The Reasonable Burning Man Standard

First, some context:

On Sept. 5, Mary Herre was on her way to a math-themed camp at Burning Man for a slice of pie when she noticed two skydivers landing in an area with lots of foot and bike traffic.

…Within moments, [she] was suddenly struck by a third skydiver on the left side of her back — the same side as her sole kidney.

“I was just screaming, ‘That’s my only kidney, that’s my only kidney,’” Herre said. “I was terrified, and then I was in excruciating pain.”

Notwithstanding the story’s Mad Libs oddness, this is a fairly classic tort situation. As the article asks: “A skydiver landed on her at Burning Man. Who will pay the medical bills?” Who indeed?

Parties involved include the skydiver, the event’s host (Burning Man Project, a 501(c)(3) non-profit), and the woman herself in case attendance involves some waiver and/or due care.

I haven’t reviewed it, but a relatively more complicated scenario than the above is why Rep. Trahan’s (D-MA) bill on AI liability is welcome. Because that stuff is way more complicated, and it’s not limited to once a year in the Nevada desert.

The World’s Smallest AI Quiz

Back in the pre-The Social Network days when we still enthusiastically posted pictures on Facebook we would almost certainly come to regret, “The World’s Smallest Political Quiz” became one of those informative and ridiculous illusions that were nonetheless irresistible.1

I was reminded of that after coming across ’s digestible taxonomy of The Six Factions Shaping AI. Myself, I’m still sorting out the various camps and secret handshakes of Bay Area tech cliques—I’m pretty good at code-switching though it does require some language immersion. But the six categories roughly track my own internal mapping.

Imagine my relief when the description most closely matching my own disposition is #6, “Pragmatists.” (ed. I feel so seen)2

The point is all six categories read as reasonable on their own terms, and good faith engagement shouldn’t dismiss any of them out of hand. In fact the group I find the most frustrating (#1, “Accelerationists / Tech Right”) is the one with which I have a great deal of agreement. I just wish they were better at [*gestures wildly*] their whole deal.

Speaking of the Patagonia Patrol…

Look, the internet is not real life so put this all in proportion: the war among the various AI camps is a sophisticated influence campaign.

In “Who is behind the AI Safety Backlash?” () Tyler Johnston does an influence/social network analysis of the full court press in response to the frontier lab loud quitting trend.

No surprise, it’s essentially a 1-4 ISO ball kinda thing.

No hate. You use the tools you got, and there’s no rules in this game. I’m sure some of the LessWrong folks would ring the same bell. Not being on TwiXter, I don’t know how it works.

But see above, it’s why I wish the folks I ultimately agree with were just less off-putting. Great parties tho!

Hand Covers Bruise

did the hard work and lays it all out. In what I assume is his last paper since leaving CSIS he establishes the groundwork for why a working insurance market is necessary for AI adoption (“The Insurance Industry’s Retreat from AI Threatens to Slow Innovation and Adoption”).

He overlaps much of what I was considering for a longer essay of my own. The short version is among other things, if we don’t have a credible database of AI incidents, no one can underwrite the risk, and eventually that’ll constrain adoption/deployment of AI, especially agentic AI systems.

Knowledge of the risks will get out there, and stock prices will reflect that in a noisy, imprecise way. But without some systematic reporting system of incidents — like in cybersecurity proper — companies won’t be able to mitigate risks through underwriting and insurance. Because who’ll price a risk they can’t measure?

Lots more to say, including dunking on industry opposition to even a voluntary reporting system, and the bizarre phenomenon of cybersecurity insurance premiums declining despite acknowledged increases in risks.

For now I’m just hopeful the willful misuse of “regulatory capture” has peaked and we can get back to talking like adults.

What, Me Worry?

did the country a service by actually talking to people about their AI anxieties vis-a-vis the data center backlash. From her now high-profile reporting:

…what made data center activism such a nationwide phenom?

The only solution seemed to be hitting the road, going to the towns where data center fights were happening, and talking to as many people as I could: activists, yes, but also workers, planners, politicians, and residents. I wanted to learn: Do most people actually care about data centers, or just a passionate few?…How did local opposition become a national issue?

Beyond that piece, a stray remark on the The AI Policy Podcast gave me pause. She noted, in so many words: in SF everyone is running armies of AI sub-agents, and in DC everyone retreats to But China’s open-weights! Yet most people in America only know AI through free services.

That’s not a small thing.

