On Wednesday, April 1, the Supreme Court will hear oral arguments on President Trump’s attempt to change birthright citizenship policy through executive order. We’ll be listening to the oral arguments here, and so can you.

There are two issues. The first is the procedural question: Can a president change the interpretation and application of the Constitution through executive order?

Now, the almost immediate answer is going to be an emphatic “no,” but it’s a bit more complicated than that. Each branch of the federal government has an obligation to interpret the Constitution. Officials in each branch take an oath to “preserve, protect and defend the Constitution.”  And since the executive branch is tasked with enforcing the 14th Amendment, it’s not crazy for the executive branch to interpret its constitutional obligations as it enforces them.

On the other hand, the “major questions doctrine” that this Supreme Court has thankfully been applying to disputes means major changes in federal policy should be decided by the legislature, not the executive or judicial branches. It wouldn’t be a surprise for the Court to conclude that this applies to the interpretation and application of the 14th Amendment.

The Court can, and probably will, limit itself to the procedural issue, since that’s the only question the Court must address in this case. The Court often decides only the minimally necessary questions posed to it.

So, the Court probably won’t choose to settle the question of birthright citizenship, though it could. This would leave the debate open, in theory to be settled by Congress or in a future Supreme Court decision.

The best solution is a clarifying amendment to the Constitution. No one thinks it was the intention of the 14th Amendment to provide citizenship to birth tourists, who cross the border for no other purpose than to bestow U.S. citizenship on their newborn. We know this happens, and it isn’t just illegals crossing the southern border—it’s also wealthy couples from South America, Europe and Asia who return home with trinkets from Disney World and citizenship for their newborn.

IPI will be proposing a clarifying amendment on birthright citizenship as part of our Renewing America 250 set of proposed constitutional amendments later this year. In our view, it’s long past time to update elements in our system left over from the horse and buggy days when it took weeks for Congress to convene, and to deal with current problems not previously anticipated, including birthright citizenship.

This week courts have given us two different and contradictory verdicts about intermediary liability.

In a case going all the way back to 2018, Cox Communications, the cable and broadband company, was accused of failing to live up to its legal obligation to limit music piracy.

To simplify, Cox had an obligation to cancel the accounts of users who had been warned multiple times about engaging in music piracy, but Cox did not. Cox of course had a financial interest in not cancelling users accounts.

So Cox was sued by the major music labels, and the labels won in lower courts. But this week the Supreme Court continued its skepticism of intermediary liability by finding that Cox was not liable, because Cox did not “actively encourage infringement.”

According to the New York Times, “in its opinion released on Wednesday, the court said a company was not liable for “merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights.”

Writing for the court, Justice Clarence Thomas said a provider like Cox was liable “only if it intended that the provided service be used for infringement” and if it, for instance, “actively encourages infringement.”

So, an intermediary has to intend for something to happen, and actively encourage that thing to happen, in order to incur liability.

The Court’s unanimous 9-0 decision is of course definitive, even if it seems to fly in the face of some provisions of the Digital Millenium Copyright Act (DMCA).

At IPI, we’ve never been comfortable with intermediary liability, even though we’re also uncomfortable with copyright piracy.

But that leads us to two other cases this week, where in Los Angeles on Wednesday, a jury decided in favor of a plaintiff who had claimed that Meta and YouTube hooked her with addictive features — a verdict validating a novel legal strategy holding the companies accountable for personal injury. And a day earlier in New Mexico, a jury found Meta liable for failing to safeguard users of its apps from child predators.

So, let’s get this straight: Intermediaries are not liable for their users’ illegal activity unless they intend it and actively encourage it, but they are liable for harm to their users, including self-harm, even if they don’t intend it and don’t actively encourage it.

Now, of course the details of the cases are different, and details matter.

Still, the Supreme Court is not a fan of intermediary liability, and that’s a good thing. Which means if Meta and Google appeal all the way to the Supreme Court, there is a reasonable chance that they will succeed.

The tragedy unfolding this week at New York’s LaGuardia Airport hints at human error. We shouldn’t jump to conclusions based on early reports, but in this case we have audio of the air traffic controller saying, “I messed up.”

Nothing but complete sympathy here for everyone involved, including the air traffic controller. Air traffic control is recognized as one of the most difficult, stressful and pressure-filled jobs on offer. And by all accounts it’s been decades since our corps of air traffic controllers was fully staffed.

But we must acknowledge the reality of human error. In many tragedies, human error is the No. 1 cause:

• Traffic accidents: 90 to 95% are attributed to human error.
• Aviation accidents: 70 to 80% are attributed to human error.
• Maritime accidents: 75 to 96% are attributed to human error.
• Medical errors: Human error is a leading cause of death in medicine, including misdiagnosis, medication errors, and surgical mistakes.
• Nuclear power and major industrial accidents: Both the Chernobyl disaster and the Three Mile Island incident were attributed to human error.
• General industrial/workplace accidents: Most are attributed to human error.

Human error is also a major factor in cybersecurity breaches, IT system failures, construction accidents, structural failures, power grid failures, and even in other areas such as business failure, including risk management errors and so-called “fat finger” trading errors.

Human error is neither a character flaw nor a lack of intelligence or integrity. It’s just a known element of human nature. That’s why in tragic cases like a child left in a backseat by a distracted parent, the proper reaction is compassion, not judgment. We all make mistakes.

Though human error may be inevitable, we are creating tools to help us compensate.

Human error is a perfect place to implement tools like AI to protect us from our own mistakes and compensate for our frailties. Implementing AI could substantially contribute to our quality of life by reducing preventable tragedies.

It’s likely that implementation of AI could eliminate most accidents due to human error. Chips and software don’t get tired, don’t get distracted, and make decisions in millionths of a second that a human might take 5 or 10 seconds to make. Studies suggest that humans can keep track of 3 to 5 independent variables at the same time, while AI can manage orders of magnitude more.

Humans are attention-constrained, while AI is computation-constrained. And while we can’t do anything to improve the former, we’re reducing the computational constraints on AI every day.

After the air traffic controller said, “I messed up,” some kind soul immediately responded with “No, man, you did the best you could.” And that’s entirely possible. It’s likely advanced AI could have prevented the accident, both pilots could have returned to their families, and an air traffic controller could be able to sleep tonight.

The political furor of the moment is over the SAVE Act, or the “Safeguard American Voter Eligibility Act.”

Based on that title, you would think that the bill is about voting.

And it started out that way, with a voter ID requirement for federal elections.

Voter ID is an 80-20 issue. Republicans, who have been championing voter ID for two decades, have won the argument.

So, Republicans should bank the easy win, pass the bill and move on, right? Well, no.

Winning policy arguments, solving problems and preserving those solutions in law is no longer what Congress does. You must fight. So, they threw in requirements that voters prove citizenship when they register to vote.

Now, of course only citizens should be permitted to vote. But voter ID solves 99% of that problem. Regardless, the proof of citizenship requirement gives us more to fight over, even though it loses some votes in both the House and Senate, and it advances the nationalization of elections.

Then President Trump insisted that Republicans eliminate vote by mail, which many states have long implemented, and which almost certainly violates state power over time, place and manner of elections.

But maybe, just maybe, even that bill might still pass.

Then Republicans throw transgender culture war issues into what started as a voter ID bill. Elements that are utterly non-germane to the bill, and that ensure that the bill is impossible to pass.

Now, of course men shouldn’t be allowed to compete in women’s sports. But what does that have to do with elections? Is it worth losing voter ID?

But it gets everyone kung fu fighting online, and it gets people ranting on cable shows.

The final genius move was insisting that the Republic is at stake if the SAVE Act doesn’t pass.

The truth is that the SAVE Act contains elements that would be nice to have, but none of which are critical to the survival of the Republic.

And now the Republican grassroots are furious that Republicans can’t pass the SAVE Act. Do they want men in women’s sports? Do they want illegals voting?

But the votes aren’t there, and the votes won’t be there, because the SAVE Act was designed to not pass. To prolong the fight, not solve the problem.

Our representatives no longer want to solve problems through legislation. They want to prolong problems and prolong frustration, because their brands are built on voter frustration.

The Founders designed a system where our representatives would come to the Capitol, debate and discuss issues, compromise with each other to solve problems, and then go home. That system increasingly looks like a dream.

While the headline-grabbing topic in the affordability debate is the cost of home ownership, the rising cost of electricity in certain markets is a close second.

However, rates aren’t exploding everywhere; they’re spiking in California and the Northeast. In California, in addition to all the normal California distortions like high taxes and regulations, the main factor is wildfire-related costs.

That leaves the Northeast, and the spike in power costs there is real and consequential. There are lessons to be learned.

In many parts of the country, rates have remained relatively stable due to the right balance of competition, regulation and the right mix of generation and transmission. In others, especially in the Pennsylvania-New Jersey-Maryland Interconnection (PJM), spiking rates serve as a price signal, alerting us that something is wrong.

The way we incentivize power generation, transmit it, and regulate it is one of the most complicated, arcane subjects in public policy, and we aren’t going there (whew). So let’s simplify.

Investor-owned utilities are the backbone of the U.S. electrical system, serving 250 million Americans. In many states, these utilities are vertically integrated, which means they own generation and transmission. They thus operate under state oversight with a simple mandate: plan for the long term, build what’s needed, recover costs from qualified investments in new infrastructure, and keep power reliable and affordable. It’s not glamorous, but it works. Vertical integration plus long-term planning smooths out volatility. That’s why most areas have seen relative price stability even as demand rises.

However, in places exposed to wholesale capacity auctions that spike when supply tightens, where utilities don’t own generation and must buy at market rates, those spikes flow straight through to customers.

We need market reform in places such as PJM to promote proper transparency and oversight with trusted utility partners. Investor-owned utilities have a legal obligation to serve everyone in their territory — urban, rural, wealthy, poor. These utilities have access to lower-cost capital, which reduces the financing costs that customers ultimately pay. And investor-owned utilities plan across decades, not news cycles or quarterly reports. That kind of boring competence is underrated, right up until you don’t have it.

In regions where we offloaded long-term responsibility to an opaque capacity market and hoped price signals alone would summon new power generation on command, things have not gone so well.

A terrible example occurred during the Great Texas Freeze of 2021, when wholesale electricity prices spiked to $9,000 per megawatt-hour, the maximum cap set by the Electric Reliability Council of Texas. This price surge, which was 400 times the typical rate, was intended to attract additional generation by offering extreme market rewards.

However, the spike failed to achieve its intended effect because many natural gas facilities had frozen or lost their fuel supply, rendering them unable to generate electricity regardless of price.  The result was a $52.6 billion price hit on consumers. While the price mechanism was intended to function as a market signal, it instead caused catastrophic financial harm.

Some have identified data centers as the culprit for high energy prices in the northeast, but data centers are being built everywhere. That fails to explain why the price spikes seem limited to areas where utilities can only purchase power from wholesale capacity auctions and cannot connect additional power to the grid. The problem is a poorly designed market, however well-intended.

