Friday, November 30, 2012

Hiding Conservative Rage Behind Economic Jargon

-- Posted by Neil H. Buchanan

Three days ago, my Dorf on Law post focused on an odd controversy regarding how people say they will respond to the potential tax increases on the wealthy that might soon become reality in this country.  With many conservatives still surprised by the (completely predictable -- and accurately predicted) re-election of President Obama, apparently more than a few are now in panic mode.  They are certain that Obama will somehow get a big tax increase enacted into law, and they are promising to react badly if he does.

In some ways, this is reminiscent of the last, worst argument that supporters of the now-forgotten Romney/Ryan ticket offered earlier this month, the essence of which was: "Vote for Romney, because we're going to be even more obstructionist if Obama wins a second term.  At least something will get done with Romney in the White House."  Many commentators rightly denounced that threat as tantamount to blackmail.  Similarly, the wealthy supporters of the losing side in the election are now saying something like this: "Forget about Congress.  We'll sink the whole economy by refusing to earn slightly reduced profits and incomes, if you try to tax us."

Most of the don't-touch-our-high-incomes pronouncements have been coming from reasonably high profile people, such as the CEO of a pizza chain who continues to complain about tax increases in the Affordable Care Act.  (What is it about pizza chain guys that makes them crazy?)  These people directly hold the economic fates of at least several thousand people in their hands; so even if their threats are morally indefensible, at least we can see why they draw attention.  The New York Times article that I discussed on Monday, however, became infamous because it included an interview with a chiropractor whose income is currently (according to her) just below the $250,000 magic cutoff that Obama has set for any tax increases.  Her message was, basically, that she and her business partner (who is also her husband) will stop working as soon as their income hits the tax-increase threshold.

In one sense, this counts as a big "so what?"  She and her husband are threatening, in essence, to furlough themselves without pay.  Yes, that could show up in a lower Gross Domestic Product, as they would provide fewer spinal adjustments, and as any reduced spending on their part multiplied through the economy.  On the other hand, if their clients go to other chiropractors, or simply spend their money on other goods and services, then there might be no net effect at all.

As I explained on Monday, however, the article became infamous because some left-leaning news sources picked it up as an example of how the supposed non-moochers do not even understand how taxes work.  The argument, from people like Rachel Maddow, was that the chiropractors in question were making a basic logical error, confusing marginal tax rate changes with average tax rate changes.  I argued, in an indifferent sort of way, that that conclusion was not supported by the record.

The question comes down to this: When this person said that she will stop working as soon as her income reaches $250,000, if Obama succeeds in increasing the marginal tax rate for people like her from 33% to something like 36%, did she mean: (a) "If the tax rate rises to 36% at $250,001, then I'll actually be worse off by grossing $251,000 (netting $160,640) than if I stay at $250,000 (netting $167,500)," or (b) "If the tax rate rises by 3%, I will stop working, because it is worth the effort to gross an extra $1000 if I end up with $670, but it's not worth it if I end up with $640."  If the answer is (a), then she is truly confused (on several grounds, actually, because her current 33% rate does not even apply to her full income, so that her net pay is much higher than $167,500).

Nothing in the article definitively tells us whether the answer is (a) or (b).  My listless defense, however, should not be viewed as a statement that it would somehow make sense for this couple to actually stop working under the assumptions described here.  Part of the reason that Maddow and others assumed that the answer was (a), I suspect, is that answer (b) actually seems more silly.  Even if the taxpayer in question is fully cognizant of how marginal tax rates work, it just seems utterly implausible that we are talking about tax changes that are sufficiently large to cause people to stop working.  It might be theoretically plausible that (b) is at work, but in some ways it actually seems more generous to say that these people are ignorant of how taxes work than to assume that they would actually change their behavior on the margin because of the difference of $30 take-home on a thousand dollars of extra income.

In some ways, therefore, we are trying to figure out how to explain real-world behavior, in light of two issues: (1) Standard economic theory confidently predicts behavioral changes based on rational actors' responses to clearly understood changes in incentives, and (2) Statistical evidence suggests that people do not, in fact, respond to changes in after-tax rates of return, in most circumstances.  On the latter point, for example, I noted in a Verdict column earlier this year that public finance economists are starting to acknowledge that even large changes in marginal tax rates (for example, in capital gains) are apparently uncorrelated with any of the effects predicted by our models.

After I wrote my post on Monday, I saw that Warren Buffett had published a new op-ed in the Times that same morning.  Buffett, who continues to engage in "class betrayal" by arguing for increases in taxes on investors and wealthy people like himself, argued that investors simply do not think about tax rates when they consider whether to put their money into promising deals.  He repeated that sentiment the same evening on The Daily Show With Jon Stewart.

Buffett might have been making one of two arguments, along the lines of (a) and (b) above.  Either investors simply do not think about tax rates, because they are after the big score, or they think about rates, but they are satisfied with the rate of return on their investments -- even when, as was the case earlier in Buffett's career, tax rates were much, much higher than they are today.

On the flipside of this type of claim, I once had a conversation about estate taxes with a prominent public finance economist.  He said that estate taxes surely discouraged people from amassing large estates.  I pointed out that none of the studies of the estate tax had found such an effect.  He responded that it simply must be true that the estate tax has that effect, because it makes no sense for it not to do so.  In short, he did not respond to me by saying that he had seen other studies that contradicted my assertion.  He simply said that his theory had to be right, because it made sense to him.  (He then accused me of favoring a tax system that would "fit in well in North Korea," but that is a different story.)

In short, even though it is possible to defend the economic rationality of people who might quit working (or reduce their efforts) in response to tax rate increases, that is rather thin gruel.  We have a body of evidence that shows that, even if we view the evidence in the light most favorable to the chiropractors in question (and others like them), the big tax freak-out can only come about if higher-income taxpayers begin to act in ways that is either directly against their interests, or is inconsistent with the way that they have defined their interests in the past (that is, that is inconsistent with their responses to tax changes in other circumstances).  Along the lines of an argument that I made on Monday, that latter possibility is most consistent with the idea that wealthy people's utility functions include a variable that we might called "Obama Hatred."

If there is a sudden change in how wealthy people respond to tax changes, therefore, we will know that they really are willing to harm other people to spite a man whom they despise.  They might say that they are "merely responding to incentives," but that merely puts a bland label on an ugly truth.

Hiding Conservative Rage Behind Economic Jargon

-- Posted by Neil H. Buchanan

Three days ago, my Dorf on Law post focused on an odd controversy regarding how people say they will respond to the potential tax increases on the wealthy that might soon become reality in this country.  With many conservatives still surprised by the (completely predictable -- and accurately predicted) re-election of President Obama, apparently more than a few are now in panic mode.  They are certain that Obama will somehow get a big tax increase enacted into law, and they are promising to react badly if he does.

In some ways, this is reminiscent of the last, worst argument that supporters of the now-forgotten Romney/Ryan ticket offered earlier this month, the essence of which was: "Vote for Romney, because we're going to be even more obstructionist if Obama wins a second term.  At least something will get done with Romney in the White House."  Many commentators rightly denounced that threat as tantamount to blackmail.  Similarly, the wealthy supporters of the losing side in the election are now saying something like this: "Forget about Congress.  We'll sink the whole economy by refusing to earn slightly reduced profits and incomes, if you try to tax us."

Most of the don't-touch-our-high-incomes pronouncements have been coming from reasonably high profile people, such as the CEO of a pizza chain who continues to complain about tax increases in the Affordable Care Act.  (What is it about pizza chain guys that makes them crazy?)  These people directly hold the economic fates of at least several thousand people in their hands; so even if their threats are morally indefensible, at least we can see why they draw attention.  The New York Times article that I discussed on Monday, however, became infamous because it included an interview with a chiropractor whose income is currently (according to her) just below the $250,000 magic cutoff that Obama has set for any tax increases.  Her message was, basically, that she and her business partner (who is also her husband) will stop working as soon as their income hits the tax-increase threshold.

In one sense, this counts as a big "so what?"  She and her husband are threatening, in essence, to furlough themselves without pay.  Yes, that could show up in a lower Gross Domestic Product, as they would provide fewer spinal adjustments, and as any reduced spending on their part multiplied through the economy.  On the other hand, if their clients go to other chiropractors, or simply spend their money on other goods and services, then there might be no net effect at all.

As I explained on Monday, however, the article became infamous because some left-leaning news sources picked it up as an example of how the supposed non-moochers do not even understand how taxes work.  The argument, from people like Rachel Maddow, was that the chiropractors in question were making a basic logical error, confusing marginal tax rate changes with average tax rate changes.  I argued, in an indifferent sort of way, that that conclusion was not supported by the record.