Consider PNC Bank reported as of May (among their customers) “households paying for a Gen AI subscription reached [*drumroll*] 2.2%.” Meaning most people’s assessment of AI’s capabilities or threats is extrapolated from some weak sauce—the free services are frankly pretty crappy. Of course a greater number have access to more advanced models and applications through school or work. However beyond being hit over the head by the enshittification of Google search through “AI Overview,” limited context windows, lack of multi-step workflows, rampant hallucinating, and bounded automation means the “public” impression of AI is not the same as the rest of us.

The failure to recognize that disconnect is Exhibit #143 of why tech is having a conversation no one else is really interested in.

Which is not to say the Golden State Worriers are any better, what with their p(doom) and backchaining and all.

Etc.

• Lawfare: The Many Open Questions About the Trump Administration’s New De Facto AI Model Licensing System

• I’m scheduled for LiveNOW from FOX tonight to discuss, what else, cruelty to Anthropic models!

The author is Non-Resident Senior Fellow at

Tech Congestion Pricing

A new California law will fine robotaxi/AV operators if their disabled vehicle “blocks police or firefighters for more than 30 minutes.”

Believe it or not, here in San Francisco this is one of the weird things that’s actually an issue. Especially during rush hour.

I wonder if there’s a policy design lesson for frontier AI developers…

Department of Ruh-Roh!

Couple related tidbits from the always informative :

• at a recent Chatham House Rules event in DC, Democratic staffers indicated that should Congress flip, they are preparing to hold flat or even decrease the Pentagon budget.

• Anduril said if the FY27 NDAA doesn’t pass soon, they will no longer be willing to work “at risk” for the government.

I’m sure it’ll all work out fine. No need to panic.

…Speaking of Panics

Cataloging historical techno-panics is an amusing pastime. It’s bracing to see what we collectively lost our minds about at one time or another. My friend just launched a new series called Panic Patrol. The first episode focuses on “Bicycle Face” which is both as ridiculous as it sounds and conveniently only applied to women.

Revisiting these overreactions of the past can be a helpful reminder to put our present in context. Most of the time, extreme outcomes are seductive to the imagination, and social contagion gives them a popular boost, but they did not in the end reflect an evidence-based conclusion.

Like the “Y2K Panic,” which amounted to a nothing-burger, no?

And yet…a categorical dismissal can sweep away justifiable concerns. There were high-value systems with demonstrated failures from the “bug,” like:

• the nuclear reactor in Sweden that shut down or

• UK hospitals where an “unusual number of babies were being born with Down’s Syndrome” because women “in a high-risk category were wrongly told that they did not need further testing.”1

Both owed to Y2K-induced coding errors. The former was caught ahead of time to be fixed and the latter found only after an anomalous spike in real diagnoses. In the end it’s still fair to say the world overspent in response to a panic, but that doesn’t mean the optimal amount of concern was zero.

Remember the ozone hysteria of the 1980s? Probably not. Tl;dr basically some nerds warned of a depleting ozone layer in the atmosphere owing to proliferation of chlorofluorocarbons (mostly CFC-11, CFC-12, and CFC-113). Certainly no one’s worried about it now.

Because we fixed the glitch. The Montreal Protocol (1987) led to a “nearly 99%” reduction in the offending substances.

In both cases you can argue the intervention (read: cost) was disproportionate to the actual problem. But that is not the same thing as concluding there was not an actual problem.

Which is what’s so tiresome about the reductive AI “debate.” Noting a problem — even a non-hypothetical, demonstrable risk — gets you thrown in with AI-pocalypse doomers. LOL, they’re just like those people who got all worked up about women riding bikes.

Please. I hate bikes being ridden by anyone.2

Models—They’re Just Like Us!

Maybe the whole solution is to train AI models to be more neurotic. A recent paper proposes that instilling conservative risk tolerances could constrain unwanted agentic behavior.

Risk aversion in resources could prevent misaligned AI agents from causing catastrophic harm. Misaligned but risk-averse agents would tend to favor safer strategies like making deals with humans over riskier strategies like rebelling. We train agents to be risk averse through character training, finding that persona traits provide a robust mechanism for instilling risk preferences.

In other words, trying to employ “do as we say, not as we do” classifiers may be exactly the opposite strategy we should be looking to.

Written in Invisible Ink

Forthcoming is a longer piece about how the absence of “a law” does not mean “permissionless innovation.” It’s just regulation through ad hoc, capricious, and compiled together separate pieces. Most of which is not fit for purpose.

