Chevron Deference Is Gone. Where Is Kagan’s ‘Massive Shock’?

Loper Bright isn’t without costs, but it has benefits too—and it hasn’t proved particularly disruptive.

By John Chisholm. He is a trustee of the Santa Fe Institute and of the Foundation for Economic Education. Excerpts:

"When the Supreme Court ended Chevron deference, one of the most consequential doctrines in American law, Justice Elena Kagan warned in dissent that it would “cause a massive shock to the legal system.” Two years later, that hasn’t happened.

In Loper Bright Enterprises v. Raimondo (2024), a 6-3 majority discarded a 40-year-old rule for interpreting “ambiguous” statutes. Under Chevron v. Natural Resources Defense Council (1984), judges were obligated to defer any time a federal agency made a “reasonable” interpretation of the law. Loper Bright was the last in a series of cases in recent years narrowing Chevron. Now courts, not agencies, must determine the best reading of the law."

"Two economic lenses bring those benefits into focus, revealing why Loper Bright is the sounder doctrine in the long run."

"The first lens is regulatory stability."

"The second lens is cognitive diversity. Social scientist Scott Page has shown that for hard problems, a diverse group of decision-makers tends to outperform a homogeneous group of higher-ability experts."

"public debate and cost-benefit analyses systematically overweight Loper Bright’s costs—the same bias that drove Chevron’s centralization in the first place."

"Two years on, no “massive shock” has materialized. Agencies still prevail in most challenges. Empirical studies put their win rate at roughly 75% when courts applied Chevron and near 60% on established rules since Loper Bright." 

Another Supreme Court Knockout

All nine Justices reject an attempt to expand secondary liability

WSJ editorial. Excerpts:

"provider Cox could be held liable for “contributory” copyright infringement merely because it had knowledge that some of its users were pirating music files."

"“Ordinarily, when Congress intends to impose secondary liability, it does so expressly,” Justice Clarence Thomas writes for the Court. But Congress didn’t do so in this instance, and the Fourth Circuit’s holding “conflicted with this Court’s repeated admonition that contributory liability cannot rest only on a provider’s knowledge of infringement and insufficient action to prevent it.”"

"The provider of a service is contributorily liable for the user’s infringement only if it intended that the provided service be used for infringement"

Or "the party induced the infringement or the provided service is tailored to that infringement"

"Cox didn’t do either." 

ICE, Minneapolis and the Rule of Law

Local officials encourage obstruction of federal agents and have now filed a meritless lawsuit

By George J. Terwilliger III. Mr. Terwilliger is a Washington lawyer. He served as deputy U.S. attorney general, 1991-93. Excerpts:

"Neither the Constitution nor any statute provides cities and states any authority over immigration matters, rendering sanctuary-city policies legally feckless. They exist only because some officials are willing to exploit the presence of illegal aliens for political gain."

"the Constitution’s Supremacy Clause (Article VI, Clause 2) forecloses Mr. Frey and his fellow exploiters from directing how ICE and any other federal enforcement officials perform their duties. Chief Justice John Marshall ruled in McCulloch v. Maryland (1819) that “the states have no power . . . to retard, impede, burden, or in any manner control, the operations . . . vested in the general government.”"

"That the ICE agents were lawfully present in Minneapolis and entitled to carry out their lawful functions without local interference doesn’t justify the agent’s use of deadly force. An investigation to assess whether the use of deadly force was legally justified is necessary. The FBI has a role under law. But by excluding the locals, the FBI has now occasioned the public to question who should be doing that investigation.

A homicide occurred within the state authorities’ jurisdiction. That gives those authorities a vital interest in the investigation. If the agent’s conduct was part of or related to his official duties, then he would be immune under the Supremacy Clause from state prosecution. If he acted outside those duties, he could lose that protection and be subject to state jurisdiction. In either case, constitutional standards for use of deadly force by a law enforcement officer will be the measure of his actions."

"Just as the federal agents’ lawful presence in the cities isn’t a justification for the use of unnecessary force, objection to their presence on policy grounds provides no justification for civilian interference in their operations, or for local officials to leave them bereft of local law-enforcement help when that occurs." 

‘Listening to the Law’ Review: A Humbler Reading

Justice Amy Coney Barrett, an ‘originalist’ in the mold of her onetime boss, Antonin Scalia, makes the case for the Constitution

By Barton Swaim. Excerpts:

"how difficult it is to fashion a constitution that is both practicable and secures the esteem of the governed. The framers achieved both, she argues, by giving the people the ability to alter the Constitution—the amendment process in Article V—and by quickly amending it with the Bill of Rights. By adopting the first 10 amendments, Justice Barrett argues, “the founding generation made the Constitution a more morally laden document.”" 

"On judicial humility, Justice Barrett makes the case for a conservative or restrained version of “substantive due process.” Judges have sometimes deemed laws unconstitutional because they violate some unenumerated right, i.e., a right not named in the Constitution. Their argument is that certain fundamental though unenumerated rights are protected by the “due process clauses” of the Fifth and 14th Amendments, which forbid federal and state governments from depriving persons of their liberty “without due process of law.” The Court struck down laws banning interracial marriage partly on that basis in 1967."

"The trouble, Justice Barrett explains, is that “judges can easily slip into naming fundamental rights based on the values of people they know and respect rather than the value of the vast and diverse American citizenry.” The standard for invoking an unenumerated right, she contends—quoting two phrases Chief Justice William Rehnquist borrowed in Washington v. Glucksberg (1997)—is that such rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”"

"The only justices still routinely arguing as if from a “living constitution”—i.e., that the law must mean this or that because what its authors really wanted was some alleged happier outcome—are Justices Sotomayor and Jackson. Justice Elena Kagan, a liberal, often bases her arguments on the text’s original public meaning, as do leading liberal law professors such as Yale’s Akhil Reed Amar."

" It is plainly impossible to know the intention behind a law written, debated, amended and voted on by scores or hundreds of people. Moreover, “a judge who tweaks the text to improve its fit with statutory purpose risks undoing the very compromises that made the passage of legislation possible,” she writes. “There is no way for the judge to know whether its new, supposedly improved version would have made it into law.”" 

Tariff Case Could Give Trump Massive New Fiscal Powers

If Supreme Court rules in president’s favor on tariffs, it could greenlight his raising other new tax revenue without Congress

By Greg Ip. Excerpts:

"If the court sides with Trump, it could hand the president sweeping fiscal authority long the purview of Congress. It could enable the president, by simply invoking an emergency with some foreign element, to justify almost any revenue measure in response: not just tariffs, but other taxes, too."

"Trump has said tariffs could replace income taxes, becoming Treasury’s primary source of revenue, as they were before 1913.

Last week, his budget office projected that tariffs would raise $3.9 trillion, or 1% of GDP, over the coming decade. That sure sounds permanent."

