The Downside of Outsourcing Poltiical Oversight to Comedians

-- Posted by Neil H. Buchanan

At apparently the same time that I was writing my Dorf on Law post yesterday, the editorial board of The New York Times was reaching essentially the same conclusions.  Although they did not focus as much attention on the IRS non-scandal-scandal, they made the important point that this "week of scandals" that supposedly has changed everything is, in fact, a bunch of small-bore matters that have somehow been turned into a whole that is much bigger than its parts.  Even taking seriously the notion of "totality of the circumstances," there is still nothing but a disconnected handful of matters that Republicans are now screaming about.

As if to show that content does not matter, the show trials are already set to begin.  Today, the House Ways & Means oversight subcommittee will hold the first of what promises to be many, MANY hearings on the IRS's "targeting" of Tea Party groups.  (As I said yesterday, the notion that they were targeted because they are Tea Party groups is not the same thing as being politically targeted in the sense of being the victims of a political hit job.  But nuance left the building long ago, and it's not coming back.)  The chair of the subcommittee set the perfectly absurdist tone, saying: "I just refuse to believe that lower-level I.R.S. personnel were making these kinds of decisions."  That pretty much sums up the modern Republican Party: Decide in advance what is true, and refuse to believe anything else.  Why hold hearings, then?  It is certainly not about fact-finding.

As I pointed out yesterday, however, the hyperventilating about the IRS's mistakes is hardly limited to the right wing.  Democrats are "in no mood to defend the nation’s tax collector," as a news article in the Times put it this morning.  Even The Progressive, the monthly magazine published in Madison, Wisconsin that gamely carries the torch of LaFollette-style progressivism, jumped on the bandwagon.  In a podcast earlier this week, almost comically titled "Obama's Bad Nixon Impersonation," the magazine's editor declaimed against the "odious political witch hunt that was under way" at the IRS.  I understand that The Progressive has good complaints about Obama's policies (many of which echo my own critiques), but this is just insane.

Part of the larger problem, I think, is that we have reached the point in our country's history where there are no longer reliable sources of informed independent oversight of our political system.  Last year, I commented on the ridiculousness of the media's coverage of the Affordable Care Act case, which led to the CNN's almost inevitable mistaken announcement that the Act had been struck down.  In that post and elsewhere, I have noted that (with rare exceptions) current news reporters simply lack the ability and knowledge to understand news stories, which leads them to default to meaningless he-said-she-said reporting.  (I am not, of course, claiming to be the only person to have noticed this problem.)

Comedians have always been an important part of the public's check on political power.  Even before there were court jesters, surely humor was an important source of power for those in the political opposition (formal or otherwise).  Now, however, we have reached the point where the only real sources of political commentary from a left-of-center perspective with any widespread impact at all are Comedy Central's two late-night "fake news" shows, hosted by Jon Stewart and Stephen Colbert.  This, we are beginning to see more and more clearly, is a bad state of affairs.

As I pointed out in my post yesterday, Stewart has responded to this week's meta-narrative about a scandal-plagued Obama Administration by completely buying into the premise.  Again on Wednesday night's show (which, because I am currently in Austria, I did not see until about six hours ago online), Stewart talked about how the right wingers whom he has mocked now have some "legitimacy" in their complaints.

Only a week ago, Stewart himself was mocking the "Groundhog Day"-like Benghazi hearings that the Republicans were pushing, pointing out the Republicans' complicity in the actual underlying problems that led to the deadly attack last September.  Nothing has changed this week at all regarding the Benghazi situation, except that the release of government emails makes it even more clear that there was no coverup or anything "bigger than Watergate" that the Republicans had been trumpeting.  It would have been very much in character for Stewart to mock the Republicans' renewed outrage, as well as their attempts to paint a distorted broader picture of scandal.  Instead, he simply bought into the false narrative.

Why?  In one way, Stewart and his staff are extremely hard-working.  They do a great job of finding clips of politicians who opportunistically adapt their outrage in chameleon-like fashion.  Exposing hypocrisy is valuable, and "The Daily Show" does it better than anyone.  In another way, however, Stewart is extremely lazy.  When a story is in any way complicated, he tends to default to simplistic tropes that miss the real story.  Any time he talks about budgets, for example, he cannot stop himself from emphasizing the word trillion, as if the shear size of that number is independently significant.  Clearly, he and his staff bought into the same "political witch hunt" notion that The Progressive stumbled into.  It is completely unsupported by facts, but what an easy story to tell!

This, moreover, is hardly the first time that we have seen this mistake play out at 11pm on Monday through Thursday nights.  Several months ago, in a very public-spirited effort to improve the lives of disabled veterans, Stewart and his staff deplored the long delays that veterans have faced in their attempts to receive benefits to deal with their war-related injuries.  This is, again, a very admirable effort on Stewart's part.  However, he then claimed that the explanation could not possibly be that the relevant government offices are underfunded, because the budgets for those offices have recently gone up, not down.  Of course, the caseloads have also been rising, and those offices have never been given the resources to modernize and deal with the problem in a systematic way.  But that did not matter to Stewart.  "They have more money" became "They have all the money they need."