Consider this: the day after the White House Super Intelligence Accord between the leading tech companies, ensuring a continued hands-off approach from the federal government, it came out that the FTC had weeks earlier initiated civil investigative demand letters against OpenAI, Anthropic, and METR. And under Section 5’s “unfair or deceptive practices” authority from a law over 100 years old to boot.

Good, bad, or ugly, that is what absence of formal law gets you. I dare you to argue it’s superior.

Etc.

From The Grand Resign:

• Billing Me Softly: How AI Changes What Law Firms Charge and How

• Three hypotheses on how Congressional leadership controls the agenda

and finally…

• How cool was it to see Baltimore homies Turnstile on SNL? Hardcore lives!!3

The author is Non-Resident Senior Fellow at

This week The New York Times’ DealBook had a column on the ongoing love triangle between law firms, their clients, and AI. In short, law firms want to claim AI is just a work friend and clients are asking to see the receipts.

The article is punctuated by quotes from big-time firms, AI developers, and industry advisors. One consultant describes client at…

Read more

Setting the Agenda

This article builds on an earlier model of intra-caucus Congressional bargaining.

In short, it's a normal form game with “Leadership” trying to pass a bill and a “Faction” trying to extract concessions. The members in the faction are not fixed and can change with the particulars of each bill. It describes a scenario where the majority has a slim margin over the minority, consistent with the last couple Congresses.1

It assumes the given bill being negotiated is exogenous. You can apply the particulars of the bill to predict thresholds and bargaining dynamics, but it leaves unexplored how leadership selects what bill to move, or more accurately how to move it.

So here we empirically test the shape of the agenda-setting through what vehicles get negotiated over. Not by subject, but through choice of floor consideration mechanism: open rule, closed rule, or suspension.

The intuition is the following:

• Much of the literature describes Congressional leadership’s influence showing up through setting the agenda: deciding what makes it to the floor or not. For example Cox and McCubbins (Setting the Agenda: Responsible Party Government in the U.S. House of Representatives, 2005) argues the majority party’s core power is gating what reaches the floor, with choice of rule as the mechanism.

• If there’s a slim-majority bargain to be had, it first gets leveraged in the form of a “rule” applying to the legislation. Leadership needs sufficient support for the rule structure if it is to move to final consideration. But that choice is endogenous.

Below I offer some hypotheses and test them using data from recent Congresses.

Stand Up and Be Counted

We can make some conclusions about the Leadership’s objective function by looking at closed-rules behavior. The three hypotheses and the mixed test results:

❌ H1: As majority margin ⬇️, likelihood of a suspension ⬆️

✅ H2: As majority margin ⬇️, likelihood of a closed rule ⬆️

🟡 H3: Leadership-backed rules fail consistently across margin size

Hypothesis 1

Suspension is a mechanism that routes around a rule vote, at the price of needing two-thirds and therefore minority votes. So if a shrinking margin makes the rule vote riskier, one adaptation is to go around it.

Ultimately, suspensions carry 70–85 percent of House-passed measures. The bills where holdouts actually have leverage are too few to move that share, so we can’t reject the null result that the share of suspension votes don’t follow the size of majority margin.

Claim: Share of Suspension Votes Goes Up as Margins Get Tighter

Verdict: Rejection

Hypothesis 2

Essentially the default for rules should be a “closed rule” which puts forward a floor vote with no option for amending — take it or leave it. It limits an avenue of leverage for holdouts to threaten passage. However limiting or eliminating amendments also removes an avenue to negotiate for support. So there’s a tradeoff.

Claim: Likelihood of a Closed Rule Increases as Margins Get Slimmer

Verdict: Strong Support

Hypothesis 3

While rare, leadership can and does lose some rule votes but obviously wants to minimize that outcome ceteris paribus. Contested rule votes are a necessary option, and as a first-order effect the failure rate should increase as margins decrease and holdout leverage increases.

However there’s a compensating behavior. The number and scope of the agenda is not fixed, so the effective cost to leadership is the same across different margins. And therefore altogether (so this claim goes) they should lose rule votes at a consistent rate.

Claim: Leaderships Lose Rule Votes at the Same Rate

Verdict: Weak Support

Technically we can’t reject the null hypothesis. As you can see the standard errors are quite large. If we exclude the Pelosi portion of the sample we get a tighter confidence interval and a confident verdict that the hypothesis holds.

Note: From 2011-2022 rule votes were adopted 100 percent of the time (n = 519), so this is clearly a slim-majority phenomenon.

