Author Archive

June 30, 2015

“OUR REPUBLICAN CONSTITUTION” IS NOW AVAILABLE FOR PRE-ORDER ON AMAZON. My new book, Our Republican Constitution: Securing the Sovereignty of the People, won’t be published until February 2016, but you can now pre-order your copy on Amazon. The page does not yet contain a description of the books, so here is one:

In 1776, the Declaration of Independence affirmed that “it is to secure” the inalienable individual rights of the sovereign people that “governments are instituted among men.” By 1787, however, Americans had grown unhappy with “democratic” state governments that had restricted their liberties and stifled the economy. They then replaced the Articles of Confederation with a new form of “republican” government embodied in a written constitution. But because the Constitution of 1787 preserved the democratic power of states to maintain slavery, it fell to the newly-formed antislavery Republican party to complete our Republican Constitution with the 13th, 14th and 15th amendments. Today, the constitutional limits on state and federal power are often criticized as “undemocratic” and even ignored altogether. This book explains the origins of our Republican Constitution, how it has been undermined, and the proper role of judges in securing the sovereignty of We the People, each and every one.

So if you pre-order yours here today, you can truly say you were among the first!

 

June 29, 2015

JEFF ROSEN PRAISES JOHN ROBERTS’ “DEFERENCE TO THE INTENT OF CONGRESS AS “THE UMPIRE IN CHIEF,”: saying he

embraced a bipartisan vision of judicial restraint based on the idea that the Supreme Court should generally defer to the choices of Congress and state legislatures. His insistence that the court should hesitate to second-guess the political branches regardless of whether liberals or conservatives win is based on his conception of the limited institutional role of the court in relation to the president, Congress and the states.

I have little doubt that this is how the Chief Justice thinks of what he did. And why he relied so heavily on deference in his dissent in Obergefell.

 

June 29, 2015

BIG NEWS: Important affirmative action case returns to the Supreme Court. Ilya Somin comments:

Earlier this morning, the Supreme Court chose to hear Fisher v. University of Texas, an important case challenging racial preferences in admissions at the University of Texas. The outcome is likely to have important implications for the future of affirmative action. . . .

It seems unlikely that the justices would have chosen to hear this case again, if a majority were satisfied with the Fifth Circuit’s ruling on remand. Most likely, the five more conservative justices decided to take it because they intend to overrule the Fifth Circuit and forcefully reiterate the requirement that judges must not defer to universities on the narrow tailoring issue. The Court could potentially expound on the need to avoid deference on the narrow-tailoring requirement in greater detail than it did in Fisher I, so as to reduce lower court judges’ room for discretion and prevent them from continuing to defer, as the Fifth Circuit essentially did in its post-remand decision. If that happens, supporters of racial preferences in admissions might end up worse off than they would have been if the Fifth Circuit had not chosen to be obstreperous after the remand, and had struck down the Texas program, as many expected it would.

June 29, 2015

DAVID BERNSTEIN: Is it possible to reconcile Judge Posner’s take on Holmes and Lochner, and Roberts and Obergefell?

RELATED: When a Judge criticizes a Justice, it’s best if the judge doesn’t make mistakes of his own

June 29, 2015

HOW UBER SURGE PRICING REALLY WORKS: “The data . . .  suggest that surge pricing doesn’t seem to bring more drivers out on the roads, but rather pushes drivers already on the job toward neighborhoods with more demand–and higher surge pricing.”

June 29, 2015

NICE SPEECH CASE WIN FOR THE INSTITUTE FOR JUSTICE:

In an important decision at the intersection of free speech and property rights, the U.S. Supreme Court today vacated a 4th U.S. Circuit Court of Appeals judgment that had allowed the city of Norfolk, Va., to suppress a banner protesting the government’s illegal attempt to seize private property by eminent domain. Today’s decision sends the case, Central Radio Company v. City of Norfolk, back to the 4th Circuit so that it can reconsider the case in light of recent guidance the Supreme Court has provided on sign regulations and free speech in Reed v. Town of Gilbert.

June 29, 2015

CONSTRAINT vs DEFERENCE:  Two possible meanings of “judicial restraint”

On Saturday, I criticized Jeb Bush’s stated criteria for choosing judges as what has led to continued disappointment by conservatives in Republican nominated justices. He said: “You focus on people to be Supreme Court justices who have a proven record of judicial restraint.” But what does “judicial restraint” mean?  There are two quite different possibilities:

  1. Constraint: “Judicial restraint” could refer to confining oneself to following the meaning of the text of the Constitution (and of statutes) — by which is meant its original meaning — whether this leads to upholding or invalidating properly enacted statutes; or
  2. Deference: “Judicial restraint” could refer to deferring to the will of the majority as reflected in the acts of the more “democratic” branches — i.e. “unelected unaccountable” judges should avoid wherever possible thwarting the will of the people, by which is meant the political preferences of the majority of the electorate. The emphasis here is not on the correctness of constitutional analysis, but on judicial deference to majority will.

What is of utmost importance is that these are not the same thing. . . .

Read the rest on the Volokh Conspiracy.

 

June 27, 2015

JEB BUSH DIGS A DEEPER HOLE ON JUDGES. In responding to criticism of his brother’s selection of John Roberts to be Chief Justice, Jeb Bush revealed what he looked for in choosing judges as governor. Turns out it is exactly the sort of judicial conservatism that gave us our current problem with the Supreme Court:

“When I was governor, we tried to find people with a proven record of judicial restraint, and people that were committed to enforcing the constitutional limits on government authority. In essence, what I’m saying is I think we need to have people that have not just theoretically, but have had a proven record of not legislating from the bench.”

He then doubled down:

“All justices disappoint their presidents some of the time but Souter was like a 90 percent swing and miss,” Hewitt said. “How do you avoid Souters?”
“You focus on people to be Supreme Court justices who have a proven record of judicial restraint,” Bush answered.

This is exactly the problem with the judicial philosophy promoted by many conservatives for the past 30 years: “judicial restraint” in “enforcing constitutional limits on government authority” leads to NFIB v. Sebelius.  In fairness, that is not what Bush actually said but, as George Will recently observed, that is what this judicial philosophy produces in practice.

Thoughtful conservatives today will insist that, properly defined, “judicial restraint” includes enforcing constitutional limits, and the term could be defined that way.  But that is not the mentality of “restraint” as it was originally formulated by the Progressives and has been perpetuated by some conservatives. For years, “judicial restraint” has been primarily about not thwarting the will of “democratic majorities.” There are myriad doctrines to accomplish this. For example, you adopt a “presumption of constitutionality” that cannot be rebutted. Or find a “saving construction” of a statute to avoid finding it unconstitutional. Or you “defer” to administrative agencies’ interpretation of statutes. Or you make a statute “work” as the “legislature intended” (even if that means ignoring the plain or natural reading of its words).