And it is not as if Stewart is holding back from making bigger-picture pronouncements.  His commentary on the backlog of veterans' claims included the broad statement that this failure threatened to support the conservative narrative that government can never do anything right.  Of course, if the self-proclaimed defender of government's role in society is constantly willing to skip the facts and go for the simplistic nonsense, then maybe the problem is not that government -- when given a fair chance -- cannot do anything right.  It could be that the supposed defenders of government punt away their chances to make pointed arguments.  (Stewart has, by the way, returned to this narrative more than once since he first rolled it out in the story about veterans.)

Sometimes, the easy laugh is the point.  For example, back in January, when Paul Krugman was making the case for the "big coin gambit," he engaged in a genuinely nasty back and forth with Stewart, who was mocking the idea of the one trillion dollar coins.  My take on this was that public confidence in the monetary system was too fragile to risk making everyone wonder how we can simply mint cartoonish coins to solve the problem.  In that context, Stewart's simplistic mocking served precisely the role that one would expect of a comedian: The first thing that makes people laugh is often the most powerful.

How is this week different?  As I noted above, there was nothing about what happened this week that should have been catnip to a comedian.  Especially given Stewart's recent track record on Benghazi, it would have been natural to continue to mock Republicans' inflated claims about a scandal.  In the IRS non-scandal-scandal, it would have been just as easy to mock the outrage at the supposed witch hunt -- "Wait a minute!  You're telling me that the IRS paid special attention to organizations that wanted not to pay taxes, because they might not be 'social welfare organizations,' and Tea Party groups were suspected of being fronts for lobbying operations?  What an overreach!" -- as to adopt the crazy "targeting political opponents" meme that Stewart grabbed from Day One.

Returning to the title of today's post, the downside of our having people like Jon Stewart and Stephen Colbert provide political oversight is not merely that they are ill-equipped to fill that role consistently well.  It is that they are really our only line of defense, at this point.  Because they often do what they do so very well, we can often think: "Well, sure, the Fourth Estate is almost completely dead.  But we really don't need them anymore."  Until we do.

The IRS Mess Is Already Badly Misunderstood -- And the Distorted Narrative Will Only Get Worse

-- Posted by Neil H. Buchanan

Last Friday, a news story broke that quickly came to be known as "the IRS scandal."  Even the just-the-facts-ma'am TaxProf Blog has taken to posting daily collections of news stories under that title, accompanied by the number of days since the story broke, e.g., "The IRS Scandal, Day 7" today.  Move over, Iranian Hostage Crisis!  (Who will be the new Ted Koppel, to emerge from this media frenzy?)

This is not to criticize TaxProf, or anyone else who is calling this a scandal.  It is certainly being treated as one, by almost everyone, and it is difficult to resist a powerful narrative.  Something did go wrong at the IRS, and it should be investigated and put right.  There really are good reasons why everyone should worry about what happened.  Based on what we know, however, this is either a medium-sized story that is being blown up into a huge story for partisan (and media-driven) reasons, or it is a big story that is big for a completely different set of reasons that are only mildly connected to the hyped-up story that is already being taken for granted.

What do we know?  Not long after President Obama took office, the IRS was hit with a wave of applications by newly-formed political organizations, asking for the legal status known as 501(c)(4) organizations.  Such organizations are not eligible to receive tax-deductible donations, but the organizations can run their operations exempt from taxation.  (That is, they do not have to determine their revenues minus their deductible expenses, and then pay income tax on the difference.)  That is, they are presumptively nonprofit, in the sense that they use their net proceeds to engage in "charitable, educational, or recreational purposes."  501(c)(4)'s can engage in political campaign activity, so long as that is not the organization’s "primary activity."  What is such an organization's primary purpose supposed to be?  Why, "the promotion of social welfare," of course.

The IRS is the government agency that Congress has designated to police this extremely vague set of rules.  The IRS field office in Cincinnati is where 501(c)(4) applications are processed.  The job of the IRS employees in that office is to try to figure out which of these organizations are really just political lobbying operations that do not meet the requirements for operating tax free.  When hit with a wave of applications, all of which claim to be "social welfare organizations," the staff decided that they needed to set up a triage operation, figuring out short-cuts to find the groups that were likely to be pure political lobbying operations masquerading as something else.

When the wave of applications became overwhelming in 2010, some of the career staff (not political appointees, and as far as we know not even legal staff) looked out at the world and concluded that the sudden increase in applications was likely to be driven by the major new political movement that had emerged in 2009 and 2010.  The staff then used keywords like "tea party" and "patriot" to sift through the applications.  This led to a higher percentage of administrative inquiries -- not even close to half of the total, but still more than would otherwise have been the case -- being directed toward tea party-like groups.

Even though that strategy had its own internal logic, it was clearly wrong for IRS staff to adopt such a sorting rule.  It was a big mistake, and it should not have happened.  When higher-level career IRS people found out about it, they immediately declared that it was a mistake and must stop.  Those higher-level people then made another big mistake, by not checking to make sure that it had really stopped.  It apparently took about 18 months before they finally shut it down.

There are plenty of accusations and insinuations now flying around, along with newly emerging facts.  The White House has forced out the acting commissioner of the IRS, and the Justice Department is investigating whether any crimes were committed.  Even so, the facts at this point show that the IRS as an organization made two mistakes: (1) Using a decision rule that disadvantaged political groups with a common (in this case arch-conservative) political ideology, and (2) Failing to correct the error quickly and completely.

