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.

February 12th, 2026

The Honorable Members
United States Congress
Washington, D.C. 20515

RE: Coalition Opposing the Codification of Most-Favored-Nation Prescription Drug Pricing

Dear Members of Congress,

We, the undersigned organizations, write in opposition to codifying a Most-Favored-Nation (MFN) prescription drug pricing model into law.

In addition to doing nothing to address foreign freeloading, MFN would reduce access to new cures and reduce U.S. global competitiveness, ceding ground to China.

While supporters of this proposal correctly identify the unique problems facing the American health care system – namely, wealthy countries paying artificially lower prices for prescription drugs than the U.S. and the fact that this depresses innovation and inflates our costs – MFN would not solve these problems. In fact, it would exacerbate them.

Instead, lawmakers should focus on reforms that unleash the free market and protect intellectual property rights, encouraging competition and innovation. These policies lower drug costs over time while expanding patient choice and preserving incentives for lifesaving medical breakthroughs. Diplomatic pressure should be brought to bear on foreign governments to insist that they begin to pay their freight.

MFN would do nothing to stop foreign freeloading.

MFN would surrender to foreign freeloading by basing U.S. prices on the prices of countries with socialist policies. Supporters of MFN hope that it will incentivize manufacturers to negotiate better deals. However, this is based on the flawed assumption that American manufacturers are not already fighting as hard as they can against foreign price controls.

There is little or no negotiation between foreign governments and manufacturers, forcing innovators to accept lower prices in a “take-it-or-leave it” proposition. The fact is that European countries would likely retaliate if pharmaceutical manufacturers took offensive action to try to negotiate away from government-set prices. For example, if a pharmaceutical company withdrew from a market, a European government could revoke its patents. Article 5 of the Paris Convention for the Protection of Industrial Property allows for compulsory licensing if a company declines to sell its product.

Additionally, if multiple companies were to withdraw from a market, the European Commission could accuse said companies of “cartel-like strategy” to manipulate prices, a violation of EU competition law. In the EU, “cartel participation” carries high penalties, including fines up to 10 percent of the company’s worldwide, total revenue over a year. In certain cases, it could also result in fines and imprisonment of specific individuals.

MFN would reduce access to new cures.

If the U.S. implements the same price controls utilized by foreign countries, companies cannot expect to recuperate the R&D costs for the medicines they create. This will depress innovation and reduce cures available to patients while causing an unacceptable degree of drug shortages.

According to a study by the Galen Institute, patients in the U.S. had access to nearly 90 percent of new medical substances launched between 2011 and 2018. By contrast, other developed countries had a fraction of these new cures. Patients in the United Kingdom had 60 percent of new substances, Japan had 50 percent, Canada had 44 percent, and Spain had 14 percent.

The drug development industry already faces a high level of risk in recouping R&D costs. During an average drug development process, a manufacturer must invest an average of $2.6 billion and spend 11.5 to 15 years in research and development. In addition, most drug development programs fail. As detailed by the Information Technology & Innovation Foundation (ITIF), for 5,000 to 10,000 compounds screened during basic drug discovery phases, 250 molecular compounds (2.5 to 5 percent) make it to preclinical testing. Of the 250 molecular compounds, 5 make it to clinical testing. Thus, as little as 0.05 percent of drugs make it from drug discovery to clinical trials. Of the few medicines that make it to clinical testing, only about 12 percent of medicines that begin clinical trials are approved for introduction by the FDA. Even if a drug is approved, it is likely that the profits from said drug will not recoup its R&D costs.

MFN would reduce the United States’ global competitiveness in medical innovation.

Not only is this lack of innovation a threat to patients and the health of future patients, but it would cause the United States to be a follower, not a leader, in medical innovation. At a time when China is rapidly narrowing the innovation gap, causing our research and development to stagnate or fall would seal our fate as second-best in biotechnology.

ITIF describes the ways in which China is catching up to the U.S. in biotech:

• Clinical trial activity in China more than doubled from 2,979 trials in 2017 to 6,497 trials in 2021. Alternatively, the United States saw only a 10 percent increase during this time, from 4,557 to 5,008 trials.
• Chinese oncology trials grew 146 percent from 1,040 in 2017 to 2,564 in 2021, the highest for any country. In the United States, oncology clinical trials grew from 1,664 in 2017 to 1,690 in 2021, a 1.56 percent increase.
• China increased its global share of value-added pharmaceuticals output from roughly 5.6 percent in 2002 to 24.2 percent in 2019.
• From 2013 to 2023, the number of biotech PCT patents awarded to Chinese entities increased by more than 720 percent, from 266 to 1,920, exceeding the European Union’s annual number starting in 2021. The number of patents awarded to U.S. filers over the same period increased by 67 percent.
• China’s share of global biotechnology venture capital raised grew from a mere 3.5 percent in 2010 to 18.9 percent in 2020. At the same time, the U.S. share declined from about 68.6 percent to 62.1 percent.