The question comes down to this: When this person said that she will stop working as soon as her income reaches $250,000, if Obama succeeds in increasing the marginal tax rate for people like her from 33% to something like 36%, did she mean: (a) "If the tax rate rises to 36% at $250,001, then I'll actually be worse off by grossing $251,000 (netting $160,640) than if I stay at $250,000 (netting $167,500)," or (b) "If the tax rate rises by 3%, I will stop working, because it is worth the effort to gross an extra $1000 if I end up with $670, but it's not worth it if I end up with $640."  If the answer is (a), then she is truly confused (on several grounds, actually, because her current 33% rate does not even apply to her full income, so that her net pay is much higher than $167,500).

Nothing in the article definitively tells us whether the answer is (a) or (b).  My listless defense, however, should not be viewed as a statement that it would somehow make sense for this couple to actually stop working under the assumptions described here.  Part of the reason that Maddow and others assumed that the answer was (a), I suspect, is that answer (b) actually seems more silly.  Even if the taxpayer in question is fully cognizant of how marginal tax rates work, it just seems utterly implausible that we are talking about tax changes that are sufficiently large to cause people to stop working.  It might be theoretically plausible that (b) is at work, but in some ways it actually seems more generous to say that these people are ignorant of how taxes work than to assume that they would actually change their behavior on the margin because of the difference of $30 take-home on a thousand dollars of extra income.

In some ways, therefore, we are trying to figure out how to explain real-world behavior, in light of two issues: (1) Standard economic theory confidently predicts behavioral changes based on rational actors' responses to clearly understood changes in incentives, and (2) Statistical evidence suggests that people do not, in fact, respond to changes in after-tax rates of return, in most circumstances.  On the latter point, for example, I noted in a Verdict column earlier this year that public finance economists are starting to acknowledge that even large changes in marginal tax rates (for example, in capital gains) are apparently uncorrelated with any of the effects predicted by our models.

After I wrote my post on Monday, I saw that Warren Buffett had published a new op-ed in the Times that same morning.  Buffett, who continues to engage in "class betrayal" by arguing for increases in taxes on investors and wealthy people like himself, argued that investors simply do not think about tax rates when they consider whether to put their money into promising deals.  He repeated that sentiment the same evening on The Daily Show With Jon Stewart.

Buffett might have been making one of two arguments, along the lines of (a) and (b) above.  Either investors simply do not think about tax rates, because they are after the big score, or they think about rates, but they are satisfied with the rate of return on their investments -- even when, as was the case earlier in Buffett's career, tax rates were much, much higher than they are today.

On the flipside of this type of claim, I once had a conversation about estate taxes with a prominent public finance economist.  He said that estate taxes surely discouraged people from amassing large estates.  I pointed out that none of the studies of the estate tax had found such an effect.  He responded that it simply must be true that the estate tax has that effect, because it makes no sense for it not to do so.  In short, he did not respond to me by saying that he had seen other studies that contradicted my assertion.  He simply said that his theory had to be right, because it made sense to him.  (He then accused me of favoring a tax system that would "fit in well in North Korea," but that is a different story.)

In short, even though it is possible to defend the economic rationality of people who might quit working (or reduce their efforts) in response to tax rate increases, that is rather thin gruel.  We have a body of evidence that shows that, even if we view the evidence in the light most favorable to the chiropractors in question (and others like them), the big tax freak-out can only come about if higher-income taxpayers begin to act in ways that is either directly against their interests, or is inconsistent with the way that they have defined their interests in the past (that is, that is inconsistent with their responses to tax changes in other circumstances).  Along the lines of an argument that I made on Monday, that latter possibility is most consistent with the idea that wealthy people's utility functions include a variable that we might called "Obama Hatred."

If there is a sudden change in how wealthy people respond to tax changes, therefore, we will know that they really are willing to harm other people to spite a man whom they despise.  They might say that they are "merely responding to incentives," but that merely puts a bland label on an ugly truth.

Thursday, November 29, 2012

Lessons from Criminal Justice Reform for Immigration Detention

Posted by Anil Kalhan

Rolling Plains Detention Center - Haskell, TexasThis fall, I have been privileged to participate as a moderator and panelist in a terrific series of events convened across the country by Human Rights First, Dialogues on Detention: Applying Lessons from Criminal Justice Reform to the Immigration Detention System. The fourth of these day-long events will be held tomorrow (Friday, November 30) at Loyola University New Orleans Law School. As described on the HRF website:

The Dialogues convene experts, academics, policymakers, practitioners, advocates, and the private bar working in the immigration detention and corrections/criminal justice fields, as well as formerly detained individuals, to share knowledge, experiences, and best practices. We aim to help shift the national conversation on immigration detention, build alliances between stakeholders in both fields, and lay the groundwork for future improvements in policy and practice. * * *

Although detention in each context occurs under different legal authorities and with different purposes, immigration detention, jails, and prisons together comprise the broader system of mass incarceration in the United States and as such must contend with related concerns. The immigration detention system should not be modeled after the prison system. However, immigration detention stakeholders can learn from the depth of expertise and rich scholarship among criminal justice and prison reform experts. Ultimately, our objective is to secure reforms to the immigration detention system so that immigrants and asylum seekers are not detained unnecessarily and in ways that are inconsistent with human rights standards. [link]

A list of background readings is available here, including a fact sheet on immigration detention in Louisiana. You can also read dispatches from the previous events in Texas, California, and Arizona by HRF Senior Associate Ruthie Epstein, who conceived and organized this event series to follow up on a comprehensive 2011 report documenting a wide range of human rights problems arising from immigration detention.

* *

In recent years, a growing number of states and localities have undertaken important initiatives to temper the scale and severity of criminal incarceration and pretrial detention, including the expanded use of evidence-based risk assessment tools and alternative forms of pretrial custody; decriminalization of low-level drug offenses; reduction or elimination of sentencing disparities between crack and powder cocaine; elimination of mandatory minimum sentences; expansion of opportunities for earned credit towards periods of imprisonment, parole, and probation; expansion of eligibility for parole by elderly prisoners; and increased use of non-prison sanctions for technical parole and probation violations. Strikingly, despite the longstanding, conventional view that criminal justice reform constitutes one of the many proverbial “third rails” of American politics, many of these initiatives have garnered significant bipartisan support. As David Dagan and Steven Teles write in this month’s issue of Washington Monthly, a growing number of evangelicals and libertarians – perhaps most prominently as part of the Texas Public Policy Foundation’s “Right on Crime” campaign – have joined forces with liberal reformers to advance these initiatives, after “[d]iscovering that the nation’s prison growth is morally objectionable by their own, conservative standards.”

How Louisiana Became the "World's Prison Capital"

Source: nola.com via Pinterest

In Louisiana, for example – which incarcerates more individuals per capita than any other state, and has been dubbed by state’s own Times-Picayune as "the world's prison capital" – Gov. Bobby Jindal signed a series of reforms into law earlier this year that, among other things, grants prosecutors discretion to waive mandatory minimum sentences for non-violent, non-sexual offenders; provides an earlier opportunity for certain non-violent, non-sexual repeat offenders to obtain a parole eligibility hearing; allows certain non-violent offenders sentenced to life imprisonment (including life without parole) an earlier opportunity for release; and expands pilot programs designed to facilitate reentry from prison. Among the arguably unlikely proponents of these reforms was Blueprint Louisiana, a civic organization whose leaders draw extensively from the state’s business community and which evidently concluded that criminal justice reform is important to help make the state’s residents “rightly proud to say, 'I live in Louisiana,’” as the group describes its mission.

For its part, Congress has also adopted bipartisan criminal justice reforms in recent years, enacting both the Prison Rape Elimination Act in 2003 and the Second Chance Act in 2007 with limited if any opposition. Even the Supreme Court has gotten in on the act with its 2011 decision in Brown v. Plata, which upheld by a 5-4 margin a three-judge district court’s order that (notwithstanding the limits imposed by the Prison Litigation Reform Act) California reduce its prison population to remedy conceded Eighth Amendment violations arising from severe prison overcrowding. The Court’s decision was sufficiently significant to prompt Jonathan Simon to contemplate the prospect that it might signal the revitalization of human dignity as a meaningful constitutional value in the United States.

* *

So how might these criminal justice reform initiatives be instructive for efforts to similarly temper the scale and severity of immigration detention? Whether in the criminal justice system or the immigration enforcement context, incarceration is extremely expensive compared to its alternatives, and to a considerable extent, these reform efforts have been driven by fiscal considerations, particularly in the wake of the financial crisis. For example, in signing Louisiana’s reforms into law, Jindal highlighted their importance in “streamlin[ing]” criminal justice processes and making them “more efficient.” At least to date, however, fiscal considerations have not similarly exercised any gravitational pull upon efforts to reform immigration detention and enforcement, since Congress has proven willing to commit additional enforcement resources largely without regard to cost. (Witness, for example, Rep. Lamar Smith’s comments dismissing altogether the relevance of immigration detention’s extraordinary costs during a hearing last year on his bill to expand prolonged and potentially indefinite detention – and doing so at a moment when debate already had been raging over whether Congress should raise the debt ceiling without exacting major reductions in government programs in return.)

