Our intellectual property (IP) laws are not a Deep State bureaucratic conspiracy. Patents, copyrights, trademarks and trade secrets are all based on the Copyright Clause in Article 1, Section 8 of the Constitution. It’s the only clause in the Constitution that comes with its own justification, and intellectual property protection is one of the few legal regimes that points directly to a specific constitutional provision.

IP protections incentivize creation and innovation because they allow creators at least the possibility of profiting from their creations if they turn out to have any value. Even if the creation has no real market value, IP protects creators from having others steal and take credit for their work.

So, IP incentivizes creators, and thus facilitates the constant production of new innovative products for the general public. But IP creates barriers for freeloaders, thieves and opportunists. There’s always someone out there who thinks they can make better use of your property than you are, or who wants to make money without accounting for all the costs of doing business. Intellectual property protections are barriers to those who wish to gain something based on the property of others without compensation, whether that something is financial or political.

Over the past 20+ years there have been a lot of threats to copyright and patent. Internet piracy, digital piracy, and file-sharing technology all threatened first the music industry and then the movie industry. A campaign by international non-governmental organizations (NGOs) blamed patents for high drug costs, failing to recognize that, without patents, the drugs wouldn’t exist in the first place. Public policy should never prioritize the allocation of creative goods at the expense of their creation.

The good news is that policy makers mostly resisted the calls to weaken IP, and thus today we have access to almost unlimited libraries of recorded music and video, at affordable prices. And we have new drugs that are saving and extending lives, curing diseases, and making life more enjoyable.

But sadly, during Donald Trump’s second term, his administration’s policies have repeatedly threatened IP protections, and thus continued innovation.

Consider drug pricing. The Trump Administration’s May 2025 executive order on “most-favored-nation” pricing for prescription drugs insists that Americans pay no more for certain drugs than the lowest price offered by a set of other countries. This policy effectively adopts the price controls of other nations. Government-imposed price ceilings function as a backdoor taking of patent value, and will discourage future risk-taking in pharmaceutical innovation.

Patents are how we finance the expensive, failure-prone work of discovering and improving new therapies. Even Congress’s own research arm notes that legal issues may arise from the policy’s interaction with intellectual property rights—“particularly patents”—because patents play a central role in drug development.

Now turn to copyright & AI. In April 2025, tech billionaires Jack Dorsey and Elon Musk made headlines by calling for the radical dismantling of the intellectual property (IP) system—urging us to “delete all IP.” That’s because large language models (LLMs) are greedy for content to train on and regurgitate. Those investing in AI want to eliminate any friction for their efforts, but IP rights cause friction by design—they make it hard for creators to be trampled.

We’re bullish at IPI on AI, but AI’s potential doesn’t mean it should get a special carve-out from using the property of others without compensation.

In reaction, the U.S. Copyright Office appeared to accelerate release of its “Copyright and Artificial Intelligence Report,” which in Part 3 found that AI training typically entails copying protected works and that fair use exceptions, if any, must be assessed with close attention to purpose and—critically—market substitution. The Office also recommended letting licensing markets develop rather than having government impose sweeping “solutions” such as compulsory licensing regimes.

This was early in Trump’s second term, when AI bros had the President’s ear. Next thing you know, President Trump fired Librarian of Congress Carla Hayden on May 8, 2025, and Shira Perlmutter—the Register of Copyrights—was dismissed days later. Multiple reports note that observers and lawmakers linked the timing to the Copyright Office’s AI report, which seems likely if not at least suspicious. Even if motives are debated, politicizing the institutions that administer copyright chills the very stability that property rights require.

Then in President Trump’s July 23, 2025 speech announcing an “AI Action Plan,” the President argued that you “can’t” have a successful AI program if you must pay for “every single article or book,” and urged that AI be allowed to use a broad “pool of knowledge” without constant licensing negotiations.

Dismissing copyright because it makes business more complicated may seem to a businessman like a commonsense idea, but what about to the businesses that own that copyright? Should it be official government policy that one industry can steal from another? Is that equality under the law? Obviously whatever access AI has to copyright material has to balance the interests of the copyright owners, through licensing or some other system. The courts are already dealing with these issues and will be for years.

Finally, the spillover risk extends beyond patents and copyrights. Broad “eliminate information silos” directives that mandate “full and prompt access” to information can erode confidence that proprietary business information will be handled with strict need-to-know discipline—exactly the confidence trade secret protection depends on in practice. And workforce edicts that increase patent and trademark pendency at the USPTO weaken brands and inventors by delaying the moment when rights become reliable and enforceable.

America can lead in AI and improve affordability without degrading the rule-of-law foundation of innovation. But that requires a simple, old-fashioned commitment: respect intellectual property as a source of creativity and economic growth, not as a barrier to be overcome.

And beware when certain industries are cozying up to an administration in order to gain advantages over other industries.

We’ve written before about the decision of Warner Bros. Discovery to put all or a portion of the company on the auction block.

In that piece we primarily argued that the government should allow a transaction to take place within the consumer welfare standard. Mergers and acquisitions should be permitted so long as there is not a threat to harm consumer welfare by allowing too much concentration of market power.

We also observed that conservatives should probably prefer a Paramount Skydance purchase of the Warner Bros. assets, including the fascinating possibility of news network CNN being owned by a conservative-leaning Paramount Skydance.

Most observers thought Paramount Skydance was the suitor most likely to be successful.

But yesterday’s news threw everyone a curve. Turns out Warner Bros. Discovery accepted Netflix’s bid, even though it was reportedly for a lower price per share. According to the Wall Street Journal, Warner Bros. Discovery preferred the idea of retaining its cable networks, while Paramount Skydance’s higher offer included purchasing them as well.

A Netflix purchase of Warner Bros. Discovery should concern those who value market competition. A marriage of Netflix and Warner Bros. would have more than twice as many subscribers as the second largest competitor.

It should also concern fans of the theater experience. Michael O’Leary, the CEO of Cinema United (and longtime friend of IPI) has said that “such a transaction ‘poses an unprecedented threat to the global exhibition business.’” Noted director James Cameron has said that Netflix buying Warner Bros. would be a “disaster.” And he’s got reason to be concerned—Netflix CEO Ted Sarandos has publicly stated that theatrical films are dead and that the theater experience is an “outmoded idea.”

Here's the thing—Paramount Skydance’s offer poses no antitrust concerns. If anything, it enhances competition, and could bring some much-needed reform to the news media business. Netflix’s purchase, on the other hand, merits thorough antitrust review because it would create a dominant player dwarfing its competitors.

And a little appreciated detail of the studio business is that Warner Bros. sells its shows to several different network and streaming services, whereas Netflix tends to keep its shows in-house. So Netflix’s control of the Warner Bros. catalog and creative output might well also be stewarded in a way that inhibits competition.

Sen.Elizabeth Warren tends to always oppose mergers of any kind, so it’s no surprise that she also opposes the Netflix purchase of Warner Bros. Discovery. The thing is, “even a stopped clock is right twice a day.”  Given the assumption that President Trump also favors Paramount Skydance, this might be one of those rare occasions where President Trump and Sen. Warren might find common ground and say “pass the popcorn” while the Justice Department considers the threat to competition posed by a combination of Netflix / Warner Bros. / HBO / DC Studios.

The Trump administration has been very active in AI policy since he assumed office. Nearly a dozen Executive Orders have emanated from the White House, and on July 23^rd the President gave a speech introducing the administration’s 28-page “AI Action Plan.”

There’s a lot of good in the plan, and this post is not intended to be a detailed critique of the plan. A federal pre-emption of state AI regulation is an important feature, although the President can’t just declare it—that requires federal legislation. A provision banning state AI regulation was in the penultimate version of the “One Big Beautiful Bill Act” (OBBBA) but was stricken at the last minute at the request of Tennessee Sen. Marsha Blackburn.

Copyright protection has been a hallmark of Sen. Blackburn’s public service, and for good reasons. Not only does represent the songwriting capital of the world, Nashville, but copyright protection is a critically important area of policy. Trump is right, and Sen. Blackburn is wrong, on federal preemption of state AI regulation.

We at IPI take a backseat to no one in the defense of copyright, a topic we’ve covered for almost two decades. IPI is an accredited NGO with the World Intellectual Property Organization (WIPO) in Geneva, Switzerland, and for several years IPI sponsored the leading World IP Day (April 26) policy event in Washington DC.

So we’re big on copyright.

All of copyright is a balancing act between the rights of creators and ease of public access (notice I didn’t say “the rights of consumers,” because no one has a right to someone else’s property). But there can’t be any discussion of balance until the fundamental right of creators to own and control their creations is acknowledged, and certainly not disregarded.

