"Do or Do not. There is no try."

“What A Deal!”: Koch Foundation Proposal To College; Teach Our Curriculum, Get Millions

In 2007, when the Charles Koch Foundation considered giving millions of dollars to Florida State University’s economics department, the offer came with strings attached.

First, the curriculum it funded must align with the libertarian, deregulatory economic philosophy of Charles Koch, the billionaire industrialist and Republican political bankroller.

Second, the Charles Koch Foundation would at least partially control which faculty members Florida State University hired.

And third, Bruce Benson, a prominent libertarian economic theorist and Florida State University economics department chairman, must stay on another three years as department chairman — even though he told his wife he’d step down in 2009 after one three-year term.

The Charles Koch Foundation expressed a willingness to give Florida State an extra $105,000 to keep Benson — a self-described “libertarian anarchist” who asserts that every government function he’s studied “can be, has been, or is being produced better by the private sector” — in place.

“As we all know, there are no free lunches. Everything comes with costs,” Benson at the time wrote to economics department colleagues in an internal memorandum. “They want to expose students to what they believe are vital concepts about the benefits of the market and the dangers of government failure, and they want to support and mentor students who share their views. Therefore, they are trying to convince us to hire faculty who will provide that exposure and mentoring.”

Benson concluded, “If we are not willing to hire such faculty, they are not willing to fund us.”

Such details are contained in 16 pages of previously unpublished emails and memos obtained by the Center for Public Integrity.

While the documents are seven years old — and don’t reflect the Charles Koch Foundation’s current relationship with Florida State University, university officials contend — they offer rare insight into how Koch’s philanthropic operation prods academics to preach a free market gospel in exchange for cash.

In 2012 alone, private foundations controlled by Charles Koch and his brother, David Koch, combined to spread more than $12.7 million among 163 colleges and universities, with grants sometimes coming with strings attached, the Center for Public Integrity reported in March.

Florida State University ranked a distant second behind George Mason University of Virginia as a recipient of Charles Koch Foundation money. In a tax document filed with the Internal Revenue Service, the foundation described its Florida State University funding for 2012 as “general support.”

Some schools’ professors and students were aghast at the funding, arguing that such financial support wasn’t widely known on their campuses and could threaten schools’ academic freedoms and independence. Others argued that colleges and universities — long bastions of liberal academics — would be well served by more libertarian courses of study.

Separately, Charles Koch is the financial force behind a “curriculum hub” for high school teachers and college professors that criticizes government and promotes free-market economic principles. He’s also funded programs for public school students, and this year, his foundation donated $25 million to the United Negro College Fund.

At Florida State University, Benson noted in a November 2007 memorandum that the Charles Koch Foundation would not just “give us money to hire anyone we want and fund any graduate student that we choose. There are constraints.”

Benson later added in the memo: “Koch cannot tell a university who to hire, but they are going to try to make sure, through contractual terms and monitoring, that people hired are [to] be consistent with ‘donor Intent.’”

A separate email from November 2007 indicates that Benson asked Charles Koch Foundation officials to review his correspondence with Florida State associates about potential Koch funding.

Trice Jacobson, a Charles Koch Foundation representative, did not respond to questions, although Benson and Florida State University spokesman Dennis Schnittker each confirmed that the emails and documents are authentic.

But Benson noted that the documents were meant for internal use and reflect the “early stages of discussion” well ahead of a 2008 funding agreement signed by the university and the foundation.

That agreement, initiated in 2009, has earned Florida State $1 million through April, according to the university. Until it was revised in 2013, an advisory board would consult with the Charles Koch Foundation to select faculty members funded by the foundation’s money.

Benson also said that while he continued serving as Florida State’s economics department chairman until 2012, Charles Koch Foundation money wasn’t a factor.

While the foundation initially discussed providing money to help fund Benson’s salary, “that idea was taken off the table very early in negotiations,” he said. “I continued as chair because I felt I could still make a valuable contribution to the department.”

The 2008 agreement between the school and the foundation nevertheless faced harsh criticism from some professors and students who argued it indeed gave the foundation too much power over university hiring decisions.

The school and foundation revised their agreement in 2013 “for clarity” and to emphasize the “fact that faculty hires would be consistent with departmental bylaws and university guidelines,” Schnittker said. “Our work with CKF [Charles Koch Foundation] has always upheld university standards.”

