William P. Barr appears before the Senate Judiciary Committee for confirmation as Attorney General, January 17, 2019 (Christy Bowe/ZUMA Wire/Alamy Live News).On Obamacare, Is Common Sense Really Judicial Activism?
Affordable Care Act text (Ellen McKnight/Shutterstock.com).Containing the Weapon of Mass Disruption
WASHINGTON, DC - MAY 4: President Donald Trump looks to House Speaker Paul Ryan after the House pushed through the AHCA. (Jabin Botsford/The Washington Post via Getty Images)“[W]e expect he would work with Congress, as the Founders intended.” Scholars and Writers for America, Statement for Candidate Trump “We don’t have a lot of closers in politics and I understand why. It’s a very rough system. It’s an archaic system. You look at the rules of the Senate, even the rules of the House—but the rules of the Senate and some of the things you have to go through, it’s—it’s really a bad thing for the country, in my opinion. They’re archaic rules and maybe at some point we’re going to have to take those rules on because for the…
There and Back Again (King v. Burwell, Part Two)
As I wrote in an introductory post for Law and Liberty, the roots of King v. Burwell lay in the humble soil of federal tax law.
Bến Tre Revisited (King v. Burwell, Part One)
It may be proper for me to offer some observations on the Supreme Court’s highly consequential decision in King v. Burwell. At a December 2010 presentation at the American Enterprise Institute in Washington, I explained that parsing Section 1401(a) of the Affordable Care Act, which added Internal Revenue Code Section 36B, revealed something dramatic: The amount of a premium tax credit is always equal to zero under Section 36B unless a qualified health plan is purchased by a member of the taxpayer’s immediate family through “an Exchange established by a State under section 1311 of [the ACA].”
Paradise Lost
Signing of the Constitution by Louis GlanzmanMike Lee knows a thing or two about the Constitution. Utah’s junior senator is the son of Rex E. Lee, the founding dean of the law school at Brigham Young University and Ronald Reagan’s first solicitor general. Lee recounts attending his father’s oral arguments at the U.S. Supreme Court, which he characterizes as a somewhat more decorous version of dinner table conversations in the Lee household. The younger Lee went on to graduate from the law school his father helped found, to clerk for Justice Samuel Alito when the latter was on the U.S. Court of Appeals for the Third Circuit (later joining Alito again as a clerk at the U.S. Supreme Court), and to specialize in federal appellate court litigation at an elite law firm.
The Dangerous Weakness of Modern Progressivism
Modern progressivism’s relatively weak legislative coalition explains much of the behavior of the Obama administration and the new threats it poses to our constitutional order. As I discuss in an article just published in the City Journal, under FDR and even LBJ, the Democratic party had much more enduring power in Congress. Moreover, these administrations were not nearly so hamstrung as is the Obama administration by deficits and high government spending caused in no small measure by previous progressive experiments. Thus, previous progressive administrations could often be more forthright in the proclamation of their goals and rely on their large legislative majorities to enact and revise the central parts of their programs.
But the Obama administration needs to compensate for its relative weakness by misleading the public and exalting executive power even beyond the previous efforts of progressives. For instance, the President’s repeated promise that you can keep your health care insurance and doctor was necessary to enact the Affordable Care Act, because in our more affluent society the great majority are happy with their health care. As I note in the piece:
The Logic of Progressive Legal Infidelity
It has been widely remarked that President Obama and his administration are making a habit of failing to enforce the law when legal obedience would be politically inconvenient. Most importantly it has suspended or delayed various provisions of the Affordable Care Act. My focus here is on how such behavior follows from the inner logic of progressivism as a political philosophy and a governing coalition.
Progressivism at its base is about enforcing a pattern of equality, necessitating redistribution and social engineering. As it has waxed over the last century, its projects have become more ambitious until it has culminated in effort to remake one sixth or so of the American economy. But the problem with central planning is that life, including political life, is unpredictable. Just as no military plan survives contact with the enemy, no positive program of government social construction and certainly not one as ambitious as Obamacare can anticipate all the secondary and tertiary effects that come in its wake. It could not do so, even if the program were wholly coherent at its inception, which limitations of knowledge and politics make impossible.
Thus, there will be an inevitable need for ad hoc changes. And yet the Progressive coalition is always unstable, being made up in large part of people who want things from the government that conflict. Thus, the coalition that passed the law will not remain unified. Indeed, it may lose its congressional majority. Hence, as Obama has found, it has become impossible to adapt the program to new circumstances through the democratic means. Unilateral power of legal suspension is the logical outcome so long as the President is a Progressive and his coalition has frayed.
Health Care Policy that Kills
A recent letter from Congressman Henry Waxman, demanding that a pharmaceutical company justify its pricing of Solvadi, a new drug to cure Hepatitis C, precipitated a selloff in biotech stocks. Waxman’s concern about Solvadi’s price does not appear well-founded when one compares Solvadi to the alternatives. While more expensive per dose than the previous treatments, Solvadi is more effective and requires a shorter course, marking it as a substantial advance for curing this serious illness.
The Congressman’s intervention raises larger questions about the relation of government policy to innovation. Anyone who is getting older—and that is all of us—should see medical innovation as one of the most important measures, if not the most important measure, of a successful health policy. As Eric Topol details in his fine book, The Creative Destruction of Medicine, technological acceleration, including advances in genomics and stem cell research, suggests that we are on the cusp of a golden age of medical innovation. But government-imposed price controls and other policies can reduce the incentives for devising new treatments, resulting in preventable death and illness.
Sadly, our health care debate does not sufficiently focus on innovation. Indeed, the very name of the so-called Affordable Care Act emphasizes the current cost of health care, not its benefits, and certainly not future benefits from innovation. Supporters of the Act have focused on holding down health care costs and limiting their growth.
Recapping the Federalist Society’s 2013 National Lawyers Convention
Senator Ted Cruz address the convention.This year’s Federalist Society convention had it all. Prospective presidential candidates. Potential Supreme Court nominees. Lively debates on issues ranging from the proper role of federalism to the impact of the Obama Administration’s regulatory agenda. Throughout the convention, many speakers, of all ideological stripes, agreed that the Obama Administration has taken a very expansive view of executive and agency power.