And now we are off to the races.  Some politicians are likening this to Nixon's enemies list, in which the White House directly ordered the IRS to conduct audits of the personal taxes of Americans who were critical of the President.  That is obviously not what happened here.  Indeed, if there were a political cabal that wanted to use the IRS to harm the President's opponents, they could hardly have chosen a less effective method.  Most Tea Party groups, by their very nature, are shoe-string organizations that would have virtually no money to tax, even if they were denied nonprofit status.  And if the cabal really thought that this was a great idea, it is hardly clear why they would have shut it down over a year ago.  Watergate, this is not.  (And why would the imaginary cabal let big 501(c)(4)'s like Karl Rove's -- which clearly are not social welfare organizations -- continue untouched?)

No matter.  The White House (and Democrats in general) are running scared.  Even before dumping the IRS commissioner, the President contrasted the anger from Republicans over Benghazi with their reaction to the revelations about the IRS's stupidity, saying that the former is nonsense but the latter is a legitimate cause of public outrage.

This is understandable.  Even though the net result of being tagged for extra scrutiny does not actually mean that the merits of your application are viewed unfairly -- your organization can still show that it is truly a social welfare organization, using the same facts and law that should legitimately be applied to your case -- being tagged itself is time-consuming and stressful, and it seems unfair.  Although the analogy is hardly perfect, one can liken this to being in a group of people who are much more likely to be pulled over on the highway to have their cars searched.  Even if a member of such a group is actually doing things that raise probable cause, and even if they are then given a fair chance to prove their innocence, it is still hardly a minor matter that being in the disfavored group increased the likelihood of having to deal with law enforcement officers.

Everyone, no matter their political ideologies, can understand why we would not want the IRS -- or any other law enforcement organization -- to use political criteria to determine enforcement patterns.  No one, in fact, is defending this bone-headed plan.

What we have here, however, is an agency that is chronically underfunded by Congress (the IRS hardly being a historical favorite among the public or their representatives, especially the very Republicans who are now screaming the loudest), an agency that was faced with a wave of applications from politically-oriented groups, and an agency that had to decide how to apply a very vague law passed by Congress (and to do so without undue delay).

What these IRS employees did not only falls far short of Nixon's enemies list, it does not even come close to "targeting political enemies."  As far as we can tell, the stupid plan was based not on any hostility to the ideological goals of the groups.  It was based on the guess that such groups (which were being formed in response to a nationwide political movement) were more likely to be pure lobbying operations than "social welfare organizations."

This, of course, has not stopped the inevitable media and political firestorm from quickly distorting this into a scandal that is political with a capital "P."  On "The Daily Show With Jon Stewart," for example, Stewart is freely describing this as "targeting political enemies."  In fact, his nightly tirades on this topic have taken on their own narrative arc, to the point where he is now saying that this situation gives paranoid right-wing groups legitimate reason to believe that their worst fears are true.

Stewart has even complained that "the government" is terribly incompetent when it is supposed to do good things, but it is suddenly a well-oiled machine when it comes to doing things that we do not want it to do.  That is clearly wrong.  Whatever else might be going on, what started all this at the IRS was incompetence, not sinister proficiency.

Stewart, of course, is hardly alone.  We now have the spectacle of a story that is completely misunderstood, a bad mistake that took too long to fix being recast as a political spy thriller.  And with Democrats giving ground, saying (correctly) that what happened here is indefensible, they are being misinterpreted as agreeing that this was all motivated by partisanship.  The facts say otherwise.

Even so, this will now spin into its own version of political reality.  Certain events simply become emblems and political rallying points, completely disconnected from actual events.  We can count on this story becoming less and less recognizable, and more and more politicized, for years to come.  Look for "The IRS Scandal, Day 5349."  Yippee.

When Search Warrants Accomplish Very Little

By Sherry Colb

In my Verdict column for this week, I examine the case of Missouri v. McNeely, in which the U.S. Supreme Court recently refused to recognize an exception to the warrant requirement for blood-testing people arrested for DWI.  The stated rationale for the exception -- which the Court rejected -- was that a person's blood-alcohol concentration (BAC) steadily diminshes over time and that therefore, any delay in a blood test (for purposes of obtaining a warrant) will result in the loss of potentially critical evidence of intoxication.  The column considers the compelling nature of the argument for an exigency exception here as well as the Chief Justice's alternative compromise approach.

In this post, I want to consider a different argument, separate from the apparent exigency, for recognizing an exception to the warrant requirement for DWI blood tests:  the relative clarity and uniformity of what it takes to make out "probable cause" in drunk driving cases, the determination that a magistrate would be making in reviewing a police officer's warrant application.

Note first that in order to arrest a suspect for DWI, a police officer needs the same probable cause that she would need to order a blood-alcohol-concentration test of the arrested suspect.  That is, the question for both the seizure of the suspect (arrest) and the search of the suspect (blood test) case is whether the officer has probable cause to believe that the suspect was driving while intoxicated.

In many non-DWI situations, the determination of probable cause is a subtle matter that can accordingly benefit substantially from the neutral input of an objective magistrate.  For example, an anonymous informant might say something incriminating about a suspect, and there might also be some limited but potentially innocent corroboration of the anonymous informant's story from subseqent surveillance, as in Illinois v. Gates.  Magistrates will have an active role to play in such cases in determining whether the facts do or do not amount to probable cause, and their judgment is likely to be less invested in a particular outcome than that of a police officer who receives an anonymous tip.

