What do John Roberts and Ben Bernanke have in common?

Their “simps” think they should have done better.  In their own, unconstrained models of the world, they each wish they could be doing better.  They each have refused to “do better” out of an understanding of limited institutional and moral capital.  They each are given relatively little epistemic deference by their critics on this point of omission.

They are each very smart men who were appointed by Republican Presidents.

There are some who understand Roberts but damn Bernanke for not “doing his job.”  I see fewer who understand Bernanke but damn Roberts for not “doing his job.”  You may think Bernanke has committed a worse sin of omission, or you may believe that BernankeApologetik is somehow a higher and more difficult art to master.


They both are concerned about how history will judge them. As far as health care goes, there are two basic issues citizens are concerned about in the health care debate. One is pre-existing conditions and the other is portability of health insurance when you leave employment. These could have been addressed simply in a law. But instead we get this monstrosity of a program that is rationing disguised as regulation. Roberts probably realizes that the program will die if Republicans win in November. And it will be the millstone around the Democrats if they win the election. Either way, he is safe. We need Congress to fix this after the elections.

Bernanke does not want to be the man that caused the second Great Depression. But it is irrelevant because the Fed is out of ammunition.

Agreed--they both strike me as unusually legacy-conscious. I wonder if this is another form of what some political theorists call "trimming," and I wonder if there is a public choice model that can sufficiently account for this.

I think it gives the wrong impression to say they are "legacy conscious". This suggests a personal motivation. They seem more worried about the legacy of the institution they represent.

For those who are in some sense the temporary embodiment of an institution, the legacy of that institution and their own personal legacy are significantly intertwined.

I suppose there are states who have legislated pre-existing conditions and portability with and without mandate. What happens to rates in each?

I read somewhere recently that Washington State tried doing it without a mandate, with disastrous effects. Unfortunately I can't recall the source. I think it was a recent article of the Economist.

It's been in both the Washington Post and NY Times and there have been a couple of other examples as well.

Bernanke does not strike me as someone overly concerned with his personal legacy...(he can probably already lay claim to averting the second Great Depression). And yet, there are many institutional concerns for him to maneuver around (some that did not loom as large in his academic writing). No central banker wants to take actions that lead to a loss of independence or credibility. Maybe fewer people appreciate and understand the constraints on Bernanke, but even those who do may still have a hard time accepting the limited actions (outside of crisis). It's easy to say "go big or go home" when you're not the one held accountable. I don't have as many opinions on Roberts but the comparison seems reasonable.

I believe you're right about Bernanke's motivation, but it's certainly not irrelevant. He did prevent a second Great Depression. The Fed acted exactly the way he, when he was an academic, said it should have during the first Great Depression. This in response to a crisis that was an order of magnitude larger than 1929. The fact that we're not in another Great Depression leads me to think he was right.

I think they're both doing a fine job.

A judge's job is to apply the law, and that's much trickier for a strict constructionist than a judicial activist. Roberts isn't the latter, so this must have been a difficult decision for him. I've seen it described as brilliant strategy, by slamming the door on the Commerce Clause and the Necessary and Proper clause, while sustaining a Congressional decision. Not knowing what is on his mind other than dictum, I refuse to speculate.

I'm also aware that Bernanke 3.0 seems to have departed substantially from Bernanke 1.0. There is a very real difference between pontificating in the Ivory Tower and actually having to run the thing you purport to know something about. I really do think the actions in 2008 saved us from depression even though I hated every word and dollar of the bailouts.

Even now, when I think the Fed is mostly impotent, it's words and deeds *might* be conveying the signal some people say it does. I'm skeptical, but with the economy slowing, I'm not sure a political figure would ever choose to do nothing when *something* (that might not work) is available. People are looking to you for help, hope, or inspiration. If you are a Master of the Universe when it comes to leadership, you can get away with doing nothing and awe people into holding fast. Otherwise, us mortal beings had at least better give the appearance of doing something.

I think we expect far too much from our government. We maintain this illusion of control to our detriment. Many people actually think a president can "create jobs," and so we always get somebody who (through one means or another) claims to be able to do so. This is even more perplexing because we invented a federal government that is supposed to be weak and stable. While libertarians see a government that has broken from its leash and is on a rampage, and liberals see a government that isn't doing half of what it should to help where it can help, I see a government that is being torn in half trying to be both at the same time.

Our government is confused. Our laws and our economy are the result of a government that has lost both its trail of breadcrumbs and its yellow brick road.

"much trickier for a strict constructionist than a judicial activist."