Many good conservatives truly wanted Obamacare invalidated in NFIB because it was unconstitutional. And they then sincerely wanted it to be enforced according to its terms in King. But selecting judges with the judicial mindset of “judicial restraint” and “deference” to the majoritarian branches leads to the results we witnessed in NFIB and King. If conservatives persist in supporting presidents who select judges on this basis, they will persist in being disappointed.

I know, I know. What about Obergefell and gay marriage? Didn’t that result from a lack of “restraint”? No, if you don’t approve of Obergefell, it is because you do not agree with the constitutional rationale Justice Kennedy articulated for invalidating the state laws at issue, not because he was “unrestrained.” Winning Obergefell on the grounds urged by Chief Justice Roberts in his dissenting opinion also gives you NFIB and King. If you want to avoid the latter, then you should criticize the majority on the ground that Justice Thomas did in his dissent: that the majority misinterpreted the Due Process Clause, not that they were “unrestrained.” You will notice that Chief Justice Roberts did not join Justice Thomas’s dissent (though regrettably, Justices Thomas and Scalia joined his). The Chief Justice’s dissent was all about restraint and only secondarily about correctness. He cited Lochner v. New York 16 times because Lochner was supposedly about activism, rather than appropriate restraint. In contrast, Justice Thomas appealed to the original meaning of “the due process of law.” There is a big big difference between these two judicial mindsets.

So, if conservative Republicans want a different performance from the judiciary in the future, they must vet their presidential candidates to see whether they understand this point. Jeb Bush clearly does not. And I have personally heard Marco Rubio and Carly Fiorina say much the same sort of thing about judges, showing that they do not understand this either–at least not yet. Only Rand Paul has been very clear about the duty of judges to invalidate unconstitutional law without restraint or deference.

I haven’t heard yet what other candidates think about this, but everyone should be listening closely. If you hear catch phrases like “judicial restraint,” “deferring” to “the democratic branches,” or “not legislating from the bench,” then you know this candidate intends to repeat the mistakes of past Republican presidents.

Conservatives must learn from the recent past what not to look for in a justice.

Cross posted on The Volokh Conspiracy.

June 27, 2015

PUTTING STUDENT EVALUATIONS IN THEIR PLACE? Seen at George Mason University School of Law

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June 27, 2015

GAY MARRIAGE IS HERE – NOW WHAT? A diverse set of conservative and libertarian reactions to yesterday’s ruling on gay marriage in The Federalist, including contributions by Senator Mike Lee and Cato’s Ilya Shapiro. (The Federalist is becoming one of my favorite sites.)

June 26, 2015

READ THIS LEARNED FOOTNOTE: Texas Supreme Court Justice Willett rejects “the Lochner bogeyman”

Writes David Bernstein:

As I pointed out earlier, Chief Justice Roberts’ dissent today ignores the last thirty years of scholarship and uses Lochner as a bogeyman to reject a due process challenge to states’ refusal to recognize same-sex marriage. Roberts’s description of Lochner is embarrassingly ahistorical.

By contrast, Texas Supreme Court Justice Don Willett’s concurring opinion today (joined by two other Justices) in Patel v. Texas Dept. of Licensing, blogged in detail by Eugene below, explicitly rejects what he calls “the Lochner bogeyman.”

In a footnote, he proceeds to provide a scholarly, accurate account of Lochnerand economic liberty in historical context, making Roberts’s opinion look even worse by contrast–especially because Willett’s opinion refutes several of Roberts’s claims.

Read Justice Willett’s learned footnote here.

June 26, 2015

WE WON’T BE FOOLED AGAIN? GOP Hopefuls Must Have Plan to Avoid Another Roberts/Kennedy

The key is a demonstrated commitment to following the original meaning of the Constitution, whether that leads to upholding or invalidating a “popularly-enacted” law. Avoid those who advocate “judicial deference,” “judicial restraint,” “judicial minimalism” or who condemn “judicial activism” or “legislating from the bench.” None of those catch phrases concern how to interpret the Constitution, and those who utter these largely empty homilies about judicial role are very likely to disappoint. And don’t let your nominees use “precedent” as an out either. By now, much precedent is pretty bad, and is itself merely living justices deferring to dead justices (when they care to). The confirmation hearing will be tougher, but no pain, no gain.

And you better have a Republican Senate that is will not restore the filibuster.

TO RECAP: Insist on a demonstrated commitment to follow the “original meaning” of the text wherever it may lead.

BONUS TIP: Don’t let a Bush nominate any justices.

June 26, 2015

DAVID BERNSTEIN: Chief Justice Roberts: same-sex marriage not constitutionally protected because Lochner

Chief Justice Roberts invokes Lochner v. New York by name no less than 16 times in his [Obergefell] dissent.

Not the real Lochner v. New York mind you, a relatively modest opinion, grounded in precedents holding that the Fourteenth Amendment protects liberty of contract in the absence of a valid police power rationale for the infringement.

The real Lochner held that a criminal law imposing maximum hours on bakers was not a justified infringement of liberty of contract under the police power because though it was defended as a health law, the government presented no evidence that the baking was especially unhealthful, while the plaintiff presented strong evidence to the contrary.

The real Lochner did not even inhibit governments from imposing maximum hours laws in other circumstances–the Supreme Court upheld the next dozen or so maximum hours cases to come before it.

Instead, Roberts invokes the Lochner of historical myth.

And this:

It’s at least slightly embarrassing that Roberts is either unaware of or chose to ignore the last thirty years of Lochner-related scholarship in favor of invoking hoary myths that are useful for rhetorical purposes, and that Thomas and Scalia joined the opinion.

As I wrote at the end of my book, when the Justices use Lochner “as shorthand for what they consider the activist sins of their opponents, they are substituting empty rhetoric for meaningful constitutional argument.” And their understanding of Lochner is always inaccurate to boot.

The real Lochner was about identifying and applying the proper extent of the state police power, not identifying fundamental rights, whose invocation then did all the work. There is none of this in Justice Kennedy’s opinion for the majority in Obergefell.

June 26, 2015

GEORGE WILL: “Thursday’s decision demonstrates how easily, indeed inevitably, judicial deference becomes judicial dereliction, with anticonstitutional consequences:

Conservatives are dismayed about the Supreme Court’s complicity in rewriting the Affordable Care Act — its ratification of the IRS’s disregard of the statute’s plain and purposeful language. But they have contributed to this outcome. Their decades of populist praise of judicial deference to the political branches has borne this sour fruit….

Read the whole thing

June 26, 2015

YUVAL LEVIN: King v. Burwell and the Law:

Replacing this law with a market-based reform remains as crucial as ever, and should be (and very likely will be) a very high priority for the next Republican presidential nominee. This case accelerated some of the relevant work and internal debates on that front on the Right, but, given how it has been decided, it doesn’t seem likely to change the basic dynamics of the health-care debate looking toward 2016.

But this decision will be more significant than I would have expected a decision for the government to be because of the argument offered up by the Chief Justice. Roberts could have tried to limit the effects of this decision by sticking to a set of fundamentally textual arguments about the meaning of the term “established by the state” in the context of the statute as a whole. The decision does offer such arguments, and Justice Roberts does what he can to minimize their incoherence, to contend with the fact that the words in question seem to have a fairly straightforward meaning, and to offer some responses to Justice Scalia’s devastating critique of the majority’s textual reasoning in his dissent.