So, what’s the solution? First, it’s a regional, not a national, problem. Second, barring utilities from owning their own generation has turned out to be a mistake. Instead, grid authorities should be encouraging investor-owned utilities to invest in new generation to ensure abundant, robust sources of power for the future. 

A February 2026 analysis by Charles River Associates modeled PJM’s 2028–2029 delivery year and found that expanding state-regulated, utility-owned generation could reduce total customer supply costs by $9.6 billion to $20 billion in that single delivery year. In Charles River Associates’ scenario, “utility-owned generation” means operating alongside merchant generation, not replacing markets, but adding planned, accountable supply.

When it comes to ensuring a reliable source of power at affordable rates, the evidence suggests that investor-owned utilities are not the problem; they’re a big part of the solution.

When claims are made that one of the most widely used medications during pregnancy may cause autism, the public understandably pays attention. Scientists, healthcare professionals, and even judges, however, must ask: What does the evidence actually show?

That question is now before the U.S. Court of Appeals for the Second Circuit in New York.

The court is reviewing whether to revive more than 500 lawsuits brought by parents alleging that prenatal acetaminophen exposure caused their children’s autism or attention deficit hyperactivity disorder (ADHD).

In 2023, U.S. District Judge Denise Cote correctly excluded key expert testimony supporting those claims, concluding that they failed to meet the reliability requirements under Federal Rule of Evidence 702.

Rule 702 requires judges to ensure that expert testimony presented to juries is grounded in sufficient data, reliable methodology, and a sound application of those methods to the facts of the case. In other words, courts must act as gatekeepers to prevent speculative or methodologically unsound scientific claims from being treated as fact.

Now, plaintiffs are asking the appellate court to reverse that ruling.

The Second Circuit’s decision will test judges’ authority to prevent questionable scientific claims from reaching a jury before they satisfy established reliability standards.

This judicial gatekeeping role is essential. When expert opinions are admitted without rigorous scrutiny, litigation can amplify assumptions that have yet to meet the standards of the broader scientific community.

One reason the plaintiffs’ expert testimony was dismissed is the issue of confounding variables. Neurodevelopmental conditions such as autism and ADHD have strong genetic components. Disentangling whether a condition stems from a medication exposure or from shared familial and hereditary factors is extraordinarily complex.

None of this means the question should not continue to be studied. But when the vast majority of high-quality studies find no causation between prenatal acetaminophen use and neurodevelopmental conditions, careful gatekeeping must be exercised.

This case’s potential impact on public health makes gatekeeping even more important.

Acetaminophen is one of the most widely used medications in the world and remains the only generally recommended pain and fever reliever during pregnancy when used as directed. That guidance reflects decades of regulatory review and clinical experience.

Several studies have reported an increased likelihood of birth defects and other adverse outcomes from untreated maternal fever. Physicians routinely advise pregnant patients to treat significant fevers promptly because unmanaged fever itself can pose risks to fetal development.

If pregnant women avoid acetaminophen based on unproven claims, they may turn to alternatives such as ibuprofen or aspirin, which carry known risks later in pregnancy, including potential complications affecting fetal kidney development.

By upholding the gatekeeping responsibility of judges under Rule 702, the Second Circuit can reaffirm that scientific claims must meet established thresholds before being presented as reliable proof in court.

When claims are made that one of the most widely used medications during pregnancy may cause autism, the public understandably pays attention. Scientists, healthcare professionals, and even judges, however, must ask: What does the evidence actually show?

That question is now before the U.S. Court of Appeals for the Second Circuit in New York.

The court is reviewing whether to revive more than 500 lawsuits brought by parents alleging that prenatal acetaminophen exposure caused their children’s autism or attention deficit hyperactivity disorder (ADHD).

In 2023, U.S. District Judge Denise Cote correctly excluded key expert testimony supporting those claims, concluding that they failed to meet the reliability requirements under Federal Rule of Evidence 702.

Rule 702 requires judges to ensure that expert testimony presented to juries is grounded in sufficient data, reliable methodology, and a sound application of those methods to the facts of the case. In other words, courts must act as gatekeepers to prevent speculative or methodologically unsound scientific claims from being treated as fact.

Now, plaintiffs are asking the appellate court to reverse that ruling.

The Second Circuit’s decision will test judges’ authority to prevent questionable scientific claims from reaching a jury before they satisfy established reliability standards.

This judicial gatekeeping role is essential. When expert opinions are admitted without rigorous scrutiny, litigation can amplify hypotheses that have yet to meet the standards of the broader scientific community.

One reason the plaintiffs’ expert testimony was dismissed is the issue of confounding variables. Neurodevelopmental conditions such as autism and ADHD have strong genetic components. Disentangling whether a condition stems from a medication exposure or from shared familial and hereditary factors is extraordinarily complex. Critics argue that some of the underlying acetaminophen studies from the plaintiffs’ witnesses did not sufficiently control for these inherited influences, raising the possibility that correlation was mistaken for causation.

Additionally, the expert analyses combined autism spectrum disorder and ADHD outcomes despite their distinct diagnostic criteria. Putting autism and ADHD into the same analysis can make a weak relationship look stronger on paper, even though the conditions aren’t the same so don’t necessarily have the same causes.

Many of the observational studies relied heavily on retrospective, self-reported medication use, sometimes years after pregnancy. Such designs introduce the potential for recall bias. In addition, large, well-controlled studies that have not found a causal relationship were not given comparable weight in the experts’ conclusions.

None of this means the question should not continue to be studied. But when the vast majority of high-quality studies find no causation between prenatal acetaminophen use and neurodevelopmental conditions, careful gatekeeping must be exercised.

This case’s potential impact on public health makes gatekeeping even more important.

Acetaminophen is one of the most widely used medications in the world and remains the only generally recommended pain and fever reliever during pregnancy when used as directed. That guidance reflects decades of regulatory review and clinical experience.

Several studies have reported an increased likelihood of birth defects and other adverse outcomes from untreated maternal fever. Sustained elevated maternal temperature is not benign. Physicians routinely advise pregnant patients to treat significant fevers promptly because unmanaged fever itself can pose risks to fetal development.

Discouraging acetaminophen use without causal evidence of autism is incredibly risky. If pregnant women avoid acetaminophen based on unproven claims, they may turn to alternatives such as ibuprofen or aspirin, which carry known risks later in pregnancy, including potential complications affecting fetal kidney development.

By upholding the gatekeeping responsibility of judges under Rule 702, the Second Circuit can reaffirm that scientific claims must meet established thresholds before being presented as reliable proof in court.

If those standards weaken, unproven claims could influence public behavior in ways that put mothers and babies at risk.

The Second Circuit now has an opportunity to reinforce a simple but essential principle. In both law and public health, scientific standards matter.

Governments should have strategic reserves for the same reason families keep a spare tire or an emergency fund: not because it’s exciting, but because it’s useful when something goes wrong.

A real strategic reserve exists for a concrete, predictable reason: The thing you’re stockpiling is something you must be able to access in an emergency. Petroleum reserves hedge oil supply shocks. Medical stockpiles hedge shortages of critical supplies. Even foreign-currency reserves hedge a very specific risk: paying foreign-currency liabilities when markets seize up.

Bitcoin matches none of those use cases. There are no sovereign liabilities denominated in bitcoin, which means there’s no obvious emergency for which “having bitcoin on hand” is the solution. Reserves should be built around the liabilities and risks you’re trying to hedge — and bitcoin’s volatility tends to amplify risk rather than reduce it.

If you want an asset to be there in a crisis, it helps if it doesn’t routinely plunge 50 percent at the worst possible time.

Some proponents argue bitcoin is “digital gold” and will shore up dollar dominance. But that argument collapses the moment you ask the practical question: What liability does bitcoin help the United States pay? What emergency does it solve? We do not run a bitcoin-denominated economy.

In other words, a government bitcoin “reserve” is really government chasing fads and making highly speculative bets with taxpayer dollars. And gambling with taxpayer dollars is not a legitimate function of government.

In late 2025, Texas seeded its new bitcoin reserve fund with $5 million, buying bitcoin at a market price of $91,336. Less than two months later, that initial purchase has lost more than 28 percent of its value. Was that a good use of taxpayer dollars?

Of course, governments buying massive quantities of bitcoin would drive up the price, creating a windfall for existing holders. That’s undoubtedly why some crypto bros are pushing the idea — but that’s cronyism and wealth transfer, not sound strategy.

If a government comes into possession of bitcoin through forfeiture, it should be disposed of transparently and applied to legitimate public priorities. Locking it away indefinitely under an executive order that declares it must not be sold is the opposite of sober stewardship.

America’s strength is not that Washington is a better speculator than the market. It’s that we have the rule of law, deep capital markets, and an innovation economy that doesn’t require the federal government to run a hedge fund.

Governments should have strategic reserves for the same reason families keep a spare tire or an emergency fund: not because it’s exciting, but because it’s useful when something goes wrong.

A real strategic reserve exists for a concrete, predictable reason: The thing you’re stockpiling is something you must be able to access in an emergency. Petroleum reserves hedge oil supply shocks. Medical stockpiles hedge shortages of critical supplies. Even foreign-currency reserves hedge a very specific risk: paying foreign-currency liabilities when markets seize up.

Bitcoin matches none of those use cases. There are no sovereign liabilities denominated in bitcoin, which means there’s no obvious emergency for which “having bitcoin on hand” is the solution. Reserves should be built around the liabilities and risks you’re trying to hedge — and bitcoin’s volatility tends to amplify risk rather than reduce it.

If you want an asset to be there in a crisis, it helps if it doesn’t routinely plunge 50 percent at the worst possible time.

Some proponents argue bitcoin is “digital gold” and will shore up dollar dominance. But that argument collapses the moment you ask the practical question: What liability does bitcoin help the United States pay? What emergency does it solve? We do not run a bitcoin-denominated economy.

In other words, a government bitcoin “reserve” is really government chasing fads and making highly speculative bets with taxpayer dollars. And gambling with taxpayer dollars is not a legitimate function of government.

In late 2025, Texas seeded its new bitcoin reserve fund with $5 million, buying bitcoin at a market price of $91,336. Less than two months later, that initial purchase has lost more than 28 percent of its value. Was that a good use of taxpayer dollars?

Of course, governments buying massive quantities of bitcoin would drive up the price, creating a windfall for existing holders. That’s undoubtedly why some crypto bros are pushing the idea — but that’s cronyism and wealth transfer, not sound strategy.

If a government comes into possession of bitcoin through forfeiture, it should be disposed of transparently and applied to legitimate public priorities. Locking it away indefinitely under an executive order that declares it must not be sold is the opposite of sober stewardship.

America’s strength is not that Washington is a better speculator than the market. It’s that we have the rule of law, deep capital markets, and an innovation economy that doesn’t require the federal government to run a hedge fund.