More fundamentally, this emphasis on costs has serious potential limitations. As scholars including Sharon Dolovich have cautioned, reform programs based on fiscal constraints and other practical flaws in the prevailing approaches to mass criminal incarceration may not prove durable insofar as they leave intact the underlying logic and ideology of “exclusion and control” that dominates public discourse and criminal justice practices:

[F]or reductions in the prison population to be sustained over the long term, they must be complemented by the provision of effective drug treatment programs, educational and vocational training for those in custody, and assistance for former prisoners seeking to assemble the components of a stable life on the outside (home, job, drug treatment, family reunification, etc.). Otherwise, it is just as likely that many of the people granted early release will eventually reoffend. And when that happens, so long as the mindset of exclusion and control remains undisturbed, their subsequent offenses will be traced, not to the state’s shortsightedness in releasing people from prison in a worse position than when they went in, but to a willful and deliberate refusal on the part of former prisoners to obey the law—a refusal that may only seem all the more galling because undertaken despite the state’s beneficence in granting early release. Even assuming the present fiscal crisis were to generate a contraction in the carceral apparatus, unless there is a fundamental shift in society’s commitments away from exclusion and control as a matter of principle, this contraction would only last until the economy revives. [link]

The uneven staying power of some recent state experiments with expanding early release from prison, as documented by Cecelia Klingele, offers but one example suggesting that Dolovich’s cautionary note is warranted. And such hazards are no less present with efforts to reform immigration detention and enforcement. Indeed, as I have previously argued, the worthy detention reforms undertaken by the Obama administration since 2009 have been hindered by an analogous failure to dismantle the quasi-punitive logic and institutional practices that have emerged in immigration enforcement over the past two decades. Indeed, quite to the contrary, the administration has only reinforced that underlying logic by expanding quasi-punitive enforcement practices to an even greater extent than its predecessors – leaving the ultimate fate of its important and ambitious detention reform project in considerable doubt.

None of this is to suggest that these reform initiatives are not important simply because they have been triggered by fiscal considerations. Dagan and Teles maintain that these recent shifts in the criminal justice reform agenda rest upon far more than simply budgetary concerns. And Dolovich herself fully acknowledges that these recent reform initiatives are indeed “bright spots” that might eventually contribute to the more fundamental paradigm shift necessary to dismantle, in a more durable manner, what she terms society’s existing “carceral bargain.” In fact, Dagan and Teles go much further, contending that these reform initiatives offer more far-reaching lessons on “how bipartisan policy breakthroughs are still possible in our polarized age” across any number of policy areas.

So advocates of criminal justice reform can certainly regard the present moment as one offering legitimate reasons to be hopeful. But for the reasons to which Dolovich draws attention, it remains deeply uncertain whether these nascent reforms will effect a meaningful, politically viable paradigm shift. Whether they offer potentially transferable lessons for other policy domains, including immigration detention and immigration reform more generally, remains even more so. In a subsequent post, I will offer some very preliminary thoughts on whether the current reckoning over immigration reform by leading Republicans – owing to their self-perception of having fallen off the demographic cliff as a political party during the recent election -- foreshadows the kind of paradigm shift necessary to transform immigration policy, including detention and enforcement, in a durable, politically sustainable way.

* *

For those of you able to be in New Orleans, I hope to see some of you tomorrow at Loyola. Judging by the earlier events in the series in Texas, California, and Arizona, the conversations tomorrow in New Orleans should be rich and worthwhile. For those of you unable to attend in person, you can follow along and contribute to the dialogue from afar on Twitter, using the hashtag #HRFDetention.

(A version of this post has been cross-posted at the ImmigrationProf Blog.)

Wednesday, November 28, 2012

The Limits of Analogies

By Sherry F. Colb

In my Verdict column for this week, I discuss a European Court of Human Rights (ECHR) decision upholding a German court's injunction against the publication by PETA (the People for the Ethical Treatment of Animals) - Deutschland (PETA-D) of a series of posters that compare the animal cruelty and slaughter of the animal-based food industry to the Holocaust.  In my column, I take up three questions:  (1) Was the PETA campaign strategically wise?, (2) Does comparing nonhuman animal victims to human victims  necessarily insult or degrade the status of the humans?, and (3) Might the offense that people take reflect something less noble than an identification with human victims of the Holocaust?

In this post, I want to offer the hypothesis that comparing victims of distinct harms disserves the victims of both harms.  To analyze this hypothesis, let us consider an analogy that members of the pro-life movement sometimes draw, between the Holocaust and abortion.

From the perspective of people who support the right to abortion, the analogy is troubling for various reasons.  First, it seems to ignore the very distinct circumstances in which a person decides to carry out the extermination of disfavored groups, on one hand, and the termination of a pregnancy, on the other.  A hatred of Jews, gay people, Roma, and others motivated the execution of the Final Solution.  People seeking an abortion, by contrast, typically feel ill-equipped to gestate and then care for their children and rarely if ever act out of hatred.  Second, the analogy appears to disregard the fact that the overwhelming majority of abortions occur before the human fetus has acquired the capacity to have subjective experiences, i.e., before sentience.  Victims of the Holocaust, by contrast, were all too capable of experiencing the terror and suffering that they endured under the Third Reich.  One could identify more distinctions, but for brevity's sake, these two should suffice.

The analogy between abortion and the Holocaust also likely fails, upon reflection, for members of the pro-life movement as well.  First, from their perspective, the numbers do not compare -- the Holocaust was a temporally bounded event with a finite (though tremendous) number of victims, while the practice of abortion continues, with the numbers accordingly climbing steadily higher with each passing day.  To compare the two therefore fails to acknowledge the perceived urgency of addressing an ongoing harm by comparison to the importance of acknowledging an historical harm.  Second, people who mourn for the victims of the Holocaust do not, in general, have to argue that they grieve for a true catastrophe -- that the Holocaust  represented a horrifying injustice is not a contested proposition in most circles.  To protest the injustice of embryos and fetuses being killed in abortions, however, does take a controversial position on a contested moral question, and this fact undoubtedly adds to the distress of those opposed to abortion.  Stated differently, having one's strongly-held moral commitments dismissed and derided by many people adds a whole other layer of frustration on top of one's experience fighting for a cause.  If you doubt this, just consider the feelings of women who once railed against the injustice of denying women suffrage, only to encounter crude jokes that treated their struggle with derision.

Analogies to the Holocaust (and to other uncontroversially outrageous injustices) might thus genuinely and rightly cause distress to both speaker and audience, if each considers the many ways in which the analogized injustices truly differ.  It should not be necessary, moreover, for people fighting for a cause to say "this is just like the Holocaust" (or "this is just like slavery" or "this is just like rape").  We must instead become willing and better able to listen to one another's perspectives and allow that what disturbs any of us is worthy of consideration and a full hearing, no matter how different it might be from what we can all agree is disturbing.

Contested claims about injustice are, almost by definition, likely to encounter angry and defensive resistance, and we have seen this in responses to just about every social justice movement, including movements for civil rights, women's rights, gay rights (all of which are, I hasten to add, distinct from one another in many important ways).  Furthermore, the angry resistance is itself likely to trigger anger and anguish on the part of those who hope to raise consciousness about an issue to which most people have given little thought.  The end result is that everyone feels alienated and unconvinced, because no one is truly listening to anyone else.

All of this counsels in favor of people -- whether or not they are moral entrepreneurs -- making sure to take out time to gather regularly with those who share their values and who understand injustice in similar ways, so that everyone has the opportunity to gather strength and support from "fellow travelers."  Then, when members of distinct moral communities come to address one another, each will be equipped with the emotional safety and security that come from having a community that takes their respective worldviews seriously.  Only then can we all hope to engage in a productive dialogue, one that  no longer relies on analogies that serve not only to offend those with conventional commitments but also to obscure the true nature of a new movement for social justice.

Tuesday, November 27, 2012

The Remand in the Liberty University Case

By Mike Dorf

Yesterday the Supreme Court granted a petition for rehearing in Liberty University v. Geithner, asking the Fourth Circuit--which had previously rejected this challenge to the Affordable Care Act on the ground that it was barred by the Tax Anti Injunction Act--to consider the case again in light of the June ruling upholding the ACA.

