Eminent Domain Case Tests Our Understanding of Federalism

Conservatives may be tempted to be conservative in this dispute, arguing that Rollins is undermining federalism by intervening in a local matter. That argument misses the point. The purpose of federalism is to ensure that different levels of government are available to place in the most efficient hands the performance of the one essential job of government, the responsibility for which they all share: ensuring the protection of individuals’ rights. Federalism is a means to the end of good government and the protection of liberty, not an end in itself.

Opposition to big government does not mean that one should reflexively oppose all government action, as this story indicates. The U.S. government has become so massive and intrusive, having shown until just this year an increasingly open and aggressive ambition for omnipotence, that the only way to defeat it is through action by the federal government itself.

That action, of course, must be a deliberate program of decentralization of governance from Washington, D.C. to the states and the people.

This process requires a recognition that the one legitimate purpose of government is to protect people’s freedoms of conscience and of action—the concept of negative liberty. In this view, which is common among U.S. conservatives and the American right in general, government’s main activity is to protect people from one another: from force, fraud, and the deliberate, negligent, or unknowing imposition of externalities (harms caused to others by productive activities). We seem often to forget, however, that the government is among those people from whom other people need protection. In fact, government is regularly the most powerful danger to the people. Sec. Rollins and the Trump administration will be doing the right thing if they intervene to stop this assault against the Henrys’ rights.

Sources:  AgWeb;  AgWeb;  X

Video of the Week

The Heartland Institute and Rasmussen just completed another polling study—this one asking people how worried they are about AI and what should be done about it legislatively. To no one’s surprise, people are worried and think the government has a responsibility to get ahead of it.

A Plan for Reassembling the American Right

While the political Left has engaged for several years in a politically damaging slide to the radical left and the destruction of its slightly less radical “moderates,” the rise of Donald Trump has foregrounded a long-brewing conflict on the political right between Reagan-style conservatives and the populist New Right, with many self-professed conservatives going so far as to join the Dark Side and become Democrats.

Although Trump’s political success has kept the two factions from fracturing entirely, the tensions are powerful. “National conservatives” argue for varying amounts of government intervention to reverse some clearly deleterious macroeconomic and cultural changes of recent decades, whereas classical liberals warn against these proposals as potentially massive increases in government power.

The conflict, in my view, is based on a fundamental misconception on each side. National conservatives put excessive faith in government, and classical-liberal conservatives are reluctant to address problems generally (though incorrectly) attributed to market freedom. The central problem is that the social and economic ills the national conservatives worry about were overwhelmingly caused or greatly exacerbated by government, but those problems are real, and to deny or downplay them is either self-deception or gaslighting.

The obvious way to reach common ground, then, is for both factions to recognize that the U.S. government and a variety of co-conspirators and shock troops have torqued the nation so far away from true freedom and market economics that it is not clear what a free America would look like, and that the solution is an honest, fundamental review of the current state of individual liberty, freedom of association, property rights, and economic freedom, followed by concerted actions to restore those rights. That will necessarily take the form of a great decrease in the size and reach of government, which classical-liberal conservatives want, while redressing the ills the national conservatives have observed.

Texas A&M University professor James R. Rogers sees a way to reach this highly desirable consensus, writing at  Law & Liberty:

The policy argument on the American political right these days between postliberals with (some) populists, on the one hand, and Reaganite and market-oriented fusionist conservatives, on the other hand, is, in essence, an argument over externalities. More particularly, the argument is over what’s included in our set of policy-relevant costs and benefits when we consider policy problems and solutions. The controversy circles around postliberals proposing the inclusion of a set of non-pecuniary costs when identifying policy problems and when considering policy change. Recognizing this means there is enough common ground for constructive debate over policy rather than each side arguing past the other.

As Rogers notes, many of the ills of which national conservatives complain are externalities, and classical-liberal conservatives acknowledge externalities as a reality that requires redress when they do harm to others:

“Externalities” are costs or benefits imposed on (or received by) people not party to a market exchange or action. The action or exchange of one set of people imposes costs (or confers benefits) on others who are “external” to a transaction. A canonical example of a negative externality is an increased probability of lung disease as a result of breathing auto emissions from other people’s cars. An example of a positive externality is those spared from contracting an infectious disease because other people got vaccinated and, as a result, did not transmit the infection.

The above are textbook examples of externalities. While rightwing postliberals (and left-wing anti-neoliberals) generally eschew conventional economic jargon, many of their criticisms of markets or market outcomes really only argue for the recognition, and remediation, of un- or underrecognized negative externalities. Postliberal arguments can be accommodated by existing market theory, albeit by that part of market theory that considers market failure.

