Tuesday, December 01, 2015

The Simplistic Demonization of Corporate Welfare

by Neil H. Buchanan

Not very long ago, the term "corporate welfare" was coined to suggest that the U.S. fiscal system shovels money from the public at large into the coffers of the world's wealthiest corporations.  Because it traded on what has always been a racially loaded notion of welfare recipients being "others" who take from deserving, hard-working Real Americans, that coinage was both troubling and powerful.

It was troubling in the sense that it seemed to reinforce the worst notions about traditional welfare.  It is not, after all, as if people who use the term corporate welfare mean that the government's payments to corporations are "for the welfare and benefit of the recipients."  Rather, they are drawing on negative public attitudes about welfare being unquestionably a bad thing.  Which is also what made it powerful, because the people who use the term are generally (but not always) people on the left, whose message is, essentially: "You conservatives think that the government should cut off the 'takers' and force them to stand or fall on their own?  Well, guess what?  The 'makers' that you laud so extravagantly are on the dole, too.  And if dependency is bad for anyone, then it's bad for everyone."

As a matter of political rhetoric, therefore, the demonization of corporate tax breaks and direct subsidies as tantamount to being on welfare is surprisingly similar to liberals' strategy with regard to budget deficits and debt.  On the latter topic, liberals starting in the 1980's could not resist saying, "See, Reagan runs larger deficits than we ever did!"  That script was renewed in the 2000's under the second Bush.  Rather than saying that deficits can be good or bad, and that deficits under Reagan and W were bad, liberals ended up playing into conservatives' hands by agreeing (at least tacitly, but usually explicitly) that deficits and debt are bad, arguing only over who is more at fault for this horrible scourge.  Similarly, rather than saying that welfare is a good and honorable concept, and that it should be defended, liberals now seem to be admitting that welfare is per se bad, which leaves them playing re-labeling games that fool no one.

The corporate welfare concept is, however, not merely troubling as a rhetorical matter.  On the substance, there is no reason to presume that providing subsidies (via tax benefits or direct spending) is always a giveaway that helps only the top executives and wealthy shareholders of corporate America.  We correctly, for example, allow corporations to subtract their labor and other costs from their revenues in computing taxable income, and it would be crazy to say that everyone else would be better off if only we stopped corporations from reducing their taxes by deducting the money that they pay to their workers.

It is, of course, a fiendishly difficult question to figure out where an intended benefit eventually lands.  What economists refer to as "incidence" simply asks whether a change in taxes or spending ultimately helps the person to whom it seems to be directed (say, a wage subsidy that is intended to increase workers' take-home pay) or instead is captured by someone else (perhaps the employer of those workers, who is now able to reduce wages in the knowledge that the government is making up the difference).  In part, therefore, my hesitation over demonizing corporate welfare is based on the possibility that money sent directly to corporations might actually benefit other people.  There are plenty of reasons to be skeptical of claims that the money always flows through, but there are also very good reasons not to assume that it never does.

In my Dorf on Law post yesterday, I noted that the so-called Tax Extenders debate is interesting in that it seems to be a case of many people on the left and right finding common ground in the unlikely territory of tax policy.  I noted that the lefty policy research group Citizens for Tax Justice has decried the almost automatic extension of a group of nominally-temporary tax breaks each year, many of which fit into the corporate welfare rubric.  On the right, there was a recent New York Times op-ed by two men whose organization, Freedom Partners, is described as "advocates for free-market policies."  Their op-ed opens on a rueful note: "It’s that time of year again, when Republicans and Democrats put aside their differences to dole out gifts of corporate welfare to a lucky few."

To be sure, there is plenty of reason to believe that many of these policies are poorly targeted and ineffective.  But when the Freedom Partners try to make that case, they merely mention "Joint Committee on Taxation data [that] show that more than 80 percent of the tax breaks directly benefit businesses, some of which are multinational corporations."  The linked source, however, tells us nothing about the ultimate incidence or effectiveness of the tax incentives, because "directly benefit" in this context simply means the initial recipient, not the ultimate beneficiary.

One of the extenders that comes in for rough treatment is the Research & Development tax credit, which is designed to induce companies to (no mystery here) engage in more research and development than they would otherwise fund on their own.   Yet the conservative authors merely say that the credit "costs $22.6 billion over 10 years, yet roughly 95 percent of the credits flow to the largest 5 percent of companies," citing research from a libertarian academic policy think tank.  Other than trying to stir up hatred against fat cats, it is difficult to see what the point of that statement might be.  After all, much research is too expensive (even with subsidies) for smaller businesses to undertake.  Moreover, the authors do not tell us whether the largest five percent of companies actually have more or less than 95% of all sales (or profits), so even on a naive "equal proportions" logic, there is no reason to think that there is anything wrong with this picture.

It is true that nearly any subsidy is going to have what economists refer to as infra-marginal effects.  The first-time homebuyers' tax credit, for example, gave money to many people who were likely to buy homes in any case.  (That credit was also a perfect example of a policy with unknown incidence, given that sellers were surely aware that their buyers could suddenly afford an additional $8000 on the price of a home.)  Indeed, nearly all real-world policies have this effect.  The reduced tax rate on capital gains, which Republicans fiercely defend, is described as providing a benefit that will encourage more people to put money into productive investments, yet it provides its low rate to people who would have invested in any event.  The question is whether this over-inclusiveness makes the overall policies worse than nothing.  In my view, the lower capital gains tax rate actually is a bad idea, not because it is corporate welfare but because it has been shown not to increase investment overall (and it is highly regressive).

