Never fear, Peter, the federal government is near.  I am sure that the Federal Aviation Administration will never pass up a chance to regulate something that flies.  But if the FAA does not, and even if it does, the states should have primary responsibility for figuring out the privacy rules for drones.  States regulate the rules for cars and driving, and I don't see why they shouldn't have the same authority for drones.

Now Troy will never be confirmed to the Supreme Court.

I don't have much of a problem with it.  I don't like the bar's control over the legal profession, which prevents competition in the legal markets, and should be done away with.  But if we are to have state bars controlling who may enter the profession, I don't have a great objection to the requirement for pro bono services.  What bothers me more often is the ideological slant of many pro bono opportunities, which are often slanted toward engineering "social change" through advocacy lawyering.  I would like to see more pro bono opportunities to advance free markets, such as representing small businesses and individuals who want to challenge irrational, wasteful regulations.

Thanks for the plug, Adam.  Even if Justice Kennedy should join the four conservatives (Roberts, Scalia, Thomas, and Alito), the conservative victory would be short-lived without more gains in the November elections.  Justices Scalia and Kennedy will be 80 by the end of the next presidential term -- the average age of retirement of Justices since 1968 has been 80.  The winner of this November's election will be able to appoint a firm majority of the Court, one that could overrule any decision limiting the Commerce Clause issued by the Court this summer.  Only winning the Senate and the Presidency will be able to produce permanent, pro-market reforms of health care.

Just because the taxing and spending powers have a different nature than the Commerce Clause doesn't mean that they are without limits.  And here, the Court has done a poor job of marking out clear restraints on Congress's power to tax and spend.  It could return the doctrine back to what it had been until the New Deal, where the Supreme Court had tried to limit the taxing and spending powers to the limits that applied to the Commerce Clause -- but then also tried to limit the Commerce Clause too.  While Krugman et al seem to want all of Congress's powers subject to the same limits, that is only because the Commerce Clause today is thought to be broad.  They might not have the same view if the Court uses the Obamacare decision to bring the Commerce Clause closer to its pre-New Deal scope.

You do not need to be a constitutional lawyer to see that the Constitution might treat the taxing/spending power differently than the Commerce Clause.  They are different powers given in different clauses of the Constitution to Congress.  There is no reason why the powers should be, as the Framers might say, co-terminous.  Today, for example we use the taxing and spending powers to provide incentives for activity that everyone -- I would hope -- falls outside direct federal regulation.

A simple example should suffice.  The tax code provides incentives for families to have children.  There is a tax subsidy for additional children.  Hopefully, even Krugman would agree that the federal government cannot use the Commerce Clause power to order families to have -- or not have -- a certain number of children.  Though I wonder -- New York Times columnists sometimes seem to have a strange admiration for Chinese central planning of their society and economy.

BTW, I think we look more like los tres amigos than a Roman triumvirate.

I don't want to be construed as a critic of the police.  I personally think that they do an excellent job in difficult circumstances, where they are trying to balance free speech, the right of free movement, the safety of the students, and the safety of the public, in the educational setting.  The point I was trying to make in the podcast is that it is very hard to pass judgment on these matters because protesters deliberately seek conflict with the police and use edited videotapes to try to place the police in the worst possible light.  That said, I think that using pepper spray should be generally unnecessary unless the officer is trying to defend himself from the use of force by the protesters (as occurred in the Oakland protests, for example).  If the protesters are sitting on the ground, even with arms linked, and refuse to move, and they are not there legally, then I think the police should pick them up and carry them off without the use of pepper spray. It might even be sensible to leave the protesters there until they leave on their own rather than to allow them to create a confrontation.

I think this will work out in Congress's favor, because the White House doesn't have a strong claim of executive privilege here.  First off, executive privilege would only apply to discussions within the White House, or those between the President and his top advisors.  Emails sent between the White House and people in the agencies or totally outside the executive privilege would have only the weakest of claims.  Second, executive privilege is at its strongest when involving military, diplomatic, national security, and law enforcement matters, and at its weakest when administering a simple domestic spending program.  The White House could risk having its officials being held in contempt of Congress, and then ultimately prosecuted by the U.S. Attorney, but ultimately because its claim of privilege is so weak, it will turn over the documents.