Drunk  driving cases, however, are different.  Police develop probable cause to believe that a suspect has been operating a vehicle while intoxicated because, typically, a driver has been weaving in traffic and, once stopped, smells of alcohol, slurs his words, has bloodshot eyes, and is perhaps unable to perform basic manual tasks that would demonstrate sobriety.  He may also be unwilling to breathe into a breathalyzer.

With minor variations, these are the facts that amount to probable cause for a DWI arrest and for a BAC test.  The role of the magistrate is accordingly quite limited – she will look at the list of these sorts of facts and then issue a search warrant authorizing a blood test for BAC.  It will be the rare case, in other words, that has a police officer concluding that there is probable cause to believe that a suspect is DWI, but a magistrate reviewing what the police officer says concludes that there is no probable cause.  By now, there is practically a script for what amounts to probable cause for DWI.

There is, then, very little place for a neutral and detached magistrate to resolve ambiguity in a DWI case.  Are there situations in which a DWI suspect shows most or all of the above signs of intoxication but is in fact not under the influence of alcohol?  Of course.  The suspect may be thoroughly exhausted (which, incidentally, can seriously impair driving capacity but does not presently preclude technically lawful driving) or ill or may have suffered a temporary seizure or other medical event.  But that simply means that there is sometimes probable cause to believe that a person is driving while intoxicated when in reality he is not doing so.  Probable cause is entirely consistent with innocence; unlike guilt beyond a reasonable doubt, it leaves in place a significant possibility of innocence, in the interests of gathering evidence and suspects when there is a substantial basis for concluding that a crime has actually taken place.

Notwithstanding my skepticism about the utility of a magistrate's review of probable cause in DWI blood test cases, I am prepared to acknowledge that all other things being equal, obtaining a warrant makes sense.  For one thing, suspects may feel less violated by a nonconsensual blood test if a judge has authorized it, and some police officers may benefit from the supervision entailed in having to articulate probable cause to a magistrate.  This is why I ultimately side with Chief Justice Roberts, who would create a limited exigency for occasions when getting a warrant would delay the blood test, rather than siding with Justice Thomas, who believes that a magistrate's review of probable cause to take a DWI blood test should never be required.

Chief Justice Roberts's opinion deserves praise and respect, I think, because he is not simply pursuing an ideological agenda (whether right- or left-wing) but is instead thinking creatively about how best to accommodate the competing interests at stake in the case.  He has done this before, and his inclination to find viable solutions that parties may not have identified on their own is enormously reassuring, despite the fact that taking a firm stand on one side or the other may be more glamorous or rhetorically satisfying.  I hope he will extend this inclination to other issues on which the Court will be ruling this term.

A Grudging Acknowledgment that Monsanto Deserved to Win

By Mike Dorf

In the circles in which I sometimes run (vegans, hippies, commies, etc.), Monsanto is considered a very evil company.  For one thing, the company has never quite shed its image as one of the two chief manufacturers of Agent Orange (along with Dow).  More directly to the current topic--i.e., the Supreme Court's decision today in Bowman v. Monsanto Co.--the company is the single most important promoter of conventional farming.  Although I'm not as worried about the inherent dangers of GMOs as some of my fellow crunchy green hippies are, I do share the concern that Monsanto's "Roundup Ready" seeds raise serious problems.  More about that below, but first, a few words on today's decision.

Monsanto makes and markets both Roundup--a weed killer--and Roundup Ready (RR) seeds.  Plants grown from the RR seeds have been genetically modified to survive the application of Roundup to the field.  Thus, farmers buy the seeds, plant them, then spray the field with Roundup, which kills just about everything except the plants the farmer is trying to grow, in this particular case, GM soybeans from RR seeds.

As a condition of sale, Monsanto tells farmers that they can plant the RR seeds they buy but they cannot plant the RR seeds produced by the plants that grow from those seeds.  Bowman, however, did just that, and Monsanto sued him for patent infringement.  (Bowman also planted soybeans he bought from other farmers who had grown them from RR seeds.)  He said that the suit was impermissible because the doctrine of "patent exhaustion" gives the purchaser of a patent item (here the RR seeds) the right to control secondary uses and sales.  The SCOTUS, in a unanimous opinion by Justice Kagan, disagreed.  To plant second and successive generations of seeds from the plants grown from the original RR seeds is to make new copies of the patented product, which both the patent and the license prohibit.

The opinion is short and persuasive.  If Monsanto had lost, there would be little incentive for companies to develop seeds or other potentially self-replicating products because after the initial sale, the original manufacturer would not be able to capture the monopoly profits that warrant the initial investment in developing the product.  If you think Monsanto's RR seeds are evil (more on that in a moment, I promise), you might think that's a good non-investment in this particular case, but the general principle espoused by the Court is sound.  Consider a patented 3d printer capable of making innumerable sorts of useful (or fanciful) objects, including an exact replica of itself.  Surely the patent rights of the inventor of the 3d printer include the right to block its use for making (and then selling without any royalties) such second and successive generations of 3d printers.  (Seriously, self-replicating machines are possible and not at all evil.  What could possibly go wrong?)

Are seeds different?  The SCOTUS did not think so, and in the context of this case, I agree.  Bowman deliberately set his mind to growing second and successive generations of RR seeds and plants. However, lurking just below the surface--and expressly set aside as outside the scope of the holding in Bowman--is a far more troubling question: What about farmers who do not deliberately set out to grow infringing RR plants but find that their fields are contaminated by the RR plants?  Bees and even the wind spread seeds from the fields of farmers who purchased RR seeds to those who didn't.