But the Chief Justice didn’t leave it at that. He makes a much broader argument about the relationship between the vague, broadly stated aims and purposes of legislators and the role of judges interpreting the meaning of the particular laws those legislators then write. Roberts presses this point most firmly at the end of his decision, writing: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

In effect, this is a version of the president’s argument: Obamacare is not so much a particular law as an overarching desire “to improve health insurance markets” and so if at all possible it should be taken to mean whatever one believes would be involved in doing so. From the beginning of its implementation of this statute, that Obama administration has treated the words of the statute as far less relevant than the general aim of doing what it thinks would improve health insurance markets, and today the Supreme Court essentially endorsed this way of understanding the law and suggested it is how judges should think about laws more generally too.

This understanding of the role of the judge threatens to undermine the rule of law in the American system of government, because it undermines the central place assigned to written law, and to the legislator, in that system. Ironically, I think the Chief Justice intends his decision to be deferential to the Congress—to keep the Court’s footprint small in this arena by not reading laws in ways that require large transformations in the forms of their administration. But in effect, this is more contempt than deference. While it would seem to suggest that the will of the legislator should guide the system, in fact it means that the word of the legislator does not govern the other branches. It implies that Congress should have just passed a law that said “health insurance markets shall be improved,” and then left it to the executive agencies to decide how they wish to do that while judges nod in approval.

Thus does a commitment to “judicial restraint” and “deference” in practice morph into “activism” and “legislating from the bench.” Instead, justices should be selected because of their demonstrated commitment to enforcing both the Constitution and statutes as they are written, whether this leads to upholding or invalidating a law or regulation.

June 26, 2015

JOSH BLACKMAN IN USA TODAY: Roberts rewrites Obamacare, again

June 25, 2015

DAVID BERNSTEIN: Let’s recall why the Affordable Care Act is so messed up.

June 25, 2015

MAX BOOT: Rightfully Reversing Decades of Secessionist Rehabilitation:

But there is a big distinction to be made between remembering the past — something that, as a historian, I’m all in favor of — and honoring those who did bad things in the past. Remembrance does not require public displays of the Confederate flag, nor streets with names such as Jefferson Davis Highway — a road that always rankles me to drive down in Northern Virginia. Such gestures are designed to honor leaders of the Confederacy, who were responsible for the costliest war in American history — men who were traitors to this country, inveterate racists, and champions of slavery.

In this regard, honoring Jefferson Davis is particularly egregious, or, for that matter, Nathan Bedford Forrest, one of the founders of the Ku Klux Klan. But I believe even honoring the nobler Robert E. Lee is inappropriate. True, he was a brave and skilled soldier, but he fought in a bad cause. Modern Germany does not have statues to Erwin Rommel even though he — unlike Lee — turned at the end of the day against the monstrous regime in whose cause he fought so skillfully. Thus, I don’t believe it is appropriate to have statues of Lee, or schools named after him, although I admit in his case it’s a closer call than with Jefferson Davis.

This is not “rewriting” history; it’s getting history right. The rewriting was done by Lost Cause mythologists who created pro-Confederate propaganda (such as Margaret Mitchell’s Gone with the Wind) to convince their countrymen that the South was actually in the right even as it imposed slavery and then segregation. This required impugning those Northerners who went south after the Civil War to try to enforce the 14th and 15th Amendments to the Constitution. They were labeled “carpetbaggers,” and their memory was tarnished while the actions of the white supremacists they opposed were glorified.

Boot is exactly right. I wasn’t kidding when I said before that I am glad to see Nikki Haley get the Stars and Bars removed from government buildings. Eric Foner and other historians like James Oakes and Richard Sewell are to be credited with correcting the historical record from the pro-Confederate revisionism that is still accepted by all-too-many on the right. Where the “Lost Cause” fable might once have been justified as a useful fiction to unify the country, lying about the Civil War and Reconstruction now only serves those who wish to sully the reputation of those who opposed slavery and promoted the civil rights of blacks when doing so took real courage (as it did for the civil rights activists of the ’50s and ’60s). In this way, like the Southerners of old, they can claim that there is a moral equivalence between North and South, between the USA and the CSA.

MORE HERE: I highly recommend the books I link to above about the men who opposed the pro-slavery reading of the Constitution before the Civil War, and who established the Republican Party to see their vision of the Constitution affirmed in its text. You can also read my articles on antislavery constitutionalism here and here. The more I learn about the history that has been concealed by pro-Confederate revisionism, the more I find to admire in our past.

Cross posted on The Volokh Conspiracy.  h/t Eugene Volokh

June 25, 2015

INTO THE PANTHEON OF MEMORABLE SUPREME COURT SAYINGS: “WE SHOULD START CALLING THIS LAW SCOTUSCare.” — Justice Antonin Scalia.

June 25, 2015

JONATHAN ADLER: In King v. Burwell, Chief Justice Roberts rewrites the PPACA in order to save it (again)

Today’s decision in King v. Burwell is notable in many respects.  It is a significant legal victory for the Obama Administration, a victory for purposivist statutory interpretation, a loss for textualism, and a loss for an expansive Chevron doctrine.  In these latter respects, the decision is something of a double-loss for Justice Scalia (which may explain the last line of his opinion).  King also means that, in many respects, the PPACA is now the law that Chief Justice Roberts wrote as here, as in NFIB v. Sebelius, the Chief Justice has decided it is the Court’s job to determine what the statute means — even if this requires ignoring or rewriting text — if such is necessary in order to save it.  The umpire has decided it’s okay to pinch hit to ensure the right team wins. . . .

Just as the Chief Justice rewrote the individual mandate into a tax, and rewrote the Medicaid expansion to sever it from traditional Medicaid, the Chief Justice has rewritten Section 36B of the Internal Revenue Code to excise the repeated reference to exchanges “established by the State.”  Justice Scalia, in dissent, said Obamacare should now be known SCOTUSCare. Whatever we call it, the PPACA is now, in many respects, the law that Chief Justice John Roberts wrote.

I know what Jonathan is going through today having to write about this case he did so much to design and advocate for the past couple years. I well remember what a kick-in-the-gut this feels like.

June 25, 2015

THE PRESSURE NOW SHIFTS FROM REPUBLICANS IN CONGRESS TO THE REPUBLICAN PRESIDENTIAL CANDIDATES TO SAVE US FROM OBAMACARE:  My take on King v. Burwell: However King was decided, the future of American health care was going to come down to 2016:

One consolation is that, were President Obama to have vetoed whatever the Republicans would have proposed, nothing good would happen until after the next election, which is where things now stand. Now Congressional Republicans cannot be bull-rushed into simply extending the subsidies to federal exchanges, while implicitly accepting the rest of the ACA, which is how things were shaping up. Now the voters will truly get at least one more crack at saving American health care from Obamacare. (And, with the health care cases in mind, candidates can debate the sort of justices they will nominate to the Court.)