"he relied on the International Emergency Economic Powers Act of 1977" 

"That law was generally used to punish national-security threats such as Iran and Venezuela through sanctions. Three courts have already ruled that it doesn’t permit Trump to impose across-the-board, unlimited tariffs."

"If “regulate” can include tariffs, it could, according to several legal scholars, include any tax. “Any tax with foreign-policy implications would be within his authority,” said John Brooks, professor of tax law at Fordham University. “Why wouldn’t that apply to any tax he can conceive of, not just the tariffs?”"

"as recently as last year, the Supreme Court affirmed that the Constitution treats tariffs and income taxes similarly, that is, as “indirect taxes.”"

"Jeffrey Schwab, senior counsel at the Liberty Justice Center" [said] "“If ‘regulate’ can mean tax or tariff, does that mean all of a sudden it doesn’t even take a vote of Congress to implement a tax? That seems really bad.”"

"importers (such as retailers) remit the duty to the government. They can, in theory, persuade exporters to absorb some or all of the tariff, or pass it along to their customers. While who ultimately pays can’t be known precisely, several economists estimate that American businesses paid 50% to 60% of Trump’s tariffs to date, with the balance split roughly between exporters and consumers."

"these tariffs are not enshrined in statute, there’s no process to change them" 

Fed Independence Goes to Court

Trump loses his case to fire Lisa Cook, but it’s likely headed to the Supreme Court.

WSJ editorial. Excerpts:

"The Federal Reserve Act provides members of the Fed board with staggered 14-year terms and lets the President remove them only “for cause,” which isn’t defined by the law."

"“for cause” may have a broader sweep than wrongdoing in office. The High Court this spring also allowed Mr. Trump to fire a Democratic member of the NLRB notwithstanding removal protections (Trump v. Wilcox).

But the Court also noted in dicta that its ruling did not “necessarily implicate the constitutionality of for-cause removal protections” for the Fed, which “is a uniquely structured, quasi-private entity that follows in the distinct historical tradition.”"

"its [the Fed] control over monetary policy is unique.

Mr. Trump is challenging legal norms as he aggressively uses executive power. He’s won many cases, but this one is no easy call."

Trump, Lisa Cook and the Federal Reserve’s Independence

The central bank differs from other agencies in that the power to coin money belongs to Congress

By Phil Gramm and Jeb Hensarling. Excerpts:

"The Constitution gives Congress the power to coin money and regulate its value. Congress, in fulfilling that delegated responsibility, created the Federal Reserve. In carrying out narrowly defined monetary policy, the Fed isn’t subject to executive authority."

"Congress created a central bank with seven board members, or governors, appointed by the president and confirmed by the Senate."

"By involving itself in the political process, the Fed undercut the argument that it should be independent of that political process."

[Powell] "helped cause that inflation" 

"based on the argument that the inflation was the result of a supply shortfall and therefore transitory. That argument wasn’t credible given that the federal government was spending more in two years than it had ever spent in three and the Fed during the pandemic was expanding the money supply faster than in any other year since World War II ended."

"Her “for cause” firing appears to be another assault on monetary policy independence."

"in creating the Federal Reserve, Congress delegated an enumerated power that Article I, Section 8 of the Constitution had given it."

"the Founders concluded that the safest bet was for Congress to hold “the power to coin money and regulate its value thereof.”" 

"Congress . . . had no authority to delegate its enumerated power to the executive branch."

"the Fed is accountable to Congress in conducting monetary policy."

"But the Fed in conducting monetary policy isn’t an executive-branch agency. It is carrying out a function given by the Constitution to Congress."

"Presidential control of monetary policy would be a threat to financial stability and American prosperity." 

The Founders Would Be Appalled by Trump’s Tariff Policy—Even Hamilton

Tariffs aren’t just economic tools—they’re a test of America’s constitutional limits.

By Iain Murray of the Competitive Enterprise Institute. Excerpts:

"the founders warned that emergencies provide dangerous pretexts for executive overreach. The Federalist warned in various places that, while powers to deal with crises were necessary, they must be subject to checks and balances like all other executive powers.  So, Congress must control the purse and, alongside the judiciary, guard against executive abuse of emergency power. 

Power of the purse is central to a second aspect the Founders warned about – the Executive must not have the power to tax. That is squarely a Congressional duty to reflect the consent of the governed to taxation (the President, though elected, is more remote from the people.) Nor did the Founders think a tariff was something different from a tax, as some of the President’s supporters maintain. In Federalist 35, for instance, Alexander Hamilton asks what if the power to tax was constrained to import duties (as some anti-federalists were demanding), plainly viewing tariffs as a subset of taxation powers. 

The corollary of this is that the President can have no separate source of revenue from that directed by Congress. In Federalist 58, Madison states clearly, “The House of Representatives cannot only refuse, but they alone can propose the supplies requisite for the support of government.” The idea of a President directing a sovereign wealth fund with monies provided by foreign governments falls manifestly outside this constitutional design. 

Indeed, the Founders were worried about Presidential patronage power in general. They constrained the President’s appointment power with the consent of the Senate and, as Madison said in Federalist 48, “The legislative department alone has access to the pockets of the people,” thereby dissuading “projects of usurpation” by the Executive in this way. 

Congressional silence on the President gaining control over a foreign-funded trillion-dollar fund to dispense patronage would be exactly the sort of thing Madison warned about when he said “a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” 

A President declaring a “national emergency” over a trade imbalance or overcapacity in foreign markets, leading to his imposing taxes on Americans without Congressional deliberation or scrutiny, and possibly gifting him a massive pool of funds he could use for patronage, is exactly the sort of thing the Constitution was designed to prevent. It violates the separation of powers, eludes democratic accountability, and fits the pattern of emergency overreach our Founders repeatedly warned against throughout the constitutional debates. Even the biggest fan of an energetic executive, Alexander Hamilton, wanted to make sure that most of these powers remained firmly under Congressional control. 

Indeed, Hamilton, supposedly the father figure of American protectionism, made many of the same arguments that free market economists make today about the abuse of tariffs as a revenue source. In the aforementioned Federalist 35, Hamilton says explicitly that “the consumer is the payer,” recognizing that the tax burden falls not on the foreign exporter, but on the American consumer. Indeed, this is why he recognizes that tariffs cannot be the only source of revenue for the federal government, as their burden would fall inequitably on the poor. 

Hamilton recognized the problem of dispersed costs of tariffs — while they may initially seem painless because consumers don’t see the tax obviously, the total cost can become “oppressive.” In other words, tariffs are regressive. They are also therefore self-limiting, deterring imports, and thereby further revenue, when set too high. This provides another reason for the power to tariff to be confined to the legislature, which, as the people’s representative, can quickly respond to economic problems affecting specific sectors.