That’s why President Trump’s comments on copyright and AI are so troubling. No one expects Trump to be an expert on intellectual property law, but the sentiments he expressed would be very dangerous to the U.S. economy.

President Trump said that we can’t expect copyright holders to be compensated for their work by AI companies because “China’s not doing it.” Well, there’s a lot of individual rights that China doesn’t respect, but we aren’t tossing our individual rights because of competition with China.

Trump also seemingly belittled the idea that every time someone reads a book, they have to pay something for it. But, actually, usually we do. You may have bought the book, or someone else bought the book and gave it to you. Perhaps you borrowed it from a library, in which case the library paid for the book under a licensing arrangement with the publisher.

If you’ve viewing a book or article online, chances are you are either paying for it with a subscription, or paying for it by subjecting your eyeballs to advertisements. We do, in fact, almost always pay something in order to read a book or an article.

This post is not intended to be a detailed prescription for balancing the rights of copyright owners with the AI innovators. That’s going to take a lot of work and probably a number of court cases.

But here’s is what is obvious: 

• It cannot be that, because China doesn’t respect property rights, neither should we if we want to compete.
• It cannot be that the rights of one set of creators get tossed in favor of the rights of another set of creators.
• It cannot be that we dispose of a proven system of rights because the demands of an emerging technology.

There has always been a tension between copyright and technology, going all the way back to the printing press, but especially since the emergence of the internet. We’ve had to figure out the balance between rights and search engine indexing, rights and streaming, rights and music sharing, and especially piracy. It should be no surprise that there is a tension between those training large language models (LLMs) and copyright holders.

It's a balance that we will be able to solve.

And inputs into LLM training is not the only tension between AI and copyright. Buckle up.

Below is a transcript of the portion of President Trump's July 23, 2025 speech on his administration's new AI Action Plan. This excerpt captures his comments about copyright and AI.

. . . 

"And that begins with a commonsense application of artificial and intellectual property rules.

"It’s so important. You can’t be expected to have a successful AI program where every single article, book or anything else that you’ve read or studied, you’re supposed to pay for. “Gee, I read a book. I’m supposed to pay somebody.”

"And we appreciate that, but you just can’t do it because it’s not doable.

"And if you’re going to try and do that, you’re not going to have a successful program. I think most of the people in the room know what I mean.

"When a person reads a book or an article, you’ve gained great knowledge. That does not mean you’re violating copyright laws or have to make deals with every content provider. And that’s a big thing that you’re working on right now. I know.

"But you just can’t do it. China’s not doing it. And if you’re going to be beating China—And right now, we’re leading China very substantially in AI. Very, very substantially. And nobody’s seen the amount of work that’s going to be bursting upon the scene

"But you have to be able to play by the same set of rules. So when you have something, when you read something, and it goes into this vast intelligence machine, we’ll call it, you cannot expect to every time, every single time say, “Oh let’s pay this one that much. Let’s pay this one.” Just doesn’t work that way. Of course, you can’t copy or plagiarize an article, but if you read an article and learn from it, we have to allow AI to use that pool of knowledge without going through the complexity of contract negotiations, of which there would be thousands for every time we use AI."

The Institute for Policy Innovation recently provided comment to the Office of the United States Trade Representative (USTR) supporting the agency’s Section 301 investigation into China’s manipulation to dominate the semiconductor industry. As USTR specified when it announced the investigation in late December, the initial focus will be on legacy semiconductors and Silicon Carbide (SiC) substrates. While there is certainly reason to be concerned about China’s dominance of the semiconductor industry writ-large, these initial focus areas are worthy of special attention, especially SiC.

When it comes to government intervention and trade policy, the adage that “less is more” proves true more often than naught. Countries don’t trade; people do. When governments get involved, they add friction. 

However, upholding national security is a vital function of government, and every policy position must consider genuine concerns about how our country will be able to protect its interests. China’s efforts to monopolize the global semiconductor market and upstream inputs poses a real and imminent national security threat and therefore warrants trade remedies to prevent the Chinese government from subverting the United States’ strategic interests.

“As long as China maintains its ideology and poses a threat to the free nations of the world, reducing our dependence on China for critical chips and depriving China of advanced technology are in the national security interests of the United States,” IPI president Tom Giovanetti wrote. 

Preventing China from monopolizing the legacy chip market as well as SiC substrates and wafers—which have become a preferred semiconductor base material—is necessary to secure U.S. supply chains and to “friend-shore” chip production.

Over the past six years China has nearly doubled its legacy chip production capacity, and it is on track to account for over 60% of the world’s new legacy chip capacity by 2030. It has achieved this rapid growth through significant government subsidization, which the Chinese Communist Party (CCP) leverages to deflate prices and drive competitors out of business. That said, there is a lesson for the U.S. to learn here: We were previously so focused on keeping China from taking the lead with advanced chips, that we ignored legacy chips. That was a strategic mistake. Legacy chips are critical too, and when we signaled that they weren’t a priority, China took notice. Now we really need to pay attention to chip components, and that’s where SiC comes in. 

Chinese leaders understand that SiC is an increasingly vital component in chips, and the CCP has begun to target the industry with the same strategy. Chinese oversupply depressed prices for six-inch SiC wafers to about 25% below manufacturing costs and caused eight-inch SiC wafer prices to fall 50% in six months last year.

China’s targeting of SiC wafers and substrates is especially alarming since these chips are used in a wide range of military applications. Flagship U.S. defense networks—particularly radar-dependent systems, like the Aegis Missile Defense, avionics systems, and satellite programs—rely on SiC-wafer chips, which can operate in harsh conditions. 

Supply-chain dependence on China could jeopardize the integrity and functionality of these (and other) defense systems. American military leaders and reports consistently identify China as the greatest threat to U.S. national security. In the event of a military or political conflict, China could cut off sales to the U.S., potentially compromising military readiness.

For these reasons, IPI encourages President Trump and his administration to implement targeted trade remedies like tariffs to protect U.S. SiC production. These tariffs can’t be limited to Chinese-made SiC; rather, they must apply to products containing it to be impactful. They should also be sufficiently strict to prevent China from skirting the rules through third countries as it has been known to do

President Trump has been firm about protecting U.S. interests. U.S. trade policy needs a bit of that tough medicine to prevent China from monopolizing the global semiconductor market and subverting America’s leadership.

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Unfortunately, there are some bad regulations that just can’t be escaped. 

In response to the state’s rise as a hub for ascendant technology, Texas universities have worked to build out programs that would allow students to take advantage of tech opportunities. This is a no brainer. Unfortunately, the federal government is throwing a wrench in the works, by pushing for regulatory changes that would dramatically disrupt institutions' ability to partner with online program managers (OPMs) - a critical partner that’s helping schools scale up low-cost, relevant programs to meet emerging market demands. 

These partnerships between universities and OPMs took off after the Department of Education (ED) issued a Dear Colleague Letter in 2011, to provide guidance on college contractors, called “third-party servicers.” At the time, the ED clarified that contractors offering “bundled services” (often a combination of online technology platforms, coursework design, recruiting, and other services) could be compensated via tuition revenue-sharing arrangements. 

But, over a decade later in February 2023, President Biden’s ED threatened to eliminate the bundled services exemption and potentially regulate the actions of nearly any private company doing business with a college. Among those most impacted were education technology companies called online program managers (OPMs), which help colleges and universities offer online classes, for a fraction of the cost than if universities were to handle such online activities themselves. They are frequently compensated via the revenue split model reflecting the students that enroll in the program. 

The ED initiated a public comment period during which a multitude of experts, organizations, and traditional colleges and universities expressed strong opposition, causing the ED to withdraw their proposed restrictions just a few months later. More than a year later (July 17, 2024), the ED pledged to re-issue guidance in late 2024. Until and unless new regulations are enacted, OPMs continue to operate under the original 2011 guidance. 

A number of Texas institutions have fruitful partnerships with OPMs. UT Austin and UTSA have partnered with an online program manager, 2U, to launch student boot camps to expand expertise in emerging tech fields, including web development, cyber security, and data analysis, and offering coding and data analytics bootcamps.  

The University of North Texas filed comments expressing their concern with the Department’s intention to limit avenues for partnerships between OPM and universities, as the university has a fruitful partnership with education-provider Coursera.  In comments submitted in response to the Department’s comments,  UNT’s Vice President of Digital StrategyAdam Fein outlines the parameters of that partnership, as well as how it’s benefitted the institution. 