Supporters of the law have already telegraphed that their next move is to end the political debate by urging a Pax Obamacare to which all Americans must acquiesce. Last week the president said, after “five years in, what we are talking about it is no longer just a law. It’s no longer just a theory. This isn’t even just about the Affordable Care Act or Obamacare . . . This is now part of the fabric of how we care for one another.”

While the ACA is certainly the “law of the land,” as it has been since its enactment, nothing in the Court’s decision today imparts any additional legitimacy on this law as a public policy meriting political acquiescence. To borrow from the president’s words, it is still “just a law.” So nothing in this decision should deter Republican presidential and congressional candidates in the 2016 election from continuing to press their campaign to “repeal and replace” Obamacare.

RELATED: 2016 GOP Presidential Hopefuls: Now It’s Up To Us To Repeal Obamacare. The candidates are impressively united on this issue.

Cross posted on The Volokh Conspiracy.

June 25, 2015

CONGRATULATIONS TO TODD ZYWICKI: The new Executive Director of the Law & Economics Center at George Mason University School of Law.

June 25, 2015

EXPUNGING WOODROW WILSON FROM OFFICIAL PLACES OF HONOR. As I indicated in my post yesterday, I support Governor Nikki Haley’s initiative to remove the Confederate battle flag from government buildings. Now that we are expunging the legacy of past racism from official places of honor, we should next remove the name Woodrow Wilson from public buildings and bridges. Wilson’s racist legacy — in his official capacity as President — is undisputed. In The long-forgotten racial attitudes and policies of Woodrow Wilson, Boston University historian William R. Keylor provides a useful summary:

[On March 4th, 1913] Democrat Thomas Woodrow Wilson became the first Southerner elected president since Zachary Taylor in 1848. Washington was flooded with revelers from the Old Confederacy, whose people had long dreamed of a return to the glory days of Washington, Jefferson, Madison, and Monroe, when southern gentlemen ran the country. Rebel yells and the strains of “Dixie” reverberated throughout the city. The new administration brought to power a generation of political leaders from the old South who would play influential roles in Washington for generations to come.

Wilson is widely and correctly remembered — and represented in our history books — as a progressive Democrat who introduced many liberal reforms at home and fought for the extension of democratic liberties and human rights abroad. But on the issue of race his legacy was, in fact, regressive and has been largely forgotten.

Born in Virginia and raised in Georgia and South Carolina, Wilson was a loyal son of the old South who regretted the outcome of the Civil War. He used his high office to reverse some of its consequences. When he entered the White House a hundred years ago today, Washington was a rigidly segregated town — except for federal government agencies. They had been integrated during the post-war Reconstruction period, enabling African-Americans to obtain federal jobs and work side by side with whites in government agencies. Wilson promptly authorized members of his cabinet to reverse this long-standing policy of racial integration in the federal civil service.

Cabinet heads — such as his son-in-law, Secretary of the Treasury William McAdoo of Tennessee – re-segregated facilities such as restrooms and cafeterias in their buildings. In some federal offices, screens were set up to separate white and black workers. African-Americans found it difficult to secure high-level civil service positions, which some had held under previous Republican administrations.

A delegation of black professionals led by Monroe Trotter, a Phi Beta Kappa graduate of Harvard and Boston newspaper editor, appeared at the White House to protest the new policies. But Wilson treated them rudely and declared that “segregation is not a humiliation but a benefit, and ought to be so regarded by you gentlemen.”

The novel “The Clansman” by Thomas Dixon – a longtime political supporter, friend and former classmate of Wilson’s at Johns Hopkins University – was published in 1905. A decade later, with Wilson in the White House, cinematographer D.W. Griffith produced a motion picture version of the book, titled “Birth of a Nation.”

With quotations from Wilson’s scholarly writings in its subtitles, the silent film denounced the Reconstruction period in the South when blacks briefly held elective office in several states. It hailed the rise of the Ku Klux Klan as a sign of southern white society’s recovery from the humiliation and suffering to which the federal government and the northern “carpetbaggers” had subjected it after its defeat in the Civil War. The film depicted African-Americans (most played by white actors in blackface) as uncouth, uncivilized rabble.

While the National Association for the Advancement of Colored People publicly denounced the movie’s blatant appeals to racial prejudice, the president organized a private screening of his friend’s film in the White House for the members of his cabinet and their families. “It is like writing history with lightning,” Wilson observed, “and my only regret is that it is all so terribly true.”

Here is the exchange between Wilson and Trotter:

Mr. Monroe Trotter. Mr. President, we are here to renew our protest against the segregation of colored employees in the departments of our National Government. We [had] appealed to you to undo this race segregation in accord with your duty as President and with your pre-election pledges to colored American voters. We stated that such segregation was a public humiliation and degradation, and entirely unmerited and far-reaching in its injurious effects. . . .

President Woodrow Wilson. The white people of the country, as well as I, wish to see the colored people progress, and admire the progress they have already made, and want to see them continue along independent lines. There is, however, a great prejudice against colored people. . . . It will take one hundred years to eradicate this prejudice, and we must deal with it as practical men. Segregation is not humiliating, but a benefit, and ought to be so regarded by you gentlemen. If your organization goes out and tells the colored people of the country that it is a humiliation, they will so regard it, but if you do not tell them so, and regard it rather as a benefit, they will regard it the same. The only harm that will come will be if you cause them to think it is a humiliation.

Mr. Monroe Trotter. It is not in accord with the known facts to claim that the segregation was started because of race friction of white and colored [federal] clerks. The indisputable facts of the situation will not permit of the claim that the segregation is due to the friction. It is untenable, in view of the established facts, to maintain that the segregation is simply to avoid race friction, for the simple reason that for fifty years white and colored clerks have been working together in peace and harmony and friendliness, doing so even through two [President Grover Cleveland] Democratic administrations. Soon after your inauguration began, segregation was drastically introduced in the Treasury and Postal departments by your appointees.

President Woodrow Wilson. If this organization is ever to have another hearing before me it must have another spokesman. Your manner offends me. . . . Your tone, with its background of passion.

Mr. Monroe Trotter. But I have no passion in me, Mr. President, you are entirely mistaken; you misinterpret my earnestness for passion.

A swell guy, eh? After resigning from the Socialist Party to support Wilson, W.E.B Dubois was appalled at Wilson’s racist policies:

President Wilson’s initial policy measures were so stridently anti-black, Du Bois felt obliged to write “Another Open Letter to Woodrow Wilson” in September 1913. Du Bois was blunt, writing that “[I]t is no exaggeration to say that every enemy of the Negro race is greatly encouraged; that every man who dreams of making the Negro race a group of menials and pariahs is alert and hopeful.” Listing the most notorious racists of the era, including “Pitchfork” Ben Tillman,** Du Bois wrote that they were undoubtedly encouraged since “not a single act” or “a single word” from Wilson “has given anyone reason” to believe that he will act positively with respect to African Americans citing the removal of several black appointees from office and the appointment of a single black whom was “such a contemptible cur, that his very nomination was an insult to every Negro in the land.” Altogether the segregationist and discriminatory policies of Wilson in his first six months alone were judged by Du Bois to be the “gravest attack on the liberties” of African Americans since Emancipation.