Why send the case back rather than just let it die?  Well, for one thing, the Supreme Court's ruling in June effectively reverses the Fourth Circuit's holding with respect to the Tax Anti Injunction Act.  On remand the Fourth Circuit will initially have to determine whether there is any reason to interpret the challenge to the employer mandate differently from the challenge to the individual mandate when it comes to timing.

On the merits, it is nearly impossible to imagine the Fourth Circuit holding that the ACA exceeded the affirmative powers of Congress.  In addition to the taxing power argument that prevailed in the Supreme Court for the individual mandate, the employer mandate can likely also be sustained under the Commerce Clause.  The five Justices who voted against sustaining the individual mandate in June did so because they thought the Commerce Clause does not include the power to mandate participation in commerce by people who are not currently engaged in commerce.  But of course an employer is already engaged in commerce, or at least in "economic activity," to use the term that the Court's cases favor.

So the Liberty University case does not hold out any promise of a wholesale reconsideration of the ACA decision.  Still, there remain two claims on the merits in Liberty University that were not addressed by the Supreme Court's merits decision.  LU makes two kinds of religion claims.

First, LU argues that the ACA impermissibly discriminates in favor of some religions and in favor of some grounds for exemption from the individual and employer mandates, but against other religions.  This discrimination, LU argues, violates both the Establishment Clause and the Free Exercise Clause of the First Amendment.  Although Employment Division v. Smith held that general laws do not trigger any heightened judicial scrutiny merely because they happen to burden religious practice, the ACA is not a general law; it is a law that contains some but not other exceptions.  Thus, LU says, it must be measured by the much more demanding test for laws that contain some but not other exceptions.

Second, LU argues that even if deemed a neutral, general law, the ACA must still satisfy strict scrutiny pursuant to the Religious Freedom Restoration Act (RFRA).  Readers may recall that in 1997 the Supreme Court held RFRA unconstitutional as applied to the states, but subsequent cases make clear that RFRA remains valid as a limit on the federal government.  (I explained how all of this works here.)

So, does that mean that LU will get a judicially crafted religious exemption from the ACA mandates?  I think that LU faces two major obstacles.  Both were resolved against LU by the district court, which reached the merits.

First, the exceptions that the ACA does contain were copied from the Internal Revenue Code and, as the district court noted, all prior Establishment Clause challenges to these exceptions failed.  If these provisions are non-discriminatory under the Establishment Clause, then presumably they are also non-discriminatory under the Free Exercise Clause.  Indeed, the whole premise of the Smith case is that legislative accommodations are permitted, just not required. Most such accommodations will be incomplete; that's what makes them exceptions rather than different rules; yet they remain valid.

Second, the RFRA claim is weak on its face.  As an initial matter, it's not clear that a university is even protected by RFRA, which talks about burdens on a "person's exercise of religion."  It's true that in the O Centro case the Court allowed a church to assert the religious rights of its members, but there the law in question actually burdened the exercise of religion by those members.  Here LU's claim appears to be that it itself is having its religion burdened.  And that brings us to the core weakness of LU's argument: its difficulty articulating exactly how the ACA burdens religion.

The district court found that LU was not being required to fund abortion.  I read a couple of press accounts of the remand yesterday in which the assertion was made that the remand will consider the validity of the mandate to provide contraception coverage, but that issue was not raised in the district court.  It's possible that it would be encompassed by the broader argument LU makes, as the Administration's policy regarding contraception coverage was not set when the lawsuit was filed.  In any event, in its briefs, LU appears to argue that being required to provide health insurance to employees itself violates religious beliefs--except that LU already provides health insurance to employees.  So (putting aside the contraception argument) LU   argues that giving employees a government-mandated package of health insurance is a violation of its religious freedom, so long as the package of government-mandated benefits differs from what LU and its employees would agree to in the absence of legislation.  But without more, such a claim would potentially unravel just about any law that in any way limits the freedom of a religiously affiliated institution.

Perhaps on remand LU will present a stronger argument, but as things stand I do not foresee this challenge succeeding.

Monday, November 26, 2012

Apparently, No One Thinks About Taxes Very Clearly, Which Is Bad For Standard Economic Theory

-- Posted by Neil H. Buchanan

There is an emerging category of news article that has become ubiquitous in the post-election period.  Call it the "Rich Folks Can't Believe What Happened, and They Don't Know What To Do Next" story.  Essentially, there is a big freak-out going on among the high-income people who believed the Fox News-iverse's narrative that Mitt Romney and Paul Ryan would easily win the election.  Those people are now suddenly confronted with the unbearable thought that their taxes might go up somewhat in the near future.  Many of them, apparently, do not know what to do now.

The news media has been filled with stories about companies announcing that they are laying people off in advance, just to be ahead of any tax increases that might be imposed.  Faced with the dreaded "Obamacare" implementation, other companies are cutting some employees off from all health care coverage.  Business media are filled with advice about how to pay taxes now, in order to avoid being stuck with higher taxes after January 1.  Given the relatively modest changes in play -- the top income tax bracket rising from 35% to 39.6%, for example, even if Obama does not compromise -- it really is a sight to behold, as the moneyed class tries to deal with the thought that the billion dollars or so that they spent to elect Romney/Ryan (and to buy the U.S. Senate) went for naught.

Last Sunday, the New York Times ran an article that was a rather standard version of this new category of Rich Folks Gone Wild news coverage. In "Investors Rush to Beat Threat of Higher Taxes," two reporters wrote about their interviews with various higher-income people who are worried about paying higher taxes.  It was the usual run of silliness, but one part of the article garnered an unusual amount of attention.  Here are the three-paragraphs in question:
     Kristina Collins, a chiropractor in McLean, Va., said she and her husband planned to closely monitor the business income from their joint practice to avoid crossing the income threshold for higher taxes outlined by President Obama on earnings above $200,000 for individuals and $250,000 for couples
     Ms. Collins said she felt torn by being near the cutoff line and disappointed that federal tax policy was providing a disincentive to keep expanding a business she founded in 1998.
     “If we’re really close and it’s near the end-year, maybe we’ll just close down for a while and go on vacation,” she said.
Some left-leaning media sources grabbed onto this anecdote, gleefully announcing that the chiropractor in the story clearly does not understand how taxes work.  Rachel Maddow did a full segment about the article on her show, and the Huffington Post ran a story mocking the supposed illogic of the Collinses (and people like them).  (Both links are available on the TaxProf blog here.)

So what is so risible about all this?  The idea that Maddow and HuffPo focused on is the difference between marginal tax rates and average tax rates.  Marginal tax rates are applied only to additional dollars of income, whereas average tax rates apply to all income.  Suppose that the tax rate is 10% on the first $100,000 of income, and the marginal rate then rises to 20%.  A person earning $120,000 would pay 10% on the first $100,000 in taxable income, and 20% on the next $20,000, for a total tax bill of $14,000.

If you do not understand that basic idea, then you might make a big error.  For example, consider someone making $99,000 in taxable income, and thus paying $9,900 in taxes, taking home $89,100.  They might think that earning an extra thousand dollars will kick them into a bracket where all of their taxable income is subject to a 20% rate, paying $20,000 in taxes and taking home $80,000.  Earning an extra $1000 in income leaves them $9,100 worse off than if they did not earn the extra money.  This is known in tax parlance as a "cliff effect," and it is why we use marginal tax brackets in the first place.

There really are people who make that error (which is an easy error to make, for anyone who has not learned the difference).  The HuffPo article cites a 2011 blog post from the liberal economist Dean Baker, who ridiculed a USA Today article that said this: "That raise actually might not be as good as it looks. The extra money is nice, but it could very well bump you into the next tax bracket, possibly leaving you with less money than you had before the raise."  This is a clear case of someone (in this case, a news reporter on the tax beat for a national newspaper) making a fundamental error confusing average and marginal rates.

The problem is that the Virginia couple in the NYT article did not make that error -- or, at least, there is nothing in the article to indicate that they had definitely done so.  What they say is that they are worried about crossing the threshold of a higher tax bracket, and they will go so far as to refuse to earn any additional money at all in order to avoid doing so.

It is easy to see why Maddow and HuffPo jumped to the conclusion that they did.  It could seem as though the Collinses are saying that they are afraid of losing money by making money.  What they really said, however, is not only not "cliff effect" thinking, but is fully consistent with the type of rational maximizing that is at the heart of economic orthodoxy.  In that theory, everyone responds to incentives, such that they will provide an additional amount of effort only if they will receive (net of taxes) enough money to make it subjectively worth doing so.  Everyone has a breaking point, such that I might work an extra hour for $19.73, but not for $19.72.