Rogers makes a highly important point in observing that the national conservatives are greatly concerned about types of externalities that classical-liberal conservatives may often dismiss as being insufficiently quantifiable:

While these may seem like novel arguments, careful market theorists have long recognized that the idea of “cost” is broader than often conceived. For example, Harold Demsetz observed in his seminal 1967 article in the American Economic Review, “Toward a Theory of Property Rights,” that externalities can be both “pecuniary as well as nonpecuniary. No harmful or beneficial effect is external to the world.”

The fact that something is difficult to quantify does not make it any less real or its effects inconsequential, Rogers notes:

Much of the debate today between postliberals and traditional market-oriented Reagan conservatives is, implicitly, an argument over what counts as an externality; that is, what interests we recognize as belonging to people and therefore what counts as a harm when taken away.

Postliberals and (some) populists, for example, advance interests of social solidarity and the dignity of manufacturing work as elements lost with the globalization of US trade. While these may be novel assertions in the context of the sorts of values policymakers (and academics) have typically considered in recent generations, their novelty does not really present a problem for bringing those values within the traditional theoretical structure of policy debates regarding externalities.

… While there are issues of identification and measurement, that interests such as solidarity and dignity are “nonpecuniary” does not rule out recognition of their loss as externalities.

The recognition that the national conservatives have identified real ills and that classical-liberal conservatives are the proven champions of the solution—individual liberty and market freedom—identifies the grounds for a renewed fusion of interests on the political right. “The point, however, is that postliberals and traditional conservatives can have a policy debate on grounds that are recognizable in market theory,” Rogers writes.

Rogers has it right. Classical liberals, conservatives, and postliberals could rally around a full discussion of the various externalities imposed by private activities and government action alike, with all such concerns being accepted as fair game for investigation and redress via classical-liberal means. Let’s have that debate, without no more invective and dismissal of one another’s concerns.

Source:  Law & Liberty

NEW Heartland Policy Study

‘The CSDDD is the greatest threat to America’s sovereignty since the fall of the Soviet Union.’

Supreme Court’s Censorship Views Reviewed

With the “Twitter Files” Freedom of Information Act (FOIA) lawsuit against the U.S. Department of Justice for collusion in censoring the Hunter Biden laptop story and other Biden embarrassments reaching a hearing last Wednesday, a 2024 article reposted by the Brownstone Institute last week does an excellent job of summarizing the current state of the Supreme Court’s thinking on the federal government’s use of coercion or persuasion to induce companies to violate individuals’ rights. It is a subject well worth revisiting, as Brownstone suggests.

Reporting on the oral arguments before the Supreme Court in the Biden administration social media intimidation case, Murthy v. Missouri, Senior Brownstone Institute Counselor Aaron Kheriaty called attention to a highly important moment in the hearing:

The government’s opening argument attempted to characterize their behavior as friendly persuasion toward the social media companies, not overt coercion. Justice Thomas—famous before Covid for not asking questions but now more vocal on the court—opened by asking whether a distinction between government coercion vs. government persuasion was the only way to think about this case?

Were there any First Amendment cases in which state action was implicated without encouragement or coercion, e.g., simply through deep entanglements that may appear on the service to be cooperative? He also asked what the Constitutional basis was for “government speech” was (hint: there is none). The government’s attorney had to admit that the court has not located government speech in any Constitutional provision. The First Amendment is a restraint on the government, not on citizens.

Along those lines, Justice Samuel Alito pointed out that the Biden administration acted much more aggressively against the social media companies than against the press, suggesting that this was coercion, not a voluntary partnership. “I read the emails between the White House and Facebook [presented in our evidence], which showed constant pestering of Facebook,” Alito said to the attorney for the government.

In addition, browbeating a social media firm into censoring people is much different from talking directly to a reporter or an editor to express displeasure with their reporting, Kheriaty notes. In the social media case, the person who wrote the item the government is telling the company to take down has no choice in the matter and does not even know what is happening to the posts or why. Kheriaty writes,

The analogy to the print media, however, does not hold in the case of the government’s relationship with social media. There are several crucial differences that profoundly change the power dynamic of those interactions in ways directly relevant to our argument. First, in the case of newspapers the government official is talking directly to the journalist or editor—the person(s) whose speech he is trying to alter or curtail.

The journalist has the freedom to say, “Yes, I see your point about national security, I’ll hold my story for one week to allow the CIA time to get their spies out of Afghanistan.” But they also had the freedom to say, “Thanks for trying, but I’m not persuaded I got the facts wrong on this, so I’m going to run it.” The publisher/speaker here has the power, and there is little the government can do to threaten that power.