As ever, Richard is more profound and provocative than I, despite my best efforts.  I have one comment to add -- I agree with him that Marbury, correctly read, allows for judicial view, but not judicial supremacy.  Congress cannot force the courts to enforce an unconstitutional law, but neither can the courts force the other branches to follow its own unconstitutional decisions.  But I am not sure why Richard thinks that a Justice who thinks Marbury was wrong must still follow it.  Does it have to do with institutional and political stability?

But the job of the Supreme Court is different.  It is not to make policy, as with the common law courts, but to interpret the Constitution.  There are only nine Justices, not the thousands that make up the common law system of the states.  And the nine Justices are to be compared to the hundreds in Congress or the thousands in the executive branch -- it is quite likely that the stare decisis of the Supreme Court does not enjoy any superior expression of the reasonable judgments of the community over time in comparison to the other branches of government.

And then there is the third reason, one alluded to by Bork.  When common law courts make mistakes, they can be overruled by the legislature.  Stare decisis represents acquiescence by the legislature.  But when the Supreme Court makes a mistake, the other branches must amend the Constitution - 2/3 of the Congress, 3/4 of the states - to overrule it.  So the Court must have greater freedom to correct its own mistakes.

Liberals often claim that conservatives must follow stare decisis and when they do not, they are activist (this, of course, is never seen as a failing of liberal judges).  But I have always doubted that stare decisis is a doctrine that conservatives should favor on the Supreme Court.  For the common law, that is, decisions by state judges on matters such as contracts and torts, I can see a case for stare decisis.  Earlier decisions represent the application of principles to new facts by thousands of judges over time -- stare decisis represents the considered wisdom of the community of the present and the past, along the lines of Burke's defense of custom and tradition.

I dissent!  I worked for Senator Hatch in the mid 1990s, so I may be biased.  But I think Sen. Hatch has done more for conservative principles than most other Republican Senators because of one thing: his fight for conservative judges.  Hatch led the fight to defend Robert Bork, and most importantly, he was the crucial figure in the Senate who won the confirmations of Justice Clarence Thomas (another former employer) and Justice Antonin Scalia, the elevation of William Rehnquist to the Chief Justiceship, and the appointment of scores of Reagan conservatives to the lower courts.  For all of the fighting over the budget today, which of course is important, Hatch's promotion of conservatives to the bench -- in my view -- was a far greater achievement for the fight against unrestrained leftism.  Imagine what our country would be like if liberals had continued their successes in using the federal courts to impose their values on the country by evading the democratic process and the constitutional system.

That is essentially the approach that explains why school vouchers used at Catholic schools have survived judicial scrutiny.  Under this test, it seems to me that a diplomatic spending initiative where some of the money found its way into the hands of religious groups would be OK under the Establishment Clause.
A second hard question is whether the Establishment Clause should even apply to the U.S. government's actions abroad.  As far as I know, the Supreme Court has never really decided this question.  To me, it would seem that it should not.  Suppose the U.S. were to wage a war against a country that was dominated by a religious group and acted solely according to that religion's dictates (anyone have any suggestions of real world applications?).  Would the war violate the Establishment Clause?  Or suppose the U.S. in its foreign policy supported attacks on the messages of religions that are harmful to US interests?  I cannot imagine that would violate the original understanding of the Establishment Clause either.  The point, in my view, was the stop the government from setting up state churches at home, not attacking them abroad.

Tommy raises an excellent question, with two difficult problems within (I'm with him on the policy, by the way -- why the U.S. is funding any of this is beyond me).  The first is whether the government can provide any money to religious groups, whether for historical restoration or not, without violating the Constitution's Establishment Clause.  Without getting to deeply into legalese, the Supreme Court used to follow something called the appropriately-named Lemon test, which boiled down into whether government financial support of a religious group excessively entangled government in religion -- with excessive entanglement being in the eyes of the beholder.  More recently, a wavering majority on the Court has used something called the endorsement test: would a reasonable observer think that the government was endorsing the religion.  I think these tests are both silly.  What we should be asking is whether the government aims to support a specific religion because it is a religion, or is the religious group partaking of generally available programs simply as a group with a specific ideology or belief among many others.  (continuing below)

Great photo -- except I would never, ever, ever, never, ever be caught dead in a Cardinals uniform.  I'm a Phillies fan.  Though any team that would have Epstein in the Yogi Berra role would get a second look.