North Texas, in partnership with Coursera, has been able to develop two fully-online graduate degree programs: a Bachelor of Applied Arts and Sciences (BAAS) completion degree with 8 highly-desirable concentrations designed for individuals with some college credit, but no degree, and a 100% online Bachelor of Science in General Business (BSGB), both at a price point of $330 per credit hour with no additional fees. 

Because these programs are fully online, UNT is able to offer them to students at a significantly lower cost, and in partnership with Coursera, they’ve been able to enroll and educate adult learners whose commitments might otherwise prevent them from earning a degree at a traditional brick and mortar institution. As Fein notes in his comment, UNT’s ability to adapt and scale up programs at a relatively low cost when new opportunities emerge is enabled by their ongoing revenue sharing agreement. Forcing institutions to pay the full freight up front, as the proposed change would require, makes success stories like this nearly impossible.   

Americans are broadly dissatisfied with the state of higher education. This willingness to allow market participants to seek out mutually beneficial arrangements that allow them to adapt to changing market conditions is why Texas is booming. Regulatory policy should allow space for states to innovate, to seek out partnerships like these help institutions in our state improve outcomes, lower costs, and reach new students looking to better their lives. Federal regulators would do well to listen to the stakeholders in Texas and across the country when they speak to the benefits of these partnerships.

Streaming has become the main way most Americans consume movies, TV shows and music today, and the transition has been rapid and disruptive. Hollywood and the streaming services have been much in the news lately, with writers and actors striking over issues including the compensation changes that streaming has introduced into the content economy. 

Some consumers feel overwhelmed with the number of streaming services and with trying to remember which show or movie is available on which service. We find ourselves with multiple subscriptions to multiple services, and even some cable-cutters are finding that the amount of money they spend each month is equal to or greater to what they used to spend on cable and video on demand (VOD). 

I myself at some point constructed a spreadsheet to keep track of shows I was watching and meant to watch, because I couldn’t remember which services hosted them. Sure, laugh. Then I discovered that there are services like JustWatch that will keep track of these kinds of things for you, as well as keeping track of where you left off in a given show, something else that has occasionally challenged my addled brain. 

These are, of course, First World problems of abundance, but this abundance was by no means inevitable. Not too long ago the content industries were in a crisis. Music was first on the chopping block, with music piracy on an enormous scale resulting from the digital revolution. 

Now, I’ll confess to being one of the guys who would record LPs onto cassette tapes and give them to my friends back in the before time. That was piracy, and it was illegal, but it was analog, and thus didn’t really pose an existential threat to the record companies. 

Digital recording, on the other hand, meant you could make an unlimited number of perfect copies, and the Internet meant you could distribute a single perfect copy almost infinitely. As a result, the music industry’s revenues plummeted. And as available bandwidth increased, it became possible to do the same thing with video files and movies. 

Somewhere near the low point for content piracy, in 2007, the Institute for Policy Innovation (where I work) estimated that the loss to the economy from copyright piracy was as much as $58 billion in GDP and over 375,000 jobs. 

Some apologists tried to justify their piracy by blaming content companies for not making products available in a convenient and affordable digital format. In the pirates’ view, piracy was justified by the content industry’s refusal to come to terms with the new digital economy. No longer could record companies require you to buy an entire LP when you only wanted a single song, or withhold films for years before re-releasing in theaters.

Now, this is an oversimplification, and it took some time, but eventually, the content industries said, “look, if you will allow us to protect our copyrights, we will deliver and make content available in convenient, affordable digital formats.” This involved various technological solutions, including forms of digital rights management protection (DRM), consumer electronics standards for digital connections and cables, updates to copyright law and passage of the Digital Millennium Copyright Act, and other measures. All of this was controversial and none of it was perfect, since there is no perfect law or regulation. 

But here’s the point: The content industry kept its promises. The music industry made digital music affordable and available for consumers first through Apple and then through various services. DVDs and then Blu-Rays of TV shows and movies flooded the market. And then, when enough broadband was available, everything switched to streaming, where no physical media was even necessary. 

I don’t know what the solution is to the streaming wars, or the fact that there are too many streaming services and most of them are apparently not making money. I don’t know if the theatrical business will ever fully recover from Covid. Markets and consumer choice will work all that out. But in the midst of all this we should at least recognize that all these problems caused by an abundance of available, affordable content is because the content industries kept their promises.

“Between stimulus and response there is a space. In that space is our power to choose our response. In our response lies our growth and our freedom.”

-          Viktor E. Frankl

What are we to think of moves by Texas and Florida Republicans to ban private businesses from requiring proof of vaccination before entering their premises or engaging with their employees? Without a doubt such policies are popular with the Republican grassroots, but are they based on the right principles? 

Sadly, no. 

Many people skeptical about government power and about Covid-19 itself have agitated against “vaccine passports” and against any requirement to take the vaccine or to have to prove that they have been vaccinated. 

And it’s probably correct that government agencies should not require proof of vaccination for Covid-19 in order to obtain necessary services from government. That’s probably an untenable intrusion on Americans’ sense of personal privacy, although of course schools have for decades required proof of vaccination for school attendance. 

But in reaction to fears about vaccine passports, Republicans in Texas and Florida have swung the pendulum in the opposite direction, banning private businesses from requiring proof of vaccination. Is that a principled and courageous stand for personal liberty? 

Again, no. 

Government requiring proof of vaccination and government banning such requirements are two unnecessary extremes, and ironically BOTH represent government overreach.  Between government requiring proof of vaccination and government banning requirements for proof of vaccination, there is a space. An enormous gulf, in fact. And in that space is what we call liberty. 

If government required proof of vaccination to obtain necessary government services such as unemployment, assistance, driver’s license renewal, etc., almost everyone would see that as an objectionable limitation on personal freedom. 

But when government bars private actors such as businesses from requiring proof of vaccination, that is ALSO an objectionable limitation on personal freedom—the freedom of the businesses to set the conditions under which consumers can patronize their services. 

You see, government doesn’t have to do one or the other. It’s not binary. Government can (and should) choose to do NEITHER. 

In a free-market, businesses are free to determine the conditions under which they operate. Now, we’ve modified that a bit with public accommodation laws that bar discrimination on the basis of race, sex and religious orientation, but we still allow restaurants for instance to deny service to people based on their attire or conduct. Other than overt racial, religious or sexual discrimination, we allow businesses to operate in the way they see fit. 

Cruise ships are known, fairly or unfairly, for being prone to the spread of infectious disease. It’s not unusual to hear about the spread of an infectious disease aboard a cruise ship because of the close accommodations and the shared water and food sources. So one can understand why a cruise line, eager to resume serving customers, would want to insist on proof of vaccination against a highly contagious disease such as Covid-19. And they should be permitted to, given their highly specialized knowledge of their own industry, their potential legal liability, their concern for their own staff, and their need to attract a staff. 

But Republican lawmakers in both Florida and Texas have rushed headlong into this fray, with both states enacting laws barring private businesses from requiring proof of vaccination. 

Based on limited government, free-market principles, politicians should stay out of this area and allow businesses and their customers to negotiate the terms of their relationship in the give-and-take of the market, without government interference. Businesses are private property, and businesses have rights to their economic liberty. 

So, in this episode, we have no choice but to chide our fellows in Texas and Florida for acting in a way that is contrary to limited government, free-market principles. No, the legislatures of Texas and Florida should not have passed bills barring private businesses from requiring proof of vaccination if they so choose, and no, Governors Ron DeSantis and Greg Abbott should not have signed such legislation. In both cases, so-called believers in free-markets and limited government have violated their own principles in a quest for populist approval.

Whatever you think of taxpayer funding of sporting venues (and I don’t think much of it), Patrick’s bill is blatantly unconstitutional in that it violates the First Amendment.

How? Because it is compelled political speech.

People are generally familiar, if wrong, about the First Amendment’s protection of political speech; i.e., that the government can’t stop you from engaging in political speech. Technically the First Amendment is about political speech, but over the years the courts have interpreted the First Amendment very broadly, in that almost any opinion is protected. What people are wrong about is they think the First Amendment is an absolute right, but none of our rights are absolute. They are all very important, but all of them have exceptions and limitations.

But the flip side of the First Amendment is that the government also cannot COMPEL you to engage in political speech. It can’t require you to say something you don’t want to say. That’s why it would be unconstitutional in the U.S. to require people to vote, or to require them to join a party or support a candidate. That would be compelled political speech.

Similarly, requiring private businesses such as sports teams or leagues to sing a particular patriotic song is clearly compelled political speech. There is no way it will withstand First Amendment scrutiny, if challenged.