Nearly everyone hopes that there are areas of common ground, where liberals and conservatives can find ways to accomplish things for the good of the country.  Some people, such as NYT columnist Frank Bruni, are so enamored of this ideal that they engage in what can only be described as a touchingly naive search for bipartisanship, which inevitably ends up lionizing people who do not deserve the applause (and, not coincidentally, also reinforces negative tropes about liberals).  But the agreement among left and right policy wonks (in opposition to the agreement among right and left politicians) that policies to encourage certain economic outcomes are always and inevitably ineffective is a different matter entirely.

In their certitude that handouts are always bad (as conservatives claim to believe) and that the beneficiaries of corporate tax breaks are always undeserving (as liberals generally seem to think), they unite in categorical opposition to entire categories of policies that are neither good nor bad as an a priori matter.  This is, in the language of yesterday's Dorf on Law post, the worst kind of wholesale reasoning, because it not only sweeps everything into the same large category, but it does not even allow for the possibility that life is more complicated than the term "corporate welfare" simplistically suggests.

Monday, November 30, 2015

Wholesale Versus Retail Policy Making

by Neil H. Buchanan

In the idealized model of the modern legislature, the representatives of the people are assigned to work in policy areas in which they have some interest and expertise, and they then consult with expert staff in drafting and amending laws.  Even then, the plausible levels of expertise and specificity that can be brought to bear on policy questions at the legislative level are quite limited, leading to decisions to delegate to executive agencies a limited amount of authority with appropriate oversight.

The net result does not necessarily have to be small-c conservative, because the political process itself can still wreak dramatic changes on the policy priors of the people's representatives, leading to dramatic changes in how the mechanisms of the modern state attack perceived problems.  It does, however, suggest that the system is designed in a way that will almost always prevent large-scale changes in process and result (both legislatively and administratively) when the underlying politics have not meaningfully changed.

One result of this kind of legislative and regulatory inertia is the perpetuation of policy choices that might have been unwise in the first place, or that have become outdated and in need of change.  In theory, each time a new problem arises, or simply when significant new information emerges that is pertinent to an existing problem, the decision-making process should kick into gear and make the appropriate adjustments.  Yet we know that short-term solutions sometimes become permanent, simply because people have moved onto the next problem, and there is neither the time nor the political will to return to address anew the stopgap solution.

I teach and write in the area of tax law, which means that I am constantly confronted with examples of congressional enactments that are half baked, at best, and that every sensible policy analyst would reject as a matter of first-best legislating.  One of the most famous examples of this phenomenon is the Alternative Minimum Tax (AMT), which was enacted as a temporary measure more than four decades ago, but which is now a permanent part of the tax system (and which, as of 2013, includes built-in inflation adjustments, which are one of the sure signs that a tax provision is not going away).  Congress passed the AMT after splashy news reports in 1969 showed that some millionaires had cobbled together various tax breaks -- all perfectly legal -- in a way that reduced their tax liabilities to zero.

Responding to public outrage, Congress could have fixed the problem at its root, which would mean rewriting the laws so that the various tax-reducing strategies would either be repealed or structured in a way that they could not lead to absurd results.  Instead, Congress chose to do something relatively simple right away, with the intention to do the harder work later.  The AMT was not at all simple in its details, but Congress put the "Minimum" in AMT by making it all but impossible for high-income taxpayers to reduce taxes below some level.  And Congress never quite got around to the longer-term fix.  The IRS, to its great credit, has figured out ways to make the process required by the existence of the AMT as simple as possible for people who will not end up owing the tax, so the AMT is now merely another complicated part of a complicated tax system that is relevant only for a tiny handful of taxpayers (whose economic lives are fairly complicated in any case).

Again, however, no one thinks that the AMT is a first-best way to guarantee that a tax system remains progressive even when Congress is simultaneously handing out situation-specific tax breaks.  Tax scholars and economists frequently bemoan the AMT, and I find that I am one of the only people who views this second-best system as a reasonable legislative compromise.  In my ideal tax system, of course, there would be no AMT; but I look with equanimity on a system that tolerates the existence of an ugly add-on filing requirement.  (And I do so, I should add, even though I have occasionally been one of the middle-class taxpayers who ends up paying the AMT because the system is not targeted precisely enough.)

Beyond the AMT, there is now a new contender for the title of "tax policy second-best solution most reviled by tax experts."  The now-annual debate over so-called Tax Extenders is a tax nerd's dream and nightmare, combining insiders' knowledge about the policy issues involved with the cynical certitude that the net result every year is going to be wholly unsatisfying.

The Tax Extender debate revolves around a grab-bag of tax breaks that Congress has never made permanent.  That is, each of the provisions has an expiration date, usually after one or two years of existence.  Because they are tax breaks, however, they also have fierce defenders -- both because there is usually a plausible policy-related justification for each provision, and because the expiration of a provision will harm the people who are currently benefiting from it.  Some provisions have been extended annually or biannually for decades, making them all but permanent.