Those guidelines, spelled out in a Florida State University statement about the foundation from May, say the money will not compromise “academic integrity” or infringe on the “academic freedom of our faculty.”

Ralph Wilson, a mathematics doctoral student and member of FSU Progress Coalition, doesn’t buy it.

Florida State University “willfully and knowingly violated the integrity of FSU by accepting funding meant only to further Koch’s free-market agenda,” said Wilson, whose student group works to “combat the corporatization of higher education.”

The Charles Koch Foundation, meanwhile, “is using our universities solely to further their own agenda and plunder the very foundations of academic freedom,” Wilson said.

At the end of 2012, the foundation reported having almost $265.7 million in assets, according to its most recent tax return filed with the Internal Revenue Service.

In his 2007 memo to colleagues, Benson acknowledged the school’s relationship with the foundation would invite blowback.

“I guess I am trying to say that this is not an effort to transform the whole department or our curriculum,” Benson wrote. “It is an effort to add to the department in order to offer some students some options that they may not feel they have now, and to create (or more accurately, expand) a cluster of faculty with overlapping interests.”

Benson also predicted entering into an agreement with the foundation carried some risk.

“There clearly is a danger in this, of course. For instance, we might be tempted to lower our standards in order to hire people they like,” Benson wrote, in advocating that the university not do so. “We cannot expect them to be willing to give us free reign to hire anyone we might want, however, so the question becomes, can we find faculty who meet our own standards but who are also acceptable to the funding sources?”

The Koch brothers are best known not for their educational efforts but for controlling a constellation of conservative, politically active nonprofit corporations.

For example, this election cycle alone, six nonprofits connected to the Kochs have combined to air about 44,000 television ads in U.S. Senate races through late August, with the ads typically promoting Republicans or criticizing Democrats.


By: Dave Levinthal, The Center for Public Integrity, September 12, 2014

September 14, 2014 Posted by | Education, Koch Brothers, Libertarians | , , , , , , | Leave a comment

“The GOP’s Libertarian Time Bomb”: Why ‘Going Rand’ Would Be An Electoral Disaster

The time has come again for a perennial theme in politics: the idea that Republicans should “go libertarian.” The questionable premise, forwarded most recently by Robert Draper and Emily Ekins, is that the Republican Party could sweep up millennials, who are “socially liberal” and “economically conservative,” by adopting a more libertarian message. The ascent of popular startups like Uber and Airbnb — which have about them a decidedly libertarian flavor — has only strengthened this supposedly conventional wisdom.

Here’s the thing, though. The data show that this is an unlikely possibility, but more problematically, doing so would actually decimate the Republican base. The truth is, libertarianism is antithetical to conservatism.

The Republican base, broadly speaking, is made up of five often-overlapping coalitions: business conservatives who seek low taxes and low regulation; foreign policy hawks who seek a strong defense budget; social conservatives who fear moral anarchy; racists and nativists worried about immigration and affirmative action; and elderly retirees who rely on Social Security and Medicare. This coalition is already difficult enough to maintain, but in the future it will become more difficult.

And a “libertarian” message would only further erode the base.

Business conservatives seem like they would be the most open to a libertarian message. After all, lower taxes and less regulation are amenable to both groups. But Republicans are already very pro-business and anti-regulation; to go further in order to pull in a few more libertarians would entail (1) decreased fiscal or monetary intervention, or (2) the elimination of corporate subsidies. Both of these moves would alienate business conservatives, who, after all, rely significantly on government support (to the tune of $92 billion in 2006) and accept the need for countercyclical spending policies. Libertarians might struggle to support Republicans doling out farm subsidies year after year, subsidizing exports and bailing out big businesses and banks, but business conservatives demand it.

Foreign policy hawks would also find many of the core tenets of libertarianism — skepticism of foreign interventionism, opposition to the NSA and a healthy loathing of the military-industrial complex — to be problematic. Republicans could try to peel off support among libertarians by opposing torture, closing Guantanamo and investigating the NSA, but it’s tough to believe that the party of Bush, Cheney, Wolfowitz and Rumsfeld would be able to garner much trust. The swift turn of Rand Paul from libertarian anti-interventionist to foreign policy hawk attests to the difficulty in going this route.