That's a good point. There are two ways for a constructionist conservative to fail, and only one way for a liberal activist to fail, and maybe they can't fail if they are the liberal activist safe votes and the supposedly conservative is the swing vote.

But there are plenty of people claiming Roberts was being activist, under a certain definition of activist. Overturning legislation isn't activist. There are two definitions I can think of. One is to expand or reinforce an expanded version of the meaning of the constitution. The second is to overturn precedent. However, precedent gets reinforced ore undermined with every new decision. Therefore you are likely to be deemed activist by at least one of those definitions.

Good post.

Citizens United undercuts the notion that Robert is not an activist when it comes to "sustaining a Congressional decision." Not just in the ruling, but in the way the judicial process played out. He got the court to throw out the original, much narrower, case and had it re-argued on broader grounds.

Bush I made the mistake of appointing Justice Anthony Kennedy, who turned out to be leftist. Why should we have expected Bush II not to have made a similar mistake with Roberts?

Perhaps conservatives should train some of their own to similarly become "stealth" Justices when a leftist is president.

Wait til this guy realizes who appointed Souter.

And, for that matter, who appointed Kennedy

I've seen some anti-establishment conservative types claiming that the only reason they will vote for Romney (instead of 3rd party) is so he can pick conservative judges. I'm curious if Roberts has affected their calculus.

Why would it change their calculus much? Its not like a third party candidate is going to win, or that Obama will nominate someone better from their viewpoint. In addition, the decision that Roberts did make isn't all that bad from that viewpoint, either.

LOL at the notion that Roberts is a leftist.

Also, LOL about the leftist Kennedy, who voiced the strongest conservative voice in his dissent on this ruling.

You have to think in terms of a punnet square. Of course it is more complicated than that, but a punnet square is twice as complicated as "conservative vs leftist."

Think conservative versus liberal and also expansionist versus constructionist legal view. You can have a conservative who does not strictly construe his role in constitutional review. Roberts may be a conservative, but he didn't help that reputation and to me significantly hurt it in the constitutional review department.

So, John David Galt is in fact correct. The judges may be plenty "conservative" when appointed by the establishment's central government leader, they just don't defend the individual's interests much.

I should add that people think he restored some sanity to the commerce clause, but that is always coupled with statements of how "he's playing a long game" and "he's so clever."

I don't want clever games from these guys.

Expansionist vs constructionist isn't a helpful dichotomy in my opinon.

I doubt any justice has an agenda of either expanding upon or holding strictly true to the Constitution or precedent law. These are just byproducts of political leanings.

In other words, I think even Scalia - who, according to your dichotomy would fit into the 'constructionist' camp - would break precedent law if at the end of the day it served his conservative agenda.

This is an odd comparison to draw in my opinion.

It's not the job of the courts to choose policy, only to defend the prevailing conception of what is legal under US constitutional law. The consensus by constitutional scholars was that the mandate was legal, although bizarrely they thought that because of the prevailing interpretation of the commerce clause, an interpretation which Roberts rejected.

By contrast, it is exactly the job of a central banker to choose policy.

Furthermore I think most people's opposition to mass unemployment is much stronger than their opposition to Obamacare; I can accept that I may be wrong that Obamacare is suboptimal, but I have a harder time accepting that I may be wrong that mass unemployment is suboptimal.

Both head institutions that are expected to determine policy within specified limits. The Fed has its dual mandate, and it is emphatically the province and duty of the Judicial Department to say what the law is. Even if you don't think Constitutional Law should develop like the Common Law, many general Federal statutes give the Court broad leeway to make policy judgments. See, e.g., the Sherman Antitrust Act.

plus the independence of both institutions is considered crucial to a well functioning government and economy respectively. and both leaders need to build a consensus to make policy.

When are umpires supposed be part of the team?

This is the criticism I hear of Roberts. My criticism is that he strained to deny the application of the traditional commerce clause reasoning to uphold the power of the legislative and executive branch to regulate commerce. That's not a team criticism. All you need to do is look at the cases upholding agriculture market order advertising programs, some of which were defended by Roberts and his lawfirm.

Think about this when you say that Roberts made the correct commerce clause decision:

"Charles Fried, a constitutional law professor at Harvard, said from Rome, where he was on vacation, that he was “dispirited” by the ruling. “The limitation of the commerce clause runs counter to 75 years of Supreme Court jurisprudence,” he said. “It is a complete capitulation to the bogus logic of the broccoli argument and its proponents in the Tea Party.”