In a tone that was almost threatening Du Bois wrote the president that there exist “foolish people who think that such policy has no limit and that lynching “Jim Crowism,” segregation and insult are to be permanent institutions in America.” Pointing to the segregation in the Treasury and Post Office Departments Du Bois wrote Wilson of the “colored clerks [that] have been herded to themselves as though they were not human beings” and of the one clerk “who could not actually be segregated on account of the nature of his work” who, therefore, “had a cage built around him to separate him from his white companions of many years,” he asked President Wilson a long series of questions. “Mr. Wilson, do you know these things? Are you responsible for them? Did you advise them? Do you know that no other group of American citizens has ever been treated in this way and that no President of the United States ever dared to propose such treatment?” Like Trotter later Du Bois ends by threatening Wilson with the complete loss of black votes for any of his future electoral quests or that of his Democratic Party. Du Bois relied on questions to hammer home his point. “1. Do you want Negro votes? 2. Do you think that ‘Jim Crow’ civil service will get these votes? 3. Is your Negro policy to be dictated by Tillman and Vardaman? . . . “

(**As Justice Thomas notes, Democrat Senator “Pitchfork” Ben Tillman of South Carolina was the author of the earliest campaign finance “reform,” the Tillman Act that barred corporations from contributing directly to federal candidates.)

In response to these outcries, in 1914, Wilson told The New York Times, “If the colored people made a mistake in voting for me, they ought to correct it.” It would be a valuable educational experience today to correct this mistake, and the historical record, by having a candid conversation about the racist legacy of Woodrow Wilson. And racism was not his only sin. The Wilson administration prosecuted and jailed many antiwar activists for sedition, including Socialist Party presidential candidate Eugene Debs for having made an antiwar speech.  (Debs was later pardoned by Republican President Warren Harding.) 

No doubt there are others whose names should also be expunged. But because of his record of official racism and betrayal,Wilson’s name should be first on any such list. Those who oppose its removal from government buildings should explain exactly why whatever principle of tolerance they apply to so extreme a purveyor of racist policies as Wilson should not be applied equally to memorials to other historical figures as well.

RELATED: Historian Paul Rahe on Progressive Racism:

Wilson, our first professorial president, . . . was the very model of a modern Progressive, and he was recognized as such. He prided himself on having pioneered the new science of rational administration, and he shared the conviction, dominant among his brethren, that African-Americans were racially inferior to whites. With the dictates of Social Darwinism and the eugenics movement in mind, in 1907, he campaigned in Indiana for the compulsory sterilization of criminals and the mentally retarded; and in 1911, while governor of New Jersey, he proudly signed into law just such a bill.

STILL MORE on The Menacing Mr. Wilson:

Wilson’s racist views were hardly a secret. His own published work was peppered with Lost Cause visions of a happy antebellum South. As president of Princeton, he had turned away black applicants, regarding their desire for education to be “unwarranted.” He was elected president because the 1912 campaign featured a third party, Theodore Roosevelt’s Bullmoose Party, which drew Republican votes from incumbent William Howard Taft. Wilson won a majority of votes in only one state (Arizona) outside the South.

What Wilson’s election meant to the South was “home rule;” that is, license to pursue its racial practices without concern about interference from the federal government. . . . But “home rule” was only the beginning.

UPDATE: When Will The American Political Science Association Stop Giving The Woodrow Wilson Award In Honor of Noted Racist Thomas Woodrow Wilson?

[Cross posted at The Volokh Conspiracy]

June 24, 2015

ROBERT TRACINSKI: Let’s Not Get Trolled On The Confederate Flag:

I’m a little exasperated by some people who seem to be conservatives who have been lecturing me that the Confederate flag is an anodyne symbol of Southern heritage and military valor. One group, the historical pedants, inform me that the battle flag is not the Confederate flag, just one of many. Well, sure. But it’s the only Confederate flag people remember, so the distinction seems moot. Or there are those who insist that the war wasn’t really about slavery but about the North’s desire to assert overbearing centralized power. Yet this was in the middle of the era of laissez-faire, when the federal government was a fraction of the size it is today. The only assertion of centralized power that loomed as a threat worth killing and being killed over was the use of federal power to end the institution of slavery.

I don’t agree with The Atlantic‘s Ta-Nehisi Coates on much—he usually seems too interested in keeping racial conflict alive for political purposes—but he provides a good list of statements from Confederate leaders and supporters describing how the institution of slavery was the central cause of the war. This sort of information has long been available, and it debunks the revisionist history that has found purchase among some in the South and in a few other ideological corners. (I usually encounter it among the more doctrinaire libertarians, who can’t bring themselves to admit that the federal government ever did anything good.)

What annoys me most is when people tell me that this view is a “politically correct” rewriting of history. No, it’s the standard version taught up North long before anyone had ever heard of political correctness, and it is clearly supported by the facts. It’s the more recent Southern reinterpretation that is revisionist history.

Remember if the battle flag really represented slavery (and it did) then the flag that Dylann Roof burned represented emancipation.

There was a multitude of Americans on “the right side of history” long before any of us came along, and they paid a much higher price for that commitment than we do.

June 24, 2015

MORE ON THE PROS AND CONS OF RAND PAUL’S FLAT TAX PLAN:

A moderate con by Ramesh Ponnuru:

The plan may look as though it cuts middle-class taxes because he would not apply his flat tax to families of four making less than $50,000 and he abolishes the payroll tax. But the plan taxes everyone by imposing a European-style Value-Added Tax, although he does not say it explicitly.

An enthusiastic pro by Arthur Laffer:

Rand Paul’s tax plan is “absolutely spectacular.” . . . “The compromises can come later.” . . . “I hope he appreciates just how good his proposal is.:

Bill O’Reilly almost likes it but thinks the rate should be 19%: “Overall Senator Paul’s flat-tax proposal is friendly to the American worker.”

I still don’t like a VAT without killing the privacy-destroying income tax (and IRS) with a silver bullet and stake through its heart.

June 24, 2015

EVERY STATE FLAG IS WRONG, and here is why. For example:

Go home, Connecticut. You’re drunk. At least you say something that isn’t “Connecticut” but… ”He Who Transplanted, Sustains”? If that’s what you picked, what did you reject? “He Who Mulched, Will Probably Check For Aphids”?

June 23, 2015

RAND PAUL: Confederate Flag “Inescapably A Symbol Of Human Bondage And Slavery”

“There have been people who have used it for southern pride and heritage and all of that but really to, I think, to every African-American in the country it’s a symbolism of slavery to them and now it’s a symbol of murder for this young man and so I think it’s time to put it in a museum.”