One can see why this would worry good-government types, on both the left and the right.  What is now especially worrisome is that Congress has adopted a wholesale approach to the tax extenders, giving them new life not one provision at a time but in an annual reauthorization of all (or nearly all) of the expiring provisions.  Viewed from the perspective of first-best policy making, this approach is obviously an affront to good sense.

We therefore see very good policy houses like Citizens for Tax Justice (CTJ) writing pointed reports each year, decrying the mindless way in which these provisions are enacted.  (See, for example, two recent CTJ reports, here and here.)  There is much to agree with in the CTJ's approach to analyzing the legislation.  For example, they note that the costliest extender is so-called Bonus Depreciation, which will cost the Treasury roughly $25 billion per year for the next ten years, if (as is likely) it is extended that long.  That is less than 2/3 of one percent of the federal government's $3,900 billion annual spending in 2015, but there are certainly plenty of unmet priorities that would benefit from receiving even a fraction of $25 billion each year.  And as CTJ points out, the evidence suggests (not overwhelmingly, but more likely than not) that Bonus Depreciation does not achieve Congress's stated goal of stimulating the economy.

In the ideal world of legislative wonkery, each such provision would be subject to ongoing assessments of costs and benefits, and losers like Bonus Depreciation would be allowed to expire.  Of course, we would also be constantly engaged in the same process for non-expiring provisions, because we would simply want to be sure that all laws, not just those that are enacted with sunset provisions, would go away when they do more harm than good.

The question of permanent versus temporary legislation has recently received serious scholarly attention, with the most important contributions written by Brooklyn Law School Professor Rebecca Kysar.  (See, e.g., her 2011 U. Pa. L. Rev. article here.)  My focus in this blog post, however, is not on whether sunsetting is superior to permanent legislation.  Instead, I am simply suggesting that the annual debate about tax extenders is a well-meaning but ultimately somewhat overwrought argument about the tendency of human beings to sweep somewhat dissimilar things into packages, and to deal with them all at once.

The ultimate problem, in other words, is that we do not feel comfortable with rough justice.  Maybe bonus depreciation should be repealed entirely, or maybe it should be scaled back, or maybe it should be expanded but targeted more carefully toward productive investments.  Or, we can turn our attention to a much smaller tax extender, the deduction for teachers who buy school supplies out of their own funds.  That provision should expire, but it should be replaced with a much larger commitment of funds for public education, so that it would never again be necessary for schoolteachers even to imagine that they should spend their own salaries to buy supplies for their students.

In short, whereas we like to imagine that every legislative decision can be a retail one, with direct attention paid to the nuances of every policy choice, much of what we do has to be at the wholesale level.

This, in turn, means that the regulatory level of scrutiny must become even more important.  For example, I once published a proposal that the annual federal budgeting process include a "Growth Budgeting Board," which would involve having budget experts designate the spending programs that (unlike bonus depreciation) actually are likely to increase future growth.  Those spending programs, in turn, could then be financed by borrowing, safe in the knowledge that they will nonetheless decrease the long-term ratio of debt to GDP.

Even that system, however, must operate to some degree on the wholesale level.  If, for example, we have good reason to believe that spending on prisoner re-entry programs will more than pay for itself with lower recidivism rates and higher employment and earnings, it will still surely be the case that some of those programs will fail.  Legislation cannot be too specific, and even administrative oversight has its limits.

When it comes to the annual debate about tax extenders, my attitude has become very similar to my attitude about the AMT.  Yes, there are a lot of smaller-bore things that I would change, and I am glad that there are people who get exercised about the details, but the near-automatic renewal of the tax extenders each year does not strike me as categorically problematic.  We can aspire to bring greater retail scrutiny to our decisions, but at some point we will inevitably fall short of our best intentions and buy in bulk.

Wednesday, November 25, 2015

Demagogic Politicians and Gung-Ho Operatives

by Neil H. Buchanan

In my two most recent Dorf on Law posts, I have attempted to explain why the widespread panic in the U.S. in the aftermath of the Paris attacks is wrong, dangerous, and self-defeating.  The pertinent part of the first post included my claim that the "Now we'll get 'em!" narrative makes no sense, because it is obvious that we had more than enough reason even before Paris (including beheadings, bombings, takeovers of large parts of countries, and so on) to want to stop the Islamic State.  If obvious and effective solutions existed, we would have long since solved this problem.  It strikes me as totally absurd to imagine that the Paris attacks, notwithstanding how horrifying they were, could lead to a productive change in strategy against ISIL.  And as far as refugees are concerned, the people who are freaked out about whether asylum-seekers might need to be vetted should be pleased to learn that we already do that.

In the second post, I acknowledged that new situations can reasonably lead to different strategies, as a general matter.  Even though, on the direct questions of dealing with this particular source of terrorism and being careful about refugee intake, there appears to be nothing more that we could be doing, it is surely true that new events should lead to constant reflection and reevaluation of our approaches to security.  At the end of that post, however, I argued that in fact we already do that, too.  My point was not that we already are doing everything that one would want to do, even if circumstances change, but that we are always quite sensibly reassessing our strategies in light of new intelligence and events.  If Post #1 said, "We are already doing what we can do about these particular situations," Post #2 said something like, "And we are already doing the things that are necessary to change what we would do in response to new situations as they arise."