This is fully consistent with what the Dr. Collins told the Times.  She did not say that she and her husband would shut down the practice at the end of the year to avoid being left with lower after-tax income, but only that they have decided that any rate above their current marginal rate (which is currently at most 33%) would make it not worth working any more than they already have.  They would rather go on vacation.  Bully for them!  Again, we do not know whether this is what they were thinking, but it might be.

If this sounds like a defense of economic orthodoxy, however, then you have not been reading this blog for very long.  In fact, this story helps to expose the ultimate weakness of the standard economic story.  If the Maddow/HuffPo version of the Collins story had been accurate, after all, the taxpayers' reaction would still not show that, in the HuffPo writer's words, "[t]his is a stupidity as persistent as it is avoidable. Ms. Collins, chiropractor from Virginia, is among the many people of affluence who have somehow survived without understanding how marginal tax rates work."

My point is that people who make this "stupid" error -- and it is an error, if people really think that they will end up with less money from a cliff effect, when there is no cliff -- can in fact be acting in ways that economic orthodoxy would tolerate, or even celebrate.  They could, for example, being "going Galt," simply refusing to work additional hours to pay taxes into a public kitty, when that public fails to appreciate the superiority of the Job Creators.  Or they might just hate President Obama, refusing to "let him win" by taking more of the taxpayer's gross income than the taxpayer thinks is fair.

Cutting off one's nose to spite one's face, in other words, is fully consistent with economic rationality.  Because that peculiar type of rationality requires only that people be trying to maximize their happiness, based on their subjective vision of their goals and values, it is not irrational (note the important double negative) to do what Dr. Collins might have been threatening to do -- or even for her and her husband to shut down their practice forever and become panhandlers.

That, as I (and many others) have argued repeatedly over the years, is both the great strength and the great weakness of modern economic orthodoxy.  If nothing is irrational, then nothing makes sense.  One can save the theory by doing what I described above: Confronted with seemingly irrational behavior, simply point out that the person did what they did, and then supply a story in which their actions make sense.  Famously, this logic has been applied to show that suicide is economically rational.

Making that move, however, drains the theory of all useful content.  We can say that the Drs. Collins, or even the cliff-effected versions of them, are Not Irrational.  Doing so, however, means that we have given up on the usefulness of orthodox economic theory actually to predict behavior, or to provide useful policy guidance.

For example, a recent study by the Congressional Research Service (CRS) became famous at the end of the Presidential election campaign, because it showed no statistical correlation between higher marginal tax rates on the highest incomes and reduced economic activity.  In response, the Republican staff of the Joint Economic Committee criticized the CRS study for failing to properly calculate the marginal tax rates that rich people really face.  Doing so carefully, the Republican document contended, is necessary to perform a valid statistical test of how people in fact respond to tax incentives.  (They were not, however, able to reverse the CRS's result.  They merely cast doubt on its method.)

Whether or not the Collins chiropractic office is an example of it or not, the Rich Folks Gone Wild run of news stories shows us that "properly" or "improperly" calculating marginal tax rates is not what appears to be going on here.  If there are people who are willing to shut down businesses because they are afraid that Obama is a property-confiscating Communist who will somehow get House Republicans to look the other way while he taxes the rich into oblivion, then we can say that those business owners are Not Irrational, in some trivializing sense of that concept.  We can also suspect, however, that an economic model that relies for its predictive power on the idea that people will respond "rationally" to tax changes is not a reliable guide to actual economic activity or tax policy.

Wednesday, November 21, 2012

Warren Rudman's Honorable (if somewhat mixed) Legacy

By Mike Dorf

My latest Verdict column asks what issue or issues should frame President Obama's second term.  I end up advocating what I call a "cost-internalization" agenda, but before coming to that proposal I consider and reject the notion that whatever grand bargain emerges from the fiscal cliff negotiations should be the centerpiece of the second term.  I agree that it is important to avoid the fiscal cliff but I express disagreement with the conventional wisdom that appears to be accepted by all parties: that it's important to dramatically reduce the deficit now.  Instead, I note that the long-term driver of the deficit (and other economic ills) is health-care cost inflation.

How did we arrive at the conventional wisdom?  Some substantial portion of the responsibility belongs to Warren Rudman, who passed away yesterday.  Rudman was a genuine patriot who cared deeply about the country, but he was also a deficit hawk whose legacy has arguably made us worse off.  Various memorials to Rudman have rightly noted that he was no partisan.  A Republican, he teamed up with Democrat Fritz Hollings (and Republican Phil Gramm) to write deficit-curbing legislation.  With Democrat Paul Tsongas, Rudman founded the Concord Coalition to urge "fiscal responsibility."  And indeed, the single-most important legacy of Rudman is probably the acceptance--by Democrats no less than Republicans--of the view that reducing the federal deficit should be a national priority.

I nonetheless say that Rudman's legacy is mixed rather than negative for two reasons.  First, Rudman gave the nation a magnificent gift.  When President George H.W. Bush's White House Chief of Staff John Sununu was looking for a "stealth" Supreme Court nominee, Sununu accepted the recommendation of his fellow New Hampshirite Rudman to nominate David Souter.  Rudman and Souter were great friends and it apparently did not occur to Sununu that Souter was not the conservative that would have appealed to the Republican base.  Souter served with enormous distinction and though he retired far too early for my taste, he did so on President Obama's watch, ensuring that a seat that could have gone to a conservative has remained liberal.

Second, although I disagree with many of the normative views of the Concord Coalition, it is a "reality-based" organization.  Within the context of advocating fiscal responsibility, it accepts that tax increases are not invariably evil and also that medical care cost inflation is the single greatest driver of the deficit.

The question is how to bring down the rate of medical care cost inflation.  I don't have a comprehensive answer but I do have a big piece of it.  As Americans sit down tomorrow to over-eat and, more importantly, to eat large quantities of foods derived from animals, I'll take this opportunity to note that if large numbers of Americans ate a healthier diet (by which I mean a vegan diet rich in a wide variety of unprocessed plant-based foods), we could not only bring down the cost of health care but actually be healthier. 

Rest in peace, Senator Rudman, and a happy Thanksgiving to all of my readers.

Tuesday, November 20, 2012

Unsolicited Advice for Academics Thinking About Government Service

By Mike Dorf

Much of the attention in DC over the last few days has turned to John McCain's efforts to prevent Susan Rice from becoming Secretary of State--apparently so that the post can go to his fellow failed Presidential candidate, John Kerry.  Meanwhile, ambitious current and former under-secretaries of this, that and the other thing and deputy directors of something else are no doubt polishing up their resumes in the hope of moving up the DC food chain in the second Obama administration.  For many such people, the endoscopic questionnaire is a small indignity to bear in exchange for the chance to serve the public interest and/or exercise vast power.

Some number of the applicants for positions in the administration and--should the president get around to filling vacancies--Article III judgeships, are academics, which may prove problematic.  After all, in modern times, a strong academic record of publications provides opponents of any potential nominee with considerable source material to mine for objectionable statements.  Academics thus have a "paper trail" that other sorts of nominees often lack.

Accordingly, if you are an academic with an existing paper trail, you may already be disqualified from various high offices on the ground that something you wrote can and will be used against you.  But what if you are a fledgling academic or one who, because of the nature of your topics, has not yet written anything that a determined opponent can turn into a liability?  Should you avoid writing such things in the future?  Here I want to give a little advice--speaking as someone who is likely unconfirmable on any number of grounds.

My core message is simple: You should never do your current job inadequately in the hope of securing a different job later.  The whole point of academic freedom is to liberate academics to say what they truly think, without fear of adverse consequences.  It doesn't work perfectly, of course.  Prior to receiving tenure, junior faculty may be very cautious about what they write.  Even after they have tenure, many academics will spout conventional wisdom or otherwise avoid controversial positions because they want to curry favor with those who exercise power in their discipline.  But at least in principle, we have job security in order that we may speak the truth, as we see it, and let the chips fall where they may.

Now suppose that you are an academic with the ambition of entering government service.  Suppose further that there is some topic as to which your best academic judgment is X but you know that X is an unpopular view.  If you would otherwise be inclined to write an article or give a lecture espousing X, then you are doing your job badly if you keep quiet simply in the hope of remaining viable for some government position.  Note I am not merely saying that you can't espouse not-X.  That goes without saying, because saying not-X when you believe X would be affirmatively dishonest.  I am saying that you have an affirmative duty to say X rather than remaining silent on the subject, if your reason for remaining silent would be to get some other job for which a history of saying X would be seen as disqualifying.

We would be better off in a world in which people with a history of saying controversial things were not disqualified from positions of public power, indeed, where a history of free thinking was deemed a qualification.  But we don't live in such a world and therefore those of us who are lucky enough to have academic jobs should do those jobs as they were designed, rather than trimming in the hope of securing some other job.