Some of these farmers may consider the contamination a benefit.  They were already using Roundup  but with unmodified seeds.  Now they get higher yields and make more money.  Should these farmers have to pay Monsanto on an unjust enrichment theory?  In one sense, they have "made" infringing copies of Monsanto's product, but if they were truly passive, then in another sense they didn't.  To hold such passive recipients of Monsanto's bounty liable feels unfair.  At the same time, however, a rule that excuses these accidentally benefited farmers from having to pay royalties could be difficult to administer.  How is Monsanto or its minions to prove that the seeds were not just blowin' in the wind?  Who bears the burden of proof on the question of whether there was deliberate planting or a kind of second-hand high from the RR seeds?

A second category of farmers stands in a very different position: Organic farmers who want to grow--and get paid a premium for growing--non-GMO plants without the application of Roundup or (with respect to insecticide-resistant seeds) insecticides to their crops.  There have been reported cases of organic farmers experiencing contamination of RR crops, which, for them, is definitely not a benefit.  Do they have to pay Monsanto a royalty for infringement?  Conversely, should they be able to sue Monsanto and/or their neighbors for taking inadequate precautions to prevent the RR seeds from spreading?

There are also systemic harms that blow from one farm to the next.  A recent study indicates that RR seeds and, more generally, the reliance on seeds that have been genetically modified to resist herbicides, leads to increasing use of herbicides because extensive use of Roundup breeds Roundup-resistant weeds.  Eventually this could mean that Roundup is no longer effective, which would actually be unfortunate for people who don't buy exclusively organic: As herbicides go, Roundup is relatively benign.  The herbicides that will be used in its place may not be.  A similar fate probably awaits insecticide-resistant seeds and their respective complementary insecticides.

Thus, in the long run, the Monsanto strategy looks bad for sustainable agriculture and maybe even bad for Monsanto.  But that's in the long run.  In the short run, Monsanto makes a lot of money from its RR seed business and deserved to win in the Bowman case.  Here, as elsewhere, we shouldn't confuse the right legal outcome with generally good news.

Is the Death Penalty Permissible for Feticide?

By Mike Dorf

On Slate, Emily Bazelon questions the wisdom of seeking the death penalty for accused Cleveland kidnapper/torturer Ariel Castro.  Bazelon accepts that Castro stands accused of truly heinous acts but he could not be executed for holding his victims hostage as sex slaves for a decade.  He could only be executed if convicted of homicide, and the only homicide counts concern miscarriages he allegedly induced deliberately by starving and beating Michelle Knight, whom he had repeatedly raped. Bazelon argues that executing Castro for the harm he did to a fetus would be disingenuous; that was a serious crime, to be sure, but what makes Castro seem like a monster is what he did to the women he held as sex slaves.

The Slate article quotes extensively from two earlier columns by two DoL bloggers: one from 2004 by Professor Colb and another from 2003 by me.  In different contexts, each of us argues that laws criminalizing fetal homicide do not violate the letter or spirit of Roe v. Wade.  As Professor Colb (quoted by Bazelon), wrote, under Roe, "the choice of abortion belongs to the mother, and . . .  taking away that choice by killing her fetus without her consent does as much—or more—violence to reproductive freedom as a prohibition against abortion would.”

I continue to think that fetal homicide laws are constitutionally permissible and that pro-choice groups make both a moral and a public-relations mistake when opposing such laws.  However, making feticide a capital crime raises additional concerns.  Here I think the constitutional issues are open and more difficult.

Under Coker v. Georgia  and Kennedy v. Louisiana, the 8th Amendment prohibition on cruel and unusual punishments disallows the death penalty for non-homicide offenses.  The Court in Kennedy gives two core reasons for the prohibition: first, as judged by positive law and state practice, there appears to be a nationwide consensus that the death penalty is disproportionate even for the very serious crime at issue there, the rape of an 8-year-old; second, as a normative matter, the death penalty should be reserved for the most serious offenses, and the line between homicide and non-homicide offenses is part of the threshold.  (That's with respect to what the Court calls crimes against individuals, rather than crimes like treason.)

I think it's quite possible that the SCOTUS, if faced with the question, would say that there is also a consensus that the death penalty is disproportionate for feticide.  Bazelon notes that 38 states have laws banning feticide but it's not clear how many of those states permit the death penalty for feticide and, to my knowledge, no state has, in recent memory, sentenced someone to death for feticide. (Scott Peterson was sentenced to death for the murder of his 8-month-pregnant wife but the feticide was not itself the death-eligible offense.)  I'm not very confident about how the SCOTUS would evaluate the evidence of positive law, however; it's possible that states have not sentenced people to death for feticide because they think that existing SCOTUS precedent disallows doing so.

In any event, the normative considerations are separate and I'd like to focus on them because here a conflict with Roe is possible.  Let's suppose that the 8th Amendment flatly forbids imposition of the death penalty for a non-homicide offense.  The question is whether Roe has any bearing on whether feticide is a homicide offense.

Prima facie, I think the answer is yes.  Suppose that some state were to classify the deliberate killing of a healthy dog as homicide, punishable by the death penalty.  I think it clear that would violate Kennedy and Coker, and it would make no difference if state law also defined dogs as "persons" or "humans" for purposes of the homicide law.  Why?  Because the meaning of "homicide" in the Court's 8th Amendment jurisprudence is a matter of federal constitutional law, not a matter of state law.  Thus, likewise, if a fetus is not a person for 8th Amendment purposes, then state laws criminalizing feticide are non-homicide offenses for 8th Amendment purposes.