Professor Fried, a solicitor general under President Ronald Reagan, is a conservative and not a fan of the heath care law, but he has consistently argued that it was constitutional."

From today's NYT

I have thought about that quote, Bill, before you put it here. And I find it highly dispiriting -- about Fried. Randy Barnett is about as far from a Tea-Partyist as you can get, IMO. And Fried knows it. His expansive view of the Commerce Clause is just something about him that is peculiar to his mindset -- but it is not reasoned, and while it is conservative, it conserves a mindset (yes, stretching back seventy five years) which has no logically defensible rationale beyond a notion that the Commerce Clause was intended as a wide-ranging police power of the Federal government.

Barnett is a wing-nut anarcho capitalist who wants to outlaw the income tax and privatize constitutional regimes. If it's "as far as you can get" from the tea party, it's only because he's a kind of "out there" that is "as far as you can get" from everything. His position is much closer to the tea party than most other things.

What was really bogus about the broccoli logic, Bill? Could the government compel you to buy broccoli (or any other food/s) or not under the commerce clause? If your answer (or Fried's) is "no", then what exactly makes health insurance different? If you answer is "yes", that would at least be an honest answer for certain.

In any case, why should anyone care whether or not Charles Fried thought the decision was wrong. I know lots of people who have worked for Republican presidents who are colossally wrong on lots of things.

What is bogus about broccoli is that, unlike broccoli, we all at some point consume healthcare, and how we consume it, given how we finance the care for those who do not pay, affects interstate commerce. The rest is a legislative decision with which you are free to disagree.

Too bad economic efficiency isn't a proper basis for judicial decisions.

Do you think economic efficiency wasn't a proper basis for abandoning the Articles of Confederation and creating a Constitution that regulated commerce among the states?

There is a whole history of the economic history of the US Constitution.

The Constitution both contains an economic efficiency of governance and an independent judiciary to find it, or at least uphold a legislative branch's determination of what is the most efficient, in their view, at the time.

I think Libertarians would have been happier with the Articles of Confederation.

I heard that same argument ventured in a Con Law discussion. The problem with it is that if even one person in the whole country would like to go through life without receiving medical care, the constitutional issue is raised. There's got to be someone out there, religiously motivated maybe, who intends never to receive formal medical care. In fact you don't even need a poster child for the suit; as long as somebody might decide not to get any medical care, the issue of whether that's his right arises.

There is no operative difference between broccoli and the mandate. The consumption of broccoli can also be talked about in these absurd "affects interstate commerce" terms and if Obama were proposing it you'd discover that, wow, (not) eating broccoli is incident to interstate commerce and therefore, like every other aspect of human life, subject to congressional regulation.

But thanks, Bill, for the freedom to disagree. I suppose that's the one freedom that's truly safe from your crowd.

laderleff, The commerce clause jurisdiction is based that most of the product, for example, enters interstate commerce, even though, for example, one farmer consumes in his home state, or just on his farm. His production or consumption decision, in a remote way, affects interstate commerce, and those of other farmers around him do more so, giving the basis for interstate commerce jurisdiction.

In other words, we do not require that all be in interstate commerce. You can still raise on your farm and consume what you want, but you will still be subject to federal jurisdiction.

I think Christian Scientist pay into medicare.

I bet I could find more adult americans that have never consumed modern, western healthcare than have never consumed broccoli.

"I think Libertarians would have been happier with the Articles of Confederation."

I'm sure there's a good reason, but it often seems to me that "The Federalist Society" would be better called "The Anti-Federalist Society."

I will do you one better. The government already compels us to purchase things. They are called houses. And those who buy them get a tax break. Which means those who don't buy them pay a tax penalty. Which is exactly how the health insurance mandate will work. So we already have this in effect and no one but Yglesias seems to mind. Is the mortgage interest deduction unconstitutional? Does it nullify your liberty?

Benny, you are saying what Roberts said. I'm saying that in saying that Roberts was activist and (contra Tyler) actually undermined his and his institution's reputation.

The administration went to great pains, as did the pundits with their talk of free-riding and such, to make the case that you and Roberts are incorrect.

And you can go back and see me repeatedly "minding" about the home mortgage deduction. I was arguing with people a decade ago. In fact, it was one of the first things that I argued with people about because subsidizing home ownership used to the one of the go-to arguments for government success. How 'bout now?

Well Andrew I don't hear many people today arguing against it, neither liberal nor conservative. Or how about the tax deduction for having children?