One final point is worth making about Hamilton. In the “Report on Manufactures,” the ur-text of American protectionism, the tariffs Hamilton proposed were modest by comparison with the President’s proposals, perhaps in consideration of the points he had made during the ratification debates. Indeed, the Report suggests that in many cases subsidies (or “bounties”) were preferable to tariffs as a means of encouraging industries, although Hamilton admits they may become the object of corruption, making it “necessary to guard, with extraordinary circumspection, the manner of dispensing them.” The President’s trade policy goes well beyond any of this. As Samuel Gregg has argued, the Founders wanted America to be a commercial republic. The President’s tariffs and the manner in which they have been used suggest not only a hostility to commercial trade, but to a republic with an executive constrained by co-equal powers. Congress, so far, has failed to guard its privileges. The Courts may not be so quiescent."

U.S. Supreme Court 9, Wisconsin Supreme Court 0

How far astray is the 4-3 liberal Badger State majority? Justice Sotomayor reversed it for a unanimous High Court

WSJ editorial. Excerpts:

"The state jurists had denied a religious tax exemption to a local diocese’s Catholic Charities Bureau (CCB) and associated groups. Their activities were “secular in nature” and didn’t involve teaching the faith or supplying religious materials"

"as Justice Sotomayor writes in her opinion for the unanimous reversal, if a state law treats two religious soup kitchens differently, depending on the amount of prayer and proselytizing before lunch, that’s a violation of the First Amendment. “It is fundamental to our constitutional order that the government maintain ‘neutrality between religion and religion,’” she says. “There may be hard calls to make in policing that rule, but this is not one.”"

"The ruling “looks through a seemingly Protestant lens to deem works of charity worthy of the exemption only if accompanied by proselytizing—a combination forbidden by Catholicism, Judaism, and many other religions.”" 

What J.D. Vance Gets Wrong About Judicial Deference to Executive Power

The federal courts are supposed to be a bulwark against presidential overreach, not a rubber stamp.

By Damon Root of Reason. 

"Let's start with the role of the courts. The idea that the judicial branch owes special deference to the elected branches of government was thoroughly rejected by the framers and ratifiers of the Constitution. "As to the constitutionality of laws," Luther Martin told the Constitutional Convention in Philadelphia on July 21, 1787, "that point will come before the judges in their proper official character. In this character they will have a negative on the laws." Federal judges, Martin explained, "could declare an unconstitutional law void," thereby overruling the actions of the elected branches. None of the delegates disagreed with that.

"This Constitution defines the extent of the powers of the general government," Oliver Ellsworth told the Connecticut Ratification Convention on January 7, 1788. "If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void."

James Madison, often called the "father of the Constitution," made the same point in his June 8, 1789, speech to Congress introducing the Bill of Rights. The proper role of the courts, Madison said, was to act as "an impenetrable bulwark against every assumption of power in the legislative or executive." Not exactly a ringing endorsement of judicial deference, is it?

Now let's examine the specific legal issue on which Vance thinks that Trump is entitled to "extremely deferential" treatment from the courts.

Vance's statement came in response to a question about Trump's invocation of the Alien Enemies Act, a 1798 law that allows the president to direct the "removal" of certain aliens "whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government."

Trump invoked this wartime law in the hopes of deporting alleged members of Tren de Aragua, a street gang that first sprang up in Venezuela. But the Alien Enemies Act does not say what Trump claims that it says. There is no "declared war" between the United States and Venezuela, and there is no "invasion or predatory incursion" of the U.S. by "any foreign nation or government." Tren de Aragua is not a foreign state, and the gang's alleged crimes do not qualify as acts of war by a foreign state. Trump's position disfigures the text of the Alien Enemies Act to the point that it is no longer recognizable.

That is the "political judgment" that Vance finds so deserving of the judicial rubber stamp. "I think you are seeing an effort by the courts to quite literally overturn the will of the American people," Vance told Douthat. "You cannot have a country where the American people keep on electing immigration enforcement and the courts tell the American people they're not allowed to have what they voted for."

But of course, the courts can and should "tell the American people they're not allowed to have what they voted for" if what they "voted for" happens to be unlawful or unconstitutional. Indeed, that is the whole point of our constitutional system. We do not live in a pure democracy in which the president gets a blank check after every election. We live in a representative republic that is chock full of meaningful checks and balances, including the very important check against presidential overreach that we call judicial review."

The flaw in Justice Kagan defense of the NLRB

By Sean Higgins of CEI.

"Justice Elana Kagan authored a lengthy dissent to the Supreme Court’s decision on Thursday granting the Trump administration’s request to keep the Gwynne Wilcox, the former chairwoman of the National Labor Relations Board (NLRB), off the board. Kagan’s dissent defends the NLRB by repeatedly stating that it is “bipartisan.” The problem with her argument is that the law that created the board, the National Labor Relations Act (NLRA), doesn’t require it to be bipartisan. That is, its bipartisanship is a tradition, not a rule. And traditions can change.

This seemingly minor, pedantic point is significant because it may determine whether President Donald Trump can fire members of the NLRB, a quasi-independent federal agency that oversees private sector unions. Once a little-known agency, the NLRB has in recent years become one of the main battlegrounds for labor policy. Control of the board can swing policy drastically following presidential elections. Thursday’s action threw the ball back to the lower courts, but the case is expected to come back before the Supreme Court eventually.

Wilcox was President Joe Biden’s choice to chair the board and is widely seen as a union ally. Her firing was an unprecedented move by President Trump. The NLRA says that the president may remove board members “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” The White House argued that that NLRA provision was itself unconstitutional since it limited the president’s ability to control executive branch agencies.

At issue is whether the NLRB is an executive branch agency or an independent agency that can act autonomously. The Supreme Court’s Thursday decision – technically a stay of a lower court ruling – stated “our judgment  [is] that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.” MSPB refers to the Merits Systems Protection Board, another federal agency where a member’s dismissal by Trump is being contested.

Kagan’s dissent, joined by Justices Ketanji Brown Jackson and Sonia Sotomayor, appears to be premised in part on the idea that the NLRB’s bipartisanship weighs against the executive branch’s authority because that proves that Congress meant it to be independent. Such bipartisan splits are often cited as a benefit of independent agencies, because they provide an internal check that moderates their actions as well as proof that Congress intended them to be independent.

Kagan begins by pointing to the court’s 1935 ruling in Humphrey’s Executor, which limited the president’s power over federal agencies created by Congress. Kagan states that “Humphrey’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.” She identifies the NLRB as “a classic independent agency—a multi-member, bipartisan commission exercising regulatory power” and says that such agencies are “multi-member bodies of experts, balanced along partisan lines, with ‘quasi-legislative or quasi-judicial’ (not ‘purely executive’) functions” (emphases added).

The flaw in Kagan’s argument is that nothing in the text of the NLRA requires any partisan balancing of NLRB members or otherwise says which political party gets any open seats. The law merely says, “the Board shall consist of five instead of three members, appointed by the President by and with the advice and consent of the Senate.”

