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Academic Insights for the Thinking World

Filling Supreme Court vacancies: political credentials vs. judicial philosophy

In the current, hyper-partisan environment, relatively few individuals publicly supported the confirmations to the US Supreme Court of both Justice Samuel A. Alito, Jr., and Justice Sonia Sotomayor. I know because I am one of these lonely souls. Now, the same considerations which led me to support their confirmations lead me to support the confirmation to the Court of Judge Neil Gorsuch.

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The right way to amend the Johnson Amendment

President Trump, reiterating the position he took during the presidential campaign, has reaffirmed his pledge to “get rid of and totally destroy the Johnson Amendment.”The Johnson Amendment is the portion of Section 501(c)(3) of the Internal Revenue Code which prohibits tax-exempt institutions from participating in political campaigns.

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Why the Logan Act should be repealed

Congress should repeal the Logan Act. Modern, globalized communications have destroyed any remaining rationale for this outdated law. The Logan Act today potentially criminalizes much routine (and constitutionally-protected) speech of US citizens. During the presidency of John Adams, Dr. George Logan, a private citizen, engaged in freelance diplomacy with the government of revolutionary France.

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Three myths about the Electoral College

Since the election, we Americans have engaged in a healthy debate about the Electoral College. My instincts in this debate are those of an institutional conservative: Writing our Constitution from scratch today, we would not have designed the Electoral College as it has evolved. However, institutions become embedded in societies. To further this debate, consider these three contentions often heard today about the Electoral College.

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The three fallacies of the popular vote

In light of Secretary Clinton’s victory in the popular vote, prominent voices call for replacing the Electoral College with a direct, nationwide vote for President. Among the distinguished individuals now urging abolition of the Electoral College are former Attorney General Eric Holder and outgoing Senator Barbara Boxer. Would Secretary Clinton or President-elect Trump have won in 2016 in a direct, nationwide election?

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Warren Buffett’s taxes: the more complicated narrative

In the second presidential debate, Donald Trump indicated that Warren Buffett had deducted, for federal income tax purposes, net operating losses in a manner similar to Trump’s deduction of his net operating losses. In response, Buffett, an outspoken supporter of Hillary Clinton, released a summary of Buffett’s 2015 federal tax return. Buffett’s intended message was clear: Trump didn’t pay federal income taxes; I did.

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Churches and politics: why the Johnson Amendment should be modified and not repealed

Speaking before the Family Research Council, the Republican nominee for president, Donald Trump, called for a repeal of the “Johnson Amendment.” The Johnson Amendment is part of Section 501(c)(3) of the Internal Revenue Code, and prohibits tax-exempt organizations such as schools, hospitals, and churches from participating in political campaigns. The Republican Party’s 2016 platform echoes Mr. Trump.

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Why does the Democratic Party want the Cadillac tax abolished?

Democratic Party platform for 2016 repudiates a major provision of Obamacare – but no one has said this out loud. In particular, the Democratic Party has now officially called for abolition of the “Cadillac tax,” the Obamacare levy designed to control health care costs by taxing expensive employer health plans. Tucked away on page 35 of the Democratic platform is this enigmatic sentence: We will repeal the excise tax on high-cost health insurance and find revenue to offset it because we need to contain the long-term growth of health care costs.”

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Elie Wiesel: the Hillel of our time

I first met Elie Wiesel in the summer of 1965. Wiesel’s book Night had been translated into English five years earlier. Night was just beginning to be recognized in English-speaking countries. Wiesel was not yet then the impressive speaker he was soon to become. As he addressed the audience that summer about the horrors of the Holocaust, Wiesel was diffident to the point of shyness.

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What should be done with Justice Scalia’s Supreme Court seat?

Justice Ruth Bader Ginsburg has publicly stated that the US Supreme Court does not function well with eight members. I disagree. Under present circumstances, it would be best for the country and the Court to abolish the vacant Supreme Court seat held by Justice Scalia and to proceed permanently with an eight member court.

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Why Congress should pass the Multi-State Worker Tax Fairness Act

On 17th May, a massive fire caused Metro-North Railroad to reduce its commuter train service to and from Grand Central terminal. In light of this service disruption, the Metropolitan Transportation Authority, which operates Metro-North, “encouraged” commuters “to consider working from home.”

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The Thatcherism of state-sponsored private sector retirement programs

With surprising speed, state-sponsored private sector retirement programs have assumed an important place in the nation’s public policy agenda. California, a pioneer in many trends, was a pioneer in this area also. The California Secure Choice Retirement Savings Trust Act, adopted in 2012, was the first law authorizing a state-sponsored retirement program for private sector […]

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Zubik v. Burwell: The HSA/HRA alternative

Last Tuesday, the US Supreme Court issued an unusual order in Zubik v. Burwell. In Zubik, religious employers including the Little Sisters of the Poor, East Texas Baptist University and Southern Nazarene University object to the federal regulations governing birth control coverage for their employees. These regulations permit these religious employers to elect against providing such coverage.

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Who should be Scalia’s new successor?

Article III of the Constitution gives the President the right to “nominate…Judges of the supreme Court.” Article III also gives the Senate the right to grant its “Advice and Consent” to such nominations—or not. Both President Obama and Senate Republicans are settling into a protracted political struggle over the appointment of Justice Scalia’s successor.

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Deferring the Cadillac tax kills it

Sometimes it is gratifying to have predicted the future. Sometimes it is not. The recent postponement of the so-called “Cadillac tax” until 2020 falls into the latter category. I predicted this kind of outcome when the Cadillac tax was first enacted as part of the Affordable Care Act, popularly known as “Obamacare.” I am unhappy that events have now proven this prediction correct.

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The Department of Labor awakens

At President Obama’s urging, the US Department of Labor (DOL) has proposed a new regulation condoning state-sponsored private sector retirement programs. The proposed DOL regulation extends to such state-run programs principles already applicable to private employers’ payroll deduction IRA arrangements. If properly structured, payroll deduction IRA arrangements avoid coverage under the Employee Retirement Income Security Act of 1974 (ERISA) and the employers implementing such arrangements dodge status as ERISA sponsors and fiduciaries.

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