June 23, 2015

CREATING GUN-FREE FREE-FIRE ZONES: Charleston shooting prompts gun-rights supporters to call for more concealed-carry at churches

He was a young gunman bent on shooting as many worshippers as possible, but Matthew J. Murray never got as far as Dylann Roof, the suspect in Wednesday’s South Carolina church massacre.

Murray had already shot and killed two people in the parking lot when he burst into the New Life Church in Colorado Springs. Before he could pull the trigger again, however, the 24-year-old shooter was gunned down by Jeanne Assam, a volunteer security guard with a concealed-carry permit.

That was eight years ago, but even though Ms. Assam was credited for saving as many as 100 lives that day, a dozen states continue to restrict the carrying of concealed firearms in churches — including South Carolina.

Just because the argument that fake “Gun Free Zones” invite crazed and evil killers by advertising the defenselessness of the persons therein is oft-repeated after each outrageous attack on a fake “Gun Free Zone” makes it no less valid. Increasing the risk for crazed or evil killers is likely to be a more effective response to mass shootings than eliminating offensive flags, as they are rarely so crazy that they can’t locate a nearby fake “Gun-Free Zone.” (For a recent exception, see the evil Garland Texas mass shooter wannabes.) But this assumes one truly cares about preventing rather than exploiting mass shootings.

June 23, 2015

VERONIQUE DE RUGY: Yes, Jonathan Gruber Is an Obamacare Architect. Gruber is the Todd Akins of Obamacare, except unlike Akins, Gruber really did matter…a lot.

June 23, 2015

DAMON ROOT: The Kelo Debacle Turns 10:

Looking back over the past 10 years, it’s clear that Kelo was a disaster on virtually every level…. Kelo was wrong the day it was decided 10 years ago today and it has only gotten more rancid with age. If any modern case deserves to be overruled by a future Court, Kelo is it.

And while you’re at it, buy and read Damon’s excellent book, Overruled: The Long War for Control of the U.S. Supreme Court in which he explains the current fight against the judicial philosophy of “deference” that gave us Kelo and other constitutional abominations in our history.

June 22, 2015

MORE ON THE BIG 8-1 WIN FOR PROPERTY RIGHTS AT THE SUPREME COURT TODAY:

The Court ruled in favor of the property owners by an 8-1 margin on the most significant issue at stake: whether the government’s appropriation of the raisins is a taking. Only Justice Sonia Sotomayor dissented.

This is an extremely important result, because it rejects the government’s dangerous argument that the Takings Clause offers less protection for personal property than for real property (the legal term for property in land), which had been embraced by the Ninth Circuit lower court decision.

Ilya Somin says more here about the ruling and why it is so important. And kudos to Stanford law professor Michael McConnell, who argued this case.

June 22, 2015

LEARN LIBERTY IN DC THIS SUMMER: I will be speaking at Cato University this summer in DC from July 26th-31st. My topics are:

  • Why the Declaration of Independence Was Right
  • The Modesty of Libertarianism
  • Our Republican Constitution

Other speakers include:

  • Senator Jeff Flake (R-AZ) will be delivering the dinner address on Wednesday, July 29 on Capitol Hill.
  • John Tierney, The New York Times
  • Amity Shlaes, Calvin Coolidge Presidential Foundation
  • Jeffrey Miron, Harvard University
  • Robert McDonald, United States Military Academy
  • Tom G. Palmer, Cato Institute

AVOID THE TUITION HIKE! This is your last chance to register for Cato University for only $995. This price covers all meals, receptions, lectures, materials, books, and evening events. This price will increase on June 26, so register today!

June 22, 2015

“THIS WAS THE DEPARTMENT OF JUSTICE TARGETING SPEECH BECAUSE IT COULD”:  DoJ’s Gag Order On Reason Has Been Lifted — But The Real Story Is More Outrageous Than We Thought. Virginia posted on this earlier but it deserves a second link. Plus this reaction by Reason’s editor Nick Gillespie.

This episode invites pessimism. But Nick Gillespie suggests that it should encourage us, because it showed how difficult it has become for the government to get away with silencing us. “We’re in a better place in terms of free speech than we’ve ever been as a country,” he says, citing both culture and technology. “It’s harder and harder for the government to shut down the conversation.” Certainly things didn’t go the way the government hoped here.

The challenge is to use Reason’s fifteen days of enforced silence as a catalyst, not a deterrent. Technology is only as effective as the people who wield it. We need to be committed to watch for, examine, and report on abuses of power like these. More people need to tell their stories of encounters with it. “No one knows how often this happens, or who is the target,” said Gillespie, who emphasized that we ought to be worried about anyone getting a gag order, not just a professional journalist.

“Unless people speak up, and unless people repeat the story, we won’t have a good sense of how this power is abused.” We also need to resist the temptation to filter our vigilance through partisanship. Many people have responded to this story with comments about the Obama Administration, a purely fatuous reaction, as though Obama has time between his golf outings and Steve Wonder concerts to censor a small magazine — but the danger will remain no matter what flavor of politician is in charge. “Power is nonpartisan,” says Gillespie.

Yes, but the difference is that if a Republican administration did this, Reason would not be standing alone among its media brothers and sisters.

June 22, 2015

WHY THE “PLAN B” ADMINISTRATIVE FIXES TO OBAMACARE EXCHANGES ARE ILLEGAL:  A new Federalist Society white paper by Josh Blackman: The Legality of Executive Action after King v. Burwell:

This article will assess the legality of executive actions that the Administration may take after King v. Burwell to continue paying subsidies in these thirty-four states. I will not discuss the merits of the case, predict how the Court should construe the statute or IRS rule, or propose congressional modifications to the ACA.  Rather, this analysis is premised on potential administrative fixes HHS could employ following an adverse ruling in King v. Burwell.

There are two possible approaches HHS could take that would continue the payment of subsidies in some or all of the thirty-four states using the federally-facilitated exchange. First, HHS could unilaterally deem several of these states as having tacitly established an exchange, without the state’s subsequent cooperation. Specifically, HHS could construe the fact that fourteen states perform certain functions that overlap with the ACA—what is known as “plan management”—as evidence that they in fact intended to establish an exchange. This post-hoc recognition of an establishment would drastically alter the terms on which states accepted certain responsibilities. Each of the fourteen states at issue notified HHS that it was only performing certain limited functions, and expressly declined to establish a state-based exchange. Retroactively and unilaterally declaring that these states in fact established a state exchange would distort political accountability, and disregard the considered judgments of the sovereign states, in violation of the principles of federalism. If HHS issued this interim rule without notice and comment, litigation would likely immediately follow by the King plaintiffs and the states. These suits, however, would face an uphill battle to stop the unlawful payment of subsidies. The administration could also attempt to limit the judgment in King v. Burwell to the four named plaintiffs, but that effort to evade the Court’s judgment would be met with further litigation.