DATA SOURCES:

• Ballotpedia, “Vacancies in the United States Congress” (117th and 118th Congress)

• Jeffrey Lewis, et al., Voteview: Congressional Roll-Call Votes Database. https://voteview.com/ (2026)

• Office of the Clerk, U.S. House of Representatives, “Vacancies.”

• House Rules Committee Democratic Staff, "How Donald Trump Stole Congress" (Staff Report, Part I), Dec. 29, 2025 (“McGovern Report”)

• Don Wolfensberger, "A Farewell to Open Rules," Dreier Roundtable (Claremont McKenna College), Feb. 12, 2026.

• GPO, BILLSTATUS bulk data, 117th–119th Congresses (accessed Sept. 21, 2026)

• CRS, Suspension of the Rules: House Practice in the 118th Congress, R48650 (Aug. 27, 2025)

The author is Non-Resident Senior Fellow at

You’re Kidding Me

Eleven years ago, Kevin Nealon made a joke about the Kennedy Center being renamed the Trump Center.

He was speaking at the Mark Twain Prize ceremony for Eddie Murphy, which of course takes place at that very same venue.

Which calls to mind The Simpsons Prediction Theory which boils down to:

Every idea's been done, Butters, even before the Simpsons.

—Kyle Broflovski, South Park resident

Anywho, I wrote an essay about what this has to do with Congress’s Article III standing.

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Panic! at the (AI) Disco

Over at Palladium, I came across ’s essay “Frontier Panic,” written in the wake of the OpenAI model’s work release scandal1:

The climate apocalypticism that consumed the artistic and intellectual culture of the 2010s imagined rising seas through installations of melting ice and underwater DJ booths.

…Just as Anthropic now floats stories of AI models gone rogue, climate discourse rehearsed speculative catastrophes that had not occurred: Miami submerged*, coastal cities abandoned.

…AI is a forest fire clearing the field. Like every apocalypse, it reveals that the end has already happened.

Overall aged pretty well methinks.

*I will say though, last time I was in Miami there was a storm and the valet lane outside my hotel had water up to my waist. The locals didn’t seem fazed. Jussayin’.

The essay continues:

In the now-famous Frontier Thesis of Frederick Jackson Turner, the frontier was not just a boundary but a force that altered those who entered it.

…Since December 2025, Claude Code has felt, for many, like first contact, whether with alien intelligence or a new operating space…Every major technological inflection produces not only new machines but new modes of perception and artistic form, as well as conservative reactions against them.

Well played.

Zen and the Art of Power Cycle Maintenance

Data centers, for all the Sturm und Drang, are probably not a primary cause of increases in energy prices. Still the construction-maxxers may want to be a little less smug about how all this works.

Because the power grid is super complicated and not at all structured well to begin with.

Example: 99-year-old PJM is the largest electricity grid operator in the US — one of the three largest in the world — serving 67 million people across 13 states and DC.2 They use a model which “decides what type of and how many power plants to buy to make sure electricity is reliable.”

Unfortunately it turns out this model is pretty crappy, leading them to waste “~$12 billion of ratepayers’ money.”

SemiAnalysis has the receipts:

PJM’s model is structurally anti-growth with a poorly designed capacity market that is globally unique and a governance system that is too big to function.

So while a new data center is not a likely source of higher prices as a first order effect, they are yet another node in an already inadequate electric grid.

IOW, It’s not that a data center is a problem, it’s that we haven’t bothered to fix the existing ones.

And Your Point Is…?

A recent hit piece investigation into one Joe Lonsdale and the Cicero Institute, which he founded, notes:

Mr. Lonsdale formed the institute eight years ago with vague goals — to promote “liberty, accountability, and transparency” — and no mention of homelessness.

—Ellen Barry and Jason DeParle, “How a Billionaire Shaped Trump’s Homelessness Policy,” The New York Times, August 22, 2026

No comment on the article’s veracity, which is quite long at nearly 3,000 words. But that quote, albeit factually defensible, is curious in a leading-the-witness way.

Consider if I wrote the following:

True, but kinda beside the point, no? And unclear what the implication actually is, even if it’s obvious what the implication is supposed to be.

Disclaimer 2: I have friends who work at the Cicero Institute. I don’t have any insight or opinion on their work. Separately, I’ve strenuously disagreed with Lonsdale’s personal views re: AI regulation.

Workin’ hard or hardly workin’? (Congress Edition)

and Scott Warren have a new paper examining whether electoral incentives contribute to Congressional performance.

