Monday, November 30, 2015

Wholesale Versus Retail Policy Making

by Neil H. Buchanan

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

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

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inertia is the perpetuation of policy choices that might have been unwise in the first place, or that have become outdated and in need of change.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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, November 25, 2015

Demagogic Politicians and Gung-Ho Operatives

by Neil H. Buchanan

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

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

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

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

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

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

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

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

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

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

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

Tuesday, November 24, 2015

Preparing for the Worst, In Light of New Information

by Neil H. Buchanan

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

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

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

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

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

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

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

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

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

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

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

Monday, November 23, 2015

Adjusting IQ Scores For Eligibility for Execution

by Sherry F. Colb

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

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

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

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

Friday, November 20, 2015

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

by Michael Dorf

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, November 19, 2015

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

by Neil H. Buchanan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, November 18, 2015

Diversity and Remediation

by Michael Dorf

In his NY Times column on Monday, Charles Blow began his discussion of recent campus activism over racial inequality with an apology of sorts: In the aftermath of the Paris attacks, the campus protests appear to have left the news cycle. Others--especially right-wing pundits--make the point much more ferociously. For example, in the immediate aftermath of the attacks, noted former NY Times Iraq War fabulist Judith Miller tweeted "Now maybe the whining adolescents at our universities can concentrate on something other than their need for 'safe' space." That view has been expressed widely by people who were inclined to see the campus activists as whiners even before Paris. How can they complain about an email about hypothetical offensive Halloween costumes when there are real human monsters killing people in Paris?

The complaint has a surface appeal, but only in the way that a parent chastising a child for failing to clean her plate while children on other continents go hungry does. Yet calling the campus activists whiners because they are not being shot to death by religious fanatics raises the bar on complaints impossibly high. Indeed, one might be inclined to turn the tables on the likes of Miller by asking: How, at a time like this, can she whine about students whining on campus? But that would be a cheap shot, so I won't take it. Accordingly--and without apology--I turn again to the campus unrest.

My latest Verdict column discusses what bearing the student protests have on Fisher v. University of Texas at Austin, now back at the Supreme Court for the second time. I acknowledge that one could take the recent protests as a signal that race-based affirmative action programs have failed to contribute to intellectual diversity in the way that was said to justify such programs in the Bakke and Grutter cases. However, I argue that this reading--seeing the protesters as insisting on their viewpoint as a matter of political correctness--misreads what is actually going on. The protesters are not hostile to viewpoint diversity. Instead, the underlying discrimination to which the protesters point is evidence that administrators and faculty must make greater efforts to promote diversity beyond admissions, by making minority students feel comfortable on campus.

Here I want to add a small but potentially important doctrinal point. Bakke and Grutter treat viewpoint diversity as a compelling interest sufficient to justify race-based affirmative action in college admissions, in the process rejecting a number of other justifications that have sometimes been offered. But the Court has long accepted that universities also have a compelling interest in remedying their own prior (or ongoing) acts of discrimination.

Bakke and other cases reject the idea that remedying past societal discrimination can be a compelling interest that justifies a race-based classification, but these cases acknowledge that a state institution can remedy its own discrimination. To be sure, there is some ambiguity about what that means. The strictest view would say that a state institution can only invoke a remedial justification for race-based affirmative action where there has been an adjudication of illicit racial discrimination. However, that view has never been endorsed by a majority of the Supreme Court, and it shouldn't be. State institutions should not be required to submit to litigation in order to undertake on their own to remedy their acts of discrimination. Properly understood, the case law (especially the Croson case) requires state entities to identify their own past or ongoing acts of discrimination in order to invoke a remedial justification for a race-based affirmative action program, but does not require them actually to be sued and lose.

Thus, in addition to the points made in the column, I would add this one: Insofar as the campus protesters point to ways in which current policies at public universities give effect to private racial discrimination, the universities might have a remedial basis for their race-based affirmative action programs. If less than a critical mass of minority students feel stigmatized, beleagured, and tokenized in virtue of their relatively small numbers, and if the university's culture is insufficient to combat those effects, then that suggests that a "critical mass" policy of the sort upheld in Grutter and defended in Fisher could be justified in remedial terms.