Legislators take a vow to preserve, protect and defend the Constitution. In my view that should preclude them voting for legislation that is in clear violation of the Constitution, but I see my fellow conservatives doing it all the time when it suits their culture war agenda. And that’s a shame.

We criticize progressives for wanting to use the power of government to force their preferences on the private sector, but then we turn around and do the same thing ourselves. Shameful.

Progressives are the ones who are about end results rather than process. They are the ones who believe in “by any means necessary.” Conservatives are supposed to be about following the rules and abiding by the Constitution, regardless of whether it results in our preferred outcome or not. At least that’s how I always thought it was supposed to be.

While the piece appeared in the May 3^rd edition, I knew it had gone live Sunday evening around 8pm because I suddenly started getting vitriolic Twitter traffic in response to it. And it’s still going on strong 24 hours later. I have had many hundreds of tweets trashing me and the piece, questioning my motives, my intelligence, my knowledge of the issue, my research skills, my honesty, my integrity, my Christianity (yes), etc.

Reactors to the piece on social media fall into one of three categories:

• Friends in the IP policy world who praised and shared the piece,
• Hordes of Twitter keyboard warriors with single-digit followers bashing the piece and insulting me personally BUT focusing on extraneous issues, and
• One guy, Louis Rossmann, who is apparently the guru of Right to Repair. He has a YouTube following of 1.5 million subscribers, and apparently his meaning in life is Right to Repair.

Within an hour of my piece going live, Mr. Rossman had recorded a YouTube video trashing the piece, trashing me, trashing the arguments, and etc.  Have a look.

Look, I’m not new at this. Part of the fun of being in the arena of ideas and making arguments is the response you get. But it’s IMPOSSIBLE to respond to a 24 hour flood of Twitter criticism, and inefficient and counterproductive to try to do so. So this blog post comprises my responses.

Writers know this, but most people probably don’t: Authors don’t get to choose the titles and descriptions of their pieces. That right is reserved to the publication, and they have the right to title it and market it in whatever way they think will get the most traffic. 

If you read the article, my op/ed focused on the importance of intellectual property and the offense against intellectual property (and thus incentive to innovation) by forcing disclosure of patented and proprietary information. The most recent iteration of this campaign is with medical devices, but it’s already worked its way through consumer devices like cellphones, automobiles, and agricultural equipment.

A TERTIARY argument I made in my piece was the health and safety angle, but the Journal chose to focus on that angle, so the Journal titled the piece “Right to Repair Is Bad for Your Health” and described it as “Do you want a PET scan from a machine with unauthorized adjustments?”

Now, were it up to me, that’s not the direction I would have gone with the title and description, but that’s their prerogative. But because the Journal chose to title it that way, 98% of those objecting to the piece have focused on the health and safety argument, have tried to cite FDA regulations, have sent me copies of FDA documents, etc.

So 98% of the objections and criticisms were directed at a MINOR argument that I made, rather than the major argument (IP). The secondary argument, by the way, was cybersecurity.

So look: If you’re going to unload on an author for something, maybe take on their main argument, rather than focusing on a minor argument?

And of course the old “Who paid you, you rotten corporate shill?” argument.

If only.

Folks, that’s not how it works at IPI and at most principled policy organizations. We are not for sale. We have a set of principles we adhere to and an issue set on which we have expertise. If people like our work, they might hopefully choose to support us. But we NEVER take a position based on funding. Never. I’ve turned down funding more times than I can count because someone was asking us to get involved on an issue we didn’t care about or take a side that we didn’t believe in.

It’s not:

1) Money is dangled in front of our eyes

2) We take on a new client and do whatever they want us to do.

It’s:

1) We’ve identified an issue we think is important

2) Our principles lead us to a particular conclusion

3) We do policy work on that issue based on our principles

4) We HOPE people choose to support our organization based on our work.

5) If we get enough support, we’re able to do MORE work on that issue.

That really is how it is. If you are going to take issue with something we’ve written, or said, deal with the arguments made, not the source of support. I have news for you: EVERYONE in policy and politics is being supported by people who like what they do.

A great deal of the criticism was simply name-calling by people with single-digit Twitter followers. Might I suggest that might be the reason why you have only single-digit Twitter followers?

Lots of folks had fun questioning and attacking my research skills, my knowledge of the issue, my IQ, etc.  What they don’t know is that we at IPI have been working on intellectual property issues for 20 years, and specifically on Right to Repair for at least a decade. I’ve sat across the table with Right to Repair lobbyists (yes, they also employ lobbyists!) and listened to their arguments more times than I can recall.

It's not that I don’t know what I’m talking about, or don’t know the issue. It’s that we disagree. Simple as that. And the likelihood, frankly, is that I know more about the issue and have spent more time researching it than YOU have.

Some folks railed about how I was a lousy journalist. Folks, I'm not a journalist. It was an opinion piece, not a reported piece. It also wasn't a blog post (THIS is). You know it's an opinion piece because of where it is placed in the Journal. Also, for those complaining that I didn't cite sources, you don't footnote op/eds.

Also, a lot of criticism was along the lines of somehow I didn’t think anyone had the right to repair anything other than the manufacturer, which is not an argument I made. I take my car to Firestone, I take my various phones and tablets to CPR Phone Repair, etc. I’M NOT AGAINST THE REPAIR INDUSTRY and I wrote nothing of the sort. My piece is focused exclusively on the idea that manufacturers have the right to guard their intellectual property, and if that makes it more difficult for third-party repair services, that’s just a price I think we have to pay. We unapologetically take a very high view of intellectual property protection here at IPI; that’s one of our principles, and so that’s where we end up on the Right to Repair issue.

Yes, I get that some of you work on your own cars! I simply used the increased complexity of today’s automobiles as an introduction to the idea that everything is getting more complex. I wasn’t insulting all you grease monkeys out there.

Finally, Mr. Rossmann. Dude, congratulations on your 1.5 million followers. Seriously. Congratulations. That’s an accomplishment you are obviously proud of. But look: If your meaning in life comes from your campaign for Right to Repair, then I don’t expect you to like my op/ed. It’s not much more complicated than that. On this issue we’re adversaries, but probably not on every issue. That’s just how it is.

When we engage in the arena of ideas, we’re hoping to persuade the persuadable and provide arguments to people who already agree with us. We don’t expect to change the minds of people who are passionately on the other side of the issue.

Okay, so that's my attempt to address the various criticism of the piece. Of course, I don't expect many of those complaining to care enough about the actual issue to interact about my responses. Nonetheless.

Today, the Institute for Policy Innovation (IPI) filed comments with the Federal Communications Commission (FCC) in support of the FCC’s 5.9 GHz proceeding.

If you’re into that sort of thing, that’s all you need to know. If you have no idea what that is about, the rest of this is for you.

Spectrum is a limited resources, and these days is in more demand than ever. Broadcast TV and radio, wireless phones, Wi-Fi, baby monitors, home security devices, first responder communications, military and satellite applications—and scores more things all use wireless spectrum. And because there seems no end of demand for spectrum, policymakers have recognized that it could get crowded.

That’s why the FCC has for years been identifying bands of unused and underused spectrum so that it could be repurposed for more efficient use. Oh, and because it is auctioned off, that’s more revenue for the federal government.

In recent years spectrum belonging to television broadcasters and satellite companies has been auctioned and repurposed to obtain more spectrum for wireless phones.

But it turns out, the biggest hoarder of unused and underused spectrum is the federal government itself. Many agencies have been allocated spectrum, and much of this spectrum has been left idle or underused for decades. A lot, but not all, has been reserved by the military, and eventually some of that is going to have to be clawed back as well.

In 1999 a block of spectrum was allocated to the Department of Transportation (DOT) to be used for future smart cars to be able to talk with each other, with the goal of increased public safety. The DOT came up with a plan called Dedicated Short-Range Communications (DSRC) for cars to communicate with each other and coordinate with each other.

Well, fine. Except that for the last 20 years, almost nothing has been done with this important band of spectrum. Meanwhile, it has become clear that autonomous vehicles aren’t going to be safer because they are dependent on communications with all the other vehicles around them – they are going to be safer because they are autonomous and independent. Creating a system of dependencies just doesn’t make sense—it probably makes such cars more vulnerable in that it could create a false sense of security.

So the FCC essentially wants to take part of the 5.9 GHz spectrum away from the DOT. Can you predict how the DOT might respond to such a request?

Yeah, you’re right. Huge, ugly turf battle between Elaine Chao (Sec. of Transportation) and Ajit Pai (Chairman of FCC). Except that the FCC has final say over such things.