Monday, November 19, 2012

Don't Break Out the Cheetos and Goldfish at All (not even the vegan alternatives)

By Mike Dorf

The legalization of recreational marijuana by the states of Colorado and Washington does not change anything in principle from the status quo ante in which various states (including Colorado and Washington) had legalized medical marijuana.  Before, as now, state legalization created an apparent enforcement conundrum for the federal executive officials (largely in the DEA and the FBI) responsible for enforcing the federal Controlled Substances Act.  At least since the Supreme Court's 2005 decision in Gonzales v. Raich,  it has been clear that federal power under the Commerce Clause extends to marijuana grown within a state for purposes of consumption within that state, even if legal under state law.  In this post, I want to make a few observations about the relations between state and federal law enforcement in areas in which authority overlaps but policy differs.

Prior to the middle of the 19th Century and the Supreme Court's ruling in Cooley v. Board of Wardens, it was possible to argue that the Constitution divided up power to regulate commercial activity into two non-overlapping spheres.  But since Cooley, our conception has been different.  There are activities that fall exclusively in the domain of the states exercising the police power; areas that are exclusively regulable by the federal government; and areas which are regulable by both the states and the federal government, with state law being displaced in the event that federal law is either to the contrary or preempts the field.  Schematically, the post-Cooley conception looks as follows:
Note that pre-Cooley, under a separate spheres approach, we couldn't have the conundrum in which federal authorities now find themselves.  If marijuana was regulable by the states, then it wasn't regulable by the feds, and so a state decision to legalize was final.  Conversely, if marijuana was regulable by the feds, then it wasn't regulable by the states, and so a Congressional statute criminalizing it was definitive.  It's because the regulation of marijuana falls into the area of overlap in the post-Cooley world that we have a problem.

But is it really a problem?  States certainly have no obligation to criminalize everything that the federal government criminalizes, even if state law could also apply.  On a very straightforward view, there is no difficulty here.  Whether or not it is smart policy, the federal law criminalizing marijuana is valid, and so the federal government can enforce it.  Colorado has no obligation to further criminalize marijuana.  Moreover, pursuant to the anti-commandeering principle of Printz v. United States, Colorado officials have no duty to enforce the federal law--unless they volunteer to do so, either on their own or in exchange for federal dollars.  

I think the view just stated may be too simple.  Colorado's Amendment 64 does not simply decriminalize marijuana.  It sets up a regulatory regime that provides for age checks, taxation and other regulation.  In that regard, Colorado's law--like Washington's and, for that matter, the laws in the states that permit only medical marijuana--does appear to affirmatively interfere with federal law enforcement.

Let me try an analogy.  Federal law forbids counterfeiting U.S. currency.  So does the law of most states.  For example, Article 170 of the New York Penal Law criminalizes the use of a "forged instrument."   Case law interpreting the relevant Code sections establishes that knowing possession or use of counterfeit U.S. currency violates state law.  Now suppose that New York amends Article 170 to make an exception for counterfeit U.S. currency.  The legislative history of the amendment states that the legislature is motivated by the perception that the federal Justice Department does a more than adequate job of prosecuting people for passing off counterfeit U.S. currency and that the state legislature wants prosecutors in the state to focus on other crimes.  I see no difficulty at all here.  The state is simply withdrawing its criminal prohibition from conduct that federal law happens to criminalize.

Suppose instead, however, that the state legalizes, taxes and regulates counterfeit U.S. currency, perhaps issuing licenses to businesses that create counterfeit currency.  I think it pretty obvious that such a state law would not merely fail to duplicate the federal prohibition; it would affirmatively violate federal law.  We could imagine that the feds might even prosecute New York officials for aiding and abetting violators of the federal counterfeit law.  It strikes me that officials in any state that licenses marijuana possession, production and distribution--rather than merely not forbidding it--run the risk of federal prosecution.

Of course, federal authorities could forbear from enforcing the federal CSA against state authorities in the same way that they have generally been forbearing from prosecuting medical marijuana users in the states in which it has been legalized under state law.  But even with some such forbearance, I think it is available to a state official to refuse to implement a state's marijuana regulation regime on the ground that he or she cannot do so lawfully.  After all, Article VI makes all state officials swear an oath (or make an affirmation) to uphold the Constitution, including its Supremacy Clause, which makes duly enacted federal laws the Supreme Law of the Land.

Thus, although I agree with the policy of marijuana legalization and would--as a state legislator or member of Congress--vote for repeal of laws criminalizing it, I think it is a close question whether state officials are even permitted to implement state marijuana legalization, at least in states with comprehensive regulatory regimes.  Sorry dude.

Friday, November 16, 2012

Sincere Beliefs, Cruel Policies, and the Current Republican Leadership

-- Posted by Neil H. Buchanan

In my ongoing series of posts (most recently, yesterday's) shining a spotlight on the sociopathy that has come to dominate Republican policies and tactics, I have tried to be clear that this critique does not apply to all Republican or conservative voters, nor does it even apply to all Republican leaders.  We must bear in mind, however, that this critique does apply to a large part of the party's base, and to a vast majority of its leaders.  The "Let 'em die!" attitudes of the hard-core Tea Partiers are hardly a fringe view among Republicans, after all -- and certainly not of their leaders.

Even so, it is important to try to separate good faith from bad, and muddle-headedness from ill intent.  In that regard, I recently received an email from a Republican friend who protested that many Republican leaders are sincere in their beliefs that the policies they espouse are actually good for the nation.  This is apparently meant to imply that they are not, in fact, sociopaths, but are instead good people whose views on the merits simply differ from mine.  If so, then we can stop the acrimony and simply go back to trying to convince each other that evidence and logic support one set of policies over another, and to try to forge hard-won compromise.

Despite the appeal of this framing of the problem, I believe that it is fundamentally inaccurate.   It is, after all, possible to sincerely believe in something that it profoundly anti-social (in its goals and/or in its tactics).  Plenty of sociopaths believe that what they are doing is for the ultimate good of the world.  A serial murderer might sincerely believe that he is doing God's work, by killing evil people and thus making the world a better place for the deserving good people among us.  It might well be, to take a less extreme example, that the guy who was caught dumping voter registration materials last month really thought that he was doing something good.  People who think that the rules do not apply to them are, by all evidence, often convinced that their ends justify their means.

The inquiry, therefore, is not about whether any particular politician means well.  It is whether he is proposing policies that are actually harmful to people, and engaging in tactics that he would vehemently criticize if engaged in by others.

The "bill of particulars," therefore, must be focused on what a politician does, or tries to do.  Some of the individuals involved are especially easy cases.  As John Dean writes in his Verdict column today, the central figure in the Republican Party's turn toward full-on anti-social tactics and goals is Newt Gingrich.  In some ways, this lets the rest of the party off too easily, because much of the party's modern agenda clearly predated Gingrich's influence, such as Nixon's Watergate tactics and the race-baiting engineered by people like Republican strategist Lee Atwater.  Even so, Gingrich is a central figure in the Republican Party leadership's transition into openly sociopathic behavior.

Along those lines, Bruce Bartlett (who, like Dean, is a former Republican who simply could not stay in a party that had gone so completely insane) wrote last year that Gingrich is the man who pioneered the strategy of attacking (and often eliminating) any source of knowledge (for example, the Congressional Budget Office) that can authoritatively contradict Republican assertions to justify their policies.  As Bartlett points out, that strategy lives on in the current party leadership.  (Recall the Republican attacks on the Bureau of Labor Statistics, the Congressional Research Service, the Tax Policy Center, and even private statisticians during just the last few months.)

Gingrich's ideological and tactical followers included former House Majority Leaders Dick Armey and Tom DeLay, whose fervor equaled Gingrich's, and whose tactics in some ways even exceeded their mentor's.  Today, Gingrich's legacy most obviously includes the Paul Ryan wing of the party, which managed to force Ryan onto the Republican Presidential ticket in 2012, even though it almost surely harmed Romney's chances of winning.  I have written extensively about Ryan's undeserved reputation as a "serious guy," noting that he is simply a middling intellect who gets a pass for being able to throw around some statistics.  Beyond Ryan, however, this group remains by far the most influential bloc in the party, essentially driving all policy discussions in the House -- and, thus, leading the insuperable opposition to any compromise on taxes, spending, the debt ceiling, and so on.

In my previous posts about the sociopathy that has taken over the Republican Party, I have mentioned in particular the cruel policies that Ryan and his cohorts have tried (and often succeeded) in imposing on the country's weakest citizens.  The Tea Partiers' cavalier attitude about literally taking food out of the mouths of children, for example, strikes me as an especially clear example of deranged ideology run amok.

