Congress circles back to its usual antics
Including, but not limited to, yesterday's Open App Markets Act markup and the reintroduction of the EARN IT Act. Plus, our thoughts on nondelegation, GAFAM companies' acquisition activity, and more.
January is over, and things are back to normal. Gyms have returned to about their usual capacity. Most people have quit the paleo diet. (Side note: January has to be the worst possible time for everyone to collectively decide to start eating healthy. Much of the best produce is out of season, so you’re fighting an uphill battle unless you’re really into squash.) And Congress has circled back to its perennial confusing antics.
If you’re back to your regularly scheduled dining out (or ordering in) this month, try trekking out of your city and heading to a strip mall in the suburbs. As Tyler Cowen explained a decade ago in “Six Rules for Dining Out,” unassuming storefronts often have the most interesting and authentic cuisine because their comparatively low rent empowers them to experiment. Case in point: Taco Bar El Guero, which is not yet on Cowen’s list but is certainly on mine. The humble taquería is located in Gaithersburg, Maryland, and serves some of the best tacos de lengua around. For those of you who live in the D.C. area, it’s a must!
Competition. Yesterday, the Senate Judiciary Committee marked up the Open App Markets Act. This bill, which they voted to advance out of committee, presents enormous problems in its current form — from curtailing app stores’ ability to do reasonable content moderation to including a practically unusable affirmative defense that compromises users’ security. We dove into each of these issues (and potential fixes) in letters to the committee and Twitter threads. If you want to know more about the play-by-play of the markup but don’t have the patience to watch all of yesterday’s tomfoolery, Berin and Ari both live-tweeted it.
Next Thursday at 2pm, Bilal is leading a virtual panel entitled “GAFAM Acquisition Activity: Does It Merit Special Merger Rules?” where he’ll be discussing research on GAFAM companies’ acquisitions over the 2010s and its policy implications with a group of esteemed economists. You can register directly via Zoom, and join us in sharing the event on Twitter.
Encryption. This week, the EARN IT Act was reintroduced in Congress, to the chagrin of those who care about civil liberties, security, and combating the scourge of child abuse material online. As we pointed out in our 2020 coalition letter, the EARN IT Act poses severe threats to First Amendment rights, security and encryption, and the ability to prosecute dangerous predators. Ari’s statement on the EARN IT Act’s reintroduction was quoted in Reason, and he appeared on the Ross Kaminsky Show to talk about some of the problems with the entire concept of the bill.
Constitutional Law. In a paper released this week on the WLF Legal Pulse, Corbin tries to chart a workable path forward on nondelegation. The nondelegation rule says that Congress may not hand legislative power to federal agencies. The rule is a hot topic in the conservative legal movement these days — and not without reason. Though the principle has long been more or less dormant, a majority of the Supreme Court is poised to revive it. Some of the justices say that under nondelegation, properly applied, Congress must make all “policy” decisions, and that agencies can only “fill up the details” of a legislative program. But what does that mean? Corbin’s paper gets into the weeds, exploring some concrete steps the Court could take to build a nondelegation rule that has teeth, but that doesn’t gut the federal government (as some conservatives surely want to do). Full paper here; Corbin’s Twitter thread summary here. Please share widely!
Political Thought. Chaired by Francis Fukuyama, American Purpose is a new publication whose primary mission is “to defend and promote liberal democracy in the United States.” Amen to that. Corbin was pleased to make his debut there this week, with an essay on the American right’s increasing tendency to sound like radical Jacobins. While Corbin’s nondelegation paper (see above) makes the case for small-c “conservatism” — the values of skepticism, prudence, and gradualism traditionally associated with Edmund Burke — in the sphere of constitutional law, his American Purpose essay laments the demise of such small-c “conservatism” among the political faction that still insists on using the word “conservative” to describe itself. Although this essay focuses on the thought of Burke and Joseph de Maistre, Corbin’s recent work might best be described by rejiggering a line from Marx and Engels: Moderates of the world, unite!