The best use of the 5.9 GHz spectrum is to leave a little bit of it with DOT and see if they come up with something useful to do with it, while making most of it available for more efficient uses. And that is what the FCC’s proceeding is about, and it’s why IPI filed comments today in support of the FCC’s proceeding.

Only you old timers will remember when we were dependent on ISDN lines for clear voice lines for radio interviews, and for “high speed” internet. ISDN was faster than dial-up (barely) and clearer than twisted pair analog voice lines.

Getting one installed in my home was an ordeal, but also a treasure. You could split 1 ISDN line into two channels so that—get this—you could be on the phone and on the internet at the SAME TIME.

It was really incredible that you could have decent data speed (at that time) and also be on the phone, all through a single phone line. 

Because we lived\live out in a rural area, we weren't exactly among the first to be offered higher speed technologies. DSL (remember that?) was never available at our house, and to this day cable has never been available at our address.

So it was ISDN for a number of years, even while others went to DSL, and then we were able to go to a regional fixed wireless provider, before in the most amazing circumstance we ended up being one of the very first areas to have Verizon's "new" FiOS product offered. I believe I was the 3rd home hooked up to FiOS, and for many months called once a week to find out whether they were yet taking installation appointments.

Unbelievable.

And unbelievable how far we have come.

It's good to be reminded how great we have it now, and how great the broadband rollout has been for consumers and for the country.

Tax cuts aimed at capital produce the most significant economic benefits. A legacy 2001 IPI study by economists Gary and Aldona Robbins shows that a cut in capital gains taxes would be one of two most effective to stimulate the economy. In their study, the Robbinses concluded that a capital gains cut would spur economic growth substantially more than any other stimulus measure, with economic growth of more than $10 for every dollar of lost revenue. 

They also make the argument that eliminating the capital gains tax entirely would be even more advantageous to the economy. “Abolishing the capital gains tax would promote entrepreneurship, business creation, U.S. competitiveness, and higher wages for American workers—especially for the most economically disadvantaged among us.”

It’s a compelling argument, especially considering the revenue generated by capital gains to the Treasury is paltry. As a share of total federal revenue, capital gains taxes averaged only about 4.2 percent from 1995 through 2009.

But at the very least, the capital gains tax should be indexed to inflation, and “is a tremendous idea regardless of how or why it’s done,” according to IPI president Tom Giovanetti. 

Writing in RealClearMarkets, Sen. Ted Cruz (R-Texas) and Americans for Tax Reform president Grover Norquist make the case, noting that while other tax code provisions (income tax brackets, the standard deduction, and the Earned Income Tax Credit) receive inflation-indexing treatment, capital gains currently does not.

“Treating capital gains taxes the same way should be a no-brainer,” they write. “This change would directly benefit the 54 percent of Americans that own stocks, it will also benefit the 55 million Americans who own a 401k.”

“Imagine, for example, a taxpayer who purchased one share of Coca-Cola stock in 1998 for $32.38. If they sold the stock earlier this year at $48.13, they would have a nominal gain of $15.76 and be taxed $3.75. The inflation-adjusted basis in today’s dollars, however, would be $50.50. That means the taxpayer would have to pay $3.75 in taxes on a $2.38 loss. Even when a taxpayer experiences a real gain, the effective capital gains rate can easily double the statutory rate passed by Congress.”

“In other words, taxpayers are being punished for the mere existence of inflation,” write Cruz and Norquist. 

Increased investment drives economic growth and job creation. Investment in capital assets, a foundation to a free economy, should be encouraged, not discouraged.  Rather than punishing taxpayers for risk-taking and investing, Congress should work with President Donald Trump to, at the very least, index capital gains to inflation. But don’t stop there; take the bold step of cutting or eliminating the tax entirely.

For over 16 years, the Institute for Policy Innovation has released numerous publications warning the risks of such a scheme cannot be overstated—foremost the public health danger, since it is impossible for the U.S. to guarantee the safety of imported drugs.

The following is a history of IPI’s research into the question of whether the U.S. should open its drug market to imported pharmaceuticals.

• Merrill Matthews. “Vermont’s Prescription for Failure.” IPI PolicyBytes. Institute for Policy Innovation. 22 May 2018. https://www.ipi.org/ipi_issues/detail/vermonts-prescription-for-failure.

• Tom Giovanetti. “Importation of Prescription Drugs: A Bad Idea.” IPI Roundtable. Institute for Policy Innovation. 9 Jan. 2017. https://www.ipi.org/policy_blog/detail/importation-of-prescription-drugs-a-bad-idea.

• Merrill Matthews. “Prescription Drug Importation: Unsafe, Unnecessary and Unwise.” IPI Ideas. Institute for Policy Innovation. 5 June 2017. https://www.ipi.org/ipi_issues/detail/prescription-drug-importation-unsafe-unnecessary-and-unwise.

• Merrill Matthews. “We Can Eliminate Counterfeit Drugs in the U.S. Supply Chain.” IPI PolicyBytes. Institute for Policy Innovation. 5 June 2012. https://www.ipi.org/ipi_issues/detail/we-can-eliminate-counterfeit-drugs-in-the-us-supply-chain.

• Merrill Matthews. “Fake Drugs and False Pride: Congress and Prescription Drug Importation.” IPI Techbytes. Institute for Policy Innovation. 1 Feb. 2007. https://www.ipi.org/ipi_issues/detail/fake-drugs-and-false-pride-congress-and-prescription-drug-importation.

• Merrill Matthews, Peter Pitts. “2006 State Legislators Desktop Reference to Prescription Drug Policy.” IPI Policy Guide. Institute for Policy Innovation. 23 March 2006. https://www.ipi.org/ipi_issues/detail/2006-state-legislators-desktop-reference-to-prescription-drug-policy.

• Douglas Giuffre. “Drug Importation and R&D Spending: The Economic Impact on Washington’s Economy.” IPI Issue Brief. Institute for Policy Innovation. 17 June 2005. https://www.ipi.org/ipi_issues/detail/drug-importation-and-r-d-spending-the-economic-impact-on-washingtons-economy.

• Douglas Giuffre. “Drug Importation and R&D Spending: The Economic Impact on Maryland’s Economy.” IPI Issue Brief. Institute for Policy Innovation. 11 March 2005. https://www.ipi.org/ipi_issues/detail/drug-importation-and-rd-spending-the-economic-impact-on-marylands-economy.

• David Tuerck, John Barrett, Douglas Giuffre, Zaur Rzakhanov. “The Impact of Drug Reimportation and Price Controls: The U.S. and Massachusetts.” IPI Issue Brief. Institute for Policy Innovation. 22 Sept. 2004. https://www.ipi.org/ipi_issues/detail/the-impact-of-drug-reimportation-and-price-controls-the-us-and-massachusetts.

• Jacob Arfwedson. “Parallel Trade in Pharmaceuticals.” IPI Policy Report. Institute for Policy Innovation. 15 Jul 2004. https://www.ipi.org/ipi_issues/detail/parallel-trade-in-pharmaceuticals.

• Doug Bandow. “The Free Market Mirage of Reimportation.” IPI Issue Brief. Institute for Policy Innovation. 8 Jul 2004. https://www.ipi.org/ipi_issues/detail/the-free-market-mirage-of-reimportation.

• Merrill Matthews. “A Legislators and Consumers Guide to Prescription Drug Importation.” IPI Policy Guide. Institute for Policy Innovation. 6 Jan. 2004. https://www.ipi.org/ipi_issues/detail/a-legislators-and-consumers-guide-to-prescription-drug-importation.

• Richard Epstein. “Parallel Importation as a Perversion of Free Trade.” IPI Ideas. Institute for Policy Innovation. 9 Jul 2003. https://www.ipi.org/ipi_issues/detail/parallel-importation-as-a-perversion-of-free-trade.

• Merrill Matthews. “Five Reasons to Oppose Reimportation.” IPI Ideas. Institute for Policy Innovation. 30 June 2003. https://www.ipi.org/ipi_issues/detail/five-reasons-to-oppose-reimportation.

In April 1902 the first permanent movie house, the Electric Theatre in Los Angeles, opened its doors. People started leaving their homes to go to the movies. More than 117 years later legal video streaming has empowered people to watch video anywhere they want. Consumers clearly value mobility as evidenced by streaming subscribers now being more numerous than paid television subscribers.  

During this era of seemingly endless video choices, and options of where to watch it, one specter looms: Digital piracy continues to grow, threatening the very innovation that has brought us so many options.  