Social conservatives would likely be the most difficult challenge to libertarians. Libertarians tend to support individual  liberty:the right to gamble, drink, smoke, watch pornography, take one’s own life, participate in any form of sexual activity and use drugs. Needless to say, these views would be incredibly problematic for the moral majority coalition, which still forms an incredibly important part of the Republican base. It was Hayek who wrote in “Why I’m Not A Conservative”: “The conservative does not object to coercion or arbitrary power so long as it is used for what he regards as the right purposes… like the socialist he regards himself as entitled to force the values he holds onto other people.”

While it’s often considered impolite to note in public, a rather significant base of Republican power is still nativism. Witness the hysterical response to Central American refugees, the baseless claims against Obama’s citizenship, and the opposition to any immigration reform that doesn’t include a moat full of crocodiles across the border. But most libertarians are strongly supportive of open borders. Libertarian economist Bryan Caplan calls it, “The Efficient, Egalitarian, Libertarian, Utilitarian Way to Double World GDP.” In a world when even the “reasonable” Republicans are still spouting xenophobic drivel, witness Ross Douthat’s column worrying that “the bills under discussion almost always offer some form of legal status before enforcement takes effect, which promises a replay of the Reagan-era amnesty’s failure to ever deliver the limits on future immigration that it promised.”

Finally, there are the elderly retirees, whose support Republicans maintain by making sure that any spending cuts fall on the backs of the poor – not the old. One wonders how they would receive the Cato Institute plan to turn Social Security into private savings accounts subject to market forces. Many would balk if a politician called Social Security “federally mandated generational theft,” but this is how Nick Gillespie regards it. Social Security and Medicare are sacrosanct and any attempt to reform them is likely a “third rail” that would lead to electoral death for the politician that tried.

The problem with libertarianism is mainly that few people agree with its ideological assumptions — but will often come to the same political answer. But this means that most people will be “libertarian” on some issues, rather than use a libertarian mode of thinking to get there. So people may be programmatically libertarian, but ideologically disagree with fundamental assumptions. As political scientist Seth Masket writes, “Basically everyone agrees with libertarians on something, but they tend to get freaked out just as quickly by the ideology’s other stances.”

These contradictions are obvious, and Draper’s widely discussed piece touches on some of them. For instance, there is Mollie Hemingway, who claims to be a libertarian, but is anti-choice and rejects gay marriage. She argued that although “‘people should be free to organize their own lifestyle,’ the state had a unique interest in protecting heterosexual marriage, because it was ‘the relationship that’s ordered to producing children.’” She might want to turn to Ayn Rand, who argued that, “but it is improper for the law to interfere with a relationship between consenting adults” and noted that “abortion is a moral right — which should be left to the sole discretion of the woman involved; morally, nothing other than her wish in the matter is to be considered. Who can conceivably have the right to dictate to her what disposition she is to make of the functions of her own body?”

Or what of Murray Rothbard’s claim that “the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights. The parent therefore may not murder or mutilate his child, and the law properly outlaws a parent from doing so. But the parent should have the legal right not to feed the child, i.e., to allow it to die.” Hemingway is a programmatic libertarian — she likes some proposals, but rejects the radical individualism libertarianism truly entails.

And those are on the issues where Republicans are supposed to agree with Libertarians. Nick Gillespie touches on the minor contradictions in an interview for Draper’s piece:

Republicans always saw libertarians as nice to have around in case they wanted to score some weed, and we always knew where there was a party. And for a while it made sense to bunk up with them. But after a while, it would be like, ‘So if we agree on limited government, how about opening the borders?’ No, that’s crazy. ‘How about legalizing drugs? How about giving gays equal rights?’ No, come on, be serious. And so I thought, There’s nothing in this for me.

He leaves some equally problematic things out: legalized prostitution, restrained foreign policy, massive defense cuts, abolishing social security and Austrian economics. None of these will curry favor with the Republican establishment. The question is not whether there are a large number of Americans who would be excited by libertarianism; the question is whether the Republicans could maintain their current coalition and also court these voters — this seems unlikely.