It is true that there has been a 3-2 partisan split on the NLRB since the 1950s, excepting for a few periods when one or more seats stood vacant due to difficulties getting members confirmed by the Senate. That partisan split is merely a tradition, one accepted by various presidential administrations as a means to ease Senate confirmation of NLRB appointees. Nothing prevents the president from only nominating members of one party to serve on the board, though they would probably have a harder time getting Senate confirmation.

It is possible that Kagan was merely invoking the NLRB’s tradition of bipartisanship in her dissent, not stating that the agency is required by law to be that way. However, she never makes this distinction. She should have though because a tradition does not have the weight of a legal requirement.

The bottom line is that the NLRB has always been a politicized agency and Trump’s firing of Wilcox was merely him pulling the pin on pushing it even further in that direction. Republicans may eventually come to regret this. Should Trump’s firing of Wilcox be upheld, as a Supreme Court majority appears inclined to do, that will create a precedent that will allow prospective future Democratic administrations to fire any Republican appointees and try to make the board all-Democratic."

The Lesson of Trump vs. Powell

Their dispute is a reminder that monetary policy can’t make up for economic policy errors like tariffs

WSJ editorial. Excerpts:

"The problem for Mr. Trump is that Mr. Powell spoke the truth. Tariffs are a tax, which means higher prices for tariffed goods. Mr. Trump has imposed a minimum tariff on the world of 10%, which is roughly four times the previous average U.S. tariff rate of 2.4%."

"there’s also mounting evidence that household and business uncertainty is mounting, which will weigh on the private investment Mr. Trump needs to spur growth. Consumer spending could ebb as falling stock prices cause the “wealth effect” underpinning consumer confidence to go into reverse. Many economists think a recession is on the horizon." 

"the Fed hasn’t reached its target inflation rate of 2%, so Mr. Powell is right to be wary of trying to offset the impact of tariffs by easing money too much or too soon."

"That was the mistake the Fed made in the 1970s after Richard Nixon suspended dollar convertibility to gold and blew up the Bretton Woods monetary system."

"If the President wants faster growth and less market turmoil, he can help by ending his tariff campaign. Then get Congress to move on a tax- and spending-cut bill, and press ahead with deregulation."

The Constitutionalists: John Roberts and Donald Trump

Many of the president’s actions align with the chief justice’s efforts to restore the U.S. government’s structural integrity

By James Taranto of The WSJ. Excerpts:

"Yet Article II also strictly limits his authority. It provides only that “the executive Power shall be vested” in the president. He gives effect to the law, but Congress (Article I) writes it and the judiciary (Article III) provides the authoritative reading. Mr. Trump affirmed this balance in a Feb. 19 executive order: “Ending Federal overreach and restoring the constitutional separation of powers is a priority of my Administration.”

The order directs agency heads to review all regulations and identify several categories of them for rescission, modification or nonenforcement. Among the targeted rules are those “that are based on anything other than the best reading of the underlying statutory authority or prohibition” and those “that implicate matters of social, political, or economic significance [and] are not authorized by clear statutory authority.”

This is the opposite of a power grab. Mr. Trump is asserting control of the executive branch and commanding it to bow to Congress by invalidating regulations that lawmakers never authorized. In doing so he amplifies the authority the Supreme Court exerted in two of Chief Justice Roberts’s decisions: Loper Bright v. Raimondo (2024) and West Virginia v. Environmental Protection Agency (2022).

In Loper Bright, the justices overturned a 1984 precedent and reclaimed the power to say what the law is, which the court had improvidently relinquished to the executive branch. In Chevron v. NRDC, environmentalists challenged the easing of an emissions regulation. The justices sided with the Reagan EPA and haphazardly mandated that federal judges defer anytime an agency administrator made a “reasonable interpretation” of an unclear statute. That effectively turned appointed bureaucrats—and, in practice, their politically unaccountable subordinates—into both lawmakers and judges.

In West Virginia, the court followed the legal lead of the first Trump administration. The EPA in 2019 repealed the Obama-era Clean Power Plan on grounds that it violated the “major questions doctrine,” which holds that agencies can’t make “decisions of vast economic and political significance” without clear congressional authorization. After the Biden EPA reinstated the plan, the justices struck it down and embraced the major-questions doctrine."

"Quoting Alexander Hamilton in Federalist No. 70, the chief justice observed that the Founders thought “the purpose of a ‘vigorous’ and ‘energetic’ Executive . . . was to ensure ‘good’ government,’ for a ‘feeble executive implies a feeble execution of the government.’ ”"

"In Humphrey’s Executor v. U.S. (1935), the high court upheld a provision of the Federal Trade Commission Act that prohibits the president from firing an FTC commissioner without cause. Although the FTC is nominally in the executive branch, the court found that Congress intended for it to be “a body of experts” whose “duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative.”"

"The Constitution says nothing about government by “experts,” and those “quasis” make a mockery of the structural separation of powers."

Trump, the NLRB, and Humphrey’s Executor

Does the Supreme Court believe in ‘independent’ federal agencies? Watch Gwynne Wilcox’s suit

WSJ editorial. Excerpts:

"Independent agencies are constitutional chimeras, yet the High Court blessed them, sort of, in Humphrey’s. “The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies,” the Court said. “Its duties are performed without executive leave, and, in the contemplation of the statute, must be free from executive control.” Now these bodies regulate much of the U.S. economy, and they’re democratically answerable to—well, who, exactly?

The precedent sits uneasily with Article II of the Constitution, which begins: “The executive power shall be vested in a President of the United States.” Consider that policing antitrust laws is now done by both the FTC (which the President doesn’t directly control) and the Justice Department (which he does). “When the agencies can’t decide who should deal with a merger, they literally flip a coin,” former FTC Commissioner Noah Phillips recently said. Meaning that whether a case reflects the President’s policies depends on chance?"

"In a 2020 case, Seila Law, the Court refused to extend Humphrey’s to the Consumer Financial Protection Bureau. “The CFPB is led by a single Director who cannot be described as a ‘body of experts’ and cannot be considered ‘non-partisan,’ in the same sense,” Chief Justice John Roberts wrote. 

"In a revealing footnote on Humphrey’s, the Chief added: “The Court’s conclusion that the FTC did not exercise executive power has not withstood the test of time.”

Justice Clarence Thomas was bolder. “The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, the liberty of the American people,” he wrote, joined by Justice Neil Gorsuch. “In a future case, I would repudiate what is left of this erroneous precedent.”"

Trump’s Executive-Power Restoration

His bold order putting ‘independent agencies’ under White House control echoes the Founders

WSJ editorial. Excerpts:

"The federal government includes dozens of agencies that are nominally independent of the President even though they enforce laws and exercise other executive power. This wasn’t part of the original constitutional design.