We urge all members of Congress to oppose codifying an MFN drug pricing model.

Unfortunately, this policy would not cause other countries to pay their fair share of the cost of prescription drugs. Instead, it would import socialist price controls and values into our country. Medical innovation in the U.S. would take a significant hit, harming patients and ceding the U.S.’s position as the world’s biotech leader to China.

Signed,

Grover Norquist
President, Americans for Tax Reform

Tim Chapman
President, Advancing American Freedom

Saulius “Saul” Anuzis
President, American Association of Senior Citizens

Marty Connors
Chair, Alabama Center Right Coalition

Phil Kerpen
President, American Commitment

Tirzah Duren
President, American Consumer Institute

Dee Stewart
President, Americans for a Balanced Budget

Richard Manning
President, Americans for Limited Government

Rea S. Hederman Jr.
Vice President of Policy, The Buckeye Institute

Anthony J. Zagotta
President, Center for American Principles

Ryan Ellis
President, Center for a Free Economy

Daniel J. Mitchell
President, Center for Freedom and Prosperity

Jeffrey Mazzella
President, Center for Individual Freedom

Ginevra Joyce-Myers
Executive Director, Center for Innovation and Free Enterprise (CIFE)

Bob Johnson
Senior Advisor, Commitment to Seniors

Jeremy Nighohossian
Senior Fellow and Economist, Competitive Enterprise Institute

James Edwards
Executive Director, Conservatives for Property Rights

Matthew Kandrach
President, Consumer Action for a Strong Economy

Elizabeth Hayes
Head of External Affairs, Consumer Choice Center

Sal Nuzzo
Executive Director, Consumers Defense

Joel C. White
President, Council for Affordable Health Coverage

Tom Schatz
President, Council for Citizens Against Government Waste

Kendall Cotton
President and CEO, Frontier Institute

George Landrith
President, Frontiers of Freedom

Mario H. Lopez
President, Hispanic Leadership Fund

Stephen Ezell
VP for Global Innovation Policy, Information Technology and Innovation Foundation

Bartlett Cleland
Executive Director, Innovation Economy Alliance

Tom Giovanetti
President, Institute for Policy Innovation

Andrew Langer
President, Institute for Liberty

Annette Olson
Chief Executive Officer, The John K. MacIver Institute for Public Policy, Inc.

Brian Balfour
Senior VP of Research, John Locke Foundation

Alfredo Ortiz
CEO, Job Creators Network

Carlos F. Orta
President & CEO, The Latino Coalition

Charles Sauer
President, Market Institute

Emily Stack
Executive Director, Moms for America Action

Chris Cargill
President, Mountain States Policy Center

Pete Sepp
President, National Taxpayers Union

Gerard Kassar
State Chairman, New York State Conservative Party

Sally Pipes
President and CEO, Pacific Research Institute

Daniel J. Erspamer
Chief Executive Officer, Pelican Institute for Public Policy

Lorenzo Montanari
Executive Director, Property Rights Alliance

Paul Gessing
President, Rio Grande Foundation

James Erwin
Executive Director, Digital Liberty
Interim Director, Shareholder Advocacy Forum

James L. Martin
Founder/Chairman, 60 Plus Association

Karen Kerrigan
President & CEO, Small Business & Entrepreneurship Council

Kerri Toloczko
Chair, Southwest Florida Center Right Coalition

David Miller
Chair, Center Right Southwest Ohio

David Williams
President, Taxpayers Protection Alliance

Kent Kaiser, Ph.D.
Executive Director, Trade Alliance to Promote Prosperity

Steve Moore
Co-Founder, Unleash Prosperity Now

Morton Blackwell
Virginia Republican National Committeeman

Kevin Riffe
Chairman, West Virginia Center Right Coalition

Warner Bros. Discovery owns the Warner Bros. studio and cable brands, including CNN, HBO, and the Discovery Channel. Paramount Skydance, the parent company of CBS, recently made several offers to buy the company. However, Warner executives are waiting for competing bids. Netflix, Comcast, and Amazon are among the potential bidders, reports say.