Then there’s the fact that Rand Paul, once an ardent libertarian, has had to step back on numerous positions. There’s the fact that Gary Johnson alienated the base and Ron Paul looked loony in 2012, opposing the Iraq War, calling for an end to the federal reserve and arguing that the government should legalize all drugs. Ronald Reagan, who successfully used libertarian rhetoric (see: A Time for Choosing) eschewed it when governing. The Republican Party has long used libertarian rhetoric while pursuing statist policies. The Mercatus Center, a libertarian think tank, ranks the 50 states based on “freedom,” but weights “tax burden” as 28.6% of the metric and “freedom from tort abuse” as 11.5%, while “civil liberties” only account for 0.6% of a state’s score and “education policy” 1.9%. In Mercatus-land, alcohol, gun and cigarette freedom rank above marriage freedom, and abortion goes unmentioned. A libertarian turn for conservatives would be nice — libertarians actually hold the free market views conservatives claim and actually accept the importance of reason and individual liberty. But this is the reason it will never happen: True libertarianism would decimate the Republican base, so instead a half-hearted libertarianism prevails — stripped of policies, it subsists on empty rhetoric. But then again, the last few Republican rebranding efforts have been empty rhetoric, and so will this one.


By: Sean McElwee, Salon, August 23, 2014

August 25, 2014 Posted by | Conservatives, Libertarians, Republicans | , , , , , , , | 1 Comment

“Phosphorus And Freedom”: The Libertarian Fantasy

In the latest Times Magazine, Robert Draper profiled youngish libertarians — roughly speaking, people who combine free-market economics with permissive social views — and asked whether we might be heading for a “libertarian moment.” Well, probably not. Polling suggests that young Americans tend, if anything, to be more supportive of the case for a bigger government than their elders. But I’d like to ask a different question: Is libertarian economics at all realistic?

The answer is no. And the reason can be summed up in one word: phosphorus.

As you’ve probably heard, the City of Toledo recently warned its residents not to drink the water. Why? Contamination from toxic algae blooms in Lake Erie, largely caused by the runoff of phosphorus from farms.

When I read about that, it rang a bell. Last week many Republican heavy hitters spoke at a conference sponsored by the blog Red State — and I remembered an antigovernment rant a few years back from Erick Erickson, the blog’s founder. Mr. Erickson suggested that oppressive government regulation had reached the point where citizens might want to “march down to their state legislator’s house, pull him outside, and beat him to a bloody pulp.” And the source of his rage? A ban on phosphates in dishwasher detergent. After all, why would government officials want to do such a thing?

An aside: The states bordering Lake Erie banned or sharply limited phosphates in detergent long ago, temporarily bringing the lake back from the brink. But farming has so far evaded effective controls, so the lake is dying again, and it will take more government intervention to save it.

The point is that before you rage against unwarranted government interference in your life, you might want to ask why the government is interfering. Often — not always, of course, but far more often than the free-market faithful would have you believe — there is, in fact, a good reason for the government to get involved. Pollution controls are the simplest example, but not unique.

Smart libertarians have always realized that there are problems free markets alone can’t solve — but their alternatives to government tend to be implausible. For example, Milton Friedman famously called for the abolition of the Food and Drug Administration. But in that case, how would consumers know whether their food and drugs were safe? His answer was to rely on tort law. Corporations, he claimed, would have the incentive not to poison people because of the threat of lawsuits.

So, do you believe that would be enough? Really? And, of course, people who denounce big government also tend to call for tort reform and attack trial lawyers.

More commonly, self-proclaimed libertarians deal with the problem of market failure both by pretending that it doesn’t happen and by imagining government as much worse than it really is. We’re living in an Ayn Rand novel, they insist. (No, we aren’t.) We have more than a hundred different welfare programs, they tell us, which are wasting vast sums on bureaucracy rather than helping the poor. (No, we don’t, and no, they aren’t.)

I’m often struck, incidentally, by the way antigovernment clichés can trump everyday experience. Talk about the role of government, and you invariably have people saying things along the lines of, “Do you want everything run like the D.M.V.?” Experience varies — but my encounters with New Jersey’s Motor Vehicle Commission have generally been fairly good (better than dealing with insurance or cable companies), and I’m sure many libertarians would, if they were honest, admit that their own D.M.V. dealings weren’t too bad. But they go for the legend, not the fact.

