This only serves to allow firms to erect effort barriers to keep rent seeking fro their customers. The "gotcha" that the Khan FTC didn't "follow the rules making process" is parallel construction.
I think we may have drastically different understandings of what “the law” is.
Regulating the “public health, welfare, and morals” is the prerogative of state legislatures. So the question is whether there is anything in the constitution that overrides that general power. Resort to “emanations from penumbras” is a concession that there isn’t.
By the way, this isn’t even some U.S.-centric take. The constitutional law in most western democracies leaves regulation of drugs to the discretion of the legislature.
Your comments these past months seem to evince an extreme textualist view of the Constitution's limits on government power.
Would it be fair to say that, in your view, a state government can take whatever action it wants, so long as the action isn't literally prohibited by the text of the Constitution? (In other words, for state governments, anything not prohibited is allowed?)
I'm curious: What's your view of the doctrine that under the 14th Amendment, state governments must comply with the Bill of Rights to the same extent as the federal government?
You periodically mock "emanations from penumbras" — is it your view that the phrase has more significance than simply a figure of speech to communicate the underlying concepts? (I have my own issues about Justice Douglas's track record, but that's not one of them.)
I have an extreme textualist view of constitutional limits on legislative power.
> Would it be fair to say that, in your view, a state government can take whatever action it wants, so long as the action isn't literally prohibited by the text of the Constitution?
I wouldn’t say “literally.” I would say it’s a fair reading, as one would apply to a commercial contract.
>,(In other words, for state governments, anything not prohibited is allowed?)
Yes, state governments are not ones of enumerated powers. They inherited the plenary legislative power of the British parliament and can do whatever they want that’s not expressly prohibited.
> I'm curious: What's your view of the doctrine that under the 14th Amendment, state governments must comply with the Bill of Rights to the same extent as the federal government?
I think it’s unsound. My secret left wing view is I think New York can regulate guns (but also Utah can make a state church).
> You periodically mock "emanations from penumbras" — is it your view that the phrase has more significance than simply a figure of speech to communicate the underlying concepts?
It’s a figure of speech that is especially revealing of the “underlying concept,” which is discovering constitutional principles in moral or political philosophy. I basically don’t think that’s legitimate. The constitution embodies a particular set of moral and political philosophies. Sometimes we add more (e.g. the concept of equal protection). But judges don’t get to be philosophers weighing in on moral issues the framers of the constitution and amendments clearly didn’t contemplate.
I'd agree with you — if we had more than one, largely-sclerotic way of amending the Constitution to accommodate new realities and new insights. "The only constant is change" is apparently a misattribution to Heraclitus [0], but it obviously has struck a chord to be in such widespread circulation.
Judicial lawmaking is a kluge, certainly. It brings to mind a passage in Tracy Kidder's 1981 The Soul of a New Machine: A "kluge" is like a wheel made out of bricks: No engineer would be particularly proud to have designed it — but if you need a wheel, and bricks are all you have to work with, then that's what you use.
In any case: Judicial lawmaking has become more-or-less accepted. You're part of the "or less" crowd, clearly. But ISTM that judicial lawmaking is a case of the (mythical) perfect being the enemy of the good-enough.
(A possible improvement: Congress could cabin the judicial-lawmaking process by stating — under the Exceptions and Regulations Clause in Article VI — that a 3/5 majority in each chamber, and perhaps presidential acquiescence, can override any SCOTUS pronouncement about constitutionality. And maybe impose a fast track for legislation to overturn a judicial interpretation of a statute. Both would be roughly akin to the Congressional Review Act for overturning administrative-agency decisions [1].)
[0] https://euppublishingblog.com/2021/07/19/misunderstanding-of...
That's certainly not an incoherent philosophical position.
EDIT: In this view, it sounds as though each U.S. state would be more like one of the member countries of the EU than, say, cantons in Switzerland or counties in England.