Such agencies took root during the Progressive Era of the early 20th century. Woodrow Wilson in particular disliked the Constitution and wanted government by bureaucratic experts shielded from political control. Thus evolved today’s government alphabet soup of the SEC, FCC, FTC, FEC, CFTC, CFPB, FERC, FDIC, the Federal Reserve, and more."

"His argument, echoed by many modern conservative scholars, is that insulation from presidential authority runs counter to Article II’s command that the President “take Care that the Laws be faithfully executed.” If Congress has charged such agencies with enforcing laws, then the President should be able to supervise how they do their job."

"His order requires these agencies to submit proposed and final rules to the Office of Information and Regulatory Affairs in the White House. OIRA, which is part of the Office of Management and Budget (OMB), will review rules to ensure their cost-benefit and legal analysis is rigorous"

"it is restoring the vision of the Founders who gave the President control over the executive branch. Today that control can be divided, as it is on antitrust policy, for example. The Federal Trade Commission and Justice Department both enforce antitrust and consumer protection laws. But the Attorney General answers to the President, while the FTC Chair doesn’t. This makes no logical governing sense."

"increasingly these “independent” agencies aren’t really independent. After Barack Obama endorsed regulating broadband providers as common carriers, his FCC Chair Tom Wheeler promulgated a net-neutrality rule that did so. Does anyone believe Mr. Wheeler was acting independently?"

"Joe Biden issued executive orders “encouraging” various independent agencies to “consider” issuing regulations—for instance, an FTC ban on non-compete agreements. They followed his orders."

"these bureaucracies have vast power over the lives and livelihoods of Americans. When they exceed their authority, a President should be able to hear and represent public complaints."

"Congress would still have its power of the purse, oversight, and advice and consent over nominees."

Four big reasons you should oppose KOSA

By Carolyn Iodice & Greg Gonzalez of FIRE.

"As congressional business draws to a close, legislators and activists are making a final push to get the Kids Online Safety Act over the finish line. The bill, which FIRE has opposed, passed the Senate earlier this year before being held up in the House of Representatives because of free speech concerns. On Dec. 7, with less than two weeks left on the congressional calendar, the Senate sponsors debuted new legislative text and X announced its support for the bill.

From its inception, KOSA has suffered from broad First Amendment issues. Supporters first denied that such problems existed, then begrudgingly made cosmetic changes. Unfortunately, the changes made to the bill don’t address any of its threats to free speech.

Here are four of the biggest.

KOSA’s “duty of care” opens the door to direct government censorship

KOSA requires various online platforms to take “reasonable care in the creation and implementation of any design feature to prevent and mitigate” potential harms to minors. These harms include:

• Mental health issues like anxiety, depression, and eating disorders
• Compulsive social media use
• Violence, harassment, and sexual exploitation
• Drug and alcohol use and gambling
• Financial harms caused by unfair or deceptive practices 

KOSA’s supporters believe that focusing the duty of care on “design features” solves the bill’s First Amendment issues, but in reality it only masks them. The term “design features” is broadly defined to include any feature of the platform that would cause minors to spend time on it. But pretty much all of the features of social media platforms are designed for creating and sharing content and talking to other users — all activities that teens (and adults!) like to spend time on, and all squarely protected by the First Amendment.

The bill drives this point home by explicitly noting that “design features” include the systems used by websites to sort and recommend content to users. Platforms will be on the hook for harms (allegedly) caused by that content. And imposing liability for the impact of content — of ideas — on readers will always pose a First Amendment problem.

What actual steps does the duty of care require platforms to take with respect to “design features”? Nobody can say for sure — it’s up to the platforms, the Federal Trade Commission (which enforces the duty of care), and the courts to interpret the platforms’ obligations after the law is passed.

This ambiguity hands enormous power to the FTC to decide how social media platforms can operate, leaving all kinds of constitutionally protected speech at risk. For just a few hypotheticals:

• The fashion industry has been accused of causing eating disorders. Can the FTC require social media companies to throttle the spread of images from Vogue or photos by fashion bloggers?
• The news media has been accused of promoting violence — “if it bleeds, it leads” — and making people anxious as a result. Some social scientists have also argued that media reports of shootings can inspire copycats. Can the FTC require platforms to change their systems to limit the spread of news-related content that the government thinks could upset teens or inspire them to violence?
• Some conservatives argue that clinics providing gender transitions to minors use deceptive practices, while some liberals argue the same about crisis pregnancy centers. Under KOSA, can a conservative FTC force websites to limit access to information from or about clinics that provide gender transitions? Can a liberal FTC force websites to do the same for crisis pregnancy centers?

KOSA entrenches aggressive moderation by social media platforms

KOSA incentivizes platforms to ban users, remove useful features, and block content that could attract the government’s scrutiny, even when such steps are not explicitly mandated.

In addition to the duty of care, KOSA imposes other regulations of “design features” that are enforced by the FTC and by all 50 state attorneys general. As noted above, the term “design features” effectively includes any feature of a platform that minors use. Explicitly included in this are content recommendation systems, infinite scrolling, notifications, and image filters.

State attorneys general have also argued in court that other common “features” cause kids to spend too much time online. These include: short-form videos, livestreaming, non-chronological content feeds, and content that a user posts only for a limited time (as opposed to permanently).

KOSA’s vague mandates for these “design features” — with more than 50 different enforcers — leave a regulatory hammer hanging over social media platforms. Platforms will have no way to accurately predict how particular content or features will impact users, nor how the FTC and the states will interpret KOSA’s requirements. The safest course of action to avoid liability will be for the platforms to curtail sensitive or controversial content, features, and users.

This censorship could come at the direct request of the government, as we’ve witnessed recently, and it could come from platforms’ anticipating bureaucrats’ reactions and preemptively censoring controversial voices. And with enforcers in every state, platforms will be in the impossible position of deciding whether to restrict content or features that, for example, a blue state’s attorney general opposes and a red state’s attorney general supports (or vice versa). The preferences of one state’s attorney general could affect the speech rights of Americans nationwide.

Platforms that don’t engage in this proactive censorship — platforms that allow a truly free flow of speech and ideas — would more likely face investigations and/or lawsuits. This makes it hard for any competitor to challenge the status quo, and exceedingly risky to host content disfavored by whoever is in power at any given moment.

KOSA effectively requires platforms to end anonymous speech

KOSA requires websites and apps to apply different rules to underage users’ accounts and threatens lawsuits and penalties for platforms that fail to do so. This puts enormous pressure on platforms to implement age verification systems. Since age verification systems necessarily require verification of the user’s identity, their implementation would eliminate users’ ability to speak anonymously."

How the Supreme Court Helped Democrats

Their losses would have been greater without rulings that protected campaign spending as political free speech

WSJ editorial. 

"Democrats took a pounding last week, but it could have been worse. The party was spared from an even bigger rout by their huge advantage in campaign spending, and for that they can thank their billionaire donors—and the Supreme Court they love to hate.

Kamala Harris raised more than $1 billion and spent more than $900 million, while the Trump campaign raised around $380 million and spent more than $350 million. In swing states Democrats had the edge in campaign spending across the board.

The margin was closest in Pennsylvania, where Democrats spent $109 million to Republicans’ $102 million. In Michigan Democrats spent $81 million to Republicans’ $18 million. In Wisconsin it was $49 million to $15 million, according to AdImpact. Mr. Trump won those states, but more narrowly than his advantage on the issues and the national turn to the right suggest he might have.

So-called independent expenditures outside the campaigns also broke records. Independent spending in all 2024 federal races was some $4.5 billion and flowed through Super Pacs allied with campaign operations, according to OpenSecrets. The Super Pacs in turn were often funded by 501(c)4s and other nonprofit groups, the “dark money” bogeymen of Sen. Sheldon Whitehouse’s nightmares. In key Senate races in Wisconsin, Michigan, Pennsylvania, Montana, Arizona and others, independent spending by both sides ran into the tens of millions.

Looking at all federal campaign spending, Democrats beat out Republicans with some $4.5 billion in political ads compared with the GOP’s $3.5 billion. That included ad spending for presidential, congressional and down-ballot races including campaigns and independent spending. Democratic independent groups spent $2.4 billion while Republican independent groups spent $2.2 billion, according to AdImpact.

The great irony is that none of this would have been possible without Supreme Court decisions that have opened the door to more money in elections. McConnell v. FEC in 2003 cracked open the door by allowing political parties to coordinate with candidates and make unlimited independent expenditures. Citizens United v. FEC in 2010 allowed corporations and unions to spend money in elections. The D.C. Circuit’s decision in SpeechNow v. FEC in 2010 unleashed independent spending by Super Pacs.

The Court ruled that the First Amendment protects political speech, and spending on campaigns is a form of speech. If not for these rulings, which Democrats denounce every other day, Republicans would have bigger majorities in Congress. Funny how you don’t hear cries for “campaign finance reform” this year.

What other gifts might the current Supreme Court majority bestow upon Democrats? With Mr. Trump coming back to the White House, the left may learn to love the major questions doctrine, which requires clear direction from Congress on consequential regulations from the executive branch. Democrats raged against that ruling and the Supreme Court’s 6-2 decision striking down Chevron deference in Loper Bright Enterprises v. Raimondo, which will also restrain Mr. Trump’s regulators.

Democrats will never admit it, but the Bush-Trump Justices will spare them from even greater political defeats."

All the President’s Legal Defeats

Biden’s agencies keep violating the law and losing in court: the list

WSJ editorial. 

"President Biden considers himself a law-abiding fellow. But when it comes to living within the law as established by Congress, his Administration is the most lawless in long memory. His regulators keep rewriting laws as they see fit, and the result is that they keep losing in court in humiliating fashion. 

As a public service, and to illustrate the breadth of the law-breaking, we’re providing a summary of the legal defeats across five of the most lawless agencies. Clip and save in case Donald Trump or Kamala Harris retain anyone running these agencies.

***

Federal Communications Commission

• Net neutrality rule. The FCC tried to classify broadband providers as common carriers under Title II of the Communications Act of 1934. The Sixth Circuit Court of Appealsblocked it in August, citing the Supreme Court’s major questions doctrine, which holds that regulators need express direction from Congress on consequential rules.

• National Association of Broadcasters v. FCC. In 2022 the D.C. Circuitvacated part of a 2021 FCC rule requiring broadcasters to verify the sponsors of programs by checking two federal sources

Department of Education

• Student loans. The Supreme Court ruled 6-3 in 2023 (Biden v. Nebraska) that Mr. Biden’s plan to forgive $400 billion in student loans usurped Congress’s power of the purse. Mr. Biden then boasted that the Court couldn’t stop him and came up with the SAVE plan, which caps payments at 5% of discretionary income and forgives balances after 10-20 years. The Eighth Circuit recently put that plan on hold with a nationwide injunction.

• Title IX. Six federal judges this year have blocked a new Title IX nondiscrimination rule from going into effect in 26 states. “The new rule contravenes the plain text of Title IX by redefining ‘sex’ to include gender identity, violates government employees’ First Amendment rights, and is the result of arbitrary and capricious rulemaking,” wrote Judge Danny Reeves.

***

Environmental Protection Agency

• Clean Power Plan. In 2022 the Supreme Court vacated an Obama-era rule regulating greenhouse gas emissions. “EPA ‘claim[ed] to discover in a long-extant statute an unheralded power’ representing a ‘transformative expansion in [its] regulatory authority’” in violation of the major questions doctrine, wrote Chief Justice John Roberts for a 6-3 majority in West Virginia v. EPA. The Biden Administration has issued a new rule that also uses indirect means to shut down coal plants and is being challenged in court.

• Waters of the U.S. In 2023 the Supreme Court ruled 5-4 in Sackett v. EPA that dry land on the Sacketts’ property doesn’t constitute “waters of the United States” under the Clean Water Act merely because it has a tangential connection to a navigable body of water.

• Good Neighbor Plan. In June the Supreme Court issued a stay on the EPA’s “good neighbor” rule that would have restricted ozone emissions in certain states because of their alleged downwind effect on other states. The EPA’s plan “likely runs afoul” of “long-settled standards,” Justice Neil Gorsuch wrote for a 5-4 majority.

***

Federal Trade Commission

• Noncompete ban. In August a federal judge struck down FTC Chair Lina Khan’s 2024 rule banning employee noncompete agreements. Judge Ada Brown concluded the FTC lacked legal authority under the FTC Act and that the rule was “unreasonably overbroad without a reasonable explanation.”

• Welsh Carson antitrust case. In May federal Judge Kenneth Hoyt dismissed an FTC lawsuit against Welsh Carson. The private equity firm had a minority stake in an anesthesiology company, and the judge ruled that even if the anesthesiology firm violated antitrust law, holding a minority stake couldn’t make Welsh Carson liable.

• Administrative law judges. In 2023 the Supreme Court ruled 9-0 in Axon Enterprise v. FTC and SEC v. Cochran that companies can take constitutional challenges to federal court rather than having to first go through administrative agency tribunals that invariably rule for the agencies.

• Meta acquisition. In January 2023, federal Judge Edward Davila ruled that the FTC did not meet standards of proof in its antitrust case against Meta’s acquisition of virtual reality app Within Unlimited.

• Microsoft purchase of Activision Blizzard. In 2023 federal Judge Jacqueline Scott Corley dismissed the FTC’s attempt to block a Microsoft-Activision merger. “The FTC has not shown it is likely to succeed on its assertion the combined firm will probably pull Call of Duty from Sony PlayStation, or that its ownership of Activision content will substantially lessen competition in the video game library subscription and cloud gaming markets,” the judge wrote.

***

Securities and Exchange Commission

• Proxy advisory rule. In June the Fifth Circuit ruled that the SEC’s rescission of a 2020 proxy advisory rule was arbitrary and capricious. SEC Chairman Gary Gensler had sought to preserve the duopoly of Glass Lewis and Institutional Shareholder Services.

• Private fund disclosure rule. In June the Fifth Circuit blocked the SEC’s rule that would have micromanaged contracts between private funds and their investors, saying the agency lacked statutory authority.

• Debt Box. In March a federal judge in Utah imposed sanctions on the SEC “for bad faith conduct” in its crypto case against Debt Box. In May the SEC was ordered to pay $1.8 million in fees and the case was dismissed.

• Stock buyback rule. In December 2023, the Fifth Circuit vacated the SEC’s rule that required extensive public disclosures when a company decides to buy back its own shares: “The SEC acted arbitrarily and capriciously, in violation of the APA, when it failed to respond to petitioners’ comments and failed to conduct a proper cost-benefit analysis.”

• Grayscale. In 2023 the D.C. Circuit ruled against the SEC’s denial of Grayscale’s bitcoin fund. “The denial of Grayscale’s proposal was arbitrary and capricious because the Commission failed to explain its different treatment of similar products,” Judge Neomi Rao wrote for the court.

• Ripple. In 2023 federal judge Analisa Torres rejected a significant part of the SEC’s case against Ripple’s sale of a digital token. Judge Torres ruled that about half of Ripple’s token sales did not constitute an illegal securities sale.

***

This is an extraordinary record of lawlessness, and note the variety of judges who have ruled in these cases. They illustrate the degree to which the progressive administrative state simply disregards the law as its avatars seek to impose their will on Americans without the consent of the governed.

It’s also worth noting that both FTC Chair Khan and SEC Chair Gensler were Sen. Elizabeth Warren’s hand-picked choices whom President Biden accepted when he subcontracted his Presidency to the left. They bull-rush their policies via regulation and dare the judiciary to stop them. Americans are fortunate the Founders created an independent judiciary to block this will to undemocratic power."

Net Neutrality Goes Down in Court

The Sixth Circuit blocks the overreaching FCC rule, citing the Supreme Court’s major questions doctrine

WSJ editorial.

"The Biden regulatory blitz continues, but courts are beginning to do their job to stop the biggest legal overreaches. A Sixth Circuit Court of Appeals panel last week blocked the Federal Communications Commission’s net neutrality rule, citing the Supreme Court’s major questions doctrine. Welcome to the post-Chevron world.

Democrats on the FCC this spring reclassified broadband providers as common carriers under Title II of the 1934 Communications Act. This let the commission regulate broadband rates and impose “non-discrimination obligations.” The Biden FCC wants to impose political control over the internet.

But as the three-judge Sixth Circuit panel explains in an unsigned order, the law doesn’t let the FCC regulate broadband providers as common carriers. The D.C. Circuit Court of Appeals upheld the Obama FCC’s Title II rule in 2016 under the Chevron doctrine, which required judges to refer to regulators’ interpretations of laws if they are “reasonable.”

The High Court tossed Chevron this summer, in a long-overdue ruling that restored the job of judges to assess if regulators have exceeded their statutory power. Critics, including the Court’s liberals, said lower courts would struggle to review regulations in a post-Chevron world. Not the Sixth Circuit. Two of the three reviewing panel’s judges are Democratic appointees, one of whom was elevated by President Biden. The other is Chief Judge Jeffrey Sutton, appointed by George W. Bush.

As the panel explains, the Telecommunications Act of 1996 “created a new category of ‘information service’” providers separate from common carriers. The panel also cites the Supreme Court’s major questions doctrine, which requires Congress to clearly authorize significant administrative actions.

“An agency may issue regulations only to the extent that Congress permits it,” the panel writes. “The more an agency asks of a statute, in short, the more it must show in the statute to support its rule.” The FCC pointed to a catch-all in the 1934 law that lets it “prescribe such rules and regulations as may be necessary in the public interest” to implement Title II.

“But such general or ‘ancillary’ authority to fill gaps in Congress’s regulatory scheme does not suffice to show that Congress clearly delegated authority to resolve a major question like this one,” the panel writes. In the Chevron world, judges routinely deferred to administrative agencies when regulators sought to fill in such “gaps.”

The Justices have put lower courts and administrative agencies on notice that they cannot read between a law’s lines to implement policy without clear Congressional command. Will the White House hear the Court now?"

Forced National Service: Worse Than The Draft

Instead, Americans value voluntary service—and their freedom

By David R. Henderson. 

"In my Defining Ideas article last month, “The Draft Is Still a Bad Idea,” I made the case against a traditional draft to obtain military manpower. A related proposal is for a universal draft of young people, male and female, that would give them a choice between military and civilian service.

That kind of draft is also a bad idea. Some of the arguments against such a draft are the same as the arguments against a military draft. The distinctive features of a universal draft also bring other issues into play. The bottom line, as I shall show, is that a universal draft is even more objectionable than a limited military draft. A universal draft, like a military draft, would violate young people’s freedom to choose their occupations and would take no account of the losses to these young people. In addition, a universal draft would, by definition, take away the freedom of many more young people than a military draft would. Also, as some officials in the military have recognized, a universal draft could make it more difficult for the military to get its desired amount of high-quality first-term manpower.

Dark impulses behind some proposals

Although some readers might think that universal national service is a new idea, it has been part of the conversation in the United States for over a century. Many of the advocates showed little regard for the people they wanted to draft.

Exhibit A is noted philosopher and psychologist William James. In 1910 he published an article titled “The Moral Equivalent of War,” in which he advocated a universal draft of young men. His article was based on a 1906 speech he gave at Stanford University. What was James’s case? He wrote:

To coal and iron mines, to freight trains, to fishing fleets in December, to dishwashing, clothes-washing, and windowwashing [sic], to road-building and tunnel-making, to foundries and stoke-holes, and to the frames of skyscrapers, would our gilded youths be drafted off, according to their choice, to get the childishness knocked out of them, and to come back into society with healthier sympathies and soberer ideas.

Note something in this quote that the late Hoover fellow Martin Anderson pointed out in a 1989 conference on national service held at the Hoover Institution. It wasn’t just that James wanted young men to be forced to work in fishing fleets. No. He wanted them to be forced to work in fishing fleets in December, one of the harshest months during which to be working on a boat. In his written remarks, Anderson stated:

There is a streak of cruelty here (fishing fleets in December?), of a barely concealed, seething lust to control the young, to hurt them, to crush the innocent enthusiasm for which the old so often envy the young.

Parenthetically, that quote reminds me of one of the main characteristics I appreciated in the late Martin Anderson. Even though he had no children, in his activity during the Nixon administration to end the draft and in his later writing against its renewal, Marty showed an intense compassion for young people.

The suggestion of harsh measures for young people wasn’t unique to William James. In the famous December 1966 conference on the military draft, a conference that attendee Milton Friedman saw as a turning point towards opposition to the draft, noted anthropologist Margaret Mead called for drafting women as well as men. She recognized that there was a special problem with women that didn’t exist for men: women can get pregnant. (It’s too bad that Mead wasn’t around to explain that fact to Supreme Court justice Ketanji Brown Jackson, who, in her confirmation hearing, said that because she was not a biologist, she could not give a definition of a woman. Anthropologist, not biologist, Margaret Mead had no such difficulty.)

How did Mead suggest dealing with young women who got pregnant while in national service? In a word, harshly. In her presentation at the 1966 conference, Mead stated, “[P]regnancy could be treated as a severe breach of contract, comparable to going AWOL in males.” Was she saying that such women should be imprisoned? It appears so. Was she saying also that they should be separated from their newborn babies? We don’t know. Mead stated further, “Part of the institution of universal national service would be the postponement of marriage until the service was completed, if universal national service takes the form of a nationwide call-up at eighteen.” She didn’t say what she would do to prevent girls from marrying before age eighteen.

In the late 1970s, when I became involved in opposing measures to reinstitute the draft, the idea for a national-service draft had become popular with some people, fortunately a minority, from across the political spectrum. In January 1979, an organization called the Potomac Institute published a short book titled Youth and the Needs of the Nation that presented the case for national service. The first part of the book presented the findings and recommendations of the Committee for the Study of National Service. Here’s a quote from that part of the book:

During the Committee’s study, two participants went to China (under other auspices). Like visitors to the People’s Republic before them, they came back impressed and challenged by the extraordinary mobilization of the talent of young people possible under authoritarian, post-revolutionary conditions.

It is true that an authoritarian government can achieve “extraordinary mobilization” of millions of people. The committee did not explain how the Chinese Communist government achieved this. Maybe its members understood that specifying the needed methods would turn people off. That would explain why the committee stated:

Some of us favor the adoption of mandatory National Service as soon as the public can be persuaded to support it, although no member of the Committee favors sending anyone to jail who refuses to serve.

That makes me wonder what the committee members meant by the word “mandatory.”

Actually, though, one member of the committee, Donald J. Eberly, did favor prison sentences for people who refused to serve. I know this because I debated him at Brown University in April 1979. The topic was the McCloskey bill, named after then-congressman Pete McCloskey. Eberly was the author of the national-service part of the bill. He was also a nice elderly man who looked like one’s ideal grandfather, making me doubt whether I would win the debate. But I did win by using one simple technique: quoting again and again the part of the bill that said that those who refused to comply would be charged with a crime and would, if convicted, be subject to a fine of up to $10,000 and/or a prison sentence of up to five years.

This tour of the landscape from 1906 to 1979 gives a feel for how long the compulsory national-service idea has been with us. Later proposals are similar although, for whatever reason, less spelled out.

The case against compulsion

The above documentation of the brutality of some of the proposals for national service implicitly makes the case against compulsion. Fishing fleets in December? Pregnancy being equated to going AWOL? Advocates being impressed by the Chinese government’s “extraordinary mobilization of the talent of young people”?

Nevertheless, the case against compulsion should be made explicit. One of the most important freedoms we have is the freedom to choose what to do with our lives, whether we are old or young. A national-service draft would destroy that freedom whether, depending on the particular version, for one year or two years. That’s wrong and is inconsistent with one of our proudest founding documents, which many of us celebrated last month. The Declaration of Independence stated that among our “unalienable rights” are “Life, Liberty, and the pursuit of Happiness.” A draft, whether for military or civilian service, violates the right to liberty.

And it’s not just the Declaration of Independence that speaks to liberty. The US Constitution, specifically the Thirteenth Amendment, guarantees freedom not to be drafted. Section I of that Amendment states, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Some people argue that Congress’s goal in passing that amendment was to end slavery and prevent its reimposition. But if that had been the only goal, Congress would not have added the words “nor involuntary servitude.” A draft is clearly involuntary servitude.

The negative effect on the military

During part of my time as an economics professor at the Naval Postgraduate School, the US Navy funded my research. In the late 1980s, when Senator John McCain and others were making noises in favor of universal national service, I proposed to my research sponsor that I study the issue. My sponsor quickly said yes. Why? One main reason was that two of the key people who signed off on the proposal were economists who understood the economics of the draft. They were against the draft on principle, but that wasn’t all. In previous conversations, they had pointed out an unintended negative consequence of universal national service: more difficulty in getting high-quality military manpower.

Here was their argument, which I found, and still find, persuasive. Think of the pool of young people whom the military has a chance of recruiting. The military must compete against colleges and employers. But introduce universal national service. Now the military must compete against civilian service as well. To be sure, there will be people whom the military would like to have who find civilian service unattractive. But there will also be people who want some kind of adventure and would satisfy part of their desire with a safe civilian job instead of a somewhat more dangerous military job.

The argument is not a slam dunk, but my two sponsors had thought about it enough, and looked at the demographics enough, to be convinced that a universal-service draft would make things more difficult for the military.

Building character and becoming adults

One desire that many advocates of universal national service share is that of molding young people into responsible adults. It’s a good goal.

But the main way people become responsible is by making choices and being accountable for the outcomes. Taking away their freedom to choose their work doesn’t seem like a clearcut way to make them more responsible. We do sometimes hear of former draftees asserting that being drafted was good for them because it made them responsible early. The most likely conclusion, then, is that drafting people would make some people become more responsible earlier than otherwise while postponing responsibility for others. Either way, it’s not a slam dunk.

Interestingly, though, in Youth and the Needs of the Nation, every example that the aforementioned committee gave of successful community service was of voluntary service. The committee stated:

Yet service to others, and voluntary action without waiting for government leadership or command, has been a special American theme from the first days of colonial settlement. In the early 19^th century, de Tocqueville saw it as the secret of American success—just as the involuntary servitude of some Americans was the nation’s greatest sin. Frontier life required that neighbors help each other build barns, fight fires, harvest crops, and care for the sick. Popular movements for the abolition of slavery, for women’s suffrage, and for civil rights are later manifestations of the same spirit; the growth of the Boy Scouts and Girl Scouts, the Little Leagues and 4H Clubs, are other less political examples involving young people, as is all the free time given to the wide range of religious and civic organizations in our midst.

I emphasize that all of those activities, as the committee itself noted, were and are voluntary. I’ll close by noting an additional irony. In a document that advocated mandatory service, the authors stated that involuntary servitude “was the nation’s greatest sin.” I couldn’t have said it better."