Conservatives warn that a sale to Netflix or Comcast would further concentrate power in the media industry. 

Former U.S. Rep. Ken Buck, R-Colorado, said mergers with Big Tech often lead to fewer competitors and less diversity of viewpoints, and that federal regulators should tread carefully.

“No doubt, Big Tech will marshal their resources to fight authorities — as they have before  — but regulators can, and should, use this moment to carefully examine mergers in the entertainment industry that will have an impact on free speech,” he wrote in a Newsmax column.

Tom Giovanetti, president of the Institute for Policy Innovation, said competition helps preserve balance in news and entertainment. 

“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,” he wrote in a column for the Daily Caller. “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.”

Analysts note the Trump administration has previously criticized Comcast and NBC for bias in its political coverage. In 2023, Trump pledged to investigate NBC for “knowingly dishonest and corrupt coverage.” More recently, he posted that Comcast and its chairman, Brian Roberts, were “a disgrace to the integrity of broadcasting.”

Craig Moffett of Moffett Nathanson said a successful Comcast bid is “nearly unthinkable.”

“Given past commentary against all-things-Comcast from both the White House and the FCC over the past year, a successful Comcast acquisition of almost anything seems nearly unthinkable,” he told Deadline.

Additionally, Blair Levin of New Street Research told CNBC that “it is almost certain that the Trump DOJ would not allow Comcast to buy WBD and the result would be decided in court.”

Netflix may also face skepticism. Company chairman Reed Hastings is a longtime Democratic donor, and Netflix employees sent 98% of their political donations to Democrats in 2020. Analysts warn that a merger with Warner Bros. would make Netflix more than twice the size of its nearest competitor.

By contrast, Paramount’s ties with the Trump administration may work in its favor. 

“Paramount Skydance got on Trump's good side to get the Paramount deal closed so there's still some of that good will that they could use … Not everyone has that good will,” Raymond James analyst Brent Penter told BBC.

Dear Representative/Senator,

We appreciate your leadership in advancing President Trump’s agenda to reduce government spending and restore accountability by reining in bureaucracy and rooting out waste, fraud, abuse and mismanagement in Washington.

That work is essential, and as you move forward to build on your success for the remainder of the 119th Congress, there is a clear opportunity to deliver more meaningful results by eliminating the Center for Medicare and Medicaid Innovation (CMMI).

CMMI was created in the Affordable Care Act with a narrow mandate to test limited payment “models” for Medicare, Medicaid, and the Children’s Health Insurance Program that would reduce costs and improve care. The Congressional Budget Office originally projected that CMMI would save $2.8 billion between 2011 and 2020. Instead, it lost $5.4 billion during that period and is projected to lose another $1.3 billion by 2030.

A June 2021 report found that only four of 174 CMMI models sufficiently met the required standards of reduced spending or improved quality to be expanded across Medicare nationwide.   Common sense dictates that any federal program with such an abysmal rate of success should not be given any further opportunity to waste the taxpayers’ money.

Yet CMMI’s defenders argue the agency will eventually “get better.” Fifteen years of failure prove otherwise. No private enterprise with this record would be allowed to continue operating, let alone expand its authority.

Rather than correcting course, CMMI has expanded the scale, scope, and coerciveness of its models. They interfere with the decisions of doctors and patients about the best course of care, and override policy decisions made by Congress. They also disrupt care delivery and burden providers with administrative complexity and undermine patient choice.

CMMI has a guaranteed source of funding that gives unelected bureaucrats broad authority to make healthcare policy decisions without any obligation to succeed. The lack of accountability and transparency and disregard for outcomes are costly for taxpayers and dangerous for patients.

CMMI is a failure. It is time for Congress to shut it down.