Again, however, we might ask if it is possible to make the best case for the idea that Ryan et al. are not being deliberately cruel.  Maybe they think that their policies are going to lead to a net decrease in human suffering.  Ryan, in fact, has argued that his policies are designed to end the problem of "dependency" that supposedly flows from having poor people receive their (minimal) subsistence from government payments, rather than from working.  (The existence of the working poor -- whose minimum wages and Earned-Income Tax Credits Ryan would gladly eliminate -- is an inconvenient detail.)  Ending that dependency, he argues, will make poor people and their children better off.

Even if we were looking only at evidence of good faith, of course, we cannot simply accept that Ryan has a different view of how policies work, and leave it at that.  If he really believes that trickle-down economics works, then he has to have evidence to support it.  When he not only ignores the evidence against trickle-down, but aggressively works to shoot the messengers bearing that evidence, then he is not merely a misinformed guy who would change his mind if only he knew better.  There are plenty of ideas that sound good in theory.  Willful ignorance and rejection of evidence is not merely a matter of believing in a bad theory.  It is evidence of bad faith.

Setting that aside, however, it is difficult even to understand how Ryan's world would work.  If we take away people's support, he argues, then they will learn to support themselves.  But how will this happen?

In my Tax Policy Seminar last year, a student talked about how people with a need to adapt to adverse situations will quickly develop the means to survive.  (To be clear, this student was not arguing in favor of a Ryan-like position, but was merely describing how such policies were supposed to work.)  For the only time in my teaching career, I was overcome by what can best be called a case of "the giggles."  When I gathered myself, I explained to my students that I had suddenly formed a cartoon picture in my mind of a person who was facing an armed assailant.  As the bullet sped toward his heart, the person thought: "Gee, I really need to adapt to survive.  Better learn how to grow skin that is bullet proof -- really fast!"

The absurdity of that scenario captures the essence of the "innocent" version of the Ryan vision of how to end poor people's supposed dependency on the government.  Even if one strongly believes that people will adapt to changes in incentives -- and to do so in exactly the way that this kind of cramped economic model predicts -- one's ability to avoid being thought a sociopath crucially depends on being able to tell a story that allows people to adapt to difficult circumstances in a realistic way.

Even if, for example, one thinks that our inner-city schools are horrible because they are public -- another "plausible on its own assumptions" theory that does not withstand actual evidence-based scrutiny -- then one must still accept the internal logic of the theory, which means that the "dependent" poor really are, in some sad and important ways, "broken."  Maybe they are broken because of supposedly evil liberal do-gooderness gone awry, but broken they are.

As I put it in a recent post (using a different metaphor):  "[T]he strategy of making people 'sink or swim' suggests that Republican leaders are untroubled by the idea that some people will sink.  Moreover, they are untroubled by the idea that the people who will sink include people who have never been given an opportunity to learn how to swim, including children."  It is one thing to mistakenly force someone into a situation where they die or suffer, but quite another to ignore the death and suffering as one after another victim is "freed of his dependency" on the government, and thrown into the deep end of the pool.

All of this, of course, plays on the field most congenial (or, more accurately, least hostile) to a Republican/conservative worldview, in which one can at least have reasonable differences over economic policy and its effects.  Absolving the Ryan crowd on any other of their anti-social attitudes -- the various types of bigotry involved in their views on gay rights, reproductive rights, civil rights, and (as I emphasized yesterday) voting rights -- cannot even appeal to the idea that "at least they have a defensible underlying theory."  (That is not quite accurate, I suppose.  If there actually were evidence of in-person voting fraud, then they might have a point.  But such evidence does not exist.)

And as far as the economics goes, the Democratic Party is already home to plenty of people who buy a relatively humane version of anti-government economic policy.  President Obama lionizes small business, plays into anti-deficit dogma, offers to do damage to Social Security and Medicare, agrees that taxes should go down (even with many unmet social needs), attacks government employees, and basically has made it clear that his party is open to ideas that were once firmly the intellectual property of "reasonable" people in the other party.

The Republicans who continue to dominate and run their party thus have little left but to engage in ugly tactics and to promote gratuitously harmful policies.  If they are going to move forward and become socially non-destructive, that has to change.  Until it does, there is no reason to pretend that they are not what they really are.

Thursday, November 15, 2012

Will the Sociopaths Go Away Now?

-- Posted by Neil H. Buchanan

The election is over, and tempers have cooled a bit.  Was my decision to call many of the leaders of the Republican Party sociopaths (see my most recent Dorf on Law post on that theme, which contains links to a previous post and a Verdict column) an example of something written in the heat of the moment, best left alone or recanted, now that the votes have been counted?

I guess I can see why one might think so, but the answer is no.  My argument was not, in fact, generated by the heat of partisan battle.  As I said at the time, this is not at all the same thing as those in the Fox News-iverse who call Obama a communist, fascist, socialist, Kenyan, Nazi.  Words have meaning, and none of those words can at all correctly be applied to Obama.  Sadly, the leaders of the Republican Party have, for many years now -- and certainly during this election cycle -- been displaying behavior that fits the definition of sociopathy.  In particular, they have shown on the substance that they are willing (even eager) to enact policies that harm people -- vulnerable people especially, including children -- and that they are willing to engage in tactics that evince the belief that the normal rules of society do not apply to them.

There is no doubt that the label of sociopath does not apply to every Republican leader.  Like the vast majority of rank-and-file Republicans, who are healthy people with differing views on the best path for the country, but who have stuck with their party apparently out of some combination of habit and loyalty, there must be Republican leaders who sit in meetings thinking to themselves: "Who are these nutjobs, and how did they take over my party?"

Therefore, the following exchange between me and a hypothetical reader only partially captures the situation: Reader - "Stop calling people I admire sociopaths!"  Me - "Stop admiring sociopaths!"  The evidence that I have described does not convict every Republican leader, but it does raise the question of why the sane leaders have not come out against their sociopathic compatriots in some meaningful way.  I will, however, leave that question aside for the time being.

One example of a former Republican leader with whom I completely disagreed, but whose motivations seemed unquestionably honorable, was former Congressman and losing 1996 Vice Presidential candidate Jack Kemp (1935-2009).  Kemp was a fierce Republican partisan, which means that any across-the-aisle affection for him was hardly based on some notion that he was a patsy.  Moreover, he advocated policies that, on the merits, I thought were generally quite misguided.

Even so, Kemp was someone whose motivations always seemed to me to be quite noble.  He was one of the few Republican leaders who truly seemed to feel comfortable around non-white people (most likely because of his first career as a professional athlete), and he was not only unwilling to race bait, but he was actually willing to try to get his party to become truly inclusive to racial minorities.  One can think that he was doomed to failure in that regard -- even on a Quixotic quest -- but he was not faking it.

By contrast, consider this year's failed Republican Vice Presidential candidate.  Paul Ryan -- who is, by the way, apparently going to have another "the rules don't apply to me" moment when he insists on a waiver of term limits for committee chairs in the House -- recently explained away his party's major losses in last week's elections by saying that too many "urban" voters turned out.  This is, as a matter of fact, simply not an accurate explanation of the election results, which showed the Republicans losing among key non-"urban" constituencies  But the bigger point is that Ryan, who is supposedly the face of the next generation of Republican leaders, went straight to the racially coded language that people like Kemp hoped would become party of their party's sordid past.

This barely-cloaked racism is, indeed, a big part of the explanation of the anti-social policies that the Republicans have recently pursued.  While the various economic and social policies that I have described in recent posts show an attitude among Republican leaders that is utterly shocking (such as Ryan and his group's insistence on cutting spending programs that help children of the poor), the bigger issue is their efforts to reduce the numbers of non-white citizens who can vote.

Republican voter suppression has been a racially-driven theme for decades, of course, but the lengths to which the party has gone in recent years is mind-numbing.  As soon as Republicans took key governorships in the 2010 elections, they set about redistricting in ways that have gone far beyond anything that we have seen before.  (Yes, both parties do this; but the degree of the effort, and the decisions to do so in ways that had been simply unheard of -- for example, the Texas mid-decade redistricting move several years ago, in another "the rules don't apply to us" move -- exposes only one party as going to such extremes that they will almost literally do anything to win.)  And the efforts to introduce voter ID laws -- even as Republicans were faced with a complete lack of evidence of voter fraud, thus removing their cover story -- took cynicism to new depths.

The broad theme is simply anti-democratic.  No one expects politicians to voluntarily lose elections.  The fact is, however, that a large part of the Republican strategy for years has been to make it so that the "wrong people" do not vote.  It is not a matter of adapting to the voters that we have, but making the electorate look like the sociopaths want it to look.

