Jan 25, 2014

In Year Six, President to “exercise his authority to the maximum extent.”

For crying out loud, you mean years one through five were at less-than-maximum executive authority?

But perhaps more so than in any of his previous congressional addresses, Mr. Obama realizes that he has little chance of major legislative victories this year, with the possible exception of an overhaul of immigration law that Republicans are also making a priority. As a result, aides said, he will present a blueprint for “a year of action” on issues like income inequality and the environment that bypasses Congress and exercises his authority to the maximum extent.

This article in the Times mentions at least a dozen times things the President will do “without Congress.” If he doesn’t need Congress, why even bother with a speech. Just do it already and be done with it. Not like elections or separation of powers matter. That would cramp his style, and force him to have an “incredibly limited vision.”

“Pushing for a series of new initiatives when last year’s initiatives still need to get done is a challenge,” said Neera Tanden, president of the left-leaning Center for American Progress. “At the same time, he probably shouldn’t be limited to what the House of Representatives could pass, because that would be an incredibly limited vision.”

Pardon me, I’ll go back to prepping Youngstown Sheet & Tube Co. v. Sawyer for class.

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Jan 25, 2014

Volokh Brings “endurance qualitative analysis” to Washington Post

James Poulos in the Daily Beast has an interesting juxtaposition between what WaPo lost by dropping Ezra Klein and gained by adding the Volokh Conspiracy–in short, “endurance qualitative analysis” of important topics, that does not involve charts.

Unlike Team Klein, Team Volokh didn’t build its brand on quant. Instead, more like my own blog, the Volokh Conspiracy gained an audience and achieved relevance thanks to its sustained level of qualitative analysis. Only, unlike my blog, Volokh’s focused on issues of patently immediate concern to regular Americans and elites alike—major Supreme Court decisions and the like. Team Volokh is that rare body of new-media stars who can analyze major policy developments without deploying a single charticle.

In today’s media climate, that’s a big deal. As it happens, that kind of “endurance qualitative analysis” is much of what America’s best and brightest old-school bloggers lost when their personal blogs went corporate. Rather than keeping readers enriched at a brisk but measured pace of long-distance commentary sustained regularly over time, freshly recruited big-media bloggers had to adjust to an infotainment environment in which content, clicks, coverage, and courtship of thinkfluentials all had to move at increasing speeds.

But wait—Volokh’s debut at the Post isn’t just about giving qualitative news analysis its rightful seat at the cool kids’ table of intellectation. Volokh’s brand helps widen the field for the specific kind of “qual” that old-school blogging brought to the mainstream: not the “longreads” of today, sold to popular audiences as useful and entertaining because of their narratives and reportage. Bezos’s choice of bloggers allows us to think seriously once again about the independent media value of politics and policy commentary that’s rooted in concept-driven reasoning—the kind of work done by “public intellectuals,” and America’s first wave of “serious” bloggers, at their best.

In short, Volokh Conspiracy is not a “qaunt” but a “qual” (Eugene is certainly a quant, but that is neither here nor there).

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Jan 25, 2014

Response to Letter to the Philadelphia Inquirer About Unprecedented

Marc Schneier writes to the Philadelphia Inquirer to dispute a recent article written about my talk in the city of the Brotherly Love.

“Fighting Words,” Chris Mondics’ recent article on Josh Blackman, portrays him as a libertarian law professor who nonetheless “tells it like it is” to both liberal and conservative audiences. Blackman’s book on the Affordable Care Act is described as receiving praise from liberals and libertarians alike.

Yet the article ends with Blackman criticizing the ACA for having been passed with no Republican support in Congress.

This shibboleth belies any portrayal of Blackman as an objective scholar. It is well established in reliable media (such as a “Frontine” program) that before Barack Obama was even sworn in, Republican leaders in Congress elected a policy of “just say no” to whatever policy the President proposed. This stonewalling even extended to health care reform, even though the President used as his model a private-insurance-based Massachusetts plan championed by a Republican governor who would become the party’s 2012 presidential contender.

Shibboleth is one of my favorite words. I hope one day it will be used fairly to describe something I wrote. But today’s not that day, because I agree with Mark.

I made a very similar point on Page 114. The GOP after the 2008 election determined to make Obama a “one-term president,” and stop all of his efforts, including healthcare.

This vote [to repeal Obamacare] also kept the issue of the law’s constitutionality in the forefront and kept the president “on the defensive,” so that his efforts on other initiatives would be diverted to defending the health care law. This vote was consistent with Senate Majority Leader Mitch Mc- Connell’s October 23, 2010, statement: “The single most important thing we want to achieve is for President Obama to be a one-term president.” After the 2010 election, McConnell elaborated on his message. “But the fact is, if our primary legislative goals are to repeal and replace the health spending bill; to end the bailouts; cut spend- ing; and shrink the size and scope of government, the only way to do all these things is to put someone in the White House who won’t veto any of these things. We can hope the president will start listening to the electorate after Tuesday’s election. But we can’t plan on it. And it would be foolish to expect that Republicans will be able to com- pletely reverse the damage Democrats have done as long as a Demo- crat holds the veto pen.” This vote, no doubt, was part of a concerted Republican strategy to challenge Obama’s efficacy as a president and force him to defend his record leading up to the 2012 presidential election.

I also wrote ad nauseum about Heritage’s support for the mandate, and the hypocritical change of position from prominent Republicans from Mitt Romney to Newt Gingrich.

Next time, I’ll shoot for a real shibboleth!

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Jan 25, 2014

D.C. Circuit Orders Super Fast Briefing Schedule for Halbig v. Sebelius

The D.C. Circuit has ordered a super-expedited briefing schedule in Halbig v. Sebelius. (This is the case that challenges whether the federal government can provide subsidies to exchanges not operated by states). I understand plaintiff’s brief is due in seven (!) days. Oral arguments are scheduled on March 25, 2014 before Judges Randolph, Griffith, and Edwards.

Let’s assume for the moment the panel rules against the administration. What is the next move? Seek en banc review? Or go for cert? I would humbly submit that this calculus is different today than it was before the President’s recent appointments to the D.C. Circuit.

In case you are doing the math at home, for purposes of the en banc court, both Senior Circuit Judges Randolph and Edwards would be able to sit on it as they were on the original panel.

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