Most people understand the concept of individual member incentives, but I’ve been thinking lately about the bargaining game between “leadership” (broadly defined) and their “caucus.”

As I’ve taken a grand total of zero political science courses, much of the relevant literature is likely well-known to others and new to me. But besides alerting me to some pertinent academic literature, Kosar & Warren prompted an extension of some of my previous work on the topic.

In a forthcoming article building on a “One-Seat Majority w/ Factions” model, I run down empirically the following hypotheses. (Spoiler: at least one gets rejected):

1. As majority margin ⬇️, share of suspensions ⬆️ (relative to special rules)

2. As majority margin ⬇️, likelihood of a closed-rule ⬆️

3. Leadership-backed rules fail consistently across majority margins

Etc.

From The Grand Resign:

• Out on Washington? Try DC! — a love letter to the city behind the capital

• Let the Chips Fall… — a model of what a data center moratorium would or wouldn’t do

• Electric Kool-Aid Policy Test — what one policy wonk learned from a psychedelic policy trip

• Going Native — making first contact with the San Francisco AI Safety community

and finally…

• on “regulatory capture”:

  

A version of this essay first appeared in Notice & Comment (Yale Journal on Regulation) on September 19, 2026.

You Can’t Sit With Us

Chief Justice Roberts’s dissent in the White House ballroom case1 turned some heads, for its positioning more than its actual position. To wit, The New York Times characterizes him as being in an unfamiliar minority.

In short he argues construction violates applicable statute which reads in full:

A building or structure shall not be erected on any reservation, park, or public grounds of the Federal Government in the District of Columbia without express authority of Congress.2

And even though Congress in fact appropriated approx. $2.5 million for maintenance purposes in 2026,3 Roberts says that ain’t it:

a couple million dollars for ordinary Executive Residence maintenance and repairs likely does not authorize the President to use hundreds of millions of dollars in private donations to tear down the East Wing and construct a ballroom in its stead.

Preach!

So according to his logic, the construction – and by extension the court’s majority – infringes Congress’s authority over federal buildings.

Notwithstanding his unfamiliar surroundings, the dissent is fairly straightforward and it’s reasoning fairly mundane.

Where’s Congress?

What makes it curious is that the essential party to the case, the one that is being infringed upon by his own framing, is not a party in the case. Roberts is quite concerned about Congress nonetheless.4

Yet the opinion turns on a very specific nexus of harm. In order to vindicate an infringement against Congress - to locate concrete and particularized harm sufficient for standing - he has to take a walk alongside an architectural historian named Alison Hoagland . Because on the basis of “historic preservation,” he notes she “is not just any person.”

In other words, Congress should thank god a history buff happened to walk by.

The majority doesn’t let that fact slide by, noting that Hoagland’s C.V. is irrelevant: scholarship, residency, behavioral patterns, and volunteer work are afforded “no such special carveout” per the rules of standing.5 Lujan and Sierra Club prohibit passage down that path.

But for sake of argument, a litigant’s biography is a curious element to determine standing if protecting Congress’s prerogatives is the actual thing worth worrying about. Congress is an institution, with no particular biography or experience in this sense. “Congress” can’t make a habit of perambulating around the National Mall and accumulating joy from the neoclassical architecture of the White House.6

Congress literally can’t complain.

That’s not an inference. Roberts in “Article III Limits on Statutory Standing” argues explicitly standing only applies to private complainants.7 And no, not individual members of Congress.

How do we know? Maybe it’s just never been tried.

To quote Reuben Tishkoff, “Oh, it’s been tried. A few guys even came close.”

• In Raines v. Byrd,8 a group of individual members sued and even had honest-to-god language in the Line Item Veto Act to authorize it. Nope, entrance closed on account of “wholly abstract and widely dispersed” claim of harm.

• In McClure v. Carter9 it was a Senator McClure of Idaho, again relying on duly passed and pretty clear statutory language:

  Any Member of Congress…may bring a civil action in the United States District Court for the District of Columbia or in any United States District Court in the State he represents

  Again, access denied because it is:

  difficult to see how this statute may, consistent with article III, confer upon a senator or member of the House of Representatives a “right” to seek a decision from a federal court that such a senator or member of the House would otherwise be powerless to procure10

Roberts (1993) cites McClure approvingly — though in passing in a footnote — with no suggestion that a legislator asserting Article III standing might get in through another door. The foreclosure of congressional standing is not something Roberts argues for because he treats it as already settled. The body of his article is given over to defending Lujan and the rule it draws from Sierra Club. He litigates at length the question of which private plaintiffs get in.