But of course, with social media censorship the government was never talking with the person who was censored, but with a third-party operating entirely behind the scenes. As my co-plaintiff Dr. Marin Kulldorff told me on Wednesday, “I would have been happy to get a call from a government official and hear about why I should take down a post or change my scientific views.”

In addition, the arguments brought out the fact that government has an implicit, deadly threat toward social media companies in any conversations they may have with them, Kheriaty notes:

The second key difference is that there is little the government can do to destroy the business model or otherwise cripple the New York Times or other print publications, and the journalists and editors there know this. If the government pushes too hard it will also be front page news the next day: “Government trying to bully us to censor disfavored information” with the lede, “Of course, we told them to take a hike.” But the government does have a sword to hang over the head of noncompliant social media companies if they refuse to censor, including the threat to remove Section 230 liability protections, which Mark Zuckerberg has accurately called an “existential threat” to their business, or threats to break up their monopolies.

When the FBI calls Facebook or Twitter with censorship demands the executives there know that this weaponized agency has the power to launch frivolous but nonetheless onerous investigations at any time. It thus becomes impossible for social media companies to tell the government to take a hike—indeed, they may have a duty to their shareholders not to put the company at such serious risks by resisting government pressure. Again, if the FBI pulled such a stunt with the Washington Post it would be front page news until the government desisted.

Justice Clarence Thomas brought up another crucial point: whether government collusion with seemingly cooperative companies is acceptable under the Constitution. Kheriaty writes,

Returning to a theme he had introduced earlier, Thomas asked whether you can censor by agreeing with the platforms: “Let’s work together, we’re on the same team,” and so forth. The government’s counsel responded, “When the government persuades private partners that is not censorship.” But Thomas continued to press the point. What he was hinting at here, I believe, is the legal doctrine of joint participation, which prior cases have established. Even if, on the surface, there appears to be no coercion or pressure, cozy entanglements and enmeshments between public and private actors—even if cooperative—could implicate the private actors as state actors, thereby subject to the Constitution and the First Amendment.

Joint participation is the principle that a “private party’s joint participation with state officials” in  a government action such as seizure of a third party’s property “is sufficient to characterize that party as a ‘state actor’ for purposes of the Fourteenth Amendment” (Lugar v. Edmondson Oil Co., 1982). The analogy to the present case is clear.

It was evident that Thomas was thus closing all the doors to government manipulation of these organizations: coercion is obviously government censorship, and persuasion makes the scheme joint participation. Neither is acceptable, and anything in between those extremes is likewise doing one or both of those things and hence unconstitutional interference with First Amendment freedoms.

The oral arguments brought up important constitutional protections of individual rights that make it unacceptable for the government to use coercion, persuasion, or any other type of communication to induce businesses to do its bidding toward third parties. The Court ultimately decided to drop the case on the issue of the plaintiffs’ standing to sue, so the justices have yet to rule on these issues. It will be interesting to see where they ultimately land.

On something of a side note but a matter of great importance, Justice Neil Gorsuch noted that the national government can benefit from concentration of economic power in a small number of firms, a point not widely understood:

Gorsuch asked another insightful question: is coordination of censorship easier with only a few concentrated social media companies? “We need to account for the possibility that this may make censorship easier.” In other words, the government establishes “relationships” and request portals—as they have done—with the big ones: Meta (Facebook and Instagram), X (formerly Twitter), Google (YouTube), Microsoft (LinkedIn), and one or two others and they have 99.9% of the social media space covered. This could also, by the way, incentivize the government to avoid antitrust efforts even when the companies engage in monopolistic practices against their competition (as when Amazon, Google, and Apple destroyed Parler).

I have long observed that the federal government seems not merely to be unafraid of concentration of power within industries but in fact to welcome it—because it is easier to coerce or “persuade” three or four big companies than to wangle several hundred firms toward some desired end. That is precisely what happened in the Biden administration’s censorship efforts, and it is why big government and big business seem to have such a cozy relationship in the twenty-first century.

Source: The Brownstone Institute

via Townhall

Bonus Video of the Week

The corporate climate-alarmist media is already turning up the heat—on your TV, not outside—by hyping a summer warm spell as a “heat dome” threatening “dangerous heat and humidity” across much of America next week. Yes, it’s going to be hot. It’s summer. But the data tell a different story: there’s no long-term trend showing an increase in the number or intensity of heat waves. And despite what they claim, carbon dioxide emissions don’t drive heat waves. That’s not to say human activity isn’t warming the planet—but not in the way they’re shouting from the rooftops. We’ll lay it all out.

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