Every major innovation seems to inevitably generate an infrastructure fight—generating public and political opposition right up until we can’t imagine life without it. Railroads divided farms and ranches. Telegraph lines “uglified” streetscapes. Highways carved through neighborhoods. Pipelines, cell towers, wind farms, transmission lines—each sparked a familiar chorus: too big, too ugly, too loud, too much. And yet, in the end, the public benefited tremendously because economic growth requires a growing infrastructure.

Today’s favorite target for such opprobrium is the data center.

Just a couple of years ago, policymakers competed to attract data centers. They were symbols of growth, high-value investment, better tax bases, and the digital backbone of modern commerce. Now many of those same policymakers speak as if data centers are some kind of social evil—because they consume power and water, and because the AI boom is making that demand visible. You can see the shift in the sudden wave of proposed moratoriums and “pause” bills rationalized by energy, water, and ratepayer concerns.

Let’s be clear about what a data center is: critical infrastructure. It is the physical home of the digital services we rely on for banking, ecommerce, logistics, emergency communications, healthcare records, education, and—yes—national security. If policymakers are serious about economic competitiveness, they should treat data centers the way they treat ports, rail spurs, and power plants: as necessary facilities that must be sited responsibly, not demonized reflexively.

Critics raise legitimate issues—grid capacity, water use, noise, backup generators, local land-use impacts. But the policy response should be responsible and data-driven, not reactionary.

Start with electricity. Data centers don’t “steal” power; they buy it—often at industrial rates with long-term contracts—and their presence as a predictable buyer can justify new generation and transmission investments that benefit everyone. A rapidly growing load is not a moral failing; it’s a planning challenge. The right answer is to build abundant energy—more natural gas, more nuclear, more renewables where they make sense, more transmission—so that families aren’t pitted against servers in a zero-sum political drama. Lawmakers across the country are already debating how to protect ratepayers while accommodating growth, which tells you the debate is about policy design, not existential threat.

On water: in most cases, data centers use closed-loop systems for cooling, so it’s like filling a swimming pool one time. Over time, data centers consume less water than a car wash. Policymakers can require transparency, recycling, and closed-loop systems rather than discouraging new investment. Indeed, multiple states are moving toward water-use reporting requirements—exactly the kind of targeted, pro-information approach that beats panic.

The broader point is this: America’s economy won’t continue to innovate and remain prosperous by making infrastructure buildout difficult. We stay prosperous by insisting on sensible rules, clear property rights, and predictable permitting—and by letting private capital build the backbone of the next economy, instead of letting political panic veto it.

Running a small business is hard, and that’s especially true for doctors running private practices. Like any small business owners, they’re navigating payroll, expenses and overhead. Add on the bureaucratic red tape and chronic underpayments that come with billing Medicare and it’s a wonder that doctors have the time and resources to see patients at all.

If we want to improve the health of Americans and make it easier to access care, not harder, it’s time for Congress to prioritize protecting private practice. Instead, we’ve seen the government picking winners and losers. These market distortions only contribute to our nationwide healthcare shortage, and the problems in Texas are especially worrying.

According to the Texas Public Policy Foundation, a conservative think tank, the state “is projected to be short 10,330 doctors by 2032.” It estimates that more than six million Texans live in areas with shortages of health providers and notes that “37 counties lack a single primary care doctor.” Also: “To make matters worse, 15 percent of Texas’ primary care physicians are 65 years old or older and getting ready to retire.”

Part of the blame must rightly fall on Medicare’s flawed physician payment system — known as the Medicare Physician Fee Schedule, or MPFS. Unless addressed, the structural problems inherent in the fees that Medicare will pay could force local, independent community doctors to stop accepting Medicare patients or even go out of business altogether.

At the heart of the issue is the fact that Medicare drastically underpays independent physicians for the care they provide. According to data from the American Medical Association, payments to physicians through the MPFS have been on a slow and steady decline for decades. Since 2001, Medicare payments to physician practices have fallen by 33% (adjusted for inflation). By failing to tie physician payments to the inflation in the cost of running a practice, the federal Centers for Medicare and Medicaid Services is forcing smaller physician practices to do more with less.

As Medicare payments become increasingly inadequate to sustain independent physician practices, many are being forced to reduce their staff or the range of services they provide, turn away Medicare patients or exit the profession entirely. The other alternative is to accept a buyout from a large health system or hospital. But those tend to be farther away from home, feel less personal and charge patients and taxpayers more.

In any case, limited payment is driving physicians out of private practice en masse. In 2024, only 42% of physicians worked in the private setting, a nearly 20 percentage point decrease from 2012. With fewer options for care, the strain on existing physician practices and wait times for patients continue to grow. According to a recent survey, patients must wait an average of 31 days for a physician appointment in major metropolitan areas such as Dallas-Fort Worth and Houston. That’s an increase of 19% since 2022 and 48% since 2004. These long waits can undermine patient outcomes and lead to even worse health complications.

Congress must address these concerns and put the fee schedule back on a sustainable, stable path forward to strengthen and protect local physician practices as well as access to care for patients.

After five straight years of cuts, lawmakers recently approved a slight increase for doctors in 2026, but it doesn’t address the cuts physicians are facing this year. Nor does it ensure reimbursements in future years will adequately reflect the rising cost of care.

Moving forward, lawmakers must pass legislation that ties payments through the MPFS to inflation — as with other Medicare provider payment systems. By doing so, Congress can provide the support and resources physicians need to keep their doors open and continue serving their patients and communities. Fortunately, Texas Sen. John Cornyn recently said that he hopes doing so is “high on the agenda.”

With the clock ticking, Texas’ leaders in Washington should help level the playing field for physicians throughout the Lone Star State and across the country. The sooner they fix this broken Medicare payment system, the better off we will all be.

For the last six months, the European Union (EU) has held in suspension its 25% retaliatory tariff on American bourbon. But that six-month suspension ended yesterday, February 5. Which means the EU could reinstate its bourbon tariff today, or at any point in the future.

Just what American bourbon producers need right now.

But not just bourbon producers—corn and wheat farmers, oak barrel manufacturers, and everyone else who is in the supply chain for producing bourbon are in the crosshairs. And especially the employees of those companies.

Since it’s been confusing to a lot of people, let’s review how tariffs work. If the EU puts a 25% tariff on imports of American bourbon, that means European consumers will pay a much higher price for it. The country that levies the tariff pays the tariff. The intent of tariffs is to make imports more expensive, so that imports will decrease. You intentionally make imports more expensive for your own consumers.

And, for the nth time, it is Americans who pay the tariffs that the Trump administration has levied on, well, just about everyone and everything. When the United States puts tariffs on bananas from Guatemala, it is American households, not Guatemalans, who pay the tariffs. Guatemalans just lose their jobs.

And when the EU tariffs American bourbon, we don’t pay more for bourbon—they do. But we sell less of it to them. In other words, we’re both harmed.

Sorry for being pedantic, but there has been so much misinformation and falsehoods about who pays tariffs, we need to be very clear and a bit repetitive.

“Well, I don’t drink bourbon and I don’t work in the liquor industry, so the tariffs won’t hurt me,” you might say. Granted. But the tariffs on hundreds of other consumer items and thousands of raw materials DO hurt you. They harm the industries you work in, and they make you pay higher prices.

And for what? To create a golden age of manufacturing in the U.S? How’s that working out?

The Bureau of Labor Statistics’ Employment Situation Report for December 2025 (released Jan. 9, 2026), showed that manufacturing employment was down 10,000 jobs over Q4 (Oct. → Dec.), and down 68,000 jobs year-over-year (Dec. 2024 → Dec. 2025).

Whatever policy problem you’re trying to solve, tariffs are a lousy tool to accomplish it.

We expect the Supreme Court to relieve us of many of the most egregious and capricious tariffs imposed by this administration any day now. Perhaps our trading partners are waiting as well.

But relying on a sober Judicial Branch to save us from an impotent Legislative Branch and the daily chaos of the Executive Branch is a precarious situation for a supposedly self-governing people.

Highlights

• Analysis of the streaming marketplace by numerous criteria shows that Netflix is already the dominant competitor in terms of paid subscribers (more than double Disney+), attention share (about double its nearest competitor), and profitability (only long-term profitable company).
  
  
• In comparing the two most likely scenarios, a Warner Bros. merger with already dominant Netflix would likely run afoul of standard antitrust considerations, while a combination with Paramount (or another smaller streaming service) could allow for the creation of a more substantial competitor for Netflix.
  
  
• A Netflix-Warner Bros. merger would probably harm the already struggling theatrical exhibition market, resulting in job losses, reduced revenue for restaurants and shops, among other hardships.
  
  
• Netflix’s history of price increases indicates it is already leveraging its market dominance, and it is reasonable to conclude that, following its acquisition of Warner Bros., it could set rates across the entire sector. 

Introduction

Even though the video streaming marketplace is relatively new, it is widely understood that some market consolidation is inevitable and necessary.i  

In the current market, consumers are frustrated and Wall Street is impatient.ii There are so many streaming platforms offering an abundance of content, some consumers end up using spreadsheets just to keep track of which service their favorite shows are on, or have begun using apps like JustWatch to keep track of which shows are available on which services. 

Consumers aren’t frustrated because the market has failed—the market has delivered spectacularly. Content owners promised to make their catalogs easily available to consumers if they were permitted to protect their valuable copyright interests, and broadband providers promised abundant bandwidth with low latency if they were permitted to profit from their enormous investment in infrastructure. And both delivered. Thus far, policymakers have gotten the big decisions largely correct, and the result is incredible choice and availability for consumers. 

The result is a “crisis of abundance” for consumers. This isn’t a terrible problem, as problems go, but there are other players in the market besides consumers. Most streamers aren’t profitable,iii and that’s a problem for Wall Street in the short term and for the companies themselves in the long term. It’s clear that some consolidation is necessary. Streaming disrupted the formerly stable cable model, and it is normal for a period of consolidation to follow a period of disruption. 

Already there has been a spate of mergers—including Disney+, Hulu and ESPN+, Amazon’s acquisition of MGM Studios, and Warner Bros.’ merger with Discovery Inc. 

But consolidation in the streaming industry clearly isn’t finished yet.

Warner Bros. on the Block (again) 

Last October, Warner Bros. Discovery, itself the product of a merger, started exploring merger and sale options, setting the stage for a seismic shift in the media and entertainment landscape. While many potential suitors seemed interested, Paramount Skydance made an offer for the entire company. In reaction, Netflix made an offer for only certain Warner Bros. properties. Weeks later, Warner Bros. accepted Netflix’s offer. 

The announcement immediately drew scrutiny from policymakers in Washington, as Netflix is already the largest subscription video on demand (SVOD) provider in the world. Warner Bros.’ vast content library, sizeable production capabilities, and the third-largest streaming platform (HBO Max), combined with Netflix’s scale, could easily preclude competition in this quickly evolving sector. 

But Paramount Skydance hasn’t thrown in the towel and is attempting to persuade Warner Bros. Discovery shareholders that theirs is the superior offer. It would not be unusual for both suitors to continue to modify and enhance their bids as the process unfolds. 

