Libertarian Happy Hour in DC Tonight!

Please excuse the very late notice, but if you are an NYU Fed-Soc'er in the Washington, DC area, you should check out the Liberty on the Rocks Rooftop Happy Hour tonight at Local 16.  Liberty on the Rocks is a group that gathers libertarians together "in DC area taverns, bars and restaurants to keep the conversation and passion for liberty alive."  You can check out the Facebook event for more information.

Liberty on the Rocks May Rooftop Happy Hour
Wednesday, May 25, 2011 @ 6:30 pm

Local 16

1602 U St., NW

Washington, DC

Epstein on the Stolen Valor Act

In his latest post for Ricochet.com, NYU's Richard Epstein explains why the First Amendment does not protect most false speech, and condemns the Ninth Circuit's ruling in USA v. Xavier Alvarez, in which the Court declared the Stolen Valor Act unconstitutional.  Professor Epstein writes:

When I was a young lad, I was taught that, in general, it was wrong to lie and proper to tell the truth.  As I got a little older, that black and white version of the world got suffused with some gray.  Tact was an important element in life, so that white lies, which are intended to ease social interaction were regarded as an important tool for getting along with other people.  As I thought more deeply about the subject, I also realized that there were some situations in which people were under a duty to lie.  Hence, my regard for philosophy suffered a body blow from which it has never fully recovered when I first learned of Immanuel Kant’s absolutist assertion that it was even wrong to protect an innocent person against certain death by a vicious assailant who was seeking him out.  Lying as self-defense seems to be as natural as using force in self-defense.

Now it turns out that the Ninth Circuit thinks that we may have set the presumption in the wrong way.  The cause célèbre involves a common problem whereby all sorts of dubious characters make false statements about their bravery and heroism in war.  A recent story in the New York Times now reports that learned judges have concluded that the First Amendment protects these individuals from prosecution under the Stolen Valor Act.

The question is why.  To Judge Milan D. Smith Jr., the argument was simple enough.  If the courts upheld act, “then there would be no constitutional bar to criminalizing lying about one’s height, weight, age or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke.”
The response to this argument comes in two parts. The first is that in some of these cases, the misrepresentation is more serious than these flippant remarks let on, at least when people rely on these false statements to their detriment.  Perhaps we should not criminalize all of them, but lest we raise this argument to a constitutional principle, we might as well say that we should not criminalize taking property from others by false pretenses, insider trading, or threats of murder.

The second is that misrepresentations of military prowess is in fact a very serious violation of a strong code.  I can recall at least some instances in which soldiers who wore medals that they did not earn killed themselves in disgrace after their wrong was discovered.  It is also the case that many individuals might well be prepared to give jobs or support to individuals on the strength of these representations, which makes them look like a particularly heinous form of fraud.

All in all, the First Amendment protects the freedom of speech, which is not to say that it protects all speech acts.  The idea of freedom of action is always cabined in by the libertarian constraint against force or fraud.  Once that principle is kept in mind, the judicial invalidation of the Stolen Valor Act should be seen as a mistake of giant proportions.  Thank heavens other courts have been prepared to mete out some well-deserved punishment.  As for the Ninth Circuit decision, my guess is that it will be overturned by a 9-0 vote if the matter ever reaches the Supreme Court.

Epstein on the Commerce Clause

A couple of weeks ago, NYU's Prof. Epstein published this article on Ricochet.

Liberal Judges Won't Defect from Obama Administration's Misinterpretation of Commerce Clause

As Adam Freedman mentioned earlier, the Fourth Circuit heard yesterday oral arguments on the constitutionality of the Patient Protection and Affordable Care Act, aka, ObamaCare.  At one level there was no surprise in the tenor of the questions.  All three judges on the panel were appointed by Democrats,. Judge Andre M. Davis, an James A. Wynn Jr. are Obama appointees; the presiding judge Diana Gribbon Motz is a Clinton appointee.  From their relentless questioning of Mathew Staver, counsel for Liberty University, it is quite clear that no liberal judge will defect from the Administration’s position that a comprehensive system of health care regulation lies within the power of Congress to regulate under the Commerce Clause.

At this point it is useful to quote the language of the clause, so that one can see how far the current debates have strayed from the original constitutional design.  In 1787, the grant of power under Article I, section 8, cl. 3 gave Congress “the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  That language is lost to posterity in the modern formulations of the scope of the commerce power which allow it to extend to all activities within a given state that have “substantial effect” on interstate commerce, even if not part of that commerce itself.

The differences in these two formulations should be evident, because the only reason that ObamaCare survives is because of its effects on interstate commerce, not because it is a regulation of commerce as such, which is what the Constitution, as written, requires.  

In dealing with the appellate argument, the modern interpretation was ground zero for future decision.  Given that massive constraint, the debate devolved into a heavily metaphysical discussion of whether any form of “noneconomic nonactivity” lay outside the scope of the clause.  

The great success of the challengers to this law is that they have squarely been able to put this question on the table, which no one thought possible two years ago.  Their basic point was that it is one thing to regulate how one can dispose of wheat conditionally upon his decision to grow it, but quite another to tell someone that he has to grow wheat, whether he likes it or not.  Concede that distinction, and it is no longer clear that one can force people to purchase insurance, conditional on absolutely nothing.  Hence ObamaCare falls outside even the modern definitions of the Clause and thus fails.