The good news is that some of the sane people in the Republican Party seem to have woken up to the idea that they need to broaden their appeal beyond angry old white men.  If they do so, and they win elections based on offering policies that people prefer, that will be good for democracy.  As it stands, however, the party has been and continues to be dominated by people who really are anti-social in the way that I have described.  It is good for the country that they lost this time, but that does not guarantee that they will go away or see the light.

Wednesday, November 14, 2012

For Kicking the Can Down the Road

By Mike Dorf

"Kicking the can down the road" is not usually a positive metaphor.  One who engages in can-kicking fails to tackle a problem, instead deferring it to later, when it may be far worse.  But can-kicking may sometimes be a good policy, or at least a better option than the alternatives.  In my latest Verdict column, I argue that the President and Congress would do well to kick the can down the road, punt, cop out, etc., rather than addressing the supposedly "real" problem represented by the fiscal cliff.  Republicans want to avoid tax hikes for the wealthy, while Democrats want to avoid deep spending cuts.  I argue that they can both get what they want (for now) if they simply agree to let the short-term deficit grow.

But won't that add to the debt?  In the short run, yes, but in the long run maybe not.  The Bush wars and tax cuts (the latter renewed by Congress and President Obama two years ago) are major drivers of the deficit and debt, but so are reduced revenues due to the economic downturn of the last four and a half years.  A policy that spurs economic growth--or avoids reductions in economic growth--could do more for the federal government's fiscal health than an austerity program that cuts short-term deficits but then sends the economy back into recession.

Anyway, even if I'm wrong about this particular set of policy questions, I want to put in a good word for kicking the can down the road more generally.  It seems to me that can-kicking is clearly a bad idea in the face of a known problem that is very likely to get worse if not comprehensively addressed.  But we don't always face such circumstances.

Global climate change is probably an example of a problem that will get worse if unaddressed.  The Republican approach is to deny the existence of the problem.  The Democratic approach recognizes it's a problem but doesn't propose to do nearly enough to combat it, mostly because key constituencies would strongly oppose the sorts of measures needed: very high energy taxes; the phasing out of animal agriculture; etc.  And yet, such large-scale adjustments would be better than doing nothing now and reaping the whirlwind when the polar ice caps finish melting.

But even global climate change is not a slam-dunk for immediate action.  After all, such action is expensive and, for many people, inconvenient.  What if someone comes up with an easy technological fix in ten years?  Assuming we can just hang on in the interim, that might be much cheaper.  (Some of the steps to address global climate change would be worth doing anyway, for other reasons, of course, but I'll put that aside.)  My own judgment is that the downside risk of doing nothing or nearly nothing is too great to simply hope for a technological fix.  It may come, but it may not, and so prudence suggests we should assume not.

The fiscal cliff example is nearly the exact opposite because the "something" that is being proposed now--dramatic deficit reduction--would likely do affirmative harm, so can-kicking is actually superior as an affirmative policy choice.  In that sense it's not really can-kicking at all.

So, do I have a good example of genuine can-kicking that is, at least viewed ex ante, genuinely preferable to a concerted good-faith effort to solve some underlying problem?  I'm not sure, but I think I know what such an example should look like: A delicate equilibrium in which there are great risks in each direction and mitigation/prevention efforts are expensive.  Population may be an example.  Globally, we currently face greater risks from overpopulation but many developed countries face a local under-population problem.

Let's focus for now on the global situation.  Current projections have the world human population topping 10 billion by the end of the 21st century.  Suppose we conclude that both the long-term likelihood of and risks from overpopulation are greater than the likelihood of and risks from underpopulation.  If the costs of measures taken now to address future overpopulation are quite large, we might nonetheless conclude that we should not take such measures yet due to the uncertainty in future population projections.  Perhaps we'll end up with an underpopulation problem after all and our efforts will have been both expensive and harmful.  And vice-versa, if we take measures now based on the fear of underpopulation--but it turns out that overpopulation was the real threat--we will make things worse.  The can-kicker says let's not do anything very costly for the time being, waiting to see whether a problem goes away on its ownor comes more clearly into focus.

To be clear, I'm not saying that I know enough about uncertainty and the risks from over versus underpopulation to advocate can-kicking.  I am simply saying that if it has the characteristics I've described, then can-kicking would make sense.

Tuesday, November 13, 2012

The Dignity of Risk



In my guest column yesterday on Justia, I discussed “The Safer Sex in the Adult Film Industry Act,” an initiative approved by Los Angeles County voters that will mandate the use of condoms on adult film sets.  As I discussed in the column, if viewed as a content-based restriction of non-obscene speech, the Act cannot survive strict scrutiny.  In my view, the Act also visits serious dignitary harms on the workers of the adult film industry.  Required condom use, I suggested, is problematic because it deprives workers in the adult film industry of the “dignity of risk.”

The “dignity of risk” is a phrase that grew out of the experience of those who advocated the deinstitutionalization of the developmentally disabled during the 1970s.  Today, the phrase is often used by those who advocate allowing elderly patients to continue to live independently as long as possible.  At its core, the concept reminds us that part of the richness of the human experience is the ability to make decisions with the information we presently have, and to move on.  Sometimes, we’ll succeed, and other times we will fail.  That’s just life, and it is part of being human.

As a philosophical concept, I believe the “dignity of risk,” has particular salience where the government seeks to regulate consensual sex acts.  Of course, the law generally protects individuals from taking every manner of risk known to man.  Seatbelt laws, helmet laws, and vaccination laws deprive individuals of the ability to take certain risks, and few people oppose these types of regulation.

But sex is different, in part because the ability to seek consensual sexual gratification is a human dignitary interest of the highest order.  In the column, drawing on an essay by Professors Ian Ayres and Katharine Baker, I offered a hypothetical statute that would mandate condom usage in every sexual encounter unless and until the couple married.  Putting to one side the fact that not every couple desires to marry or yet has a right to marry, the hypothetical statute would be abhorrent because it would deprive individuals of the dignity of risk in their sexual lives.  

The risks associated with sexual activity should not be understated.  Pregnancy, communicable disease, and perhaps even death may well occur.  But sexual activity also brings with it the potential for some of humanity’s greatest joy, including allowing one’s self to be completely vulnerable to another person.  Or, in the words of Justice Kennedy, “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.”  Condom use therefore, reduces the negative risks associated with sexual activity, but it might also diminish the possible richness of the human experience.

For these reasons, I am tremendously skeptical of any governmental attempts to mandate condom usage.  There is inherent dignity in enabling individuals to determine the types of risks they are willing to accept in their sexual lives.  Sometimes this may mean using a condom, and other times, it may mean accepting a certain amount of vulnerability.  The individual and not the government should be able to navigate these types of sexual risks.  

It bears noting here, that at least in heterosexual sex, women may bear more of the risk in deciding to have sex without a condom.  Only the woman may be become pregnant and in some instances, she may be more susceptible to communicable disease.  Respecting women’s dignity, it seems to me, requires acknowledging their ability to navigate these risks on their own terms.  Indeed, to the extent that mandatory condom usage may be seen helping and empowering women, a few prominent women in the industry have said that the regulation might actually cause them greater physical harm.  For example, the presence of condoms may cause the sex to be much more abrasive, and thus more likely to damage the women’s genital mucosa. 

One response is that whatever the validity of these concerns, they must yield in this context because adult film stars are engaged in a commercial venture.  They are not seeking to experience human joy, but are merely seeking a paycheck.  Just as the government can require that firemen wear masks, surely the government can require that adult film stars wear condoms.  Adult film stars are free to do whatever they want off the screen, but on camera, they need to wear protection. 

The problem with this critique, however, is that adult film stars provide a commercial service that is itself different from other types of commercial services, precisely because the service is sexual.  Viewing adult films may be the only source of sexual gratification for some individuals, who, for myriad reasons, do not have physical sexual contact with others.  In other words, the fact that adult film stars provide a commercial sexual service means that there is an even greater danger that government mandated condom use will deprive some individuals of sexual gratification—an interest, I have argued, is a human dignitary interest of the highest order.  The film industry tacitly acknowledges this fact when it maintains that many of its customers will not purchase films that contain condoms. 

The commercial nature of the sexual activity, in my view, is therefore not enough to rebut the presumption that governmental regulation of consensual sex is nearly always problematic.  As Martha Nussbaum has argued, our “insecurity about sex and the lack of control involved in sex” often causes governing majorities to constitute themselves as a dominant group of sexual “normals,” and others as a group of sexual deviants.  The deviants, in turn, become not only the subjects of regulation, but also the repositories of shame.  I do not believe that adult film stars are sexual deviants.  And like the rest of us, they are entitled to the dignity of risk in their sexual lives, commercial and otherwise.