Meanwhile, on January 7, the U.S. House of Representatives subcommittee that oversees antitrust issues held a hearing on the impacts of consolidation in the entertainment sector. Additionally, Senator Mike Lee, Chairman of the Senate Subcommittee on Antitrust, is expected to hold a hearing on Tuesday, February 3, and Netflix CEO Ted Sarandos has reportedly agreed to testify. With Paramount Skydance still vying for contention, a Netflix-Warner Bros. merger will undoubtedly face substantial scrutiny by policymakers. 

This paper analyzes key factors that policymakers and antitrust regulators should consider as they review the potential sale and the impact it would have on competition, consumers, innovation, and the economy.  

Free Markets and Antitrust

Through competition, innovation, property rights, and rule of law, free markets drive optimal consumer outcomes. Markets are not perfect, but they generally produce value, choice, and novelty for consumers—certainly better than do top-down central control systems. 

As a rule of thumb, light-touch regulatory policy allows markets to push forward deals that make sense and best meet consumer demand without distortion caused by government intervention. 

Scale is not necessarily harmful to consumers—in fact, depending on the industry and market, scale is sometimes necessary to meet consumer demand. There can be literally thousands of doughnut shops, dry cleaners or restaurants in a city, because such do not require enormous infrastructure investment, but no one imagines that there could be thousands of electric utilities or internet providers in a city. 

But scale can be harmful to consumers if scale is leveraged to reduce competition, consumer choice, increase prices and slow innovation. 

Antitrust review, oversight and enforcement is part of our legal code, and is sometimes necessary. From a free market perspective, antitrust law is intended to ensure consumer welfare, which includes preventing dominant competitors from taking advantage of their market dominance to harm consumers through limiting choice, competition, and by extracting higher prices. 

Antitrust Considerations 

There are two important considerations in a market analysis from a free market standpoint. 

One is philosophical: The “consumer welfare standard,” formally described by Robert Bork in his book “The Antitrust Paradox.” Bork argued that government shouldn’t attempt to manage competition based on government’s idea of what a market should look like but should rather make judgments based on how a market actually behaves. 

The second is U.S. law, regulation and precedent. In a 1963 Supreme Court decision, United States v. Philadelphia National Bank, the Supreme Court determined that a 30 percent market share was a significant threshold for antitrust considerations. That decision established the "structural presumption" that certain mergers—particularly those involving significant market concentration—can be presumed to substantially lessen competition, shifting the burden to the merging parties to prove otherwise. 

Policymakers need to take both legal precedent and the consumer welfare standard into account when evaluating streaming consolidation and the mergers under discussion. 

And that’s what current Department of Justice guidance demands. The 2010 Horizontal Merger Guidelines (HMG), jointly published by the Department of Justice and the Federal Trade Commission (FTC), included sections alluding to the “consumer welfare standard.” 

Section 1 of the HGM reads, “The unifying theme of these Guidelines is that mergers should not be permitted to create, enhance or entrench market power…. A merger enhances market power if it is likely to encourage one or more firms to raise prices, reduce output, diminish innovation, or otherwise harm customers….” Furthermore, Section 10 states “the Agencies will not simply compare the magnitude of cognizable efficiencies with the magnitude of the likely harm to competition absent the efficiencies. The greater the potential for adverse competitive effect of a merger, the greater must be the cognizable efficiencies, and the more they must be passed through to customers….”

The HGM leaves little doubt that the antitrust enforcement agencies are including both the consumer welfare standard and established precedent as the driving factors for merger evaluation and other antitrust litigation. 

Trump Administration Antitrust Policy

As in many other policy areas, the Trump administration has not felt bound to prior Republican approaches. President Trump and his agency appointees are far more skeptical of corporate market power, and much more willing to use government power to actualize their preferences, than have been previous Republican administrations.

While the Trump administration revoked Biden’s executive order radically expanding U.S. antitrust enforcement, it left in place Biden’s 2023 merger guidelines, and new Hart-Scott-Rodino Act rules were finalized by the Trump administration on February 10, 2025.iv The net result is that the Trump administration does not begin with a “hands off” approach to antitrust review. This makes it more likely that any merger, especially one where there seem to be genuine competition concerns, will be subject to more scrutiny. 

Analysis of the Streaming Marketplace 

The streaming marketplace saw a surge of new entrants in the late 2010s as subscription video disrupted traditional cable model. The result has been a “disaster of abundance,”v in which users increasingly reported “subscription fatigue.” In 2024 nearly a quartervi of U.S. streaming users reported canceling three or more subscriptions over the prior two years, and almost one thirdvii of Americans canceled at least one service last year. 

While much of this industry restructuring was, and is probably still, necessary—many services remain unprofitable, and for them, a merger may be the only option to continue operating. Thus, competition and antitrust concerns will likely follow the streaming market for the foreseeable future. 

The Current Streaming Marketplace 

For purposes of this paper, platforms that consist of almost entirely user-generated content, such as YouTube, are excluded from the market definition. We consider YouTube to be a video-sharing platform, as opposed to an on-demand video streaming service. While YouTube garners a significant share of consumer attention, user-generated content is dissimilar to studio and network generated content as provided by Netflix, Amazon Prime, Disney, Paramount, Peacock, Warner Bros. Discovery, Tubi and Roku. Consumers often go to YouTube, but they don’t go to YouTube for the same reason they go to other streaming services. 

Netflix maintains otherwise; insisting that YouTube should be included in the market definition, because it would appear to lessen Netflix’s market dominance. But this assertion does not stand up to scrutiny when considering how consumers use these services. User generated content can be surprisingly creative and entertaining, but it doesn’t substitute for studio-created content. 

We define the streaming video marketplace as on‑demand catalog services under the editorial responsibility of the provider (i.e., services offering programs from a catalog selected by the provider). User-upload video-sharing platforms such as YouTube are excluded because they operate primarily as video-sharing platforms without editorial responsibility for user-generated uploads, and their content offering and competitive constraints differ materially from curated on‑demand program catalogs. 

Importantly, both EU regulatorsviii and the UK regulator Ofcomix make this same distinction. 

We will examine the streaming marketplace by several different criteria.

Note: Shortly before publication, on January 21, 2025, Netflix reported its full-year earnings for the 2025 fiscal year, reporting $45.2 billion in revenue for the full year (up 16 percent year-over-year), and with ad revenue rising over 2.5x to over $1.5 billion. Viewing hours were up 2 percent year-over-year, and total subscribers increased to 325 million.x

Because comparing Netflix’s 4Q 2025 numbers with its competitors’ 2024 numbers would be invalid, we note the new numbers here prior to our comparisons. What is clear is that Netflix continues to increase its market dominance, while other competitors continue to struggle. 

Subscribers 

For the most part, streaming services report subscriber numbers as a part of their earnings reports, though not all services do, and not all services break out video streaming from other offerings.

• Netflix: Finished 2024 with 302 million subscribers (and reported “Global Streaming Paid Memberships” of 301.63 million for Q4 2024).xi
• Amazon Prime: More than 200 million members; Amazon doesn’t report Prime Video subscribers. Amazon uses its video services as a feature to acquire and retain users in its Prime memberships. A study last yearxii found 90 percent of Prime users say free shipping is the primary incentive for maintaining their subscription. It is therefore not possible to determine the number of consumers who simply choose to subscribe to Amazon Prime.
• Disney: End of fiscal Q4 2025: 132 million Disney+ subscribers and 196 million Disney+ & Hulu subscriptions.xiii
• Warner Bros. Discovery (HBO Max + Discovery+): 128.0 million global streaming subscribers at end of Q3 2025.xiv
• Paramount (Paramount+): 79.1 million Paramount+ subscribers at Q3 2025 end.xv
• Comcast (Peacock): 41 million paid subscribers as of Sept. 30, 2025.xvi
• Apple TV+: While Apple does not release numbers, Reuters cites 40.4 million subscribers per analyst estimates.xvii

Conclusion: Netflix is far and away the dominant competitor in terms of paid subscribers, dwarfing all other standalone video streaming providers. Netflix has more than double the number of subscribers as content powerhouse Disney+.

Attention Share

Streaming services don’t report viewing numbers in a standardized or comparable manner, but market analysts have employed several methods to attempt to quantify streaming data.

Nielsen’s “The Gauge” is one of the most cited benchmarks for streaming services because it’s based on TV viewing minutes in the U.S. In November 2025, streaming was 46.7 percent of total TV usage. The Gauge reportsxviii that, for November 2025, streaming platforms by attention share were:

• Netflix (8.3 percent) (30.41 percent weighted by market definition)
• Disney (4.7 percent) (17.22 percent weighted by market definition)
• Amazon Prime (3.8 percent) (13.92 percent weighted by market definition)
• Roku (2.9 percent) (10.62 percent weighted by market definition)
• Paramount (2.3 percent) (8.42 percent weighted by market definition)
• Tubi (2.1 percent) (7.69 percent weighted by market definition)
• Peacock (1.9 percent) (6.96 percent weighted by market definition)
• Warner Bros. Discovery (1.3 percent) (4.76 percent weighted by market definition)

Conclusion: Netflix is the clearly dominant competitor in terms of attention share, about double that of its nearest competitors. 

Profitability

Not all streaming companies report their profits in a way that allows direct comparison. This data is from publicly available filings from corporate earnings reports. 

• Netflix: In 2025, revenue grew 16 percent, operating margin expanded to 27 percent, and operating income exceeded $10 billion for the first time.xix
• Amazon Prime: Does not report standalone streaming profit & loss.
• Disney: Q4 fiscal 2025 direct-to-consumer operating income was $352 million.xx
• Warner Bros. Discovery: Q3 2025 streaming adjusted EBITDA was $345 million.xxi
• Paramount: Q3 2025 materials show Paramount+ management messaging that profitability is a top priority with expectations for direct-to-consumer profitability to be reached in 2025.xxii
• Peacock: Comcast reported Peacock EBITDA losses of $217 million in Q3 2025.xxiii 

Conclusion: Netflix is in the strongest profit position which allows it to self-fund content projects and command a premium for its subscription service. Most other streamers remain unprofitable or are subsidizing their video streaming services from other revenue sources. 

Apple-ish to Apple-ish Snapshot 

This analysis allows us to construct a “power ranking” of streaming market strength. 

Tier 1: Platform Leaders

• Netflix
• Amazon Prime (estimated) 

Tier 2: Strong and Improving

• Disney
• Warner Bros. Discovery 

Tier 3: Mid-scale Challengers

• Paramount
• Peacock

Tier 4: Small but Strategic

• Apple TV+ (estimated) 

Tier 5: Marginal with Ad Strength

• Roku Channel
• Tubi

Two Merger Scenarios

At the time of this writing, both Netflix and Paramount Skydance are vying to acquire Warner Bros. Discovery. Let’s briefly compare the two possible outcomes. 