So, what bearing does Roe have here?  The questions are open, but I would say that the combination of Roe/Casey and Coker/Kennedy probably makes the death penalty unavailable for the killing of a non-viable fetus.  The abortion cases say that the state interest in a pre-viable fetus is insufficient to overcome a woman's interest in freedom from remaining pregnant, so it's a fair conclusion that the state's interest in a pre-viable fetus is also insufficient to overcome an attacker's interest in his continuing to live, i.e., not to be executed.

I'm not super-confident of that answer, however, because the analysis seems to prove too much. After all, one could also conclude on the basis of Roe/Casey that the state's interest in a pre-viable fetus is insufficient to deprive a person of his liberty from physical restraint.  But that's not right, because we know that the state may criminalize feticide of a pre-viable fetus and punish acts of feticide with imprisonment.  So perhaps the viability line simply has no bearing on non-abortion feticide cases.

What about feticide of a viable fetus?  One could make a Roe-based argument that even then, the death penalty is unavailable because Roe held that fetuses are not "persons" within the meaning of the 14th Amendment.  That's an available reading but not, in my view, the best reading of Roe.  I read that portion of the Court's opinion as addressing the question of whether the state must criminalize abortion rather than the question of whether the state may criminalize abortion.  So one could read the opinion as a whole to say that the states may treat viable fetuses as though they are, in some respects, persons (subject to the availability of abortion for life-saving and health reasons even after viability).  And one might then also say that the state may (but is not obligated to) treat feticide of a viable fetus as homicide for 8th Amendment purposes.

My own view, for what it's worth, is that the lines in the abortion cases ought to be treated as tangential.  I oppose the death penalty categorically, but assuming that I take for granted the availability of the death penalty for some homicide offenses, I would allow it (as an 8th Amendment matter) for some intentional killings of sentient fetuses, whether or not they are viable.  For me, the morality of abortion turns on whether it kills a being with interests of its own, and only sentient beings have interests of their own.  I would still allow criminalization of feticide of a pre-sentient fetus because such an act does terrible harm to the would-be parents of the fetus killed.

(If you want the fuller explanation, you'll need to wait for the completion of a book that Professor Colb and I have begun co-authoring addressing abortion and animal rights.  Her solo forthcoming book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans,  gives a partial account of the view in a chapter on abortion, and will be available for purchase next month.  You can pre-order it already here or here.)

Future Generations, Government, and Prosperity

-- Posted by Neil H. Buchanan

In the alternate weeks during which I write a column on Verdict, my usual pattern is to write an associated post here on Dorf on Law on the same Thursday, and then to write a post the next day on a completely unrelated subject.  This week, however, I will follow up yesterday's Verdict column and Dorf on Law post -- both of which discussed the reaction to Niall Ferguson's inane attack on John Maynard Keynes -- with yet another post on the same subject.  Ferguson's comments were truly stupid, but they were stupid in a particularly inspired way.  They are the gift that perversely keeps on giving.

For those who do not want to plow through my two earlier essays, a quick summary: Ferguson (a historian at Harvard who is a star in the Foxiverse for attacking Obama, Krugman, etc.) said that Keynes did not care about future generations because he was, (a) gay, and (b) childless.  Ferguson has issued an apology of a sort, but he -- and many other conservatives -- continue to believe that Keynesian economics is based on the selfishness of current generations, who heedlessly pile government debt on the backs of our children and grandchildren.  This, they claim, is what Keynes must have meant when he issued the diabolical statement: "In the long run, we are all dead."  Why care about a future in which one cannot picture oneself (or, apparently, one's genetic issue)?

In my Verdict column, I described how Keynesian economics is very much oriented toward improving the well-being of both current and future generations, in a way that conservative economics is not.  In my post yesterday on Dorf on Law, I took a mock-serious look at the prejudices underlying the idea that gay and/or childless people are selfish and unconcerned about future generations.  Among other things, I asked for a pardon because -- even though I am openly childless -- I have devoted my career to teaching young people, and to creating and propagating knowledge for the benefit of future generations.  I could, after all, have been the father of ten children, but spent my career as a lawyer for coal companies, helping my clients destroy the environment in which my children and grandchildren would be struggling to breathe.  I await the judgment of the Court of Future Generations.

Today, returning to a more serious mode, I want to add two further issues to the discussion.  First, I want to think more systematically about the illogic of the conservative attack on Keynes's "... we're all dead" line.  As anyone who has actually looked at the original comment in context knows, Keynes was responding to the assertion during the 1930's that the government should do nothing in response to the suffering caused by the Great Depression, because "in the long run, the economy will return to full employment."  Keynes responded that this was a lazy argument from his opponents, because it boiled down to the statement that, "after the storm passes, the sea will be calm."  As the kids would say: "No duh!"

What that analogy does not capture, however, is the additional power of Keynes's theoretical approach, which takes seriously the step-by-step (path dependent) nature of history.  Allowing the economy to stagnate for years on end -- in the immortally disgusting words of Andrew Mellon, who advised Herbert Hoover to "liquidate labor, liquidate stocks, liquidate farmers, liquidate real estate… it will purge the rottenness out of the system." -- is not a neutral matter.  Unemployed people become harder to re-employ as time passes.  Businesses do not engage in investments that will enhance the future prosperity of the economy, because the path from here to there is not profitable enough to make it worth it, when there are not enough customers (because people do not have jobs) to buy the businesses' goods and services.