Libertarians also tend to engage in projection. They don’t want to believe that there are problems whose solution requires government action, so they tend to assume that others similarly engage in motivated reasoning to serve their political agenda — that anyone who worries about, say, environmental issues is engaged in scare tactics to further a big-government agenda. Paul Ryan, the chairman of the House Budget Committee, doesn’t just think we’re living out the plot of “Atlas Shrugged”; he asserts that all the fuss over climate change is just “an excuse to grow government.”

As I said at the beginning, you shouldn’t believe talk of a rising libertarian tide; despite America’s growing social liberalism, real power on the right still rests with the traditional alliance between plutocrats and preachers. But libertarian visions of an unregulated economy do play a significant role in political debate, so it’s important to understand that these visions are mirages. Of course some government interventions are unnecessary and unwise. But the idea that we have a vastly bigger and more intrusive government than we need is a foolish fantasy.


By: Paul Krugman, Op-Ed Columnist, The New York Times, August 10, 2014

August 11, 2014 Posted by | Deregulation, Environment, Libertarians | , , , , , , | 1 Comment

“A Tough Week For Sen Pearl Jam”: Rand Paul Spouting ‘Weaselspeak’ Like A Native

I haven’t commented yet on Robert Draper’s much-discussed New York Times Magazine piece entitled “Has the ‘Libertarian Moment’ Finally Arrived?” That’s partly because my instinctive hostility to libertarianism (possibly due to an early high-school brush with the adolescent virus of Objectivism) means I have to calm down and think clearly before writing of such things. And it’s partly because Draper’s piece–while fascinating like everything the man writes–spends a lot of time retailing dubious libertarian claims that this or that generational trend on a scattered assortment of issues means The Movement is on the brink of some national breakthrough (as Draper notes, we’ve heard that before).

But the most interesting part of the piece is the increasingly familiar idea that Sen. Rand Paul has the skills and flexibility to launch some sort of gussied-up version of the Eternally Correct Ideology with enough mass appeal to conquer the GOP and then the nation. It’s analogous to how some movement conservatives looked at Ronald Reagan, who wasn’t as simon-pure as Barry Goldwater by any stretch of the imagination, but was trusted to have the best interests of The Cause foremost in his mind, and knew where to trim and prevaricate in the pursuit of votes. One of Draper’s aging hipster libertarian interlocutors offered a similar analogy of Rand Paul being Pearl Jam to his old man’s Nirvana.

I’ve earlier talked about Rand seeking to advance some sort of Big Tent Libertarianism that’s soft enough around the edges and weasely enough on tough issues to be tempting to many regular Republicans looking for a change of pace without abandoning core anti-government and Obama-bashing principles. He’s been pretty good at it in the past (viz. his election in not-exactly-hipster Kentucky), but as I’ve been noting, he’s struggling now with a pattern of self-contradiction and transparent flip-flopping. As usual, Charlie Pierce sums it up pungently after noting the snares Paul has become entangled in after his flight from DREAMers at a fundraiser with Steve King earlier this week:

America’s brogressive love-puppet speaks the weaselspeak like a native, doesn’t he? He doesn’t want any contact with the berating scofflaws, but he wants them to have work permits, but not in-state tuition. In four or five days, he will likely reverse all three of these reversals of positions. He will feel very strongly all three ways and, also, free pot! All in all, I am disinclined to agree with my friend Bob Draper that we are living through the libertarian moment, at least as represented by Senator Aqua Buddha. This is because “the libertarian moment” is a scam.

Paul has similar trouble sticking to a coherent position on all kinds of issues, from abortion and same-sex marriage (often relying on the usual “federalism” dodge when he’s not taking the most hard-core positions imaginable and/or suggesting these shouldn’t be “priorities” for the GOP) to national security and fiscal policy. The big question is whether in running for president as a first-term senator he has enough base support beyond his old man’s Revolution to ever get to the point where non-libertarians are confronted with the option of finding him acceptable. If I were him I’d go off on a retreat with the Koch Brothers and whoever else he relies on for serious money and advice (leaving the hipsters at home) and hammer out a platform and strategy he can stick to for an extended period of time. The day-to-day improvisation is beginning to sound less like Pearl Jam than the Experimental Blues/Jazz Jam from This Is Spinal Tap.