Scenario One: Netflix Acquires Warner Bros. Discovery 

By our analysis, this would involve a dominant Tier 1 competitor combining with a strong and improving Tier 2 competitor. In formula terms, 1+2. 

Netflix, with 302 million subscribers, would combine with 138 million subscribers, likely pushing its subscriber base to over 400 million, more than twice as many as the next closest competitor, Amazon Prime Video, which has about 200 million subscribers. 

And that comparison is skewed by the two streaming services’ different revenue models. Whereas Netflix operates on direct revenue, Amazon uses its video services as a feature to acquire and retain users in its Prime memberships. In other words, many Amazon Prime “subscribers” pay for Prime not for the video component, but for other “perks,” especially free shipping. A study last yearxxiv found 90 percent of Prime users say free shipping is the primary incentive for maintaining their subscription.  

The next closest sole content platform to Netflix is Disney+, which has slightly more than 130 million users. A merger with Warner Bros. would position Netflix with more than three times as many subscribers as Disney+. 

According to a recent analysisxxv by JustWatch, Netflix’s acquisition of Warner Bros. would push its share of the U.S. SVOD market to 33 percent—12 points higher than Prime Video, the next closest platform in terms of size. JustWatch also estimates that this combination would account for 20 percent of streaming attention share. 

By all available evidence, Netflix’s acquisition of Warner Bros. would run afoul of the United States v. Philadelphia National Bank market share threshold. Netflix is already the leading streaming service, both by subscriber volumexxvi and viewership.xxvii It’s also the obvious leader by market cap, with an equity value of almost $40 billion morexxviii than all the other major entertainment producers and theatrical exhibitors combined. 

By this market analysis, Netflix already is above the 30 percent market share threshold, even before any further acquisitions. 

Scenario Two: Paramount Skydance Acquires Warner Bros. Discovery 

By our analysis, this would involve a Tier 3 mid-scale competitor combining with a strong and improving Tier 2 competitor. In formula terms, 3+2. 

Paramount Skydance, with 79.1 million subscribers, would combine with 138 million subscribers, likely resulting in a net subscribership of about 200 million. This would still be significantly smaller than Netflix’s current subscribership. 

A smaller streaming service’s acquisition of Warner Bros. could create greater competition, establishing a company with the content library and user base to be closer to Netflix. 

A merger between Warner Bros. and Paramount, or another smaller streaming service, may not unseat Netflix from atop the “streaming wars,” but it could establish the resulting company as a close contender. Such an outcome certainly would not harm consumers, since it would force Netflix (and other providers) to continue to innovate and offer competitive prices.

Other Considerations 

The Theatrical Market

Entertainment is a highly integrated industry. Theaters, restaurants, retail and a whole host of businesses largely rely on upstream production decisions. Pandemic lockdowns shifted consumer behaviors—theatrical revenues dropped from $42.3 billion in 2019xxix to $12 billion in 2020—creating a structural shift that many vendors are still struggling to climb out from under. Box offices revenues in 2025 remained below pre-pandemic levels. 

Since 2023, Netflix films have averaged a theatrical run of only 11 to 17 days,xxx compared to major studio features’ average of 46 days in 2024 and 58 days in 2023. And Netflix shows no sign of changing its model. CEO Ted Sarandos has called the theater experience “outdated,”xxxi and the company has said it intends to standardize the 17-day theatrical release window if its acquisition of Warner Bros. is approved. 

In fact, Netflix only bothers with short theatrical releases for films it believes are Oscar-worthy, since the Oscars require theatrical release. Most Netflix products never make it to a projection booth. 

Michael O’Leary, CEO of Cinema United, has saidxxxii that Netflix’s acquisition of Warner Bros. “poses an unprecedented threat to the global exhibition business.” Acclaimed director James Cameron, likewise, has said the merger is a “disaster”xxxiii for the wider industry and called Netflix’s promise to continue to release films in theaters “sucker bait.” 

A Netflix-Warner Bros. merger would put even greater pressure on theaters—a scenario that would likely result in job losses, reduced traffic through restaurants and shops, property vacancy, and diminished community vibrancy—especially in rural and small towns, where theaters are often still social anchors.  

Last year the movie theater industry employed over 127,000 workers. A 2021 reportxxxiv found that theaters supported over $36 billion in indirect and induced economic activity and more than $9 billion in movie-night spending. Regulators should consider those jobs and broader economic impacts as they review Netflix’s proposed purchase of one of Hollywood’s top studios.  

Netflix’s Pricing History 

Some proponents may argue that despite Netflix’s disproportionate market share, a merger could allow it to reduce prices and produce better services. But Netflix’s pricing behavior hardly merits such confidence. 

Despite being one of few profitable streaming platforms, Netflix has continually raised its prices on consumers. Since 2014, Netflix has increased the cost of its “standard plan” by more than 225 percentxxxv and its “premium plan” by over 200 percent, setting the pacexxxvi for an industry now plagued by rapidly rising prices. 

Netflix’s price increases are notable for two reasons. 

First, Netflix is one of the few profitable streaming platforms. In the third quarter of 2025, it posted a $2.5 billion net profit, more than twice the next three profitable streaming services combined. The company has been consistently profitable since 2010. By contrast, most streaming platforms have struggled (and many continue to struggle) to turn a profit, due in large part to start-up costs. 

Disney+, for example, only first reported positive earnings in the third quarter of 2024, and the platform reportedly lost three timesxxxvii more money in its first five years than Disneyland Paris did in three decades. Peacock incurred $101 million and $217 million in losses in Q2 and Q3 of last year, respectively—which were improvements from a year earlier. 

And second, as the largest SVOD provider, Netflix is the industry trend setter. When it raises its prices, it creates a benchmark for other services, driving what commentators have dubbed “streamflation.” As one industry publication noted:xxxviii 

“In recent years, as the streaming TV and movie business has gotten more competitive and companies around Hollywood have thrown billions into building their own platforms and libraries in order to compete with Netflix, participating in the streaming era has gotten steadily more expensive.” 

Netflix’s price increases, which have occurred on average every 18 months, are indicative of a market-dominant player leveraging its market power. Due to its sheer superiority in viewership and content, its actions suggest it can hike rates knowing that users will pay up, because there are few other services that offer the same breadth of material. 

U.S. Representative Darrell Issa (R-CA) raised this point during the January 7 hearing, when he asked a witness: 

“Aren’t we again in situation where if Netflix post-acquisition controls a massive library to the exclusion of others, we have the same situation, where everyone must have access to Netflix in order to have access to not just new production, but a vast library that, in fact, by definition every child grows up watching?” 

“I think it’s a relevant concern,” the witness stated. 

Netflix’s record profits are not a disqualifier, per se, but its continual rate increases indicate that it is already leveraging its market dominance—which hardly assuages concerns that with a bigger market share, it won’t raise prices faster. And, with fewer competitors, it is reasonable to assume it could manipulate rates across the entire sector. 

Conclusion 

After a surge of new streaming providers launched only a few years ago, the industry is experiencing much needed consolidation. Several mergers have already taken place, but the most potentially important is the current competition to acquire Warner Bros. Discovery. 

In most cases, light-touch regulatory policy generally yields optimal outcomes for consumers. Netflix’s proposed acquisition of Warner Bros., however, deserves additional scrutiny. It’s impossible to predict the future, but it seems very likely that such a transaction would lead to a dominant video streaming behemoth, pursued by minor, ad-supported competitors and boutique services. 

As recently as the end of 2024, a Netflix executive dismissed rumors of pursuing mergers and acquisitions, stating that the company is “better builders than buyers.”xxxix Its rapid about-face in reaction to Paramount Skydance’s offer for Warner Bros. suggests Netflix saw an opportunity to prevent a transaction that would create a competitor with sufficient scale to challenge Netflix’s dominance. 

Netflix has indeed been a successful “builder,” and deserves its success. The question for policymakers is whether a video streaming market dominated by a single, Tier 1 provider is best for consumers, for competition, for choice and for innovation, or whether a transaction that creates a stronger Tier 2 competitor for Netflix would be better. 

Washington has a lot of work to do on health care. The current battle on Obamacare subsidies is a stark reminder of that fact.

While that issue is divisive, there are opportunities to find consensus on health care such as protecting Medicare’s home health benefit, which is widely supported by Americans of all backgrounds and political persuasions.

As one of the most popular parts of Medicare, home health care allows patients to recover in the comfort and safety of their homes, typically after a hospitalization, or receive care to prevent hospitalization. This is good news for patients who don’t want to move to a nursing home or other institutional setting. And importantly, it eases pressure on crowded hospitals and saves the Medicare program (and taxpayers) money by delivering care in a cost-effective setting.

Despite the obvious fiscal, clinical, and human benefits of keeping people at home as they age, Medicare continues to cut funding for this highly valued program. Just last month, Medicare finalized another round of cuts to home health care in 2026.

Patients are already feeling the negative cascade from cuts to the program by the last Administration. By continuing to pull the rug out from under home health providers, fewer patients will be able to access the home health services they need, leading to worse outcomes for patients and virtually guaranteeing higher costs down the road. Fewer home health options mean more patients kept in hospitals, longer nursing home stays, and even more pressure on an already overburdened health system.

Patients who don’t receive home health care see 35% higher hospital readmissions and experience 43% higher mortality rates. That’s devastating for families, and costly for taxpayers. Every additional hospital admission or nursing home stay drives Medicare spending higher. Frankly, that’s a terrible deal for everyone involved, and it makes no sense when Washington is already staring down unsustainable deficits.

There’s another serious problem: years of funding cuts choke competition and push small businesses out of the market, with rural markets bearing the brunt of it. On top of stubbornly high inflation, Medicare cuts to home health threaten to force some home health providers to shut their doors altogether, adding to the more than 1,000 home health agency closures in recent years.

Texas shows exactly what’s at stake. More than 380 home health agencies in our state have closed since 2019. In that same period, over 233,000 Texas patients lost access to home health care. And nearly half of all patients referred for home health after a hospitalization never received it. That’s not because doctors don’t recommend home health care – it’s because there aren’t enough providers left to deliver it.

On top of this, the government’s own actuaries project that by 2027, nearly half of the remaining providers will be operating in the red. That’s a recipe for consolidation and collapse. Instead of encouraging a competitive, patient-driven marketplace, home health agency doors close, leaving some rural Texans and communities without any home-based care options at all.

The federal government should not be in the business of picking winners and losers in the healthcare marketplace.

While the Centers for Medicare & Medicaid Services has taken some steps recently to work with home health stakeholders to address steep cuts to the benefit, a long-term policy solution is needed to make home health sustainable for our aging society.

The bottom line is simple: families want their loved ones to age at home. And they want access to Medicare home health services to make that possible.

In Texas, we tend to take free markets seriously. That’s not because markets are perfect – they aren’t – but because they have a better track record than anything else of delivering prosperity, innovation, and choice. The proposed acquisition of Kenvue by Kimberly-Clark, headquartered in Irving, is a useful reminder of how markets and economic freedom work to benefit consumers.