While we wait for the long run, families are destroyed, as the stresses of long-term unemployment lead to suicides, murders, spousal and child abuse, drug and alcohol abuse, and so on.  Bad economic prospects discourage young people from marrying and starting families.  Governments (if they follow the bad advice of anti-Keynesian economists) allow all this to happen, and make matters worse by allowing the economy's public investments (schools, roads, electrical grids, ports, and so on) to decay.

Mellon's vision of a refreshing, cleansing storm is thus completely inapt.  We get to the long run by experiencing a series of short runs, and what we do during each short run affects the future path.  This is so obvious that the anti-Keynesians must be making a conscious effort to ignore it.  Acting as if the "production function" (to use the econ-geek term) of the future economy is unaffected by the path of the economy might make the analysis cleaner mathematically, but it is clearly wrong.

A possibly interesting analogy along these lines occurred to me, as I was thinking about Ferguson's public blundering.  In Christian theology, the equivalent of "the long run" is eternal salvation.  That, we are told, is the promise that God makes to all who truly believe in Him.  This promise, however, immediately raises two related problems: (1) If there is a promise of heavenly bliss after one's life on earth ends, why should people not speed along the process, actively choosing to join God as soon as possible? and (2) If all it takes to get into Heaven is to take Jesus truly into one's heart, why not do whatever one wants during life and then take Jesus into one's heart immediately before death?

Obviously, different denominations (and different theologians within various denominations) have addressed these basic questions for centuries, reaching various and contradictory conclusions.  The point of all of the responses that have been offered, however, is that the path matters.  And non-religious ethicists are similarly concerned with the content of the journey, and with the actions and choices made along the way, not just with the end point (either death, or life after death).  It is truly bizarre to imagine anyone arguing that what happens along the way (on any journey) is simply irrelevant, but that is what the argument to which Keynes was responding actually says.

That is not to say that government policymakers are incapable of making bad choices along the path.  Saying that government can make things better does not mean that anything it does will do the trick.  Which brings me to the second additional issue for today's discussion: Will the choice to have the government respond actively to an economic downturn result in a larger government sector in the long run, which will suck up economic resources in a way that reduces long-run living standards, or that will harm future generations in some other way?

One aspect of this issue is captured by Paul Krugman's recent discussion of "Naive Fiscal Cynicism," in which he considers the lack of evidence behind the idea that Keynesian responses to economic catastrophe "never go away."  The claim from the "naive fiscal cynics," after all, is that once a government bureaucracy gets going, it grows and grows and becomes committed to its own continued leech-like existence.  The problem is that the evidence simply does not back up that belief.  Neither the New Deal programs, nor the Obama stimulus spending programs (as minimal as they were), became permanent fixtures of the U.S. government.  They were temporary -- too temporary, in fact -- and certainly not the ever-growing Leviathan-like monsters of dystopian fantasy.

There is, however, a different aspect of the story about the possible growth of the government sector.  If we did not see the federal government's role in the economy grow due to a path-dependent accumulation of powers in the post-Depression era, then why is the federal government so much bigger today than it was in 1932?

The answer is that there really is a role for government that is not tied to the economy's short-run health, which we finally took seriously in the last three generations.  That is the idea behind all of my advocacy of increased public investment.  We need to improve education, infrastructure, and so on, continuously and at all times, to increase long-run living standards.  Without doing so, we might not all be dead in the long run, but our children and grandchildren will certainly be poorer than they would otherwise be.

For the anti-Keynesians whose real objection is to government itself, this presents two possibilities.  First, they can claim that the category of "productive public investments" is the empty set.  This, however, requires them to deny the insights of Adam Smith himself (to say nothing of the overwhelming weight of the evidence), who readily acknowledged that there are public goods, and that government is the only entity that is capable of providing those goods in appropriate amounts.  We can have healthy debates about which goods should be provided, and how much should be spent; but that is very much a Keynesian conversation.  One can be in favor of relatively large or small amounts of ongoing federal investment spending, based on the evidence, without being deeply committed to Big Government or Small Government (whatever that might mean).

Short of contradicting Smith, what is an anti-government ideologue's other choice?  He can admit that the government can increase future living standards, but he can insist that such increases come at too high a price.  For those who believe that government is per se bad, it might be necessary to pass up the material improvements from government action, to preserve private freedom.

I find that argument utterly unconvincing, of course.  I do, however, understand the sequence of logic.  In the "childlessness and lack of concern for future generations" discussion, however, it is important to point out what this anti-government argument also implies: People today are determined to pass up opportunities that could increase future living standards, in favor of what they view as the higher principle of personal (and business) freedom.  They are thus saying that they are willing to reduce the living standards of not only their own children and grandchildren, but of the future generations of other people as well.  That is not an inherently immoral choice, depending upon how one thinks about the various tradeoffs, but it is certainly no less arrogant a choice than the anti-Keynesians accuse Keynesians of making.  Telling me that the children of my nieces and nephews must live poorer lives so that the government is never allowed to tell them to buy broccoli strikes me as a rather aggressively selfish choice -- at least as selfish as my telling them that their children can inherit some debt, in exchange for higher future living standards.