At the end of that latter post, I obliquely acknowledged some discomfort with a possible implication of my argument.  I noted that we must not simply trust implicitly the security technocrats who are in charge of developing strategy (and strategy about strategy): "In the area of security more than possibly any other area of policy, our technocrats are all too often willing to take their missions to extremes in the pursuit of their narrow vision of being tough and effective.  If anything, our processes need more restraints on the technocrats, not fewer."  A reader then asked in a comment on that post whether I was referring to the military-industrial complex, and its effects on the political process.  Although that is a good point on its own, to which I will return briefly below, my point was somewhat different.

Perhaps the best way to describe my discomfort with trusting the technocrats is to note that even though the technocracy in security areas (defense, spying, counterterrorism, policing) draws a large number of dedicated, patriotic people into its ranks, it is also notorious for its tendency to draw in too many ends-justify-the-means people with cowboy mentalities, people who disparage constitutional constraints and who are willing to operate beyond the edge of allowable (to say nothing of actually useful) behavior.  When the head of the CIA responds to the Paris attacks by bemoaning the "hand-wringing over the government’s role in the effort to try to uncover these terrorists," he is merely giving voice to what appears to be a depressingly pervasive attitude among many people in his line of work.

My call to put more restraints on technocrats, not fewer, is thus based on the idea that organizations that have eagerly engaged in torture, and which then tried to twist the evidence to suggest that their illegal and immoral tactics have somehow produced positive outcomes, are not exactly organizations to whom we should say, "Hey, you've got this!  Keep doing what you're doing, and if something new comes up, we'll trust you to change what you're doing in the best way possible."

The problem is that the only way to constrain the over-the-top operatives is via the political process.  And, as the French journalist Sylvain Cypel wrote in a NYT op-ed criticizing President Francois Hollande's power grab in the aftermath of the terrorist attacks, trying to act tough in a way that plays on the public's fears is a dangerous game, because "there’s always a bigger demagogue around."  Fourteen of those bigger demagogues are running for the Republican presidential nomination, and hundreds more are senators, representatives, and governors.  Even though Democrats are generally much better on these issues, they are certainly capable of capitulating in the face of what they perceive as unwinnable political challenges.

So who is more deserving of our trust?  More accurately, has either group shown that it should be mistrusted less?  My instinct in yesterday's post was to believe that the spooks might be better than the politicos.  This was based on the thought that few if any all-but-above-the-law national security types would be likely to think that, say, Jeb Bush's idea to admit only Christians into the country would be a sensible strategy.  Granted, given how aggressively the national security agencies recruit from religious universities, I have little doubt that many agents and supervisors would agree with Bush's basic motivation.  Even so, I at least can imagine most of them saying, "This is not going to work, even though I do not find it objectionable."

In addition, the worst aspects of the post-9/11 overreactions in the U.S. seem to have been driven by the Bush/Cheney Administration, with Cheney and his thugs apparently putting pressure on line officers and intelligence analysts to tell them what they wanted to hear.  From what I have read, the professionals in surprising numbers thought that the neocons were crazy and wrongheaded.

The problem, then, is that we have an enormous security apparatus that needs to be reined in by politicians, yet we also have a political atmosphere that strengthens the hands of opportunistic office-seekers who would go beyond what all but the most Strangelovian cloak-and-dagger types would be likely to pursue.  Worse, there appears to be a one-way ratchet effect, with overreactions in every situation nearly impossible to peel back after the fact, which means that the overreactions accumulate and congeal into a permanent expansion of the national security state.

This is where the reader's comment on my second post (about the military-industrial complex) comes in, because it is certainly true that the spooks-and-politicos dichotomy is not a dichotomy at all, but a self-reinforcing dynamic that moves everything inexorably either in the wrong direction or at least too far in the right direction.

There are no good answers to this.  Even if the current political environment suggests that the apolitical side is more trustworthy, the only real solution is for enough people to fight the urge to pander to the panic.  Again, this is why I am grateful that Barack Obama -- despite my many criticisms of him in the past -- is currently in charge.  So far, at least, he has been unwilling to be pushed into adopting stupid policies.  I hope that we can say the same thing about his successor.

Tuesday, November 24, 2015

Preparing for the Worst, In Light of New Information

by Neil H. Buchanan

Although the Republicans' reactions to the terrorist attacks in Paris vacillate between horrifying and disgusting, there are important questions to ask about whether there are reasonable and appropriate responses going forward.  As I noted in my Dorf on Law post this past Thursday, we are fortunate that the current occupant of the White House is an adult, and there is at least a good chance that his replacement will be a woman who -- despite her longtime tendency to play politics with important issues -- would certainly not do any of the crazy and self-defeating things that her Republican opponents have proposed.

One thing we have learned in the last week, which is both reassuring and obvious in retrospect, is that the government of the United States already was taking extraordinary measures to make sure that refugees who apply for asylum in the U.S. are carefully scrutinized, all but eliminating the possibility that would-be terrorists could infiltrate the United States through our asylum system.  If anything, in fact, the system was already far too restrictive, with 18-24 month waits the norm for people who are truly in desperate situations.  But to listen to Republicans (and the 47 cowardly Democrats who voted for a House bill all but banning Syrian refugee immigration), the pre-Paris system in this country involved letting untold numbers of people cross the border, no questions asked.  That was obviously absurd, but even as the specifics of the system that is already in place became more widely known, the Republicans have not backed away from their claims that the borders should essentially be closed (as if that were even possible) to people fleeing terrorist violence.