You don’t have to be an economist to understand why this deal makes sense. The global consumer-health and household-products industries are intensely competitive and increasingly shaped by supply-chain efficiency, research investment, and scale. Producing safe, reliable, and affordable goods – whether diapers, tissues, pain relievers, or wound-care products – requires constant reinvestment and gains in efficiency. That’s why mergers often result in stronger, not weaker, competition.

Kimberly-Clark acquiring Kenvue is an effort to ensure that both companies operate more efficiently, invest more confidently, and innovate more aggressively. And for Texans, it underscores that our state is home to world-class companies that compete on the global stage, and their success brings real benefits in jobs, investment, and economic vitality.

Critics of mergers tend to assume that bigger somehow automatically means worse for consumers. But size, in itself, is neither a virtue nor a vice. What matters is whether a business combination enhances innovation, expands output, or improves consumer experience. In this case, the likely outcomes are encouraging. Consolidating distribution, harmonizing manufacturing operations, and streamlining product portfolios can reduce costs – savings that flow directly to households through lower prices, higher-quality goods, and higher wages for employees.

Moreover, in an industry where brand trust is indispensable, the ability to invest in product improvements and new formulations is crucial. A combined Kimberly-Clark–Kenvue entity would be better positioned to invest in materials science and consumer health. This is precisely the kind of activity policymakers should want to see more of, not less.

Unfortunately, Washington sometimes approaches mergers with a preconceived suspicion of “big” that ignores the advantages of scale. During the Biden administration, the antitrust debate was diverted from an emphasis on consumer welfare – the standard that served this country well for decades –toward European style competition policy and a kneejerk hostility to “bigness” that ignores the facts. The consumer-goods sector is full of vigorous competitors. The notion that one transaction could somehow freeze competition misunderstands how resilient and adaptive markets can be.

If anything, blocking or discouraging efficiency-enhancing mergers would make American firms less competitive globally. Foreign companies do not wait for permission from U.S. regulators to adapt. If we hamstring our own industry leaders, especially those headquartered in growth states like Texas, we risk ceding ground in innovation and manufacturing to markets that welcome, rather than fear, scale—and to countries that subsidize nationalized producers.

Texans understand that economic leadership is not achieved through top-down government regulation but through dynamic, innovative free markets that serve consumers. Kimberly-Clark is a great American success story that exemplifies that tradition. 

Mergers and acquisitions should be judged by a simple standard: Are consumers harmed, or do they benefit? Everything we know about this transaction suggests that consumers stand to gain – from improved supply chains to better-designed products to enhanced competition with global giants.

Texas didn’t become an economic powerhouse by dictating business practices from Austin. We became one by championing policies that allow them to determine how they can best deliver what their customers want. Kimberly-Clark’s acquisition of Kenvue is a reminder of what a healthy, forward-looking market looks like. It’s not the government pushing companies around; it’s companies positioning themselves to serve consumers better.

That is something Texans should welcome – and something Washington should let proceed without unnecessary interference.

Want evidence that elections matter? Witness the change at our southern border.

Seldom have we seen such a rapid and dramatic improvement because of a change in administrations. 

After years of chaos, the border is secure. Let that reverberate a bit in your mind before we continue.

The border is secure because President Trump made it a priority, appointed people who shared his mission, and ignored the complaints of the Left. Donald Trump has been in office for less than a year, and in that time the border has gone from porous to secure.

You don’t hear much lately in the media about the border, and everyone thinks the problem is solved. But that’s a trap.

Because the immigration issue isn’t solved. Not even a little bit.

For years—decades even—we have heard:

• “There can’t be a deal on immigration until the border is secure!” 
• “We can’t deal with the Dreamers until the border is secure!”
• “I don’t want to hear about comprehensive immigration reform until the border is secure.”

Well, the border is secure. And 2026 could be the year of comprehensive immigration reform.

President Trump has forcibly established the first condition for a deal, and he wants to be remembered as a dealmaker. The border is secure, and Congress is evenly divided. The conditions are perfect for a bipartisan deal on immigration that requires significant compromise (that means buy-in) by both parties.

• We need an immigration system that encourages the best of the world to come to the United States.
• We need an immigration system that protects us from those who will not or cannot assimilate.
• We need an immigration system that provides an abundant source of human capital.
• We need an immigration system that allows us to know who is here, when they arrived, and when they left.
• We need an immigration system that allows foreign workers to supply labor in areas where the current and future work force is insufficient.
• We need an immigration system that doesn’t brutalize those who have grown up in this country and know no other culture.
• We need an immigration system that prevents immigrants from taking advantage of our safety nets and our generosity.

In 2016, IPI published a paper with suggestions on how to proceed with a solution to the immigration challenge. It was posited on border security.

And now the border is secure. But the job is not done. Now is the time for the “Art of the Deal” Trump to step up to the plate. It will probably require sidelining advisor Stephen Miller, but you can’t make an omelet without breaking a few eggheads.

The problem with zombies is that, even though they are dead, they’re still dangerous.

Currently, the Consumer Financial Protection Bureau (CFPB) is a zombie federal agency — deprived of funding and personnel, yet still legally in existence and still functioning. Congress should put a stake through its heart at the earliest opportunity, but until then, the CFPB continues to pose a threat, especially since everyone thinks it is already dead.

The CFPB was then-law professor Elizabeth Warren’s “big idea” in the wake of the 2008 financial crisis. Warren conceived and helped design the CFPB, but when the Senate refused to confirm her as its first head, she decided to run for the Senate instead.

The design of the CFPB was a constitutional nightmare, as it ignored the separation of powers and was statutorily immune from accountability to either Congress or the president. And while the DC Circuit Court of Appeals found that the CFPB’s construction was unconstitutional, the Biden administration did its best to reanimate the agency, initiating, among other things, a rulemaking on Section 1033 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

Biden’s Section 1033 proposed rule was yet another nightmare. Instead of simply fulfilling the requirements of Dodd-Frank Section 1033, the Biden CFPB drafted a breathtakingly broad rule that would have been a disaster for consumer financial privacy, as well as for the delivery of efficient financial services. It was so problematic that a court order barred the CFPB from enforcing its order until it could be reissued in a revised form.

Since then, the Trump administration has zombified the agency, removing almost all funding and personnel. But despite the courts and the Trump administration determining that the agency itself is effectively illegitimate, the CFPB has continued drafting the rule. 

Any new rule dictated by even a Trump administration zombie CFPB would almost certainly be overly broad and would claim sweeping new powers for the CFPB, which would be all a future administration would need to revivify this dangerous agency.

Ironically, as this Section 1033 regulatory drama has been unfolding, the financial services industry has not only continued to function well but has also been providing consumers with new and innovative products and services. Bilateral private agreements between banks and fintech companies are an area of intense growth and investment in application programming interfaces (APIs) for the safe and secure transfer of consumer data, all of which occurs without the need for governmental interference. 

If there’s no need for the CFPB, there’s no need for this rulemaking.

As an agency targeted for elimination, the CFPB should be put out of its misery. The Trump administration should instruct the few remaining bureaucrats at the CFPB to cease drafting rules and finally seal the coffin shut.

To ensure freedom of movement and freedom of commerce across state lines, the Constitution grants the federal government the power to regulate commerce among the states. This power, granted under the Commerce Clause, essentially established the United States as a free trade zone, where states are prohibited from enacting laws, taxes or regulations that inhibit or create unnecessary friction on economic activity between the states.

Under the Articles of Confederation, the original governing document of our republic, the 13 states tended to enact harmful populist policies designed to protect their own farmers and businesses from competition from other states. State tariffs and other protectionist measures hindered interstate commerce and contributed to a nationwide economic downturn that, in turn, led to the convening of a Constitutional Convention to remedy the problem.

It remains critical today for the federal government to preempt the states from their natural tendency to impose popular rules and regulations that affect businesses and consumers in other states or create friction for interstate commerce. The principle remains the same, though the Internet and e-commerce present new challenges and temptations the states are finding hard to resist.

Anything that happens over data networks is inherently interstate. The old analog phone network could distinguish between local and long-distance calls, but packets fly around the world at the speed of light, even if you are emailing someone in the room next door. Technology has made more of commerce interstate, such as voice communications, data exchange, e-commerce, and data hosting. Allowing the states to regulate inherently interstate commerce will simply slow commerce, the adoption of technology, and our global competitiveness.

As federalists, we need to recognize that there are legitimate roles for local, state, and federal governance, and while the states have allowed the federal government far too much regulatory control of functions that should be left to the states, regulating interstate commerce isn’t one of them.

That’s why at the Institute for Policy Innovation (IPI) we have consistently advocated federal, not state regulation of internet taxation, social media speech regulation and age verification, online privacy, VoIP regulation, and now artificial intelligence (AI). It makes no sense for there to be 51 different regulatory regimes for a business that travels across state borders at the speed of light.

It's just as much a violation of our constitutional, federalist republican system for a state to regulate AI as it is for the federal government to regulate state education. The Commerce Clause limits federal authority to interstate commerce and empowers the federal government to prevent states from burdening interstate commerce. Those of us who believe in limited government should insist on both.

Conservatism begins not with a snarl or with a conspiracy theory but with a “thank you.” Conservatism is a posture of the soul: a recognition that we are heirs to a noble inheritance of culture, of institutions, and of morality and ethics. Incredible work, thought and sacrifice by preceding generations has bestowed upon us the richness of Western civilization, of classical liberalism, of the Enlightenment, and of the Judeo-Christian worldview.

In a recent IPI PolicyByte, I referenced the conservative impulse as “gratitude and respect toward those who went before us,” which causes us to pause before making or embracing change. Conservatives aren’t opposed to change per se, but rather insist that we recognize the value of what we have before we tear it down in hopes that something better will emerge.

Progressives reject the past, whereas conservatives appreciate and seek to understand the past, however flawed. The progressive project distinctly substitutes disdain for gratitude, which may explain why so many progressives are so personally unappealing and repugnant.

This is something that the populist right has in common with progressives. They disdain political leaders such as Mitch McConnell and have no gratitude for, for instance, his dogged efforts to place conservative judges on the Supreme Court and on lower courts. They disdain Texas Sen. John Cornyn and ignore his similar efforts. Conservatives, by contrast, can appreciate McConnell’s significant policy accomplishments while also disagreeing with some of his actions and positions.

Again, to Chesterton’s Fence. In his parable, a “modern reformer” comes across a fence, and says “I don’t see the use of this; let’s clear it away.” To which Chesterton replies, the fence obviously did not pop up there naturally, on its own. It was obviously built by intelligent people who must have had some reason for building it. So before tearing it down, let’s investigate why it was built in the first place.

That gratitude is not nostalgia for nostalgia’s sake. It’s realism about the fragility of civilization, and of republics. The progressive temperament assumes if we tear down the old stuff, something better will automatically appear. But conservatives know the jungle grows back. The institutions we inherit—family, markets, churches, constitutional limits—were not assumed. They were paid for in “blood and brains and science and thought and experience,” and we ought to feel a kind of reverent indebtedness for them. 