By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, August 8, 2014

August 10, 2014 Posted by | GOP, Libertarians, Rand Paul | , , , , , | Leave a comment

“Radical Libertarianism Reshaping The Bench”: John Roberts’ Supreme Court Is The Most Meddlesome In U.S. History

For the third straight July, the Supreme Court left court-watchers scratching their heads about whether the Court lived up to its reputation as the “most conservative” in generations, if not ever. In the New York Times, former Obama Acting Solicitor General Neal Katyal hailed “The Supreme Court’s Powerful New Consensus.” Liberal experts tended to echo Slate’s Emily Bazelon in dismissing such revisionists as hoodwinked by “the devastating, sneaky genius of John Roberts’ [superficially anodyne but right-tilting] opinions.”

What strikes me is a libertarian streak in the justices’ opinions. On civil liberties, where right- and left-leaning libertarians concurin particular, Fourth Amendment protection for smartphonesthe Court moved the law to the left. But, likewise reflecting libertarian ascendance, the Court continues to veer sharply right on issues touching on corporate autonomy and regulation of business. Most importantly, this term’s cases confirm a critical but generally overlooked facet of twenty-first century libertarian jurisprudence. It is not just about reclaiming what Randy Barnett famously called the “lost Constitution.” Less visibly but often more consequentially, libertarian academics, advocates, and judges have long advocated thrusting the courts into much more aggressive roles in resolving the details of messy non-constitutional disputesin interpreting statutes, and, in particular, in scrutinizing and micro-managing executive and regulatory agencies’ applications of the laws they administer. Here, the not-always-tacit agenda has been to gum up the works of progressive programs that, realistically, cannot be repealed or invalidated outright.

A window onto this Court’s reactionary drift opened during a testy exchange at an oral argument six months ago on January 21. The case was Harris v. Quinn, which involved a challenge to the authority of state governments to permit public employee unions to collect fees covering the costs of negotiating on behalf of non-members they are legally required to represent. Choosing her words pointedly, Justice Elena Kagan questioned the challenging non-members’ counsel:

Since 1948, since the Taft-Hartley Act, there has been a debate in every State across this country about whether to be a right-to-work State, and people have disagreed. … And is it fair to say that you’re suggesting here … that, for 64 years, people have been debating the wrong question …  because, in fact, a right-to-work law is constitutionally compelled? (emphasis added)

The challengers’ counsel, a staff attorney for the National Right to Work Legal Defense Foundation, did not flinch. “In the public sector,” he responded, “Yes, … compulsory fees are illegal under the First Amendment.”

When the Court finally released its decision, on the final day of the term, June 30, it did not exactly dial back those 64 years, at least not for all public workers and workplaces nationwide. Justice Alito’s 5-4 majority decision barred the imposition of union fees on non-members, but only with regard to a novel category he created“personal homecare assistants,” or nurses and other providers paid by state governments with Medicaid funds, to treat disabled and poor elderly patients in their homes.

But what matters about this case is not the answer the conservative majority gave on its particular facts, but the question they chose to answer. As Justice Kagan noted, that questionwhether state (or federal) law can authorize public employee unions to distribute the costs of representation across all employees in a bargaining unit, while requiring the union to represent non-union members as well as membershad for generations been completely off the table. The conservative majority has put that fundamental understanding in play, by transmuting the First Amendmentheretofore understood as a safeguard for civil libertiesinto a functional regulator of economic relations, and de-stabilizing nearly three quarters of a century of constitutional precedents. These precedents are not technicalities. On the contrary, were the case-law otherwise, all employees, union members as well as non-members, would have every incentive to “free-ride,” and reap the benefits of union representation without sharing in the costs. Public employee unionism would be weakened, if not crippled.

The doctrinal counter-revolution is not confined to labor-management relations. Prior to the New Deal, the Supreme Court pushed an anti-regulatory agenda in the name of safeguarding individuals’ economic liberty. The FDR Court repudiated this tradition in a 1938 decision about milk regulation, United States v. Carolene Products. Carolene Products laid down a landmark a rule: Economic regulatory legislation “is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. Harris v. Quinn flagrantly violates that rule. States surely have a “rational basis” for ensuring fair-share contributions from non-union public employees.