In my post last Thursday, I argued that, in their mass freak-out after the latest terrorist attacks, the Republicans were relying on an "implicit assumption that we could have taken care of this already, but we just were not yet mad enough to do something about it."  I then asked rhetorically, "Can any sane person really think that there was some sensible and effective strategy that we have been keeping on the shelf, just in case we really get pissed off someday?"

As far as it goes, I am still happy with that argument.  It is only a useful response, however, to this strange claim that the right strategy now -- but apparently not before now -- is to "take them out," as if that option had been available all along.  It was not, and it is not.  Even if we were willing to take Senator Cruz's depraved advice to set aside restraints designed to avoid civilian deaths, we have tried the "bomb them back to the Stone Age" strategy before, with (and I will try to be understated here) notably unsatisfying results.  Even with overwhelming military superiority, and even with a willingness to inflict mass death on the world, we would not be able to find and kill all of the people who pose a threat to us.  And even if we did, our tactics in doing so would simply make more people willing to take their places.

My argument should not, however, be read to say that we are already doing everything right.  When I say that we are already doing more than enough to root out terrorists among potential refugee admittees, and that there are no magic military strategies that we could adopt at any time, I am not offering the strategic equivalent of the conservatives' silliest argument against government policies to solve economic problems: "If it was such a good idea, we would be doing it already."

We do, of course, always want to update our strategies and self-imposed limits in light of new information.  In the Nineteenth Century, small farmers on the prairies would generally be happy to have a town sheriff to take care of law and order, but if there were a big new threat that suddenly appeared, the people would form a posse and try to deal with that threat.  Of course, as I also noted in last Thursday's post, the Republicans' calls to arm the populace now are the worst version of that strategy.  And we know that posses were often ugly in practice, perpetrating great injustices in the panic and fury of supposed threats that were often based on bad information.

Still, when a situation seems to have become notably more dangerous, it obviously makes sense to adjust our responses.  Prior to the U.S.'s involvement in WWII, social norms generally prevented women from working outside of the home, especially in the very dangerous factories of the time.  In the face of an existential threat posed by the Nazi regime, however, this country quite sensibly saw a different set of risks that required changing the rules of social order.  (I am not, of course, endorsing the sexist attitudes that were temporarily set aside during the war.  I am simply saying that even deeply held attitudes can be changed by extreme circumstances.)

The worst conclusion that one can draw from the idea that "everything is different now" is that all the rules can be dropped.  We did that during WWII, when we put Japanese-Americans in internment camps, and I suppose it should not be as surprising as it is that there is actually some talk now about adopting policies that would replicate one of the lowest moments in American history -- a moment that was endorsed by politicians of both parties, and even approved by the supposedly independent Supreme Court.

Even though it is not true that we should change everything when we become scared, however, it is reasonable to ask at all times what we might do differently, in light of new events and evidence.  Screening for weapons on commercial airplanes became sensible, in my view, after a series of incidents in the 1970's (maybe earlier), in which it became clear that weapons posed a unique threat in the confines of a pressurized flying tube.  As I noted in my Verdict column last week, the evidence suggests that the changes to airline security after the 9/11 attacks did little or no additional good, but that is surely not a reason to conclude that we would want to keep doing what we have been doing, no matter what new evidence were to come along.

The good news is that smart, motivated people have already been thinking about these issues for decades, and (despite the constant noise from the political process) our strategies are already designed to change in light of new evidence.  That is, we are not already doing everything right in a way that would not change in light of new developments, but it is not too much of a stretch to say that we are already set up to figure out how to make changes as they become necessary.

This is surely not a full-on defense of technocracy.  In the area of security more than possibly any other area of policy, our technocrats are all too often willing to take their missions to extremes in the pursuit of their narrow vision of being tough and effective.  If anything, our processes need more restraints on the technocrats, not fewer.  But given the continuing parade of horribles that is the Republican presidential field, one can at least take some comfort in the idea that our system is surprisingly adaptive and does not need to be radically altered in light of even horrifying events such as the attacks in Paris, Mali and elsewhere.

Monday, November 23, 2015

Adjusting IQ Scores For Eligibility for Execution

by Sherry F. Colb

In my Verdict column for this week, I discuss a practice that some courts have accepted whereby minority defendants' IQ scores are adjusted upward so that they become eligible for execution (despite their initial score that would have placed them in the category of intellectually disabled). Under Atkins v. Virginia, the intellectually disabled are ineligible for execution, so the referenced practice provides a way to execute people who are otherwise exempt from execution, and it does so on the basis of race.  In my column, I suggest that this practice is not only a plain violation of the Equal Protection Clause that the Supreme Court should address, but that it is highly vulnerable to satire as well.

In this post, I want to suggest that condemning the raising of IQ scores in the capital context does not carry with it an implicit condemnation of skepticism about such standardized test scores for minority applicants for educational or employment opportunities. People of extremely high intelligence can, because of cultural biases and such phenomena as stereotype threat--where anxiety about one's membership in a stigmatized group can threaten to derail one's performance on a task in which such stigma is most salient--underperform on particular sorts of tests.  Indeed, they can underperform on many sorts of tests, a fact that should lead evaluators to be mindful about relying too heavily on tests in deciding when to hire or admit minorities to educational and other institutions.  To be mindful is to look at the whole person in these contexts and make sure not to miss the many highly able and promising candidates whose test performance fails to accurately reflect what they would bring to the position for which they are applying.