Richard Weaver called this virtue piety, “a discipline of the will through respect,” acknowledging “things larger than the ego.” That’s another way of saying gratitude: the humble admission that I didn’t make the world, I didn’t found the republic, and I don’t get to rewrite human nature on a whim. When conservatives defend limits, they’re not being killjoys; they’re being thankful stewards of an inheritance that we can steward or ruin.

In William F. Buckley’s little book Gratitude, he presses the same point: the blessings of liberty create obligations of love and service, not to a utopian state, but to the country and culture that formed us. Russell Kirk liked to remind us of “the unbought grace of life”—the gifts we didn’t earn but must honor. If you’re grateful for this grace, you don’t embrace radicalism. You insist that government stay in its constitutional lane so families, communities, and free people can do what only they can do.

Gratitude is the heart of conservatism. It’s the moral engine behind our suspicion of Big Government, our love of ordered liberty, and our acceptance and embrace of progress but our insistence that it must say “thank you.”

From the Fort Worth Stockyards website:

Between 1866 and 1890, drovers trailed more than four million head of cattle through Fort Worth. The city soon became known as “Cowtown.”

When the railroad arrived in 1876, Fort Worth became a major shipping point for livestock, so the city built the Union Stockyards, two and a half miles north of the Tarrant County Courthouse, in 1887. 

. . . 

And with the construction of the Livestock Exchange Building, which housed the many livestock commission companies, telegraph offices, railroad offices and other support businesses. It became known as “The Wall Street of the West.”

And in 1907, the Fort Worth Stock Show and Rodeo began.

But today, a different kind of stock market is stampeding to Texas.

The Texas Stock Exchange (TXSE or “Y’all Street”) is officially registered and plans to begin trading in 2026. More than 50 years ago, the Texas Legislature commissioned a study into the feasibility of a Texas securities exchange. And, of course, in the intervening time, the Texas economy has diversified, and Texas has become a go-to destination for corporate relocations as well as new start-ups. 

With more business-friendly regulations, a belief in both the freedom to succeed and the freedom to fail, and with one of the best airports in the world centrally located midcontinent, Texas is the place to be.

Not to be left behind, the New York Stock Exchange has moved quickly to have a presence in Texas as well. NYSE Texas obviously has a head start on the Texas Stock Exchange, so it will be interesting to see how that competition shakes out.

And just a few days ago, Nasdaq announced Nasdaq Texas at an event with several leaders in the oil and gas industry.

None of this is an accident. The Texas Constitution now bans taxes on securities, and other recent laws make it more difficult for political activists to harass corporations through ideological shareholder resolutions.

And the new specialized Texas Business Court system is designed to handle complex business disputes in an expedited manner separate from the overburdened district courts. Judges have commercial litigation experience, and this provides Texas businesses with streamlined processes and reliable outcomes.

Many companies, including Tesla but most recently Coinbase, have announced that they are abandoning Delaware and reincorporating in Texas because of lower costs and better legal protections. 

As Democrat-led cities and states become increasingly inhospitable to wealth creation and business formation, and even unsafe and unpleasant for daily life, Texas is reaping the benefits. Of course, this will present challenges as well, but signs are good that Texas is up to the job.

It isn’t news that Democrats want to eliminate the filibuster at times when they have a slim but insufficient Senate majority, but recently President Trump, too, has voiced frustration with the obstacle of the Senate filibuster. Is it time to do away with the filibuster?

The filibuster is one of several elements that distinguish the Senate from the House, so to answer that question, we need to think about why the Senate exists in the first place.

The Senate is a result of the Great Compromise—the agreement that made it possible to adopt the Constitution by balancing the demands of large and small states with a bicameral Congress. The House of Representatives, based on population, would favor larger states and thus majorities, while the Senate, with states represented equally, would favor smaller states and thus minorities. The House would be responsive to the short-term passions of the people, while the Senate would take a cooler approach from a different perspective. It’s a system designed to make it harder, not easier, to make major changes, and thus reinforces stability.

But while the Senate was designed to be different from the House, the Senate filibuster was not originally part of that distinction. In fact, the Senate filibuster is a historical accident. It’s not in the Constitution, and it’s not in the original rules of the Senate. It wasn’t until 1837 that senators realized that an 1806 rule change made endless debate possible.

In other words, defenders of the filibuster can’t argue that it is an element of the Founder’s design.

However, the Founders’ design for the Senate WAS for it to be different from the House, and that design was dramatically compromised by the 17^th Amendment, which made the Senate directly elected by the population rather than by state legislatures.

Doing away with the filibuster would make the Senate a simple majority body, approaching redundancy with the House because of the 17^th Amendment. That, of course, is the intent of those clamoring to kill the filibuster, because they want to abandon the Founder’s anti-majoritarian design and move toward ever greater populism.

Such a move would only intensify political polarization and anger, because populism without anti-majoritarian safeguards will result in more frequent and more severe pendulum swings in national policy. And a conservative Supreme Court won’t step in and save us from that.

Here’s a suggestion that might appease filibuster haters while improving the Senate: How about we repeal the 17^thAmendment along with the filibuster? Yes, I know it’s likely a pipe dream, but as a thought experiment, I would trade the historical accident of the filibuster for a return to the Founders’ bicameral design any day.

It looks like some much-needed changes are coming to the media streaming marketplace, and that’s great news for consumers.

Warner Bros. Discovery, which owns over 60 different entertainment brands including HBO, CNN, Warner Bros., the DC Comics Universe, and channels like TBS, Food Network, and all the Discovery channels, is weighing a sale.

And while there may be multiple suitors, the most likely buyer of some or all of Warner Bros. Discovery is the new Paramount SkyDance—largely comprised of the former Viacom conglomerate which owns CBS and of course Paramount Studios.

Why does this matter? First, because streaming is a disaster of abundance. There’s a ton of new and archival content out there, more easily available than ever, but it’s hard to keep track of what service is running the shows you’re currently watching. I’ve even heard of people using spreadsheets to keep track of where their shows are streamed, though there are also services like JustWatch that help with this as well.

This abundance of content, by the way, is the result of two great policy decisions. The major studios promised to make their content more easily available if their copyrights were protected against piracy, and because governments agreed, the content industry kept its promise. 

The other great policy decision was to allow broadband companies to invest and build out their networks with a minimal amount of regulation and no price regulation. That led to our incredibly fast and capable broadband networks that can stream 4k video without latency.

So far so good. But by the time you total up the costs of all of your various streaming subscriptions, along with your broadband costs, it may add up to nearly as much as you used to pay for cable service. Too many subscriptions from too many services, none of which seem to be making money. Consumers need consolidation to simplify this mess and to truly fulfill the promise of streaming. 

But consumers also need media to end its leftward slant on news and entertainment, and Paramount Skydance intends to correct biases in its media properties. Viacom stagnated for decades because of family and corporate infighting, but the newly invigorated Paramount Skydance wants to correct the leftward leanings of some of their properties like CBS News and 60 Minutes. There would certainly be a benefit to the public in that, as would extending those changes to CNN.

So how should we think about the upcoming furor over a possible Paramount Skydance purchase of Warner Bros. Discovery? First of all, the federal government needs to allow a transaction to take place. The new populism within the Republican Party can sometimes be skeptical of mergers and consolidations, because they don’t want anything “Big.” But in this case, as in most cases, consolidation will actually benefit consumers by simplifying the market and likely saving money on streaming subscriptions.

And second, regulators at the Justice Department need to be wary of other potential suitors that could pose problems. Amazon, for instance, already has significant content (Prime Video), and would be twice as large as its next biggest competitor were it to acquire Warner Bros. Discovery, controlling 35 percent of the market share. Besides, Amazon is already operating under a consent decree because of deceptive trade practices related to its Prime service.

YouTube TV is being resold by Frontier and Verizon as they phase out their own IPTV offerings, which will increasingly make Google a competitor in this space. Indeed, with many major tech companies owning content and entertainment services, real content companies like Paramount Skydance need to grow and acquire other properties in order to scale up and compete with the tech companies already dominating the Internet economy.

Sometimes mergers work, and sometimes they don’t. Infamously. The AOL Time Warner merger did not work, and it was commonly believed that it was due to a clash of cultures between the content industries and the Internet industries. Now, once again, Warner is looking for a suitable partner that understands the content business, and Paramount Skydance is likely the best candidate.

Those of us who believe that markets deliver the best combination of choice and value to consumers should welcome a potential combination of Paramount Skydance with Warner Bros. Discovery. Hopefully the Trump administration will see things the same way and not add any unnecessary friction to this benefit for consumers and the health of our media and entertainment economy.

Wednesday, November 5, the Supreme Court will hear one of the most important cases involving limited government in our lifetimes. Under the boring name Learning Resources, Inc. v. Trump, this is the case about whether a president has authority under the Constitution or statute to impose tariffs in the way the Trump administration has.

For social conservatives, the Dobbs case, overturning Roe v. Wade and restoring to states the power to regulate abortion, was the whole ball of wax. But for economic conservatives, and for those who believe in constitutional limits on executive power, Learning Resources is right up there with Dobbs.

Constitutionally, it always seemed clear that Roe was an overreach by the Supreme Court. Similarly, Trump’s assertion of authority to impose tariffs on various whims seems a clear overreach by the Executive Branch, and one without the weight of precedent.

I was surprised that the Supreme Court worked up the gumption (not a technical legal term) to overturn Roe, because of stare decisis and reliance interests. But I’ll be more surprised if the Court doesn’t significantly curtail presidential use of so-called economic emergencies to impose tariffs.

In fact, as George Will writes, the justices may have to suppress a giggle or two at the administration’s arguments. For instance, the administration argues that emergency powers are justified by persistent trade deficits. But how can something that’s been true for 50 years be an emergency?

And of course, there is that small matter that the statute being used to justify Trump’s tariffs never uses the word “tariff.” That’s likely because the authors of the legislation knew the Constitution reserves tax and revenue authority to Congress.

Those are just examples of how conservative textualists on the Court would seem to have no option other than to overturn the asserted tariff authority. But judicial conservatives also champion originalism or original intent as a principle of constitutional interpretation.

Can anyone assert with a straight face that those who wrote the Constitution, just a few years removed from an armed rebellion against an authoritarian king, intended for the American president to be able to slap tariffs on trading partners on a whim? For whatever reasons and for whatever amounts he chose? Of course not.

The entire constitutional design of our political system is a series of limitations on federal power, with a system of checks and balances to ensure that the limitations are observed and enforced. The only reason Congress hasn’t already acted to rein in this and other overreaches by President Trump is that congressional Republicans have apparently entered into an informal compact to collectively look the other way and violate their oaths of office.

Sadly, with Congress having thus tapped out, it falls to Trump-appointed justices to enforce a basic constitutional limitation on his power. Let’s hope they still have the gumption.

Today is Global Encryption Day, and it’s an important moment to reflect on a foundational element of our digital lives that too many take for granted: encryption.