Second, HHS can streamline the process to fast-track the process for states seeking to establish an exchange. The threshold inquiry is whether a state has the appropriate authority to establish an exchange. The ACA requires that before a state can elect to establish an exchange, the state shall “adopt and have in effect . . . a state law or regulation that the Secretary determines implements the standards within the State.” Eighteen of the thirty-four states enacted the “Healthcare Freedom Act,” which would require an act of the legislature, or even a constitutional amendment, in order to allow the creation of an exchange. In the remaining exchanges, it is feasible that a governor’s executive order would satisfy the Secretary of HHS that the state has established an exchange. Even with this speculative authority, it is unlikely that the state would be able to complete all of the necessary steps to establish an exchange in 2015. However, a state could possibly deem the federally-facilitated exchange as state-established. This approach would be inconsistent with the text and history of the ACA, and would likely be challenged by further litigation.

A ruling against the federal government in King v. Burwell, even if stayed until the end of the tax year, would leave the Administration and the states with very limited options of how to respond quickly. Resorting to dubious administrative fixes to continue the payment of subsidies would invite an immediate court challenge. The path to amend the ACA must go through Congress.

This is not a blog post and does not argue the merits of King. It is a detailed and technical examination of what the statute says about the establishment of exchanges, made accessible to serious readers. Anyone covering this case in the press or blogosphere should read it before the spin begins.

Assuming, of course, that the Court in King holds that what the statute says actually matters.

June 22, 2015

I AM OLD ENOUGH TO REMEMBER ALL OF THESE: Seven Liberal Pieties That Only the Right Still Believes:

  1. The Right to Offend
  2. The Value of a Liberal Education
  3. Government Should Stay Out of the Bedroom
  4. Live and Let Live
  5. Support for Israel
  6. Support for Human Rights
  7. The Dignity of the Working Man

The irony is that the “liberals” of my youth won this culture war — then switched sides (or at least yielded the field to the Left)! It is almost enough to undermine the libertarian trope that the left and the right are equally objectionable, just in different ways.

PLUS THIS:

Think of it as the rise of what you might call the “liberal right”: a lot of people upholding ideas that once upon a time would have made us liberals in good standing—yet finding that this gets us designated as right-wingers today. And the list above is just a start. I could (and in the future probably will) add other former liberal pieties like the value of wealth and prosperity, the rejection of genetic determinism, judging people based on the content of their character rather than the color of their skin, or the old-fashioned notion that putting on blackface is really offensive.

Read the whole thing.

June 22, 2015

NOT SURE DE BLASIO WOULD CONSIDER THIS TO BE A BUG: New York’s Attempted Requirement That Uber App Updates Gain Regulatory Approval Will Cede Control to China: “The DeBlasio administration in New York City, through its Taxi and Limousine Commission . . . intend[s] to exercise veto rights over the technology the world uses to interact with the global ridesharing service. They require notice to the Commission every time there’s an app update.”

 “We can still review their application change after the fact,” said Allan Fromberg, TLC spokesman. “If we see a problem we can still advise them and insist that they make any necessary changes.”

Gary Leff comments:

“[U]nder this model it’s actually China that wins the regulatory war, decisions they make following a Taxi and Limousine Commission model, would dictate how the business operates and interacts with consumers and drivers. Because the biggest market is China.”

June 22, 2015

STEVE MOORE: “Rand Paul overnight changed the dynamics of the Republican presidential race on Thursday when he released his Fair and Flat Tax plan.” It is a one-rated, 14.5 percent flat tax devised with help from Art Laffer, Steve Forbes, and Heritage’s Moore:

The 14.5 percent tax would apply to wages, salaries, capital gains, rents, and dividend income. The plan eliminates the estate tax, telephone taxes, Internet taxes, gift taxes and all customs and duties [while keeping the mortgage interest and charitable deductions].

This plan would take America from being one of the highest income tax rate nations in the world to the lowest. This would suck capital and jobs from the rest of the world almost immediately to these shores. America would move from a nation off-shoring jobs, to one that would start in-sourcing millions of them. It gives U.S. workers a fair advantage.

For low income and middle class families of four, the first $50,000 of income would be tax free. Moreover, because this plan eliminates the payroll tax withheld from worker paychecks, the average worker would with a $40,000 income would get a $3,000 take home pay raise. At a time of falling wages, that would be a big boost to middle class financial security.

Perhaps the strongest case for the Fair and Flat Tax is that it eliminates all of the special interest loopholes and carve-outs in the tax code. Tax lobbyists in Washington would become an endangered species — and it couldn’t happen to a nicer group of people. The richest one percent get the preponderance of the tax write-offs, so getting rid of the big deductions, would increase their taxable income while lowering the rate.

This plan is the essence of a fundamental principle of good and fair tax policy: broad base and low rates.

You make twice as much, you pay twice as much in taxes. You make three times as much, you pay three times as much in taxes. Simple, but…

CATO’S DAN MITCHELL IDENTIFIES THE CATCH:  “Senator Paul’s “business-activity tax” doesn’t allow a deduction for wages and salaries. This means, for all intents and purposes, that he is turning the corporate income tax into a value-added tax (VAT).”

MORE: Rand Paul and the VAT That Dare Not Speak Its Name.

So apparently you pay a 14.5% income tax PLUS a 14.5% sales tax on all you buy with your after tax dollars. A transparent national sales/consumption tax makes sense if you repeal the Sixteenth Amendment and abolish the IRS along with any need to report one’s income and activities to the government. But then it would have to be much higher than 14.5%.

Let the tax policy debate begin!

June 21, 2015

“MR. WORF, FIRE!”: The Story of the Most Daring Cliffhanger in Star Trek ‘Next Generation’ History:

Ron Moore, Jonathan Frakes and more reveal how writing themselves into a corner for “Best of Both Worlds” changed Trek forever: “All of us were quite thrilled they had the balls to leave Picard on the Borg cube.”

I remember watching this episode in first run and my whole family going, “Whoa” after this ending. The clip still gives me chills.

And it is also very cool to see Marina Sirtis after spending four days with her on a studio set at Riverside Stages in Sylmar California filming the courtroom scenes for Inalienable: The Movie, which was written by Walter Koenig. She was a hoot to talk with, constantly wanting to engage me in political debate (as did Koenig) and dishing some behind-the-scenes Star Trek cast stories.

June 21, 2015

MARK LEVIN DECLARES “OPEN WARFARE” ON JOHN BOENER AND “ALL OF HIS COMRADES”:

“Obviously, the lessons of Eric Cantor’s humiliating loss have not resonated with Boehner, McCarthy, and Scalise,” Levin said. “The only solution is for Conservatives to husband their resources and target these three in the coming Republican primaries. Conservatives need to find serious candidates and raise funds nationwide to defeat them. Let them fight for their political careers as our response to their disgusting and pathetic behavior.”

Well, it would get their attention between now and November 2016.

May 11, 2014

THANKS GLENN FOR HAVING ME: It was an honor to be an Instapunditeer for a week, and a great distraction from grading exams. (But I probably would have posted more if I hadn’t been grading.) I don’t know how you do what you do, but keep on doing it for the country’s sake.