That Congress does not is assumed.

According to Roberts’s argument, Congress does have some say in expanding the aperture of standing, up to a point. And where that point is exactly is the whole paradox he has now walked into in this latest dissenting opinion.

Quoting Gladstone v. Village of Bellwood,11 he argues Article III’s threshold that the plaintiff present “a distinct and palpable injury” to themselves is binding, and Congress can’t go below that. In other words, Article III sets the rule, which is all well and good. The court’s jurisdiction should be allowed to determine whether in fact a legal right, properly granted, is being infringed upon.

Congress can even go so far as to name a specific party to which it is granting a right in statute.

But that party can’t be Congress.

The Center Formerly Known as Kennedy

Take the nearby case (figuratively and literally) of Beatty v. Trump, the Kennedy Center case. The facts are not in dispute, only standing. Pub. L. 88-260 (1964), amending the National Cultural Center Act, is as straightforward as they come. It’s a glorified postal naming bill:

• There’s a cultural center.

• It gets renamed the “John F. Kennedy Center for the Performing Arts.”

• The Executive Branch later changes the name to not that.

That’s about it.

There’s some appropriations in the original bill, and a Board of Trustees. So according to the judicial precedent to which Roberts up to this point, and seemingly the current Supreme Court majority, are okay with, Congress has no real way on its own to seek redress for a clear violation of the law by the Executive Branch via the courts.

In fact it’s only because the Board of Trustees, per statute, includes a current member of Congress as an ex officio member that there’s a current operative challenge to the Executive Branch’s actions. That is, if Congress didn’t happen to establish a board for this particular purpose and appoint a Congressional member, then there wouldn’t be any nexus of harm sufficient for Congress to have standing. Congress is invisible, but for a sui generis governance provision. (Or again, an architectural historian with sufficient pedigree happened to walk by).

This can’t possibly be where the balance of standing considerations leaves Article I vis-à-vis Article III, for Roberts or any of the other justices.

So Long, Take Care

In theory, “injuries” to Congress are merely proxies for injuries in fact to the public. We shouldn’t be particularly concerned about Congress’s vindication through courts of alleged injuries of rights to itself per se, only insofar as they stand in for harms to the public. As long as those individuals are afforded standing under Article III’s delimitations, the Constitutional intent is intact.

One presumes, though, Congress could say explicitly who those parties are that they are intending to grant rights. Rights wherein if the Executive fails to “take care” in executing the law, there would be a colorable argument someone’s rights are being infringed.

So again in theory, Congress could author and pass a statute designating a person or persons as the beneficiaries of the statute. “Any person” in the case of the Endangered Species Act (1973) (i.e., “any person may commence a civil suit on his own behalf…” (emphasis added)).12

According to Roberts, Congress can’t designate itself as a workaround of Article III standing’s minimal threshold, but also can’t designate any person outside of Congress either (i.e., the public).13 In a manner of speaking, he acknowledges the ESA as drafted wouldn’t make sense to entitle a specific named person(s) with the statute’s rights, but “any person” is too unspecific to be workable. And moreover he argues it can’t possibly be what Congress meant. Yes, he explicitly relies on a Congressional intent reading.

First Branch, Last in Line

Of course Congress is no ordinary party in the Constitutional order, and these interbranch disputes don’t operate in a vacuum. Indeed it is the political situating between Article I and Article II branches that permits unique avenues of redressment unavailable to the general public.

All of which fall under the Work it Out Amongst Yourselves doctrine.

Again Roberts14 and others all proscribe the circumstances and mechanisms by which Congress and the President can resolve disputes without involvement of the courts.15 Appropriations, oversight, passing or repealing statutes, impeachment, and the enterprise of politics broadly, are all ways in which Congress and the President find accommodation on the numerous issues on which there is some disagreement (maybe thousands on any given day). And to presume an Article III pathway for all of them would be not only impractical but, according to this line of thinking, inimical to the Constitution’s separating of powers.

As a prudential matter though, which of the above available mechanisms is able to address the scenario where the President obviously violates a law by renaming a thing Congress already named through statute?

• Is Congress to withhold appropriations…to undo a thing it didn’t want done in the first place?

• Oversight is great, but is for fact-finding. What facts need finding here? It doesn’t take Joe Historian to walk down Virginia Avenue to note the name change.