Encryption is not just a technical layer of protection—it is a shield for individual liberty, economic growth, and national security in the digital age. At the Institute for Policy Innovation, we’ve long defended the right to strong, uncompromised encryption, and today that defense is more important than ever.

We in the United States are fortunate. Unlike in many other countries—where governments either prohibit strong encryption outright or require surveillance back doors—we enjoy robust legal protections that allow individuals and businesses to use strong encryption to secure their data and communications. That’s not the case in authoritarian regimes, where encryption is viewed as a threat to state control. The ability to encrypt our devices, messages, and online transactions is a freedom Americans should not take lightly—and must actively defend.

Unfortunately, there are still those in our own government who argue that encryption should be weakened to aid law enforcement or national security. These arguments typically invoke terrifying scenarios: terrorists plotting in secret, criminals hiding evidence behind locked phones. The implication is that if the government had access to encrypted data, we would all be safer.

But this is a dangerous and false trade-off.

First, from a purely technical standpoint, there is no such thing as a “safe” back door. A vulnerability that allows government access will inevitably be discovered and exploited by bad actors—cybercriminals, hostile foreign governments, and unreliable bureaucrats. Weakening encryption makes everyone less safe.

But even more importantly, it reflects a fundamental misunderstanding of our constitutional system. The purpose of the American government is not to maximize security—it is to protect individual liberty. Our Founders did not envision a government that promises total security in exchange for diminished liberty. Freedom always comes before security. That is the American idea.

Strong encryption empowers individuals. It protects our private communications, our financial information, our intellectual property, and our constitutional rights. It also underpins the trust that fuels our digital economy. Without it, e-commerce would stall, innovation would suffer, and privacy would be an illusion.

So on this Global Encryption Day, let’s recognize encryption for what it truly is: a necessity for a free and secure society. We must resist any effort to undermine it—no matter how well-intentioned—and stand firm in the belief that freedom is worth protecting, even when it’s inconvenient for government.

The Supreme Court began its new term this week, and it’s going to be an eventful one. Buckle up.

The Trump administration is facing more than 400 lawsuits from states, cities, individuals and businesses — mostly regarding charges that the administration has exceeded its constitutional and statutory authority in areas such as tariffs, immigration, hiring and firing of federal agency personnel, the independence of the Federal Reserve Bank, spending rescissions and impoundments, and birthright citizenship.

Whew.

For those who are not close watchers of the court — and that’s most of us — it’s important to remember that most of the court’s actions related to the Trump administration so far have come from the “emergency docket,” and such actions are temporary. They don’t deal with the substantive questions — they simply allow the administration to continue a policy or force it to suspend a policy until the court has a chance to rule on the substantive and constitutional issues. None of the Supreme Court’s actions for or against the Trump administration so far have been permanent.

That all happens now.

You would be forgiven for thinking some of these cases had already been decided, because partisans on these issues often seize on one of these temporary rulings and declare on social media “HUGE VICTORY FOR TRUMP!” or “SCOTUS SLAPS DOWN TRUMP!” when, in fact, all that has happened is a temporary, procedural ruling. Social media is not exactly the place to find reasoned and accurate analysis, if you haven’t already noticed.

You should not expect that just because a judge has been appointed by Trump, that judge is going to rule in his favor. That’s not how it works. In fact, the majority of court rulings against the Trump administration have come from judges appointed by Trump and other Republicans. Being elected president doesn't mean you get to do whatever you want to do. The power of the president is limited by the Constitution, as it does for all of the federal government.

This past weekend, White House adviser Stephen Miller took to social media to decry a supposed “left-wing legal insurrection led by Democrat judges” because a federal judge ruled against the Trump administration. But the judge in question, Karen Immergut, was appointed by Trump in 2018.

To his great credit, Donald Trump has appointed many highly qualified judges — and very good judges follow the law, the Constitution and the limits of legislation.

How will Stephen Miller react if the Supreme Court throws out the bulk of Trump’s tariffs? If the court rejects the challenge to birthright citizenship?

The Trump administration will win some and lose some. When they lose, it won’t be a “judicial insurrection.” Republicans should be very careful about joining Democrats in undermining faith in the judicial system. And Stephen Miller probably needs to start taking blood pressure medication.

Government shutdowns aren’t really a big deal anymore, despite all the media attention. We’ve been doing this for 30 years. If you work for the federal government, you know every couple of years this is going to happen, and your pay will be delayed. So, you plan for it as a cost of being a government employee.

My favorite thing about shutdowns is how little they affect those of us who live our lives far from government. The sun still comes up, hot water still comes out of the shower, and the food in the freezer is still frozen. Most of us don’t need government nearly as much as government thinks we do.

But the shutdown is a symptom of something deeper: Congress no longer functions. We are operating as if we have only two branches of government. Presidents attempt to rule by a flurry of decrees and orders, courts eventually strike most of them down, and Congress remains catatonic.

Congress is forced from its slumber only by a funding deadline, because that's one of the few responsibilities Congress cannot dodge. And witness how well they perform that responsibility.

Pardon voters who are left with the impression that every four years we elect an all-powerful ruler to give us what we want and to punish our enemies. That’s not the design of our system, but it’s how we increasingly talk and vote.

Here’s the problem: each party has decided it cannot compromise with the “evildoers” in the other party. So both fighters retreat to their corners. Which is odd, since most ran for Congress promising to “fight.” Apparently, “fight” means appearing on cable TV.

Maybe instead of promising to fight, legislators should commit to doing what the system requires of them: work with opponents, build consensus, and solve problems. The people who disagree with you probably aren’t evil, and even if some are, they are still entitled to representation.

Compromise is not a dirty word in politics—it is the essence of politics. Our system was designed so Americans could resolve disagreements without resorting to fighting. Ronald Reagan advanced his agenda through a Democrat-controlled Congress. It required compromise, but it changed the world for the better.

If a conservative icon could work with his opponents, surely today’s leaders can do the same. Otherwise—welcome to the shutdown, and if we keep going down this road, welcome to the jungle.

Ever watch a drama set back in the time of kings, where the court jester or someone in the king’s retinue said something that displeased the king, and they knew immediately that their days were numbered? How everyone lived in fear of displeasing the king?

One problem with kings is that, because their power is nearly unlimited, everyone is vulnerable to the king’s caprice, malice and resentments. If you want to be safe, you must take up all the king’s grievances and desires. The king is everyone’s customer.

Thus, the king’s court ends up comprised of those who constantly amplify his whims to gain his fickle favor.

That’s monarchy, not self-government. Our American political system was designed to prevent capricious rule by One. But something like that is happening right now, and the latest example is the Jimmy Kimmel saga. Let’s walk through it, in chronological order:

1. Donald Trump doesn’t like Jimmy Kimmel and threatened to get him pulled off the air.
2. Nexstar, which owns 32 ABC TV stations, announced just a month ago the purchase of TEGNA, another owner of stations. That transaction requires approval by the Federal Communications Commission (FCC). The Chairman of the FCC is Trump appointee Brendan Carr.
3. In its press release Nexstar committed to preserving “diversity of opinion.”
4. On Monday September 15, Jimmy Kimmel said something stupid about the murder of Charlie Kirk on his ABC show “Jimmy Kimmel Live!”
5. The following Wednesday FCC Chairman Carr said it is "really sort of past time that a lot of these licensed broadcasters themselves push back on Comcast and Disney, and say, 'Listen, we are going to preempt, we are not going to run, Kimmel anymore until you straighten this out, because we licensed broadcasters are running the possibility of fines or license revocations from the FCC if we continue to run content that ends up being a pattern of news distortion.'" Carr went on to say, "When you see stuff like this—I mean, we can do this the easy way or the hard way.”
6. Within hours, Nexstar, which requires Carr’s approval for their TEGNA purchase, followed Carr’s “suggestion” and preempted Kimmel. Sinclair soon followed.
7. Shortly thereafter, Disney/ABC announced the suspension of “Jimmy Kimmel Live!”

Now, where’s the problem? There’s nothing wrong with Jimmy Kimmel expressing his political opinions on his late-night TV show, “Jimmy Kimmel Live!” He has been given that platform by ABC.

There’s nothing wrong with Nexstar and Sinclair deciding to stop carrying “Jimmy Kimmel Live!” They own the stations.

There’s nothing wrong with Disney/ABC deciding to suspend “Jimmy Kimmel Live!” It’s their program.

But there is something very wrong with Chairman Carr using government power to pressure companies into appeasing the Trump administration.

Why? Because it’s a violation not of the First Amendment, and not of FCC authority, but of the principle of limited government.

The Founders created a system of limited government to protect Americans from the capricious rulership of flawed human rulers. Conservatives have always believed in limited government for this and other reasons.

For conservatives, limited government is both a principle and a norm, and norms matter. If we abandon that norm, both parties will rush to use government power to punish enemies and reward friends, and we’ll be right back to rule by capricious, flawed human beings.

Top political news is the move by the Texas Legislature to redraw its congressional districts outside of the normal ten-year cycle. Texas’ efforts are clearly political in nature; the Republican-controlled legislature intends to increase the number of Republican seats while diminishing the number of Democrat seats.

Texas state legislators of the Democrat persuasion have responded with truancy, thus denying a quorum for the Texas House and causing much drama and entertainment for political types.

How should we think about all this?

The Constitution mandates proportional representation in the House of Representatives, and other laws freeze House membership at 435 and require that states review and adjust proportional representation after each decennial census. But no federal law prevents a state from redistricting more frequently as it might see fit.

While the current clamor is about Texas manipulating its districts to maintain a Republican advantage in Congress, and blue states threatening to respond, there’s an important reality behind the Texas effort that no one is talking about.

Since the April 2020 Census, the population of Texas has grown by more than 2.15 million people (as of July 2024.) That’s a 7.5 percent increase in population, and that estimate is over a year old. Since the Texas population grew by more than half a million people from 2023 to 2024, it’s possible that the current Texas population has increased by 2.75 million since the last census. Based on current congressional district populations, that’s nearly four additional congressional seats that Texas is entitled to now. And we’re only halfway to the 2030 census. In 2030, could Texas gain 7 new congressional seats? Easily.

Yes, congressional seats are only reallocated among the states at the decennial census. But since the Texas population currently justifies several more congressional seats, is it really all that outrageous for Texas to be redistricting now? Hardly.

Thanks to the wisdom of the Founders and their federal design, each state can pursue its own policies within the limits of the Constitution. Laboratories of democracy and all. As a result, many who value low taxes, less regulation, and more economic opportunity are relocating to states that prioritize these policies, resulting in a net migration from blue states to red states. A brand new website project run by our friends at Unleash Prosperity is documenting this Big Sort, and it’s worth a look.

So long as Democrat-run cities and states pursue policies that punish work, investment, family creation and business formation, they had better get used to losing on redistricting.

Democrats often criticize the Senate for not reflecting proportional representation. But as they continue to lose at the proportional representation game, they may develop a newfound appreciation for the Senate.