The practice of upwardly adjusting IQ scores of minorities to make them eligible for execution does exactly the opposite.  Rather than looking closely at each person and being mindful of what he or she brings to the table, it renders presumptively intellectually disabled individuals eligible for execution in a categorical and across-the-board fashion.  It does so, moreover, without any important goal at issue.  Unlike the job market and the educational sphere, death row is not currently plagued with a paucity of "qualified" minority applicants.  And indeed, it is not necessary that we execute anyone, though it is plainly necessary that we employ and educate people, and that we do so in a manner that refuses to perpetuate past injustices.

To the extent that anyone might view the upward adjustment of IQ scores for Atkins purposes as a reductio ad absurdum, showing that affirmative action is invalid, his or her conclusion is accordingly flawed.

Friday, November 20, 2015

Even Mere State Refusal To Assist the Federal Government In Resettling Syrian Refugees Could Be Unlawful

by Michael Dorf

In the wake of last week's attacks on Paris, a majority of U.S. governors have announced that they will exclude Syrian refugees from their states. In light of the rigorous procedures already in place for screening refugees, the governors' proposed policy is wrongheaded, cruel, and potentially counter-productive, but I will focus here on a largely overlooked issue with respect to its legality. As others have noted, states lack the power to exclude refugees whom the federal governmernt admits, if what is meant by "exclude" are state laws or policies that forbid Syrian refugees from residing in their states. The federal decision to admit a refugee for settlement in the U.S. would preempt a state law forbidding a refugee from residing in any particular state.

But maybe (some of) the governors mean something more modest. Refugee settlement often involves cooperation of state and federal agencies, and states can refuse to cooperate with the feds. Although the federal government may purchase state cooperation from willing state sellers, Supreme Court case law does not permit the federal government to "commandeer" state or local executive officials for federal purposes.

Can the states refuse to cooperate on selective grounds? Let me set the stage with a hypothetical example. The case linked above is Printz v. United States. An interim provision of the Brady Act required local law enforcement officials to perform background checks on prospective handgun purchasers. Some local officials refused to perform those checks, and the Supreme Court invalidated the federal provision obligating them to do so as impermissible commandeering in violation of a tacit constitutional postulate of our federal system. Now the hypothetical case: Suppose that some local law enforcement official partially enforced the Brady Act by performing the background checks on non-white applicants for handguns but not on white applicants.

It is clear that this official would thereby act unconstitutionally. Even though he is not obligated to enforce the Brady Act at all--because to obligate him to do so would be impermissible commandeering--he may not selectively cooperate where the selection is based on an invidious characteristic, here race. So the fact that a state or local official may, in reliance on the anti-commandeering doctrine, refuse to cooperate at all with federal law enforcement, does not mean that state or local officials have carte blanche to refuse to cooperate selectively. The standard constitutional prohibitions on discrimination continue to apply.

Is discrimination against Syrian refugees invidious discrimination? The case law treats discrimination on the basis of national origin as tantamount to race discrimination. However, "national origin," as that term is used in the case law, refers to the country (or region) from which someone's ancestors came to the United States. Japanese-Americans who were U.S. citizens and excluded from the west coast and then sent to camps on the basis of their ancestry suffered national origin discrimination. By contrast, discrimination against people who are citizens or subjects of a particular foreign country is nationality discrimination, and at least in some contexts, such discrimination is permissible.

For example, bilateral treaties may confer special benefits or, less commonly, impose special burdens, on citizens or subjects of particular foreign countries. Likewise, during wartime, citizens or subjects of foreign powers with which the U.S. is at war may be treated as "enemy aliens" subject to various restrictions not applicable to otherwise similarly situated foreigners of other nationalities. And U.S. immigration law often treats people of different nationalities differently.

In each of the foregoing contexts, however, the decision to treat foreigners from one nation differently from foreigners from some other nation(s) is taken by the federal government in a domain in which federal power is at something like its zenith--with respect to foreign relations, war, or immigration. It is by no means clear that, in the face of a federal determination not to discriminate in some way against the nationals of a particular country, states have any power to decide to discriminate on that basis.

Yet let us suppose for the sake of argument that nationality (as opposed to national origin) discrimination by the states does not by itself trigger strict scrutiny, regardless of whether state or federal authorities engage in it. Even so, a state decision to disadvantage Syrian (but not other) refugees would be subject to strict scrutiny if that decision itself were motivated by illicit stereotypes. Gerald Neuman explained in a 2000 law review article discussing federal power to draw nationality distinctions:
If these distinctions are not defined in terms of race and are not motivated by racial prejudice--unlike the notorious Chinese exclusion laws, which had both of these characteristics--then they would not elicit heightened scrutiny under ordinary equal protection analysis.
And if the federal government may not draw nationality distinctions motivated by racial prejudice, then it follows a fortiori that the states may not do so.

Thus, we come to the nub of the question: Are the proposed state policies of non-cooperation with the federal government in resettling Syrian refugees motivated by racial prejudice (anti-Arab stereotypes) or some other presumptively unconstitutional prejudice, such as religious prejudice (anti-Muslim stereotypes)?