According to a recent U.S. Chamber of Commerce study, “Eighty percent of digital piracy is now due to streaming, largely encouraged by the widespread proliferation of piracy devices and apps that make pirated content easier to access.”  

Piracy has gone mobile in more ways than one. According to same report, “Overall, approximately 26.6 billion viewings of U.S.-produced movies and 126.7 billion viewings of U.S.-produced television episodes are digitally pirated each year, mostly from outside the U.S.” 

The pirates are making out like, well, pirates. While the movie and television production industry accounted for $229 billion in domestic revenues and supported 2.6 million U.S. jobs, piracy stole more than an additional 10 percent, totaling $29.2 billion, in reduced revenue each year—resulting in lost job opportunities and economic growth. 

In the nearly 113 years since the first music broadcast via radio (“O Holy Night,” played on the violin by Reginald A. Fessenden), music has also become increasingly mobile‑and the pirates increasingly inventive. Streaming music must contend with “stream ripping,” taking a song from a streaming service and turning it into a permanent download. 

According to the International Federation of the Phonographic Industry, last year the global recorded music industry clocked in at $17.4 billion, with digital revenues accounting for nearly 60 percent of the market. Streaming music continues to power the growth of the music industry, which grew by nearly 10 percent, marking the fastest growth in 20 years. Yet, the growth could be faster. Forty percent of internet users access unlicensed music content. 

The Consumer Technology Association projects that in the U.S. alone, consumers are expected to spend $26 billion on movie and music subscriptions this year, an increase of more than 27 percent, and twice that of 2017. Music streaming itself is expected to increase another 33 percent in 2019, after increasing 34 percent in 2018, with revenue ramping up as well. Piracy will follow. 

Copyright piracy is just plain theft. Those who engage in it are greedy criminals stealing the property of others for their own benefit. But the damage to employees, artists and creators, the industry and the U.S. economy are real. The harm is not just to those who invent, create and innovate, but to us all if piracy reduces the incentive for artists and creators to write, record and imagine.

This is no surprise.

“Raising the minimum wage causes lost jobs and pushes technology and automation forward,” said IPI’s Dr. Merrill Matthews in a recent interview with WAVA’s Don Kroah in Washington DC. 

It’s simple economics. When a consumable good’s price is raised enough, the consumer will choose a cheaper alternative. “Labor is what employers consume,” said Matthews. “If you raise the price of it, employers will consume less.”

The change is most evident by the growing number of self-pay kiosks and scanners seen in grocery stores and fast food chains.

“If you raise the minimum wage high enough, self-checkouts will replace labor, and it doesn’t cost as much and never asks for vacation,” said Matthews.

Arbitrarily hiking the minimum wage also causes a costly chain reaction, said Matthews, leaving employers with even less to spend on capital investment to grow their business. “Not only do the lowest skilled people get a higher wage, but other workers with slightly higher pay have to get bumped up, too.”

The ideal situation is giving employers the freedom to invest the best way they see fit. “In some cases, it’s providing higher wages for people so they can retain good workers, or it’s providing benefits,” he said. “So the employer who wants to give people health insurance benefits is now told by the government he needs to pay $20 an hour. The health insurance benefit, the additions to their 401(k), those go out the window. There are trade-offs.”

With New York joining a growing list of cities hiking the minimum wage to $15 an hour (Seattle, San Francisco, Los Angeles, etc.), and politicians like Reps. Rashida Tlaib and Tim Ryan outbidding one another on how high it should be, cities are missing the point that raising the minimum wage doesn’t eliminate poverty, said Matthews.

Large minimum wage increases exacerbate poverty because many employers cannot afford to pay lower-skilled employees that much, he said. “And these politicians are getting a lot of support from low-paid workers who may soon find themselves unemployed.”

Azar says that by moving forward on reimportation, the administration is putting Americans patients first. But IPI experts agree that the practice has been illegal chiefly because it puts Americans in harm’s way. Importantly, drug manufacturers cannot guarantee the safety of prescription drugs reimported to the United States.

“It is virtually impossible for brand name manufacturers to monitor their products after they leave the U.S.,” wrote IPI resident scholar Dr. Merrill Matthews in the Legislators Guide to Prescription Drug Importation. “It can even be difficult trying to monitor the drugs in this country once they go into the secondary market, where they may pass through a number of middlemen before finally landing up in a pharmacy.”

The U.S. often restricts the trade of dangerous products that can harm humans, animals and the environment, Matthews explains. “Prescription drugs are not like many other consumer products: they are inherently dangerous. That is why it requires a prescription to purchase them.”

“The importation issue is not about a small number of patients crossing the border, going to a reputable pharmacy with a licensed pharmacist and buying a small amount of a prescription drug for personal use,” he said. “It is about millions of consumers trusting drug vendors they have never seen; having no idea if their facilities are safe and located where they claim to be; and, knowing whether the drugs are counterfeit, diluted, mishandled, mislabeled or unapproved.”

For example, a 2017 amendment to PDUFA proposed by Sen. Bernie Sanders would have allowed for the importation of drugs from Canada and consequently opened the floodgates for criminals involved in counterfeiting drugs to have a legitimate opening to the U.S. market. “The FDA struggles now to meet its obligations to ensure the safety and efficacy of prescription drugs being manufactured and sold to Americans without having to also become the guarantor of Canada’s pharmacies,” said Matthews.

Bottom line, says Matthews, if reimportation becomes widespread, some Americans will be harmed — it is only a matter of time. “And then the question will be who will be held responsible?”

Matthews is also the author of Prescription Drug Importation: Unsafe, Unnecessary and Unwise, Prescription Drug Importation of Prescription Drugs: A Bad Idea; and Five Reasons to Oppose Reimportation.

Identifying moderate and former Vice President Joe Biden as both the leader in the debates and as the biggest threat to President Donald Trump, Matthews said, “I still think many Democrats are more on the moderate side and haven’t bought into the far-left proposals expressed by so many of the presidential candidates.”

“Having said that, that’s where the energy is—on the far-left side,” said Matthews. “But the country’s not as far-left as Bernie Sanders.”

Matthews also pointed out that running as a moderate compared to the other candidates is tricky, both in regards to policy and also in generating excitement among Democratic voters.

“He’s trying to thread that needle, for instance, on Obamacare,” said Matthews. “It’s a difficult position for him. President Obama passed Obamacare; Biden was his vice president. Biden can’t come out and trash that. So he’s got to talk about building on Obamacare.”

“The irony is all the Democratic candidates agree that the current healthcare system is an absolute mess, dysfunctional, costs too much, there’s not enough access, but that’s Obamacare. That’s the system they gave us,” he said.

Overall, can Biden generate voter turnout? “Biden is a compromise candidate,” said Matthews. “Nobody seems to be generating the kind of excitement that Barack Obama did when he first ran in 2008—he became the ideal candidate. Joe Biden may win the Democratic nomination, but it’s a compromise. Not because he’s everybody’s ideal.”

Click here to watch the full discussion on CGTN.

“Watching this week’s debates, there are two things the Democrats agree on,” said Matthews. “Number one, the current system is an absolute mess— yet nobody seems to point out that system’s Obamacare.”

“And number two, they all agree the goal is a single-payer healthcare system,” he said.

Testifying with Pacific Research Institute’s Sally Pipes and Galen Institute’s Grace-Marie Turner, Matthews easily debunked Democratic presidential hopefuls’ claims of the efficiency and superiority of single-payer healthcare by displaying various British and Canadian news stories reporting what patients endure in those countries. The various headlines shared by Matthews from mainstream media detailed the deadly consequences of government misallocation of health resources, or how rationing of care is necessary to balance the books.

“Bernie Sanders claims Canada has great care, universal coverage, and that they spend half of what we do on healthcare,” said Matthews. “But those are government decisions. It is not because they are more efficient. It is because the government says we will spend this much on healthcare and no more.”

Matthews’ remarks begin at 45:35.

Is the final word on almost any issue whatever the Supreme Court rules? Do the executive and legislative branches have to roll over to the final arbiter, the judiciary? 

"If you read the Federalist Papers, the Constitution, you'll see that's not the case," said Giovanetti. "We need to remember why we have our system of checks and balances. That's how our system worked until the 1950s, the Warren Court."

Click here to watch the full interview. 

Today Tucker Carlson said that the greatest threat to our liberty was no longer the federal government, but is now big corporations.

Tucker Carlson is abjectly wrong.

Hewlett-Packard can’t kick my door in, shoot my dog, and take my kids. Facebook has never planted false evidence on me. Amazon doesn’t seize my assets before I’ve been convicted of a crime.

