Over the past few years, state attorneys general have brought dozens of lawsuits challenging the Obama Administration’s regulatory initiatives. In addition to leading constitutional challenges to the Affordable Care Act, AGs have sued to block new environmental regulations, implementation of the Dodd-Frank financial law, and a host of other federal policies. For those concerned about the size and scope of federal power, this is a welcome development. Who is better positioned than the states’ top litigators to use law as a bulwark to protect the rights of states against an expanding federal government?
‘Men,’ said Marx in his 18th Brumaire of Louis Napoleon, ‘make their own history, but they do not make just it as they please; they do not make it under self-selected circumstances, but under circumstances already existing, given and transmitted from the past.’ This is true, despite its provenance; indeed so obviously true that it is virtually a truism. For if it were otherwise, men would find themselves behaving in no circumstances at all, which is literally inconceivable. Circumstances are like the poor, only even more so: ye have circumstances with you always.
But it does not follow from the fact that men don’t make their history just as they please because they inherit particular circumstances (in part self-created, as our past always is) that they have no choice but to act as they do, any more than grammatical rules determine what people say. Those rules prohibit, or rather make meaningless, certain utterances, but there remain an infinite number of possible meaningful utterances.
Martin Wolf’s The Shifts and the Shocks—What We’ve Learned—and Have Still to Learn—from the Financial Crisis is a long book. Even for those of us fascinated by financial cycles and crises, it takes patience to read through it.
Amidst the long discussion are a lot of provocative financial thoughts, intertwined with a constant, naïve faith in the future superior knowledge and future ability of central bankers and other bureaucrats successfully to tell other people what to do. Wolf never claims this knowledge and ability have been demonstrated in the past—he fully admits that experience demonstrates the opposite–but he never seems to doubt that it can save us in the future, if these solons just get better economic ideas. In this way, he misses the most difficult and interesting element of the problem: the inescapable uncertainty and unknowability of the future.
What is a tax, and what is a regulation or a penalty? That seems like a fairly straightforward question. But since Chief Justice Roberts released his opinion that Obamacare is constitutional because the “penalty” it imposes for failing to carry health insurance is really a tax, we have seen that it is, in fact, an interesting question.
Few have noted that this question was important in the early stages of the American Revolution.
Yesterday’s post on the climate change cases before the D.C. Circuit promised a few additional thoughts on the institutional aspects of the controversy. Here they are, delivered in customary good cheer.
By any measure, the EPA’s GHG regime constitutes the most ambitious, expensive, and expansive regulatory regime in the agency’s history. No consumer, no industry, no state will remain unaffected. As the EPA and the climate change “community” have emphasized, the problem is global and long-term. We’re not talking about removing a discrete pollutant (lead) from a few products (gasoline, paint). We are talking about a program that must be all-encompassing and run, with increased stringency, from here to eternity.
No one decided that we should do this. Certainly, the Congress didn’t decide it. The Supreme Court didn’t, or says it didn’t (it just told the EPA to follow the law). The EPA didn’t, or at least can plausibly claim that it didn’t and doesn’t (it’s just following the law and the Supreme Court). We are simply sliding into a bureaucratic nightmare.