At the federal level, Senator Cruz has proposed explicitly barring Muslim refugees from Syria, while admitting Christian refugees. That could be a legitimate distinction, if grounded in the idea that Christians, but not Muslims, face "persecution" in their home country, but of course ISIS and the Assad regime persecute (different groups of) Muslims as well as Christians. Cruz also argues that ISIS operatives might embed themselves in Muslim refugee flows but not Christian ones, which is, statistically speaking, a fair assumption, but even so, that does not warrant the use of religion (or race) as a proxy for dangerousness. After all, viewed ex ante, it might have been plausible to think that there was a greater likelihood that persons of Japanese ancestry would commit acts hostile to the United States than other persons, but our quite appropriate national repudiation of Korematsu rests partly on the basic principle that even racial, ethnic, or religious stereotypes that are, statistically speaking, based on a real correlation, are an impermissible proxy for individualized assessment.

Senator Cruz's no-Muslims rule does not have the backing of the GOP leadership, so I'll put it aside to focus on the various gubernatorial proposals to refuse to cooperate with federal resettlement of  all Syrian refugees. Even these formally religion-neutral proposals raise serious equal protection issues, insofar as they are motivated by ethnic and religious stereotypes. As with Senator Cruz, I'm willing to assume that the governors are not motivated by anti-Arab or anti-Muslim animus per se (although many of their supporters clearly are). Let's grant that the governors' concern is sincerely about security. Even so, if the security concern operates through an ethnic or religious stereotype, and has a disparate impact on that ethnic or religious group, then it is presumptively invalid (i.e., triggers strict scrutiny).

The point is easy enough to see in other contexts. Suppose that a state legislature enacts a law subjecting residents of cities with populations in excess of 100,000 people to random sobriety tests as a condition of retaining their driver's licenses. The law is facially neutral. But suppose that the reason for the law's differential treatment based on residence is that in this particular state there is only one large city, and it is the home to nearly all of the Irish-Americans in the state. Suppose further that the legislature adopted the sobriety test law because legislators were relying on a stereotype of Irish-Americans as heavy drinkers. That would make the law subject to strict scrutiny because, even though facially neutral, it was adopted for the purpose of disadvantaging Irish-Americans and it in fact does that. It doesn't matter that the legislature's ultimate purpose was the quite legitimate, indeed compelling, interest in highway safety. Nor would it matter if it turned out to be true that, statistically speaking, there was a higher rate of drunkenness among Irish-Americans than among other people in the state. The ethnic stereotype would still be a presumptively impermissible vehicle for advancing the state's interest in highway safety.

Likewise here, even if a Syrian refugee is, statistically speaking, somewhat more likely to be a terrorist disguised as a refugee than is a refugee from somewhere else, that can't justify a state's refusal to cooperate with federal authorities in settling Syrian (but not other) refugees, if the state's reasoning process runs through assumptions based on ethnicity or religion. At the very least, the governors' selective non-cooperation policies would be subject to strict scrutiny, which they would likely fail, given that the rigorous screening process for refugees is a more narrowly tailored means of advancing the admittedly compelling interest in public safety.

Conclusion: Even if limited to non-cooperation, the governors' proposals are probably unconstitutional.

Postscript: In principle, what I have just said could apply even to heightened screening procedures for Syrian refugees relative to other refugees, if the decision to impose those screening procedures runs through ethnic or religious stereotypes. It would trigger strict scrutiny for a police force to subject only members of some racial group to screening before entering public buildings, even if, statistically speaking, members of that racial group were more likely to pose a threat to public safety. So would heightened screening for refugees from Syria be unconstitutional?

Maybe. Such extra screening procedures could be upheld because the neutral justification is more plausible: There appears to be a heightened risk from Syrian (and some Iraqi) refugees because of the location of the ISIS base. Appears, perhaps, but is it true? Given that so many of the people who pose a threat are nationals of European countries, heightened screening for Syrian refugees, relative to the screeening for tourist visas for Europeans, seems like a misdirected effort. Thus, if such screening does trigger strict scrutiny, perhaps it fails the narrow tailoring requirement.

In practice, however, judicial review of federal immigration decisions, if any, would be much more deferential than review of a state decision not to cooperate in federal efforts to settle refugees admitted by the federal government (after screening). Accordingly, there is little likelihood that such heightened federal screening would be invalidated.

Thursday, November 19, 2015

How Much Are We Willing to Spend on Being Well Regulated?

by Neil H. Buchanan

My new Verdict column discusses the economic consequences of reacting foolishly to fear and panic, focusing on the extraordinary suspension of rational thought that the Republicans have displayed in response to the recent terrorist attacks in Paris (and Beirut).  I quote from Professor Dorf's post here earlier this week, in which he pointed out that the Republicans' overreaction to the 9/11 attacks led to the creation of the ISIS monster, to make the point that we have spent trillions of dollars in the pursuit of policies since 9/11 that have made matters worse, not better.  Rather than measuring benefits against costs, we are left with the sad realization that we have paid dearly, only to discover that we have made matters much worse.

It is true, of course, that Democrats jumped on that bandwagon, too.  Hillary Clinton might well have won the presidency in 2008 if she had not decided to show that she was "tough" by voting to authorize the 2003 Iraq invasion.  Being afraid of looking weak on military issues has led Democrats to do far too many stupid things over recent decades.

