My annual vacation in the Frisian Caribbean usually falls into what the German media call the Sommerloch (“summer hole”): nothing to report. Not so this year.
Michael S. Greve Website Subscribe
Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).
How Did Our Politics Go Insane?
Jonathan Rauch of the Brookings Institution, a dear friend and one of the nation’s most insightful and thoughtful political observers, explains in a provocative Atlantic piece “How American Politics Went Insane.” The short answer, more fully elaborated in Jonathan’s earlier e-book, is disintermediation—that is, the demolition of political structures and mechanisms that, in a system of divided powers, make politics work and enable “middlemen” and power brokers to protect the system against crazies. Primaries and campaign finance reforms have weakened the parties. The destruction of the seniority and committee system has disabled Congress from legislating even when a (latent) consensus does exist. “Open government” reforms have constricted the space that is needed for political bargaining. The “pork” that once greased the system has mostly disappeared. Over time, the institutional immune system has collapsed. The ensuing chaos has produced further public disaffection and populist agitation against “the establishment.” It’s a feedback loop, and not a good one.
Hang in There, RBG: The Country Needs You
(MANDEL NGAN/AFP/Getty Images)Like Mike Rappaport and much of the broader world, I’ve been baffled by Justice Ruth Bader Ginsburg’s New York Times ruminations—though not in the same way. Many of her observations strike me as obviously right. (It is in fact high time to move to New Zealand, or some place with lower mountains and even less government). And why should we heap opprobrium on a public official who actually tells the truth? She is wrong, however, not necessarily as a general matter but on her own terms, in deeming a Trump presidency an unthinkable horror: it might be her finest hour. RBG…
The Migrating Power of the Purse
Chris DeMuth, an occasional contributor to this site, and yours truly have penned an exploratory article on “Agency Finance in the Age of Executive Government.”
This Realm, This England
I sure hope the Brits vote “Leave” on June 23. That would be the first thing to go right in global politics this year.
Net Loss: D.C. Circuit Upholds FCC “Net Neutrality” Rule
In a momentous decision, a panel of the D.C. Circuit (Judges Srinivasan, Tatel, and Williams; opinion by Srinivasan, partial dissent by Williams) has upheld the FCC’s “net neutrality” rule. Henceforth broadband providers will be regulated not as information providers but as a “telecommunications service” under Title II of the Communications Act. Among other things this entails “must carry” obligations and a command that the providers may not charge different rates to different content providers (in regulatory parlance, “paid prioritization”).
Puerto Rico: The Process Works, So Far
In a 5-2 decision in Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust (Justice Alito recused), the U.S. Supreme Court has held that the Commonwealth of Puerto Rico may neither avail itself of the protections of Chapter 9 of the U.S. Bankruptcy Code nor, by way of a “Recovery Act,” authorize its municipalities and utilities to restructure debts owed to bondholders and various other entities (some $70 billion, at last count). Justice Thomas’s opinion for the Court rests on a strict reading of the statute, which says (in one provision) that Puerto Rico isn’t a “state” “for purposes of defining who may be a debtor under chapter 9” but defines the Commonwealth as a “state” for purposes of its preemption provision, which bars any state from enacting debt relief measures for municipalities outside Chapter 9.
Blessed Memorial Day
Uwe E. Reinhardt is a celebrity prof (economics and public affairs) at Princeton. I’ve never met him but have read some of his stuff, on account of my passing interest in health care economics. I can’t judge it but it’s consistently informative, and leavened with a healthy sense that “we economists really do not know how the world works.” (They should nail that sentence over every door jamb at the Federal Reserve.) Professor Reinhardt’s most recent publication, which I suppose is rattling around on a thousand sites but deserves an additional shout-out here, is about the dead—specifically, “The American Dead in…
Odd Legal Ethics
In an order that the Volokh Conspiracy’s Orin Kerr has described as “puzzling,” U.S. District Judge Andrew Hanen has instructed U.S. Attorney General Loretta Lynch to institute a five-year ethics training program for any lawyer seeking to appear in any of the 26 states that participated in the immigration case now pending before the Supreme Court. Judge Hanen presided over the district court proceedings in that case.
The President’s Power to Spend
In House of Representatives v. Burwell, yet another big case arising over the Affordable Care Act, U.S. District Judge Rosemary Collyer has ruled that the administration’s implementation of the Act’s subsidy provisions violates the Constitution. Lots of fun here; let’s start with the basics.
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