One retort offered by Isgur and French16 (echoing Justice Powell: interbranch disputes “should, and almost invariably do, turn on political rather than legal considerations”17) grants that the result may appear absurd, but if an issue doesn’t rise to the level of impeachment or other dramatic action, that’s politics at work. The issue isn’t that Congress can’t enforce proper compliance, it’s that it has to pick and choose when and where to use its various leverages. That renaming a cultural center doesn’t, say, merit impeachment proceedings is a political choice.

Scalia says “take care” is the President’s obligation, and determinations of fidelity in that charge are not the court’s problem: “Carried to its logical end, [respondents’] approach would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action,”18 which the Executive does on the public’s behalf.19

Break a Leg

But then we’re back to the standing question, not for Congress, but the public. Roberts et al. argue it can’t be “the public,” only a person who passes what I call “the broken leg test.” An individual or specific entity with a plausible claim of demonstrable specific harm.

It apparently either requires:

(a) Congress to assign itself a board seat to every statutorily authorized program (Kennedy Center case); or

(b) a non-member of Congress with sufficient expertise and interest in the subject of a program (White House ballroom case); or,

(c) Congress to show up to the court with a broken leg.

Congress is not permitted to assign the benefit of a law, that is I suppose, unless it does so to a specific person or group of individuals that does not contain any member of Congress. Imagine one person, John T. Plaintiff, who gets written into the end of every law, authorized as such to seek relief in court.

For that not to be the case, the President would have to initiate a wrecking ball to the Capitol Dome itself, in order for Congress to have standing to stop a construction project in lieu of a friendly neighborhood federal buildings expert.

A Long Walk…

Roberts has arrived at the correct outcome, if concern is over Congress’s vindication of its Constitutional prerogative, but done so through an inconsistent and untenable application of principle. The fault is not his alone, but his most recent dissent is conspicuous as a workaround of his earlier corner-painting.

Congress cannot deputize itself as a de facto private plaintiff nor is it clear the degree to which is can do so for actual private plaintiffs. It has numerous political tools at its disposal, but ought not have to be allowed to rely on subject matter experts to stand in for its claims.

The Right to Try

It started with a meeting with a young woman.

Her toddler son suffered from a debilitating genetic disorder called Duchenne muscular dystrophy. While extremely rare (about 1 in 4,000 boys), the median life expectancy was around 30 years. A significant improvement from earlier cohorts.

But a promising therapy was in clinical trials.

Then a meeting with a nonprofit lobbyist. And some state legislators.

They all wanted a federal law that changed access to experimental therapies, ones still being tested but not yet meeting the FDA’s threshold for safety and effectiveness.

States had begun passing a version of laws in this direction, but without a federal statute it was unclear to what effect.

They referred to these as “Right to Try” (RTT) laws.

These meetings were through my job at a Senate committee normally having little to do with healthcare. But “he’s elected, I’m selected” as we would say. My boss was the committee Chairman and decided this needed doing.

The Debate

Advocates for Right to Try wanted to permit patients with the most severe conditions to be able to receive experimental treatments, medicines which have not received approval, without jeopardizing potential FDA approval. The companies developing new therapies could provide them to the most sick people and still continue investigating with intent to sell to the broader medical market.1

A law eventually emerged through negotiations, first with another Senate committee, then with the then highest-funded trade association (PhRMA), and then with the House counterpart committee—though that’s redundant, because the last two were functionally the same thing.2^,3

But it didn’t include experimental substances prohibited by the DEA. Like psychedelic therapies. Exempting controlled substances was a negotiating concession but I would’ve been fine with it (even preferred).

On the way to becoming a law, the bill was name-checked during multiple State of the Union addresses, and afterwards during the infamous Biden v. Trump presidential debate.

But not everyone was supportive.

Pharmaceutical companies, while not opposed per se, appreciated the ability to point to the FDA as the reason they couldn’t provide pre-approved therapies to patients. The FDA enjoyed being able to say the reverse, that it’s not up to them.

But the most vocal opposition was a couple bioethicists, in particular eminent scholars and Alison Bateman-House, NYU faculty and members of the Working Group on Compassionate Use.

Pick a Lane

Eliding the actually defensible counterargument to our own advocacy, the frustration came down to this. At various times these two and sympathetic trade press would argue one or more of the following without acknowledging the internal logical inconsistency:

• this manner of access would expose large numbers of sick patients to undue risks

• no company would want to provide access under this law

• it provided false hope to desperate patients

If you can’t see the contradiction therein, then, well, maybe I’m the problem. A thing is poised to impose likely harm on scores of individuals, but also will be mostly abstained by drug developers? And the third, this may be bioethics inside baseball, but “false hope” is subjective. Our PO: if your doctor is saying you’re facing almost certain death in months, what’s the disutility of hope, false or otherwise?