Sincerely,

Tom Schatz
President
Council for Citizens Against Government Waste

James L. Martin
Founder and Chairman
60 Plus Association

Tim Chapman
President
Advancing American Freedom

Saulius Anuzis
President
American Association of Senior Citizens

Phil Kerpen
President
American Commitment

Dee Stewart
President & CEO
Americans for a Balanced Budget

Grover Norquist
President
Americans for Tax Reform

Rebecca Weber
CEO
Association of Mature American Citizens

Melissa Ortiz
Founder & Principal
Capability Consulting

Anthony Zagotta
President
Center for American Principles

Ryan Ellis
President
Center for a Free Economy

Jeff Mazzella
President
Center for Individual Freedom

Ginevra Joyce-Myers
Executive Director
Center for Innovation and Free Enterprise

Andrew Langer
Executive Director
Coalition Against Socialized Medicine

Bob Johnson
Senior Advisor
Commitment to Seniors

Jeremy Nighohossian
Senior Fellow & Economist
Competitive Enterprise Institute

James Edwards
Executive Director
Conservatives for Property Rights

Gerard Scimeca
Chairman
Consumer Action for a Strong Economy

Joel White
President
Council for Affordable Health Coverage

Eunie Smith
President
Eagle Forum of Alabama

George Landrith
President
Frontiers of Freedom

Beverly Gossage
President
HSA Benefits Consulting

Carol Davis
Chair
Illinois Conservative Union

Tom Giovanetti
President
Institute for Policy Innovation

Brian Balfour
Senior Vice President of Research
John Locke Foundation

Seton Motley
President
Less Government

Colin Hanna
President
Let Freedom Ring

Tim Jones
Former Speaker
Missouri House of Representatives
Founder
Leadership for America Institute

Pete Sepp
President
National Taxpayers Union

Tami L. Fitzgerald J.D.
Executive Director
NC Values Coalition

Sally C. Pipes
President & CEO
Pacific Research Institute

Drew White
Founder & CEO
Palisade Policy Group

Paul Gessing
President
Rio Grande Foundation

Trent England
Executive Director
Save Our States

Karen Kerrigan
President & CEO
Small Business & Entrepreneurship Council

Kerri Toloczko
Founder & Chair
Southwest Florida Center-Right Coalition

David Williams
President
Taxpayers Protection Alliance

Paul Teller
President
Teller Strategies

Bob Carlstrom
President
The Carlstrom Group

Kent Kaiser
Executive Director
Trade Alliance to Promote Prosperity

Steve Moore
Co-Founder
Unleash Prosperity Now

Kevin Riffe
Chairman
West Virginia Center-Right Coalition

Mario H. Lopez
President
Hispanic Leadership Fund

Andrew Langer
President
Institute for Liberty

Tom Giovanetti
President
Institute for Policy Innovation (IPI)

Ian Adams
Executive Director
International Center for Law and Economics

Seton Motley
President
Less Government

Matthew Gagnon
Chief Executive Officer
Maine Policy Institute

Charlie Sauer
President
Market Institute

Patrick A. McLaughlin
Research Fellow, Hoover Institution*
Visiting Research Fellow, Pacific Legal Foundation*
*Affiliation for identification purposes only

Roslyn Layton
Senior Fellow
National Security Institute

Pete Sepp
President
National Taxpayers Union

John Tamny
President
Parkview Institute

Daniel J. Erspamer
Chief Executive Officer
Pelican Institute for Public Policy

Paul Gessing
President
Rio Grande Foundation

Karen Kerrigan
President & CEO
Small Business & Entrepreneurship Council

Patrick Brenner
President and CEO
Southwest Public Policy Institute

Ross Marchand
Executive Director
Taxpayers Protection Alliance

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.

For Immediate Release

Dallas--The Institute for Policy Innovation (IPI) is pleased that the Supreme Court has correctly decided that President Trump improperly used the 1977 International Emergency Economic Powers Act to impose harmful, capricious, sometimes malicious and often incoherent tariffs on goods purchased by American businesses and consumers. And we await the comedy of a response from the Trump administration.

All tariffs thus unconstitutionally collected by the U.S. Government should automatically and immediately be refunded to those who paid them, without challenge and without delay. Anything less can only be interpreted as the Trump administration refusing to comply with a Supreme Court ruling, and would continue the ongoing economic harm caused by tariffs. Essentially, a chunk of private sector capital was unconstitutionally removed from the private economy and transferred to government. Conservatives have never believed that government is a wiser and more efficient steward of resources than is the private sector.

We are disappointed that it apparently did not trouble three supposedly textualist justices that the word “tariff” appears nowhere in the text of IEEPA.

We look forward to future occasions when the other party attempts to similarly impose tariffs and we will be able to point out that progressive Supreme Court justices found otherwise.

We realize that the President will undoubtedly attempt to reimpose as many of the tariffs as possible under different legal justification, but we also have no doubt that he will similarly misuse those statutes as well, ignoring conditions, limitations, and time durations. We similarly expect Congress to refuse to accept and exercise its constitutional duty over such policies. Still, today was a good day for the Constitution, for the rule of law, and for the economy.

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.