Michael Greve offers some more background about the origin of the Halbig case, in particular the “loose conservative-libertarian infrastructure” behind the case.
Now, there’s a bit more to this. Tom Christina is not quite the bashful country lawyer and “avid gardener” portrayed in theJournal. (He’s been known to mow the lawn but for the most part practices at an AmLaw 100 firm and occasionally finds time to write essays for this blog.) Jon Adler is a CEI alumnus, as is Tom Miller (and I remain CEI’s Chairman). CEI and Mike Carvin have jointly menaced the administrative state on earlier occasions. And so on. Still, there is nothing conspiratorial about this business. The protagonists have been happy to explain Halbig’s genesis to reporters. More important, there is also nothing very organized about it: the litigation has no single mastermind or man behind the curtain. It has been propagated, moreover, by individuals and institutions that are genuinely independent from the political apparatus and especially the Congress. Instead, the Halbig campaign is the product of a loose conservative-libertarian infrastructure whose members, collectively, (1) are remarkably adept at identifying strategic opportunities; (2) can easily marshal the resources—money, expertise, public support, blogospheric agitation—to translate those opportunities into action; and (3) sufficiently smart and focused to not make a mess of things.
None of this can or should be taken for granted. Strategic opportunities are easily missed. Resources (money and enthusiasm) for a protracted, seemingly quotidian lawsuit could easily dry up, especially after a deflating event like NFIB. And as any lawyer who has been near a high-stakes case like Halbig knows all too well, there’s usually a million ways to screw it up, and rarely more than one way to get it right. But we, or they, didn’t screw up. Something is going right here.
The network’s somewhat anarchic structure has its drawbacks—relatively high coordination costs, for example (numerous phone calls), as well as a risk that some over-enthusiastic outfit or operator might derail the whole enterprise. But that’s a price worth paying for a spontaneous order (of sorts) that, over-all, has proven remarkably effective and efficient. At the risk of sounding ever so slightly over-the-top: Halbig illustrates the admirable resilience of a free society, not just directionally but also operationally. We may be bowling alone, but we can still coalesce when it matters.
I can attest to this “infrastructure” from my work on Unprecedented. I’ll stress that the second factor Greve identifies–money–is secondary, literally. They key is the first step: rying to identify the “strategic opportunities.”