The Liberty Forum feature of this site is an exciting one. It provides for an essay on a topic of interest, followed by two responses by commentators, and then a possible reply by the original author. The first Liberty Forum was written by the excellent Philip Hamburger on the topic of the proper office of the judge, a subject that Professor Hamburger knows something about. The second Liberty Forum was written by yours truly on the problems created by the failure of the national convention amendment process and the consequences of that failure for the protection of federalism. The piece was…
Archives for January 2012
The Bureaucracy’s Creep Against Life
This past Friday, the U.S. Department of Health and Human Services (HHS) postponed for a year (until August 2013) the effective date for an interim final rule (IFR) that would require many religious employers to cover under their health insurance plans preventive pregnancy services, from contraceptives to sterilization and “morning-after” pills. Churches may obtain exemptions, but many religious employers such as hospitals, colleges, and social service organizations may not. “I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services,” HHS Secretary Kathleen Sebelius declared in a press release. Sure it does. The Catholic Church and the many other religious institutions that protested a rule that would compel payment for practices in violation of their teaching and convictions were faking it; they just wanted a year to change their minds.
The Four Horsemen of the Supreme Court
Economic Freedom in the US and Canada
The Wall Street Journal and the Heritage Foundation have released the 2012 Index of Economic Freedom. I have closely followed this Index since it was first released in 1995. Sadly, but not unexpectedly, the United States has fallen once again. This is another reflection of the worsening state of our polity – a decline for which, in my opinion, George Bush and the Republicans bear some responsibility and Barack Obama and the Democrats bear even more. The United States has fallen significantly from a high of the 5th most economically free country in the world with a 81.2 in 2006 and…
The EU and Us
Having had my fun at the European Union’s expense, perhaps it’s time to move past Lufthansa jokes (although I do have a few more) and pay more serious attention to the EU and its federalism. There’s little room for American gloating or Schadenfreude: the ongoing EU disaster is hanging over our economy; and besides, our own federalism isn’t in such terrific shape, either. Read on to learn more.
Recess Appointments and Technological Change
A short follow up to yesterday's post on Recess Appointments. One way to think about how odd the change in the law of recess appointments (from original meaning to modern practice) has been is to think about it in reference to technological and social change. We now live in a world where, due to a tremendous reduction in transportation costs and other factors, recesses are much shorter. In the old days, they could be 6 – 9 months. These days they rarely exceed one month, and are often much shorter. This change should have reduced the need for recess appointments. Instead,…
Obamacaid Revisited
In the pending Obamacare litigation, the plaintiff-states argue that Title II of the Affordable Care Act (“Obamacaid”) unconstitutionally “coerces” them to participate in a grand expansion of Medicaid. I’ve argued here and there (link no longer available) that the plaintiffs will and should lose that argument. A terrific amicus brief (link no longer available) by Vanderbilt Law School professor James Blumstein makes a powerful case on the other side.
Ultimately, Jim’s brief doesn’t fully persuade me. But it comes very, very close on account of its recognition that Obamacaid’s crucial problem has to do with the bilateral risk of opportunistic defection from a pre-existing, quasi-contractual relation (Medicaid), not with some “economic coercion” story about federalism’s “balance” and the poor, pitiful states and their faithful public servants. (For ConLaw dorks: the key cases are Pennhurst and Printz, not South Dakota v. Dole or Steward Machine.) I hope to explain sometime next week; today, a few additional remarks on economic coercion.
The Original Meaning of the Recess Appointment Clause
While I have blogged about this matter elsewhere on the Originalism Blog, I thought I would present my views on the issue on the Liberty Law Blog. In 2005, I wrote a long article investigating the original meaning of the Recess Appointments Clause. It turns out that the power of the President to make recess appointments is much narrower under the original meaning than it is under current practice. The original meaning of the Recess Appointments Clause allows Presidents to make recess appointments, but only when (1) the vacancy arose during a recess (2) the appointment is made during that same recess, and (3) that…