So I agree with Roberts? Let me ask you this: do you think mortgage deductions are unconstitutional? If there were a broccoli deduction would that be unconstitutional? Isn't the whole problem with the Republican broccoli hypothetical not that it is unconstitutional but that it is unsavory?

“The limitation of the commerce clause runs counter to 75 years of Supreme Court jurisprudence,”

Well two cheers to Roberts for that much.

Isn't the Commerce Clause discussion dicta, since it's not necessary to the decision? I haven't had a chance to read the decision yet, I am just basing this on what I've heard.

This is what will be argued the next time this comes up.

I had the exact same thought when the ruling was announced. Both Roberts and Bernanke seem to be constrained by their institutions and institution-think. But unlike Tyler, I do not like kindly upon the results and think both men have failed.

whats a "simp" ? is it a nobel prize winning economist ?
if so i dont think Roberts has a "simp"

I can understand that Roberts may have ruled in a way he didn't believe was absolutely correct because he judged avoiding a "crisis of legitimacy" for the court to be the greater good.

I can understand that Bernanke may be thinking along the exact same lines. However, it is much less clear *why* favoring low inflation over low unemployment maintains the credibility and legitimacy of the Fed. Unlike the Supreme Court today, the Fed is indeed experiencing a crisis of legitimacy. Why? Because of kooks like Ron Paul? Or is it because of the dismal economy -- which, in turn, causes people to listen to kooks like Ron Paul?

The Fed will be judged based upon its results. Even those who think they are angry at the Fed because of an expanded monetary base are, for the most part, actually angry at the Fed because of the weak economy. Unlike Roberts, if Bernanke had the courage of his convictions, he could appease most of his loudest critics on both sides, resulting in a Fed with more not less legitimacy than they have today.

Were the talking heads on CNBC screaming about irresponsible monetary policy in 2004?

Put another way:

it's contended that the Citizens United ruling created the crisis of legitimacy for the Court, i.e., the run on moral capital, causing Roberts to take a "worse position in his own mind" on the ACA ruling. So the narrative went: better position in his own mind when the Court's moral capital was greater -> weaker position in his own mind when the Court's moral capital was weakened (due to popular outcry against CU).

But in the case of Bernanke, the Fed took a "worse position in his own mind" in 2008 (if we compare his walk to his talk) back when the Fed still had a significant amount of moral capital (institutional capital more of a mystery here though). As time passed, the unwrapped cracker got soggier as you say and moral capital eroded, putting Bernanke in the unenviable position of not having the moral authority to "do his job", one could say. But that cracker is not getting any crisper from here. Roberts has likely rebuilt the Court's moral capital; Bernanke has not rebuilt the Fed's. So with only a few seconds left till the buzzer Bernanke's only logical choice is to make the shot even if he's standing at mid court. There is no chance for a layup now, moral capital-wise.

Bonus credit: How many mixed metaphors did I use?

Again, I see the idiocy that the Fed didn't "do enough." When by any reasonable metric the fed did all it could, but it was ineffectual.

Why do people keep acting as if the fed still had dry powder?

You think it's idiocy to believe the Fed could have committed to a higher rate of inflation and made it happen?

What if Roberts could not have "done better"? What if he believes this is as innovative and trailblazing and problem-solving as he has ever been?

The sophisticated act is wearing thin, particularly in cases like this when it manifests itself as generalities tossed off w/o support, as if only dullards could fail to see their self-evident truth.

The idea that the SC lacks either the moral or institutional capital to strike down a wildly unpopular and obviously unconstitutional aspect of the healthcare law strikes a lot of people who equal both your worldliness and intelligence as simply absurd.

Calling them unsophisticated fools does zero good to anyone. If you think you can make an actual, specific case that overturning this law would have damaged the state of American government to a greater extent than allowing Congress and the White House to ignore the Constitution, then make it. Perhaps, by making a real case you'll improve our understanding. Perhaps, by making a specific argument, you'll allow someone to disprove it and then you'll actually learn something.

Personally, I think did a reasonably good job, though Bernanke should probably be looking harder at NGDPLT by now. Maybe next year?

They both have jobs that the establishment pretends are above politics and give detailed post hoc rationalizations of their decisions based on complex models and theories. The jobs represent the pinnacle of homo hypocritus signalling per Robin Hanson.

