally purchase.

Or, again, we can take the example in the article above.  Prong one: Everyone is part of the economy.  We all produce and buy things, or rely on others to produce and buy things and give them to us.  Food and health care are just two of the obvious areas where market participation is universal.   Prong two: under Keynesian economic theory, if Jim saves his money now in order to spend it later, he is directly impacting the economy in the here-and-now, potentially putting Bob out of a job.  He is transferring the cost of inactivity from himself to Bob.  Conclusion: if General Verilli and Justice Kagan are right about the “limiting principle” in health care, then Congress has the power to compel Jim and those like him to spend some or all of their money right now, this year, in order to get the economy going again for everyone.

In effect, if the mandate stands — at least on the principle that the national government has presented in its defense — the most dire predictions of constitutionalists will be borne out.  It would mean the death of federalism and the dawn of a new plenary economic policing power seated in Washington.

Have I missed anything?