I gave a fairly provocative talk a week or so ago to the Texas Federation of Republican Women (TFRW) in Austin on the two factors that, in my opinion, have led to our dysfunctional government. I identify two areas where our system of checks and balances has gone into the ditch: First, the states have abrogated their duty to be the first and best check against federal power (see 9th and 10th Amendments), and second, the courts have asserted a completely unconstitutional doctrine of judicial supremacy, and the states, the Executive Branch and the Legislative Branch have meekly complied because it absolves them of their responsibilities under the Constitution.

Once you get your head around the idea that the Supreme Court was never supposed to rule the country, it's like the scales fall from your eyes, and you can see not only the cause of so many of our current problems, but also the solution.

I've been asked for my notes by several people, and the problem is my notes are speaking cues, nothing more. But I've attempted to clean them up a bit and post them here, mainly because there are current issues like the census question and the Trump administration's immigration orders that I think are clear examples of unconstitutional deference to the courts.

So here they are. Hope they are useful and intelligible to someone.

. . . 

Like humans in The Matrix movie were not living the lives of dignity and freedom they thought they were living, we Americans are no longer the self-governing people that we were meant to be. We are what the Founders tried to prevent and what the Revolution was all about—we are a RULED PEOPLE.

Our country was founded with the basic idea that the American people would not be ruled—they would rule themselves. Self-government. Our constitutional design is to facilitate government while preserving self-government—to prevent government from ruling over the people. Governing and ruling are different things. Just as government and the nation are different things. America is not its government—America is a people with a government. The interests of the government and the interests of the American people are not the same things, and are often diametrically opposed.

Our system of self-government depends on REAL, FUNCTIONING checks and balances.

First, significant powers were reserved to the states—the federal government was simply not allowed to do much.

Then federal power was divided between three generally co-equal branches of government. To get anything done requires CONSENSUS among the branches.

Every branch of government has an equal responsibility to the Constitution. The power and responsibility to interpret and apply the Constitution is NOT exclusive to the Supreme Court. For that matter, state governments and state courts also have an equal responsibility to interpret the Constitution. Even juries have the obligation to interpret the Constitution and apply it when rendering verdicts.

So what has gone wrong? Two things.

First, the states have abrogated their powers to the federal government. States have powers, not rights. People have rights. States have powers. Never use the phrase “states rights.”

Remember, the states sit atop the pyramid of political power—it’s not a linear progression. But the states have surrendered their powers to the federal government.

And it didn’t happen because of the civil war—it largely happened in the post-WWII period when states (whored themselves to the federal government) sold away their powers for federal dollars.

The states basically sold themselves to the federal government for funding. They gave up their sovereignty over education by taking federal education dollars, highway dollars, law enforcement dollars, etc. The federal government didn’t take away the states’ sovereignty by force—the states willingly sold it to the federal government. (The feds were able to do this because of the introduction and expansion of the federal income tax.)

This is a problem, because the states are supposed to be THE PRIMARY check on the federal government. When we talk about checks and balances, everyone forgets that the primary check on federal power is supposed to be the states.

And the second thing that has gone wrong is the development of judicial supremacy.

Legislative Branch was designed to be the slightly superior of the co-equal branches; Founders worried that judicial branch (courts) had the potential to become too powerful—purposefully weakened the judicial branch. Madison specifically said in Federalist 49 that the Supreme Court is not supreme over the other branches of gov’t.

Founders purposely deprived the judicial branch of the power to enforce their judgments. This was very much on purpose. Alexander Hamilton in Federalist 78: the judicial branch “may truly be said to have neither force nor will, but merely judgment; and must ultimately depend on the aid of the executive arm even for the efficacy of its judgments.”

Founders went out of their way to ensure that the Supreme Court could not enforce its decisions.

Over the years we have developed an unconstitutional idea called judicial supremacy. The infamously activist Warren court declared itself supreme over the other branches in 1958, claiming that it had the final say on constitutional interpretation.

Just as the states have abrogated their powers in checking the federal government, Congress and the executive branch have abrogated their power to interpret the Constitution and have deferred to the judicial branch.

Most of the most controversial, divisive things in politics these days have resulted from things that courts imposed on people. It’s not just Roe v. Wade. Other decisions as well.

If you have any doubt that the courts have become too powerful, why are the biggest, bloodiest political fights we have are over Supreme Court nominations? Because SCOTUS has amassed ultimate power. Because they are now our rulers. Why did people who didn’t like Donald Trump vote for him anyway? Why did Christians vote for a man who has acknowledged living an immoral lifestyle? Because of the absolute importance of the Supreme Court.

What is the solution?

What we need is for Congress and the states to reassert their Constitutional roles by resisting and ignoring directives when the federal government and the courts overextends their authority. I hope I live long enough to see some future legislature and governor of Texas simply tell the Supreme Court “thank you for your opinion, but we’re fine, thank you.” And do what we want to do.

But wait, you’re thinking: does that mean we can just ignore the Supreme Court’s decisions?

YES it does. And in fact it’s happened several times in history.

• Congress ignored the SCOTUS Dred Scott decision and banned slavery in the territories.
• President Lincoln ignored Chief Justice Taney’s writ in the farmer Merryman case
• State nullification—which both Madison and Jefferson both asserted
• Fugitive Slave Act
• Juror nullification

Scalia left us a coded hint in his dissent on the gay marriage decision. It concludes: “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

But as long as we operate under judicial supremacy, Supreme Court appointments are going to be the biggest fights there is, because it’s about ultimate power. We treat SCOTUS nominees as if they are demigods, because we have allowed them to assert and exercise godlike powers over us.

What did we learn from four hours of 20 Democratic presidential candidates vying for camera time and voter interest? 

1. According to the candidates, apparently the greatest existential threat to America (after Donald Trump) is the large corporations that employ millions of Americans. 

2. Several candidates want to boldly open the door to socialized medicine now; the others want to sneak it in through the back door. 

3. The media were surprised that Beto O’Rourke isn’t the dream candidate they’d hoped he would be—and who they claimed he was when he ran against Ted Cruz. 

4. Elizabeth Warren, displaying some of her former mojo, is on the warpath against capitalism. 

5. Several of the candidates are convinced that insurance and pharmaceutical company executives are criminals, while illegal aliens are not. 

6. All of the candidates agreed that the current health care system is a disaster, even though that system happens to be Obamacare, which Democrats claimed would fix the system. 

7. The candidates seem convinced that the only obstacle to imposing their far-left agenda as president would be Senate Majority Leader Mitch McConnell, which is the best fundraising message McConnell could ask for. 

8. Every candidate seems to think the solution to the problem of millions of people living in the U.S. illegally is to make them citizens. 

9. Several candidates claim they want to get money out of politics even though they love to boast about how much money they have raised for their campaigns. 

10. “Free” has never been more expensive.

IPI warned them. The Trump administration Justice Dept. warned them. They passed it anyway.

And I mean, they REALLY passed it. It passed the Texas House 141 to 5, and it passed the Texas Senate 31 to 0.

It still boggles my mind that a piece of legislation with such obvious flaws sailed through the legislature with hardly any notice. But now the chickens are coming home to roost, and Texas taxpayers are going to be paying for the state to defend the indefensible in a likely losing cause.

The bill? SB 1938, sponsored by Sen. Kelly Hancock (R). The companion bill in the House was HB 3995, sponsored by Dade Phelan (R).

The legislation was a literal block on interstate commerce in a particular industry—the electric transmission industry. Further, it was a ban on new entrants to an industry. And finally, it made competitive bidding for electric transmission contracts illegal. Stunning, I know.

If you want to know more about the details of the legislation, the links below will be of interest.

The U.S. Constitution’s Commerce Clause has something to say about states banning cross-border commerce, which is why the Department of Justice wrote a 7-page letter outline its concerns that the bill would limit competition, among other concerns.

Our op/ed in the Dallas Morning News got a response from Hancock’s office, but passage of this bill didn’t seem to have much to do with its merits or with the policy arguments. Our TexByte went to most legislators, along with thousands of informed Texas citizens and media contacts. And of course our letter went to every member of the legislature, including key staff.

National organizations noticed as well, and got involved. Still, 31 to 0.

Governor Abbott had until 20 days after the adjournment of the legislature to veto bills, but he didn’t waste any time signing this one. While I was drafting another op/ed urging him to veto the bill, Governor Abbott signed the bill on May 16—before the legislature had even adjourned.