After 1938, through the balance of the twentieth century, and, indeed, well into the twenty-first, Supreme Court majorities never overtly and, only rarely, departed from or implicitly challenged the hands-off economic regulation mandate of rational basis deference. Of course, during those decades, there were recurrent, fiery right-left battles on and about the Supreme Court. But those battles were about the extent to which the Court should actively protect individual civil and political rights, not economic rights. Only a small cadre of libertarian academics and think tanks disputed the consensus confining economic liberty to second-class constituitonal status. No more. No longer marginalized, libertarian-inspired legal ideas are now a force to be reckoned with. That tectonic shift was first proclaimed two years ago in the Court’s opinions in the challenge to the Affordable Care Act’s individual mandate and expansion of Medicaid, even though Chief Justice John Roberts’ controlling opinion largely upheld the law. This term’s decisions reinforce that trend.

Although Harris v. Quinn invoked the Constitution to trump an incontestably rational regulatory law, other important decisions about regulation and the economy this term involved ordinarily below-the-radar questions of statutory interpretation and judicial deference to agency decisions. And libertarian academics’ and advocates’ enthusiasm for replacing Carolene Products-style rational basis deference with active judicial micro-management left an imprint in nearly all of them. For example, reviewing the first tranche of President Obama’s global warming program, Justice Scalia, writing for a seven-member majority, struck down the regulation at issue, and castigated EPA for reading an exception into an assertedly “unambiguous” statutory provision. But the Court then read a similar exception into another statutory term, that yielded 97 percent of the on-the-ground results the agency’s version would have achieved. How could EPA’s version have no defensibly rational basis, and why would the justices not simply defer, if it differed so immaterially from theirs?The answer seems to be that Scalia and his colleagues felt it important to assert their power to substitute their judgment for the agency’sEPA or any other agencyalmost for the sake of doing so.

Similarly, in its two decisions reviewing Affordable Care Act contraception regulations, the conservative majority second-guessed extraordinarily granular Executive Branch policy and factual determinations, substituting their own ideas for configuring a compromise to mesh competing policy goals attributed to two statutes, the ACA and the Religious Freedom Restoration Act. The majority suggested that alternative administrative solutions were readily available, that would, consistent with the Court’s orders, permit employees and students, in institutions averse to including contraception coverage in their health insurance plans, “to obtain, without cost, the full range of FDA approved contraceptives.” Dissenting Justice Sonia Sotomayor, and many health experts, vehemently disagreed. The lasting lesson from these cases is not which side is right, but that the conservative justices are so eager to reach to tackle these policy and factual kerfuffles at all. Such judicial intrusions, into the nitty-gritty of implementing complex, often conflicting statutory provisions, mock landmark decisionsby the Rehnquist Court no less than its more liberal predecessorsthat long enforced and repeatedly reaffirmed the post-New Deal consensus mandating judicial restraint and deference to Congressional and Executive legislative and policy judgments.

Looking to the future, most of the battles over preserving the progressive jurisprudence that kept hostile judges from crippling the New Deal, the Great Society, andso farthe major products of President Barack Obama’s tenure, could well be fought on these non-constitutional fronts. Already, some observers have noted that in several end-of-term opinions, justices on both sides of the Court’s ideological divide have sparred elaborately about methodologies for interpreting statutes and reviewing agency actions. Could these academic-seeming debates constitute “shadow-boxing” over potential high-voltage controversies that could wind up on next year’s docket and beyond? A particular target for speculation in this vein, especially on the right, is a brace of pending cases currently poised for decision in two courts of appeal, in which ACA opponents hope to shut down They claim that a four-word phrase in the Act must be read in isolation, to permit only state-run exchanges, not federally run exchanges in the 36 states that have opted out of setting up exchanges of their own, to provide tax credits and subsidies for low and moderate income applicants for health insurance. So far, that claim has been rejected by the two district courts yet to rule, as contrary to what even Justice Scalia, in his Clean Air Act global warming decision opinion this June, acknowledged as the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Much could depend on whether Justice Scalia and the rest of his conservative colleagues choose to take that “fundamental canon” seriously, if and when the fate of Obamacare is once again on their griddle.


By: Simon Lazarus, The New Republic, July 10, 2014

July 13, 2014 Posted by | John Roberts, Libertarians, U. S. Supreme Court | , , , , , , , | Leave a comment

%d bloggers like this: