John Roberts was right!  The Chief Justice played the long game in 2012 (NFIB v. Sebelius) in rejecting a challenge to the constitutionality of the Affordable Care Act, and now he is looking good, his decision is starting to seem wise.

Among conservatives, conventional wisdom in 2012 was that Obamacare would be a catastrophe, that it would cause irreparable harm, and that it was the duty of our four-and-a-half “conservative” justices to invalidate the law before it was too late.  The Chief, nominated in 2005 because perceived as the best available conservative-jurist, had been expected, as a member of the Court’s conservative bloc, to vote to sustain the first legal challenge to the constitutionality of the ACA to reach the high court.  He was under enormous pressure to do so, but he shocked virtually everyone – including his conservative colleagues on the Court – by joining the progressive justices in voting to validate the ACA.  Most conservatives, jurists or not, were appalled, and many, in hindsight, indicated they should have swapped John Roberts for a conservative counterpart to Justice Ginsburg – that is, a jurist more interested in partisan outcomes than in disinterested legal-analysis.

A few of us got shouted-down in the process of trying to make the point that the Roberts ruling was not progressive or leftist at all, that it was in fact a quintessential expression of conservatism.  Our point was that the Chief had been loyal to one of the most fundamental principles of the Court’s mission:  do not declare an Act of Congress unconstitutional unless there is no reasonable basis for salvaging it, for finding it constitutional.  The foundation of that interpretive principle is the doctrine of separation-of-powers:  federal laws are to be made only by Congress, not by the President or the courts.

The Chief’s fear, in the view of some of us, was that the NFIB case might eventually become as important, and as unsettling and divisive for the entire country, as Roe V. Wade, the notorious 1973 case in which the Supremes not only bought the constitutional argument that the Fourth Amendment confers a right of privacy, but construed a state-law prohibition of abortion as an infringement of that implied right.  In our view, and possibly the Chief’s, abortion would have been a far-less controversial issue in 2012 had the Supreme Court decided in 1973 to leave abortion policy to the several states, because many states would have gone ahead and legalized abortion on their own initiative, while others would not – an outcome far less-provocative than having the courts take the matter out of the hands of the public.  But because the ’73 Court elected to settle the matter on its own, we were left with a simmering controversy that seems to have intensified rather than abating.

It has been reported that the Chief was troubled by the 2012 case, and that he changed his mind at least once before determining that the individual “mandate” under the ACA (the requirement that everyone obtain healthcare insurance) would pass constitutional muster if its enforcement were treated as a “tax,” even though the Administration had consistently characterized it as a “penalty.”  The Chief’s ultimate reasoning was that the penalizing of one’s going uninsured was the imposition of a tax, and Congress has the authority to impose taxes.  Although that reasoning was not uniformly shared within the progressive bloc of the Court, the Chief’s vote did create a majority in favor of validating the ACA.

During the ensuing uproar, few conservatives took the trouble to consider the possibility that the Chief’s intent was to reinforce the constitutional separation of powers by finding a way to honor the will of Congress and keep the decision out of the hands of the courts.  Moreover, few took the trouble to deduce that he was appalled by the prospect of rendering a controversial opinion that could have a serious impact upon the upcoming elections. Largely ignored was the possibility that the Chief did not want NFIB to become another Roe v. Wade, a lingering source of controversy and anger, and that he did not want the “conservative” bloc to be perceived as being as partisan (in favor of conservative positions) as Justice Ginsburg and her progressive colleagues were (in favor of progressive positions).

Most Republicans and conservatives have remained unaware of such considerations or unimpressed by them.  For many, the Roberts ACA ruling wasted what might have been the only chance for the nation to avoid the single-payer system toward which the ACA was ineluctably headed.  But a few inferred that the Chief might have reasoned that finding the ACA unconstitutional would not permanently stamp-out the push toward socialized medicine, that ironically it might assist the Left by mobilizing them for the 2016 elections, thereby helping to make single-payer healthcare permanent in this country, whereas a Republican victory in 2016 would at least give the Republicans a decent chance of legislatively unwinding ObamaCare before the damage had become irreversible.

The view here is that the Chief played the long game, and now it looks like he will win his bet. The Republicans did sweep in 2016 and are now poised to replace the ACA.  After four years of President Trump, Roe v. Wade might still be the law of the land and the source of continuing anger and controversy, but ObamaCare might have been replaced by a healthcare program so popular that the original ACA would be nothing but an unpleasant memory.  One way or the other, Chief Justice Roberts will have left us with a healthcare system (whether the original ACA or its replacement) that has been adopted by our Congress rather than one crammed-down upon us by our courts, and as a bonus our judicial system will have regained the respect of both the Left and the Right because of Roberts’s insistence upon a judiciary that decides cases on the merits rather than on the basis of the identities or beliefs of the parties.  The power and reputation of the Supreme Court will have been not just upheld, but enhanced, and at that point the Chief would have earned a very private “I told you so” and a sigh of satisfaction.

Could We Play Golf a Little Slower, Please?

The essence of a message I sent to a golf writer in response to a piece he wrote on the subject of Jason Day’s lament that he opposes efforts to make him play faster, because he feels the slower he plays, the better he plays:

Interesting comments by Day.  Two thoughts:  (i) I think he is correct in his assessment that he is a better player when he takes longer.  I have the same feeling in my Sunday Nassau game – I wish I had a half hour on every putt, so I could look at it from every angle, try the read-thru-your-feet technique, try Stacy Lewis’s thing with the finger-counting, read the grain, read the grass around the edge of the cup, look for the drainage direction of the green, read the wind, do a plumb job, and then maybe ask my playing companions for their opinions, based on their local knowledge.  For that matter, I wish I had one of those topographical charts that the Tour pros get from their caddies, so I could get the last word on every single slope at any location on the green.   However, if I tried all of that crap, I would quickly find myself trying to remove a pitching wedge from my forehead.  (ii) This might be a good time to remind Mr. Day (and others with similar habits) that they are in the entertainment business, not trying to cure cancer.  Sure, he gets better with more time, and some guys (Snedecker) would benefit more than others by the tour’s installing a shot clock, but what difference would the Day-model make if the result were that everyone played at Day’s pace and eventually no one gave a damn about watching TV golf – which is already at the threshold of wearing out the audience’s patience.  The point of pro golf is not to “identify the best golfer”, as the USGA insists, it is to entertain the viewing audience sufficiently that they will continue to pay for the Jason Days of the world to live like a Saudi prince.

Of course, some day soon, we will have an electronic device, perhaps built into our GPS distance-finder, and all you have to do is say, Hey, Siri, how does this putt break?  And by the way, how’s my launch angle with my driver?  Boy, would that ever make must-see TV.  Of course, Jason Day might still find a way to take 6 hours to play his round.



Apparently Meryl Streep, Jimmy Fallon, and others used the stage at last night’s Golden Globes awards presentation to remind us of their political beliefs.  As though we needed reminding.  Not that one keeps a formal list, but nowadays when I grit my teeth and tackle the menu at Netflix to seek a movie worth blowing a beer and a couple of spare hours on, I employ a trolling technique that has been refined to where there are two categories where I automatically skip whatever the movie might be, no matter how many stars it has been given:  (i) anything in which I recognize none of the featured actors, as that is a dead-giveaway that the movie has been made-to-order by Netflix, meaning it is complete trash starring terrible actors and produced, directed, and written by incompetents, seemingly inspired by some kind of polling data supposed to indicate the kind of junk the stupid masses, even the deplorables, would buy; and (ii) anything starring Meryl Streep, Ben Affleck, Samuel L. Jackson, or any others among the dozens of uber-lefties who have gone out of their way to proclaim their political views and to find roles that allow them to flaunt those views.  Dare one hope that we are nearing a tipping point where the entertainment world, including the sports world, will start to realize how much money this gratuitous politicization is costing them?


Having exhausted oneself in “I told you so” boasts of anticipating the Trump counter-revolution, one feels the need to observe the change-of-mood that has accompanied the end of the Obama revolution.  Now that our eight-year dalliance in central planning, socialism, authoritarianism, globalism, and un-payable national debt is coming to a nasty, sore-loser conclusion, it is time to reflect.  Time to give credit where it is due, to acknowledge that President Obama, for all his dark intentions, has given America the greatest gift that could have been bestowed at this scary stage of our devolution: a master class in where Obamaism leads.  If we survive the Obama years, if we can even make it through the President’s astonishing exit-tour agenda of completing the obliteration of the State of Israel and of the constitutional principle of “separation of powers,” the country might still be salvageable, even if not especially healthy.

After an adult lifetime of noticing how well the country does when mostly left alone by its government, one is not shocked by the stock market rally or other indicators of a revival in domestic confidence and international respect.  Corporate America loved Obama once it thought it had bought him, but it turns out that in the end, the private sector would rather compete in a free market than perpetually pay the going price for favored treatment from the government.  In dealing with the president, Wall Street eventually realized that, as the late Mayor Daley of Chicago once said of an adversary, “the trouble with this guy is that he won’t stay bought.”

The animal spirits are re-emerging, and already it is invigorating to feel it might once again be great to be an American, to expect to be rewarded for industry and talent rather than for one’s race, creed, gender, sexual orientation, or political leaning.  After eight depressing years of darkness, suddenly there is light, suddenly it is morning in America again and “hope and change” can mean something other than a step back into the Middle Ages.  Suddenly one feels less fear about exposing one’s progeny to long-term reeducation by the country’s education system.


Federal regulations (“regs”) have been around for quite a while.  Regs are issued by federal agencies rather than by Congress, but they look and operate just like laws adopted by Congress:  the government can fine you or seize your property or even jail you if you violate certain regs or certain laws.  Both laws and regs are rules:  each compels or prohibits conduct and can carry punishments for violations.  Laws regulate, and regs regulate.  The most-significant difference is that laws stand on their own, but every reg relates to a particular law and is supposed to explain or interpret that law or add processes for demonstrating compliance; you cannot have a reg without a law that is its source.  Executive Orders, governance by “a pen and a phone,” are just an alternative format for regs – they are presented by the White House itself, rather than by federal agencies, but they function just as regs do.

When conservatives argue for deregulation, there is ambiguity:  they might seek a reduction in the severity of a particular rule (“Don’t set such elevated MPG requirements for vehicles”), or they might want a reduction in its complexity (“Don’t require 1,000 pages of forms to support the MPG ratings you claim”).   Whether a rule is articulated as an Act of Congress (a law) or as an addition to the Code of Federal Regulations (a reg), is very important to political analysts and constitutional lawyers, though the distinction is not as important to economists.  When Mr. Trump proposes “deregulation” of the financial sector, does that mean he would lighten the substantive impact of the Dodd Frank Act (DFA) and the DFA regs, or reduce their volume and complexity, or both?  Is he just another politician who wants to alter the rules so that they favor the consequences he prefers?  Or is he interested in transforming our government by shrinking it, by moving it away from the micromanaging specificity of contemporary laws and regs and toward simpler laws and regs that articulate general principles but leave it to the judiciary (not the White House or Congress) to apply those principles to individual cases?

Here is the political case against regs:  they are constitutionally-suspect because they alter the laws they purport only to explain or interpret, and thus they are, in effect, legislation by the wrong branch of the government – especially where the affected law is so vague that it is little more than an outline, virtually a PowerPoint presentation of topics (viz, the ACA).  Here is the social and economic case against regs (and unwieldy laws, for that matter):  (i) they undermine the “Rule of Law” because they are so complex that normal people and small businesses have no idea of whether they are in violation; and (ii) they  burden the economy by driving up costs, by discouraging innovation and entrepreneurial behavior, and by diverting resources away from their most-productive uses.

Just how detailed and complex are regs?  Consider:  according to Davis Polk & Wardwell LLP, the DFA, as of July 21, 2015, consisted of more than 800 pages, but the 15 (!) federal agencies charged with writing regs for Dodd-Frank had already published over 22,000 pages of regulatory content pertaining to Wall Street reform, and they were far from done – the SEC published massive changes in July of 2016.  See   .  Getting the idea?

Conservative politicians and economists believe the purpose of government-by-micromanagement (regs or enormous laws), its intended outcome, is central-planning, which is the identifying marker of extreme-leftist governments.  In the conservative view (best articulated by Hayek), the “Rule of Law”  exists only when you have laws that are clear, concise, understandable by all, and enforced with dispatch and without discrimination based on whose ox might be gored.  Per Hayek, if you do not have a Rule of Law, you have corruption and an underperforming economy.  Conservatives submit that America, because of its almost unintelligible (and largely unconstitutional) body of regs, Executive Orders, and laws, no longer has a Rule of Law, that we have been overtaken by a revolution that began with Herbert Hoover but was expanded exponentially by Barack Obama and has transformed America into a centrally-planned state, a corrupt and economically-stagnant state.

Is there an antidote, a technique for a counterrevolution?  How about replacing our mountains of micromanagement with simplified laws that avoid the conceit of trying to anticipate every possible application of them and instead say, for example, “do not offer a product that is not reasonably safe,” “do not generate industrial waste that is unreasonably hazardous,” or “do not operate a commercial bank without a reasonable amount of capital and a reasonable limit on debt” – ? (Maybe not quite that simply, but you get the idea.)  How about specifying that the determination of whether a particular action or condition is unreasonable must involve a consideration of the social and economic impact of its proscription?  How about letting the courts determine what is “reasonable” in any particular case, based upon judicial precedent, experience, and common sense.  For example, how about a concise program for reforming the Dodd Frank Act, one that would require few regs (or none) and a lot fewer than 22,000 pages, like this excellent proposal written by Prof. John Cochrane of Hoover:

How could this be accomplished?  In two steps:  (i) cancel all extant regs and cram their text into re-stated versions of the respective Acts of Congress to which they relate; and then (ii) clean up these restated laws by abandoning the micromanagement model (what lawyers call the ‘civil code’ model) and going back to the fundamental-rules model (the Common Law model).  Is that feasible, given that  Congress does not have sufficient staff to accomplish the task?  Yes, if we downsize the federal agencies  by transferring the key members of the agency staffs to the payrolls of individual senators or representatives, or congressional committees, or Congress as a whole.

Is it already too late to restore a Rule of Law and recreate a dynamic economy?  Could we find alternative employment for the legions, the armies, of lawyers and federal employees who would be displaced by reform?