Economists Under Suspicion: Who Has Children, Who Doesn't, and Why in the World Should It Matter?

-- Posted by Neil H. Buchanan

In my new column on Verdict today, I discuss a bizarre incident last week in which a conservative pundit attempted to use anti-gay smears to suggest that John Maynard Keynes's supposed lack of concern about future generations (which is based on a criminal misreading of Keynes's famous quip: "In the long run, we're all dead") was based on selfishness and disregard for the children of others.  That pundit, Niall Ferguson, soon issued what appeared to be a sincere apology, but it is now becoming clear that, (a) his purported apology was carefully crafted to minimize the initial transgressions, (b) he has a history of saying such things about Keynes, and (c) he is now back to claiming that Keynes's sexuality was significant for some purposes (just not for the future generations thing).

I tried to spend as little time in my column discussing Ferguson as possible, because I wanted to focus on just how crazy it is to describe Keynesian economics as harmful to future generations.  I will return to some further substantive thoughts along those lines in tomorrow's post here on Dorf on Law.  Today, however, I thought I would indulge in a bit of bemused introspection about what Ferguson's framing of the issue might say about me.

To be clear, Ferguson now says at least that the following two embedded assertions in his remarks are stupid: (1) Gays cannot have children, and (2) People without children do not care about the well-being of future generations.  (As Bill Black points out, however, the point that Ferguson was making when he uttered those two inanities could have been supported only by making the second assertion.  Including the first assertion, and tying it to the second, is hardly an innocent strategy.  By the way, Black also points out that George Washington and Jesus Christ were childless.  Hmm.)

Even with Ferguson's disavowal, however, it is clear that he and others have made similar claims in the past.  Just in case a few people are wondering about the connections between other Keynesians' personal lives and their views on future generations, I offer this helpful self-revelatory guide.

First, am I gay?  No.  So we can check that off the list, right?  Well, not exactly.  My late brother was gay, and he had no children.  Maybe he did not care about future generations, and that had an effect on me, right?  He was my big brother, closest to me in age, and I learned a lot from him.  Except that before Kevin died, he set up our oldest niece with enough money to pay for her entire college education.  He then provided money in his will to all of his other siblings, to be invested and then to be used to pay for college for their children.  That selfish jerk!

Second, do I have kids?  No.  Uh oh.  Again, however, I also have those nieces and nephews whom Kevin cared about.  (It is an amusing coincidence that this discussion would arise so soon after I proudly described my 25-year-old nephew's budding career.)  Presumably, my non-gayness would somehow make me more likely to care about them, too -- maybe because (and it is admittedly rather difficult to figure out what these homophobic anti-Keynesians might be thinking) I could at least imagine that they could be my children, because, you know, I have had sex with women?  Or something like that.

Do I get credit for having gone into teaching as a career?  My professional life has been devoted to generating new knowledge, and passing it (along with the knowledge inherited from generations before us) to young people.  Maybe that means that I care more about the welfare of future generations than does a guy who got drunk and forgot to use a condom, and then "did the right thing" by entering into a loveless marriage.

Cynical?  Absolutely.  Is that not what this whole discussion is about -- casting aspersions on people who, in Keynes's case, read poetry to his eventual wife, rather than dispensing with the foreplay and getting down to a man's business?  Isn't the insinuation that Keynesian policies are anti-children (They're not, of course, but go with me here) because people like me do not engage in sex with intent to impregnate?

What about when I get married?  Will being a step-father change me, turning me suddenly into a deficit-obsessed austerian, intent on mischaracterizing the Obama stimulus as a huge failure?  And if I do not change my views, will being a parent give those views greater credibility?  Does the age of my future step-children matter?  Does being partly responsible for 20- and 23-year-olds not count, because they are too old to set off my daddy alarm?  Would it matter if I married a woman with preschool-aged children?  Or is it all about genetics?  Do parents who adopt children suffer from the same selfishness that I apparently do, because they are merely caretakers for someone else's genetic material?  Inquiring minds want to know.

I am a Baby Boomer, which means that I am somewhere between the ages of 48 and 67.  If I were to marry a woman of child-bearing age, would I be spared the suspicion that I do not care about future generations?  Or would I need to sign a statement saying that I intend to prove my fertility with that younger woman?  (I begin my Verdict column by noting the odd similarity between these questions and the illogic of the anti-marriage-equality arguments in the Prop 8 case in the Supreme Court earlier this Spring.)

The most important question, of course, is why I would not care about future generations, when I will be relying upon them in my dotage.  Indeed, I need to be especially concerned about the economic well-being of all post-Baby Boomers, because they are the ones who will be indirectly sharing with me the goods and services that they produce when I stop working.  Because I will not have genetic offspring on whose doorstep I can land if things go wrong, I need to make sure that the next fifty years or so are prosperous enough that I can get a pass.  I need to ensure that I am not the victim of public policies that would be the equivalent of telling me to walk out onto the tundra to die.  And without biological children on whom I could supposedly rely, everyone's children are my children -- even from the most self-interested point of view imaginable.

Bottom lines: (1) Buchanan is not gay.  (Not that there's anything wrong with that.)  (2) Buchanan has no biological children, and probably never will.  So, do I care about future generations?  Ferguson now allows that "it is obvious that people who do not have children also care about future generations."  Well, not all of them do.  But those who do not are both selfish and unable even to understand how to be a successful narcissist.