Who with a straight face can claim to know for a fact that the framers intended the commerce clause to allow Congress to regulate but not compel commerce? To regulate is to control with rules; it says nothing about the structure of those rules be they all nudging incentives or commands backed by threat of violence. Aren't tax incentives for our domestic oil industry compelling domestic oil production? Claiming a difference between regulating activity and regulating inactivity is also pretty rich, philosophically. See trolley problem. It's like a council of ethical philosophers from on high said that you can't push the fat man but have to flip the switch. Why? "Because it's tantamount to murder." So is flipping the switch -- they're logically identical, so again, why? "Because we said so."

You can be reasonably assured of what the framers meant by the actions of the federal government and the cases before the court that were contemporaneous.

The mere fact that we are discussing what amounts to federal control of the health care system with no significant parallel in the years or decades following ratification, identifies the overreach of Congress.

Why do people treat Robin Hanson as some kind of truth-seeker unconcerned with the judgments of others, when he's obviously a hypocritical signaler? I mean read what the man writes!

Let me be one of the few, then, that damns Roberts but not Bernanke. While no one has an unalienable right to see their favored monetary policy implemented by the Fed, every individual has unalienable rights that are imperiled by a government with unlimited powers. I am surprised to hear Cowen say that he hears more people damn Bernanke and understand Roberts than the reverse since I would think that more people are agnostic about monetary policy than the basic scope, scale, and purpose of Government. Maybe, he hangs out with too many economists.

I have no reason to believe that Bernanke is not implementing the policy that he believes is the best one. In contrast, Roberts admits that, in his view, Congress does not have the power to compel commerce, i.e., to regulate inactivity. It is inconceivable that he doesn't also recognize that allowing Congress to use its taxing power for the purpose of effectively expanding its powers under the Commerce Clause is the same thing.

Furthermore, Bernanke's policies are not precedent-setting and can be overturned by the next Fed chairman or indeed by Bernanke himself after the next Fed meeting. The Roberts decision, in constrast, extends beyond health care policy. It sets precedent for the limits, or lack thereof, of Congressional power for the next 100 years. Indeed, *even if* Obamacare is repealed after the next election, the Roberts decision still stands as precedent. Although liberals might not object to such a precedent now, suppose a Republican-controlled Congress levied a tax on abortions under the guise, not to punish or impede a woman's right to an abortion, but to recover society's "costs" of not having one more contributor to the national health insurance risk pool and the attendant "loss" of economies of scale? Then, would they finally recognize the danger of unlimited government power, directed toward enforcing some mythical "social contract"?

That is why Justices are supposed to look beyond the political issue at hand, health care policy in this case, and base their decision solely upon what is written in the Constitution. It is a strange form of "umpiring" to decide one's calls based on which team's fans will be most upset instead of what is written in the rule book, especially if one's calls will constrain every umpire in every future game.

If there is an economist out there who with a straight face can say that a tax is not a regulation, I would be surprised. That is what is so disingenuous about Roberts' decision: It is illegal to expand government regulation to non-participation in commerce according to the Commerce Clause, but since a tax is not regulation, it is constitutional.

Maybe it is concern about his legacy; maybe it is just not wanting to be torn apart in the NYT, WaPo, and other left-wing papers. I don't know. One wonders if his vote had made it 6-3 what would he have done. My guess is it would be 6-3, because Roberts gives me the impression of a weakling.

Bernanke has done nothing of this magnitude of stupidity or hypocrisy.

All (almost all) taxes can be called regulations, but not all regulations can be called taxes. The Federal government's taxing power (on income) is much more expansive under the 16th Amendment than its regulatory power under the Commerce Clause. Some regulations that cannot be characterized as income taxes remain beyond the Federal government's power, but most any regulation that can be characterized as an income tax is within the Federal power.

Or something like that. I managed to graduate from law school without ever taking Con Law.

What are their jobs?

Another similarity: In protecting their legacy, they have destroyed their legacy.

They are basically saying,
"you are not conservative enough"
Hogwash by a bunch of monday morning QB's

Lacking 'intestinal fortitude' seems to be Bernanke's problem. At first blush, that could be a diagnosis for Roberts as well. On further consideration, Roberts' balls may be bigger than most if he is really telling the people to clean up their own mess or live with the consequences.

Good point. Why is it that Roberts now seems to have huge balls whereas Bernanke seems to have small ones?

Cowen, Pig apologist for traitor establishment pigs.

I'm sorry, but what exactly is moral capital, and what are its properties vis-a-vis regular capital?

They are each very smart men who were appointed by Republican Presidents.

I am so tired of ACA supporters parading this fact around as though it nullifies the arguments against the ACA. It is petty punditry, and the dialogue deserves more seriousness than that.

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