Now, NextEra (  US District Court Case 1_9_cv_00626)  is suing over the legislation, as they should. It seems to me that the legislation is legally vulnerable in several areas, in addition to just being awful policy that no elected official who claims to support free-markets should have ever supported.

And now Texas taxpayers are on the hook to defend this mess.

I'm a fan and supporter of Attorney General Paxton, but there's no defending this mess. The sooner he explains to the leadership in Texas that there is no defending this mess, the better.

Occasionally I give talks to groups about the problem of judicial supremacy—the unconstitutional doctrine that the Judicial Branch has unique power to interpret the Constitution and can overrule the other two branches and overrule the states without question.

I've written about here, but I'm not the only one. Here's another piece.

Anyway, I gave a talk on this a few days ago, and some folks wanted a link to a particular part of the presentation.

Because this is a hobby horse of mine, my eyes were riveted to some of Justice Scalia's last writings—specifically, his dissent in the Obergefell case (same-sex marriage). The point of this language has nothing to do with same-sex marriage—it has to do with whether courts actually have us much power under the Constitution as we have allowed them to assert.

In my opinion, Scalia left us a coded hint in his dissent on the gay marriage decision. It concludes:

“With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

What I think Scalia is suggesting is that the Founders purposely designed the Court without the power to enforce its opinions, and that states and the other two branches of the federal government actually have more power to simply ignore SCOTUS decisions than they know they have.

What, for instance, would happen if a state simply decided to ignore a controversial SCOTUS case? What would happen if a president simply ignored a nationwide injunction issued against the Exective Branch by some mid-level judge in Washington State? What, exactly, would happen?

It's pretty clear by now that the Trump administration's favorite way to put pressure on another country to accomplish some political goal is to threaten and impose tariffs. 

In fact, tariffs have become an all-purpose foreign policy tool for the Trump administration. China's theft of IP and unfair business practices? Tariffs. China's supposed currency manipulation? Tariffs. China's trade surplus with the United States? Tariffs.

The US steel industry not doing great? Tariffs.

And now, trying to get Mexico to do more to stem the flow of migrants into the US? Well, tariffs, of course.

Now, the common retort to criticism of tariffs is something along the lines of "Well, at least he's doing something!" Or, "Don't you think we should do something about China's IP theft\China's currency manipulation\hordes of illegal immigrants from Mexico?"

Well, yes, actually. I DO think the president should be addressing all of those things, and I'm glad he is. I just don't think tariffs are the only or the best tool to accomplish those purposes. There are other tools in the quiver besides tariffs.

There are several problems with using tariffs as an all-purpose foreign policy tool.

1. There's no legal basis for broad use of tariffs. Congress, not the president, has the power to impose tariffs, in our constitutional design. Congress has chosen to give the president the power to impose tariffs in cases of national emergency, which was unwise in my opinion, but not everything is a national emergency. An immigration crisis at the border might very well be a national emergency, but helping the steel industry was a preference of the president, not a national emergency. So Congress has created a legal basis for using tariffs in cases of national emergency, but not everything is a national emergency.
2. Tariffs hurt Americans. Tariffs are taxes that are paid by Americans, not by foreigners. They are an indirect way of putting pressure on a foreign nation by making it more expensive for Americans to buy foreign products. So tariffs harm American consumers by making products more expensive. Tariffs also result in retaliation from the other nation, which also hurts American businesses. American farmers in particular are suffering right now because of the retaliatory tariffs, which is now resulting in unnecessarilly higher federal spending for relief payments to farmers. Tariffs are a broad, blunt tool that hurts Americans in an indirect attempt to pressure another country.
3. There are better tools than tariffs. IF the administration has decided that it needs to apply more significant pressure to a government, there are better tools available than tariffs. Sanctions of various types, for instance, that target the elites of a country and therefore get the attention of the government without broad harms to the U.S. economy. I broadly hinted at this in a tweet yesterday:

So, if you want to get Mexico's attention on the border crisis, make it difficult or impossible for Mexican businesses to come to the U.S. for business purposes. Make it more expensive for them to get to their money in the U.S. Discourage the flow of US foreign investment in Mexico. I'm not wild about any of those ideas, but if we have to do something, those are ways of pressuring Mexico that don't have a broad, harmful impact on the U.S. economy.

Target the Mexican elite, not Americans.

Same thing with China. There are lots of ways to put pressure on China, including using the World Trade Organization and other bodies, which have the benefit of aligning all of the member countries with the U.S. on things like IP disputes, etc. The U.S. actually has an excellent record of getting concessions and changes from China as a result of winning WTO disputes.

The point is, tariffs aren't the only tool available, and as history has shown, tariffs are a bad tool that lead to further international turmoil, rather than less. President Trump clearly favors tariffs, but that's undoubtedly because he doesn't really understand them, and isn't particularly sensitive to their impact on low- and middle- income Americans.

And a further harm of tariffs is that by harming the economy, they at least partially undermine the great success of the 2017 tax cuts, which clearly had a beneficial impact on the economy and on personal wage growth.

President Reagan's 1988 radio address on free trade, delivered soon after the U.S.-Canada Free Trade Agreement was signed, remains timely. 

My fellow Americans:

This week, as we prepared for Thanksgiving, Canada held an important election, and I'm pleased to again send my congratulations to Prime Minister Mulroney. One of the important issues in the Canadian election was trade. And like our own citizens earlier this month, our neighbors have sent a strong message, rejecting protectionism and reaffirming that more trade, not less, is the wave of the future.

Here in America, as we reflect on the many things we have to be grateful for, we should take a moment to recognize that one of the key factors behind our nation's great prosperity is the open trade policy that allows the American people to freely exchange goods and services with free people around the world. The freedom to trade is not a new issue for America. In 1776 our Founding Fathers signed the Declaration of Independence, charging the British with a number of offenses, among them, and I quote, "cutting off our trade with all parts of the world," end quote.

And that same year, a Scottish economist named Adam Smith launched another revolution with a book entitled "The Wealth of Nations," which exposed for all time the folly of protectionism. Over the past 200 years, not only has the argument against tariffs and trade barriers won nearly universal agreement among economists but it has also proven itself in the real world, where we have seen free-trading nations prosper while protectionist countries fall behind.

America's most recent experiment with protectionism was a disaster for the working men and women of this country. When Congress passed the Smoot-Hawley tariff in 1930, we were told that it would protect America from foreign competition and save jobs in this country—the same line we hear today. The actual result was the Great Depression, the worst economic catastrophe in our history; one out of four Americans were thrown out of work. Two years later, when I cast my first ballot for President, I voted for Franklin Delano Roosevelt, who opposed protectionism and called for the repeal of that disastrous tariff.

Ever since that time, the American people have stayed true to our heritage by rejecting the siren song of protectionism. In recent years, the trade deficit led some misguided politicians to call for protectionism, warning that otherwise we would lose jobs. But they were wrong again. In fact, the United States not only didn't lose jobs, we created more jobs than all the countries of Western Europe, Canada, and Japan combined. The record is clear that when America's total trade has increased, American jobs have also increased. And when our total trade has declined, so have the number of jobs.

Part of the difficulty in accepting the good news about trade is in our words. We too often talk about trade while using the vocabulary of war. In war, for one side to win, the other must lose. But commerce is not warfare. Trade is an economic alliance that benefits both countries. There are no losers, only winners. And trade helps strengthen the free world.

Yet today protectionism is being used by some American politicians as a cheap form of nationalism, a fig leaf for those unwilling to maintain America's military strength and who lack the resolve to stand up to real enemies—countries that would use violence against us or our allies. Our peaceful trading partners are not our enemies; they are our allies. We should beware of the demagogues who are ready to declare a trade war against our friends—weakening our economy, our national security, and the entire free world—all while cynically waving the American flag. The expansion of the international economy is not a foreign invasion; it is an American triumph, one we worked hard to achieve, and something central to our vision of a peaceful and prosperous world of freedom.

After the Second World War, America led the way to dismantle trade barriers and create a world trading system that set the stage for decades of unparalleled economic growth. And in one week, when important multilateral trade talks are held in Montreal, we will be in the forefront of efforts to improve this system. We want to open more markets for our products, to see to it that all nations play by the rules, and to seek improvement in such areas as dispute resolution and agriculture. We also want to bring the benefits of free trade to new areas, including services, investment, and the protection of intellectual property. Our negotiators will be working hard for all of us.

Yes, back in 1776, our Founding Fathers believed that free trade was worth fighting for. And we can celebrate their victory because today trade is at the core of the alliances that secure the peace and guarantee our freedom; it is the source of our prosperity and the path to an even brighter future for America.

Until next week, thanks for listening, and God bless you.