In that regard, however, I have to take a moment to say how glad I am that Barack Obama is the President of the United States right now.  Watching clips of his press conference in Turkey recently, I could not help but be thankful that we have an intelligent, informed, humane man with good judgment in charge of our national security apparatus, rather than someone who would rush headlong into another stupid foreign quagmire.  I am hardly in the tank for Obama, having spent countless hours over the last few years criticizing his economic policies.  More generally, I had come to believe that he is not actually a well-motivated liberal who is too timid, but rather that he is a center-right guy on many big issues (for example, his track record on deportations, notwithstanding his support for immigration reform) who is actually doing roughly what he wants to do, rather than being dragged to the right by political circumstances.

With all of that said, however, he is once again showing that people were not wrong to think that there is something special about the man.  His predecessor handed off a terrible economy and a huge mess in the Middle East, and Obama's policy druthers have not been inspired, but he is an adult living in a world populated by adolescent boys.  He understands that it is not possible simply to "win" this conflict by suddenly indulging in an orgy of violence.

The most ridiculous aspect of the Republicans' reactions to the Paris attacks, after all, is their implicit assumption that we could have taken care of this already, but we just were not yet mad enough to do something about it.  What kind of amnesia is this, where we forget about the years of continuing outrages, the beheadings and kidnappings and bombings, where we said each time that this was the last straw?  The simple fact is that, if it were actually easy to solve this problem, we have had more than enough reason well before now to pull out all the stops and do it.

The former football coach Mike Ditka used to say that he never took seriously the importance of "bulletin board material" -- trash talk from the other team that he supposedly could use to inspire his players -- because if his players were not already inspired enough to do everything in their power to win, there was really something wrong.  Can any sane person really think that there was some sensible and effective strategy that we have been keeping on the shelf, just in case we really get pissed off someday?

Having alluded to the existence of sensible and effective strategies, I will now devote the rest of this post to discussing the opposite.  The usual suspects -- Trump, Gingrich, and surely many others -- quickly responded to the Paris attacks by saying that everything would have been fine if Parisians were allowed to carry guns.  In the clip of the speech by Trump that I watched, the audience enthusiastically cheered at this claim.  Although I have frequently noted the dangers of arguendo reasoning -- where saying, "I'll accept your completely incorrect and morally dubious premise for the sake of argument, to show how you are wrong even on your own terms," merely ends up reinforcing the idea that the completely incorrect and morally dubious premise deserves to be taken seriously -- I cannot help but try to walk through the logic of many Republicans' claim that Americans (and now the French) should respond to the possibility of public violence by having everyone carry guns.

The chief concern of those of us who oppose relying on the populace to protect itself by carrying firearms is essentially that "a good guy" carrying a gun might not always succeed in killing the bad guy (or only the bad guy).  Picturing the scene in a university lecture hall (a venue with which I am quite familiar) where a gunman bursts in, for example, what we are supposed to believe is that one or more people in the room would quickly figure out what was happening, pull out their weapons and kill the perpetrator.  What I find much easier to picture is chaotic crossfire, where people are being killed from every direction.

That is not to say that it is impossible to imagine that an incident in which a killer who faces no opposition would kill everyone in a room, whereas a room with chaotic crossfire might end up with a lower body count.  However, I can also imagine increased incidents of violence when the people in a room are all armed, even if no bad guy walks in the room with a premeditated plan for mass murder.  The bottom line is that, even if one can describe a situation in which the right person with a gun in the right place at the right time saves the day, the other ways in which people could kill each other seem much more likely to be the norm.

Even if I am right about that, however, it is at least possible to try to have it both ways, significantly increasing the carrying or weapons by the public while making the public less likely to use their guns unwisely.  What would that require?  The title of this post, "How Much Are We Willing to Spend on Being Well Regulated?" is obviously a play on the language of the Second Amendment regarding a "well regulated militia."  And the Trump view of the world really does amount to turning the population at large into a militia, relying on them to do the jobs that we have traditionally asked police and soldiers to perform.

The thing is, we extensively train police and soldiers to use their weapons.  We put recruits through simulations in which they are presented with split-second decisions about whether there is a threat, and how to deal with it.  We expect these recruits not to simply fire round after round in the general direction of a possible threat.  Police who fire their weapons are expected to be able to explain why "it was a good shoot," meaning that the violence was justified and measured to the situation.

In the extreme, we could imagine a world in which all people have learned to use weapons only when needed, to be expert marksmen, and to store their weapons safely otherwise.  There is no perfection, but when we give law enforcement officers and soldiers the authority to carry weapons, we quite reasonably have expectations of their ability to meet a high standard on all of these measures.

How much are we willing to pay to make this the norm?  Opening "citizens' police academies" everywhere is possible, I suppose, and it might even be possible to set standards by which some people would be deemed something along the lines of "militia 4-F," that is, legally prohibited from carrying guns because they cannot perform up to the standards.  The point is, however, that even a society that actually prohibits gun ownership by the public at large (like the UK, for example) already effectively does this.  If you want to carry a gun to protect yourself and your neighbors, there is a way to do so.  You must join the equivalent of the militia, and be trained to do what police officers do.

And, in Trump World, if we were not willing to pay as a society and as individuals to regulate our new quasi-militia at least that well, then we really would be penny wise and pound foolish.