Paternalistic, chauvinistic, and un-self-aware of their own obtuseness. I begged one of the major trade pubs regularly running their op-eds to host a debate, or at least a written counterpoint to no avail.4

Anyway, we won and passed the law.

Unclear if: (a) scores of patients have been harmed as a result; (b) zero patients have been subject to the law or (c) drug development has been materially jeopardized as a result (oh yah, forgot to mention, that was another confidently stated outcome).

[Later I would find out, when I was 14 and my mother died of breast cancer, her doctor identified but could not administer a then-experimental treatment that had since become standard-of-care]

The Psychonauts Come Knocking

A couple years later, parties interested in the potential therapeutic benefits of psychedelic drugs saw RTT as a pathway to expand legal investigation and use. There has of course been a spate of interest in developing psychedelics for medicinal use across all modalities, and RTT was of particular interest as a pathway. A 9th Circuit court case subjected the law for use along these lines.

So it turned out my work with RTT was inadvertently a psychedelic experience.5

Whatcha Know About Weed?

On my first day at the White House in a role overseeing federal regulations, the USDA was in the midst of establishing a federal regime for a subset of cannabis now defined as “hemp.” And there sat on my desk a 300+ page proposed rule to do so.

I didn’t know from hemp, so I sitting on my office couch I read the whole thing before embarking on a multi-month negotiation amongst the various Executive Branch interests to settle on a federal regulation to permit legal growing, processing, and selling of the psychoactive plant Cannabis sativa L.

This ended up being prong two of my looking glass tumble down the psychedelic policy rabbit hole.

No Man in No Man’s Land

Here I was, in the post 2020-world, one of the few human beings on Earth with direct federal psychedelic-relevant policy experience. At this point I found some of the claims of potential benefits from medical use of psychedelics promising, though often breathless, to the degree I could determine such a thing.

So I became an unpaid advisor to a couple pro-psychedelic advocacy organizations. I merely wanted to offer my experience to help move forward the science of psychedelic medicine, and hopefully bolster the case for federal funding, research, and regulatory approval of potentially life-improving psychedelic medicine.

But what sprouted up around me was a whole ecosystem not so different from the adjacent cryptocurrency industry.

• Overstatements.

• Get rich quick schemes.

• People claiming to be experts in the extremely narrow field that barely existed and in which only a few people had any actual direct experience.

One of the major conferences—I believe now defunct—called Wonderland (put on by an organization called Microdose, lol) promised:

• “Panel insights on psychedelic substance-related industries and regulations

• Dozens of experts, activists and innovators providing perspective, including athlete celebrities Mike Tyson and Lamar Odom”

And they weren’t unique. The famous Davos gathering put on by the World Economic Forum had an entire Psychedelic House in 2022.

Because what had happened was psychedelics had become a hot new thing, with plenty of money to be made. Big time VCs were suddenly pumping in billions of dollars. And an atmosphere of charlatans, fraudsters, and influencers flooded the zone accordingly.

Let the Good Times Roll

All of which was fine until, like all fads/bubbles, the conferences, the celebrity endorsements, and the ecstatic funding all fell back to Earth.

• In August 2024, the oldest and most established psychedelic research organization (formerly MAPS, then Lykos Therapeutics, now Resilient Pharmaceuticals) ran into the entirely foreseeable wall of not knowing WTF they were doing. Their application for FDA approval for MDMA was denied.

• Later the same year, Compass Pathways (backed by $360 million from prominent investors like Peter Thiel, Mike Novogratz, and Christian Angermayer) also missed the rim in their MDMA application. Which led their stock to tank and a 30 percent reduction in staff.

• In 2025, in spite of an HHS Secretary favorable to psychedelics, Compass Pathways was cut from the FDA’s new fast-track review pathway (although a 2026 Executive Order put them back on).

It must’ve been love, but it's over now…

It had all moved so fast and well beyond my knowledge and interest, so I backed away. Out of curiosity I catch various goings-on as they cross my desk: MAPS making personal attacks on , surfacing troubling abuse allegations, failure to solve the double-blind problem in clinical trials.

I’ve chosen to have no substantive role for a couple years now, but if anyone asks, I’m happy to provide free advice.

[If you’re curious, the last time I said anything on the record was in 2023 on the Psychedelics Today podcast]

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