The government’s position is a conceptual argument that the line between inactivity and activity is unintelligible and thus of no constitutional force.  But in fact we can and do draw the line all the time in dealing with ordinary affairs.   For example, no one is under a duty to rescue a stranger if he has not done some act to put that person in danger.  But there is a duty not to hit that stranger in ways that put him in peril.  The activity/inactivity line thus structures our social relations to each other.  Why then dismiss it as incoherent?

So we can understand the line.  But the issue goes to its relevance, and it is on that point that both sides seem to get lost. The government’s position is that we need the mandate to make sure that people don’t free ride on the system.  But the blunt truth is that they need the mandate to make sure that these so-called freeriders provide the subsidy for older people who have more health care problems.  The best way to get them back into the market is to lift from them the duty to subsidize others.

The challengers find it hard to make that point because cross subsidies are endemic in modern law.  It’s difficult to attack these subsidies as such. The government finds it difficult to make the line between action and inaction disappear when it has been an implicit predicate of earlier  legislation.  To ordinary people, the debate will only lead them to hold lawyers in low repute.  Why should such a huge social decision turn on these arcane points?

Yet no other form of discourse is possible.  The current “substantial effects” test has no constitutional foundation whatsoever.  But once it is treated as sacred text, all subsequent discussion boils down to a choice as to whether to continue to countenance a major misguided expansion of federal power, or to draw a line in the sand, even if it is in the wrong place.  My own view on this teaser remains unchanged.  If the courts will not question the substantial effects test, they should at least be willing to consider an ad hoc exception to what it surely a most unprincipled rule.

That won’t happen in the Fourth Circuit where modern constitutional orthodoxy holds firm.  The large question is how the justices of the Supreme Court conceive of their role.  Come hell or high water, the four liberal justices will vote to affirm the legislation.  The question is whether the five conservative justices will think that the Affordable Care Act takes matters one step too far.  Who knows?

Epstein: Executive Discretion on Steroids

Over at the Hoover Institution's journal, Defining Ideas, Prof. Epstein has an article that would be especially interesting for those preparing for their Administrative law exams.  Prof. Epstein explores the Obama Administration's rampant exercises of discretionary authority. 

One of my constant concerns with the Obama administration is that its vision of executive power means that it has not recognized the need to rein in its discretion. Quite the contrary, in a variety of areas it seems only too eager to use its discretion to maximum advantage, often to support its own political agenda.

This increased activity poses serious separation of powers concerns:

In dealing with the abuse of power, it is important to recall that each branch of government has its own defined responsibilities. On the legislative side, clear statutory commands should give fair notice to individuals, allowing them to conform their conduct to the dictates of the law. In the executive branch, the great challenge is to install managerial safeguards ensuring that the immense reservoir of discretion accorded to public officials is exercised in consistent and determinate ways. On the judicial front, it is critical to develop procedures that provide an individual with sufficient notice of charges, and an opportunity for a hearing before an impartial decision-maker prior to being subject to any criminal or civil sanctions.

Prof. Epstein goes on to explore some examples of executive overreach: criminal prosecution of off-label drug use and mandatory campaign contribution disclosures by potential government contractors.  The section about off-label drug use will be especially interesting to those who took Prof. Epstein's class on FDA law in the Spring.

Executive Decision on Steroids: Beware of government actions aimed at "virtuous" ends

Epstein on Title IX

As I perused the sports news aggregator RealClearSports.com this morning, I noticed that the week's most viewed article was by our very own Prof. Richard Epstein.  Over at the Hoover Institute's Defining Ideas, Prof. Epstein makes the case that it is time to repeal Title IX, the 1972 federal statute mandating that:

Illustration by Barbara Kelly

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance...

As Prof. Epstein notes,

Title IX has been twisted beyond recognition by administrative rulings that now require colleges to strike a proportionate balance between women's and men's participation in intercollegiate sports, wholly without regard to student demand.

This has resulted in universities around the country terminating men's athletic programs and taking bizarre steps to exploit loopholes in the regulatory structure.  Prof. Epstein suggests ending these farcical incentives and repealing Title IX:

[Congress] should junk the entire Title IX edifice—even in its original form. A key flaw of the modest antidiscrimination provision is that it does not take into account the costs of providing the various sports or the revenues that they generate. Any well-run university will consider the possibility that heavy investments in men’s college football will generate revenues, some of which can be used to increase the number of subsidized opportunities available to women. Surely anyone but the sourest egalitarian would prefer a system in which 1000 men and 600 women participate in intercollegiate sports to one that carries only 700 men and 550 women. Narrowing the gap in the relative rates of participation for men and women athletes has the deplorable consequence of leaving both groups worse off.

Prof. Epstein Discusses Hayek at CATO

Last Thursday, NYU's own Prof. Richard Epstein spoke at the CATO Institute in Washington, DC.  He discussed Friedrich Hayek's The Constitution of Liberty with George Soros and Hayek expert Bruce Caldwell.

Update: In case you are turned away by the length of the video, some bloggers have also commented on the event and provided interesting summaries:

• Reason's Hit & Run Blog: Politics Has Made George Soros Dumber
• EconLog: Soros on Hayek
• Future of Capitalism: George Soros, Hayek Fan
• Ricochet: Epstein and Soros? Too Good to Be True

Keynes v. Hayek: Round 2

Fun and enlightening look at two approaches to analyzing the recession (music starts at around the 1:30 mark):

And in case you missed it, here is the first video from Russ Roberts: