George Will explains the reality and value of the Major Questions Doctrine. Two slices:
Biden claimed to find authority for [student-loan] forgiveness in a post-9/11 law passed to help members of the military by authorizing the executive branch to “waive or modify” terms of student financial assistance “in connection with a war or other military operation or national emergency.” As Chief Justice John G. Roberts Jr. noted, calling loan forgiveness for 43 million Americans “modifying” the terms of assistance is akin to saying the French Revolution “modified” the French nobility.
Roberts relied on the law’s text more than the MQD. But during February’s oral arguments about loan forgiveness, Roberts said if so much money is to be spent, affecting the obligations of so many Americans, “that’s something for Congress to act on.”
(Congress did act — by rejecting forgiveness. Between 2020 and 2022, Congress passed $5 trillion in pandemic relief bills, one of which suspended student loan payments, but none authorized forgiveness. So, Congress had spoken clearly by not delegating forgiveness authority.)
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The constitutional structure is, she [Justice Amy Coney Barrett] noted, “part of the legal context framing any delegation.” The document vests “all” legislative power in Congress, so “a reasonable interpreter would expect it to make the big-time policy calls itself, rather than pawning them off to another branch.”
Progressivism encourages pawning off. But because, as Barrett wrote, “the Constitution gives Congress the reins,” a reasonable textualist interpreting statutes should generally be skeptical of executive claims to extravagant statutory powers.
The MQD, as explained by Barrett, has emerged organically from judicial reasoning about executive overreaching that is encouraged by Congress underperforming its duty to be clear. MQD’s excellent result is restored constitutional equilibrium.
June 30 marked the third anniversary of Hong Kong’s notorious national-security law, but apparently the city’s government thinks that jailing publisher Jimmy Laiand other locals for years isn’t enough. On Monday Hong Kong issued arrest warrants and offered a bounty of HK$1 million ($127,636) each for eight pro-democracy advocates now living abroad.
The eight are former lawmakers, commentators and union representatives: Nathan Law Kwun-chung, Elmer Yuen Gong-yi, Dennis Kwok Wing-hang, Kevin Yam Kin-fung, Anna Kwok Fung-yee, Mung Siu-tat, Finn Lau Cho-dik, and Ted Hui Chi-fung. The Hong Kong Security Bureau notes that because “the National Security Law has extraterritorial effect, the Police have the responsibility to pursue the liability of those who have allegedly committed offences under the National Security Law outside Hong Kong.”
The eight now live in freedom in the likes of the U.S., Britain and Australia, and the government’s move confirms they were right to flee Hong Kong when they did. Hong Kong knows these countries won’t extradite the dissidents. But it’s a warning for people still in Hong Kong that they can be arrested even for communicating with people abroad.
It’s also a reminder that China recognizes no international boundaries to its police state. In April two men were charged for operating an illegal secret Chinese police station in Manhattan. The station is one of dozens around the world used to monitor and harass Chinese abroad. The eight who are targeted will have to be careful where they travel lest some government seeking to win points in Beijing snatch them and send them to the dungeons of Hong Kong.
The Federal Trade Commission is trying to make it harder for companies to merge by burying them in paperwork. The FTC’s proposed overhaul of a critical part of the U.S. merger review process would increase the average time to prepare a merger filing from 37 hours to 144. According to the agency’s calculations, that’s roughly $350 million in added costs for an estimated 7,100 filings a year, which would be a boon for lawyers but a burden for businesses.
The one-size-fits-all proposal to add dozens of hours of paperwork per deal—regardless of competitive concerns—is an overreach by the FTC and the Justice Department’s antitrust division that will disproportionately chill investments at the lower end of the reporting threshold. While some of the changes are reasonable adjustments to address evolving business and transaction structures, subjecting thousands of competitively neutral transactions to expanded reporting hurdles is hard to justify when only a slim minority of deals raise antitrust concerns.
James Harrigan understandably admires the Declaration of Independence.
David Henderson reacts to Barton Swaim’s misunderstanding of libertarianism. A slice:
Swaim also writes:
A polity, if it’s to function and endure, must offer its members a reason to remain attached, in their loyalties and affections, to the collective. That requires some engagement with ultimate questions—questions about the good life, morality, religious meaning, human purpose and so on. Modern libertarians are allergic to all such topics. Almost the only figures who mention such things in “The Individualists”—Adam Smith, William Lloyd Garrison—lived and died in the 18th or 19th century.
It’s simply false that libertarians have not contended with these issues. We are not allergic to these topics; we often discuss them. But one of the virtues of libertarianism is that we are tolerant of people who come to different views on these topics. Many libertarians are Christians, Jews, or Muslims. A minority of libertarians are atheist or agnostic. But no libertarian I know of–and I know many hundreds–advocates a state religion. That’s one of those many “important political questions” that we don’t argue about. Boaz has a nice treatment of this issue.
Wesley J. Smith criticizes Fauci. A slice:
For their temerity, [Jay] Bhattacharya and his Great Barrington colleagues were slandered in an email to Fauci by NIH head Francis Collins as “fringe” doctors — which was obviously false as Bhattacharya alone had published more than 100 peer-reviewed professional articles. Worse, Collins urged Fauci to actively discredit the declaration with a “devastating takedown” rather than debate or discuss it, which would have been the proper scientific approach.
Fauci appears to have eagerly jumped to that task. He responded to Collins with a link to a story in Wired, in which science editor Matt Reynolds called the controversy over the proper response to Covid “a manufactured scientific debate.” At about the same time, a column in the Washington Post described the three authors as “mavericks.” The New York Times reported that Fauci castigated the GBD “as unscientific, dangerous, and ‘total nonsense,’” the latter charge he repeated on ABC News. More, according to a lawsuit filed by Kulldorff, Bhattacharya, and others against the government and public-health leaders, Fauci “coordinated directly with Facebook and/or other social-media firms to suppress disfavored speakers and content of speech on social media.”
The GBD authors soon found themselves the subject of media scorn, accused of being indifferent to Covid deaths, their reputations badly tarnished in the most public ways. This despite the authors’ motives clearly being “as noble” as Kramer’s during AIDS. (To hear Bhattacharya’s first-person description of that emotionally searing experience, hit this link to our interview on my Humanize podcast.)
The @nytimes has its Missouri v. Biden story exactly backwards. The Biden administration used its censorship apparatus to protect it from outside criticism of the covid misinformation it spread. See my March 2023 congressional testimony for details.