You can find me longer-form blogging on the Volokh Conspiracy. Or get the brand-new updated 2014 reasonably-priced paperback editions of my books, Restoring the Lost Constitution: The Presumption of Liberty, and The Structure of Liberty: Justice and the Rule of Law. Such a deal!

May 10, 2014

NEWS YOU CAN USE: How to win rock-paper-scissors (almost) every time

May 10, 2014

EVEN IF HE WAS A SPY, IT DOESN’T CHANGE WHAT’S WRONG WITH THE NSA’S BULK DATA SEIZURE PROGRAM: Was Edward Snowden part of an intelligence operation?

I am glad we know what we now know about the NSA’s domestic data seizure programs  But it is possibilities like this that keep me from praising Snowden or considering him a hero. There is much we don’t know, and likely never will as neither side has much incentive to tell the truth about this.

May 10, 2014

IP AIN’T P, says  Tom Bell in his new book, Intellectual Privilege: Copyright, Common Law, and the Common Good.

UPDATE: Link to book’s Amazon page corrected.

May 10, 2014

LEARNING ABOUT LIBERTY UNDER THE PALMS: Join me for the Cato Summer University at Rancho Bernardo.

I will be speaking on “Why the Declaration of Independence Was Right: Demystifying Natural Rights,” “The Modesty of ‘Radical’ Libertarianism,” and “Our Republican Constitution: Why Popular Sovereignty Requires the Judicial Protection of Human Rights.”

May 10, 2014

ANOTHER PROVISION OF THE “LOST CONSTITUTION”: Video of the Cato Institute panel on the Origination Clause challenge to the Obamacare individual mandate. The speakers provide an excellent exposition of the issues raised by this challenge to Obamacare, which is based on the fact that Article I, Section 7, Clause 1 provides:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

And yet, we all know that it was the Senate who wrote and first passed the Affordable Care Act. The government claims the ACA to have been a Senate “amendment” to a House tax measure that struck every single word of the House bill, including the title, retaining only the House bill number. Is this an “amendment”? If so, then the Clause has lost all constitutional function and, like other clauses, is now “lost.”

Nevertheless, while the Origination Clause argument has the virtue of being valid — which is where all constitutional analysis should start — the composition of the panel in the DC Circuit makes this litigation an uphill fight. Reportedly, Tim Sandefur‘s excellent oral argument last week was met with skepticism by the judges.

May 10, 2014

ANDREW MCCARTHY:  Why Lois Lerner Should Be Granted Immunity:

When officials prove unfit for government power, taking that power away is the highest public interest. Even if you’ve deluded yourself into thinking the Obama Justice Department would lift a finger to prosecute Lois Lerner, who cares if she ever sees the inside of a jail cell? What matters is laying bare the entirety of the scheme and finding out how high it goes: Who and what induced her to orchestrate the harassment of conservative groups? Why was the government’s fearsome tax agency placed in the service of the Democratic party’s political needs?

To get the answers to those questions, you need Ms. Lerner to testify. Instead, the House has wasted a full year chewing over a tough legal issue that, even if it were ultimately resolved in the Oversight Committee’s favor, would not get her any closer to answering questions — at least not for a long time….

If the House really wants to get to the bottom of the IRS abuses, it is long past time to immunize Lerner. Let’s find out what she knows and advance the public’s knowledge of the facts. It will then be possible to determine which, if any, higher-ranking officials in the Obama administration were involved: Were they active participants? Nod-and-a-wink approvers? Unknowing, incidental beneficiaries of the inability of conservative groups to organize effectively?

As things stand right now, the congressional investigation is going nowhere. There is also good reason to doubt that it will ever go anywhere unless it is assigned to a select committee. This week’s contempt drama does not hide these stubborn facts.

Beats appointing a special prosecutor.

May 5, 2014

I HOPE SO BUT I AM SKEPTICAL: Will new amendment to USA Freedom Act bar bulk data seizures?

I like the idea of a Congressional fix rather than relying on the courts, but I await the analysis of these amendments by those who know this statute well.

May 5, 2014

HE GETS IT: Great review by Matt Zwolinski of the new edition of my book, The Structure of Liberty: Justice and the Rule of Law:

When I first became a libertarian, I was strongly attracted to some version of natural rights theory. But critiques like those of David Friedman and G.A. Cohen caused me to question that commitment.

It was in the midst of this questioning that I first read The Structure of Liberty. I didn’t know it at the time, but one of Randy’s long-standing philosophical projects was the reconciliation of natural rights and consequentialist analyses. The Structure of Liberty represents the culmination of that research project, presenting a very useful analysis of natural rights as hypothetical imperatives, and integrating and extending Hayekian concerns about the use of knowledge with public choice concerns about the limitation of power into a novel, systematic libertarian theory.

May 5, 2014

FOR SOME, REGULATION IS THE END, NOT THE MEANS: The End of the Permissionless Web

May 5, 2014

ELEPHANTS MAY NOT FLY,  BUT THEY CAN SWING: 12 Bar Blues – Piano Duet with Peter the Elephant – Thailand

May 4, 2014

BESIDES, ITS JUST ANNOYING: How a popular two letter word is undermining your credibility

Beginning your sentence with “so” orients your message and subconsciously alerts your audience that what you’re about to say is different than what you’ve been talking about up until this point.

We business-types need to drop the “so” for three main reasons…

May 3, 2014

POLITICALLY INCORRECT DIETING: Scott Johnson on Power Line writes: “Inspired by Taubes, I’ve been following a low carb diet for 18 months. It has worked for me, but I’m not sure how long I can stick with it.”

Plus this:

Now comes journalist Nina Teicholz with today’s number one story at the Wall Street Journal site: “The questionable link between saturated fat and heart disease.” Taking off from a big study published in March in the journal Annals of Internal Medicine, Teicholz writes: “The fact is, there has never been solid evidence for the idea that these fats cause disease. We only believe this to be the case because nutrition policy has been derailed over the past half-century by a mixture of personal ambition, bad science, politics and bias.”

 

May 3, 2014

OVERSIGHT: Why not appoint former federal prosecutor Andew McCarthy special counsel to the new Select Committee to investigate Benghazi?

‘Blame the Video’ Fraud Started in Cairo, Not Benghazi 

Here is the main point: The rioting at the American embassy in Cairo was not about the anti-Muslim video. As argued here repeatedly (see here and here), the Obama administration’s “Blame the Video” story was a fraudulent explanation for the September 11, 2012, rioting in Cairo every bit as much as it was a fraudulent explanation for the massacre in Benghazi several hours later.

What was the President doing while terrorists attacked Americans in Benghazi? 

Outnumbered and fighting off wave after jihadist wave, Americans were left to die in Benghazi while administration officials huddled, not to devise a rescue strategy, but to spin the election-year politics. The most powerful and capable armed forces in the history of the world idled, looking not to their commander-in-chief but to a State Department that busied itself writing press releases about phantom Islamophobia. The president of the United States, the only constitutional official responsible for responding, was nowhere to be found.