To be clear, the remedial argument is in addition to the diversity argument, which is sufficient by itself. But many critics of the Powell opinion in Bakke argue that it took the most compelling reason for race-based affirmative action off the table. I am suggesting that, at least in the current climate, perhaps it ought to be deemed back on the table.

Tuesday, November 17, 2015

Grading Republican Presidential Candidates on an Incredibly Generous Curve

by Neil H. Buchanan

Last week's Republican non-debate was both different from and the same as the fake debates that had gone before.  It was different in the sense that people occasionally disagreed with statements made by other candidates on some policy questions, but it was still essentially the same waste of time in which candidates talked past each other and pundits tried to say who won by determining whose vapid statements would most impress Republican base voters.

Focusing on what was different, The New York Times ran a long article the following day, "G.O.P. Fight Now a Battle Over What Defines a Conservative," in which the reporter Jonathan Martin tried to make the case that the debate represented an "abrupt transition from vague promises ... to a new season of the campaign shaped more by the glaring policy fissures that are dividing Republicans over what exactly to do about the nation’s problems."  I suppose that is right in a certain sense.  After all, the debate did finally include some resistance to Donald Trump's claims that he can build a bigger wall along the Mexican border, and all of that nonsense.  If the mere utterance of such obvious comments really constitutes an abrupt transition, then that says quite a bit about what went before.  Still, Martin was right to note the change.

But Martin followed up that reasonable observation with this jaw-dropper: "From immigration and bank regulation to taxes and national security, the robust seminar on the issues that began Tuesday night and continued Wednesday exposed a contentious dispute over what it means to be a conservative."  Robust seminar.  Robust Seminar?  OK, I get it.  I live in a professional environment where the word "seminar" has a particular meaning (actually, more than one meaning), in much the same way that I used to spend time in a world where "debate" means something quite different from "eleven people on a stage complaining about the moderators."  It is not necessarily a bad thing if non-specialists use a word in a way that specialists find annoying (or even infuriating).

The problem is that, even though people do use the word "debate" as a substitute for "argument" -- or simply "yelling past each other" -- in everyday usage, there is no man-on-the-street version of a seminar.  When a reporter for a top newspaper invokes the idea of a seminar, and a robust one at that, he must intend to say that the candidates are engaging in rigorous discussion about issues in a way that will allow the free marketplace of ideas to perform its magic.  Indeed, Martin claims that what is happening amounts to "[y]ears’ worth of arguments conducted at issues forums and in the pages of policy journals and newspapers ... now coming to life."

The problem is that there is no seminar going on, either at the debate or afterward.  Indeed, when conservative "issues forums" involve nothing more than uninformed rants about how the  government is faking data to hide hyperinflation (or complaints about a value-added tax being "a French tax system"), and right-wing policy journals and newspapers are filled with claims that have been long debunked (with even the trusty old "supply creates its own demand" having been revived in the midst of an ongoing proof of its falsehood), the possibility of Republican candidates engaging in a robust seminar as such ideas move into the political sphere is laughable.  The problem is not limited to climate-change denialism or the rejection of evolutionary science.  Unwelcome evidence about the effects of tax cuts is also to be ignored.  As Paul Krugman noted early last year, referring to the Heritage Foundation's supposed role as an incubator of conservative intellectual ideas, former South Carolina Senator and Tea Party hero "Jim DeMint Hasn’t Destroyed Heritage’s Intellectual Integrity," because "[t]he organization never had any."

But Martin, at least judging by his article in the Times, seems to think that people disagreeing with each other constitutes an intellectual (or at least substantive) exchange.  "The exchanges among the candidates — some of them explicit, others implied — that began Tuesday night spilled over in television interviews and on the campaign trail Wednesday, presaging a fierce fight over ideas ... ."  So we now have implicit exchanges among the candidates, which is a truly puzzling phenomenon.  But even leaving that aside, what is the fierce fight over ideas, exactly?

The best that one can say about Martin's article is that he has noticed that conservatives do not agree with each other about everything.  The fierce fight over ideas is not actually going to be a discussion based on evidence and logic, but instead will simply boil down to deciding whose particular mixture of nonsense gains the support of a sufficient number of Republican primary voters.  Will they decide that Donald Trump's vague statements about taxes (which, as I noted recently, are too inchoate even to qualify as a "plan"), combined with his vilification of foreigners and everyone who can count as an "other," make The Donald truly presidential material?  Instead, will they say that John Kasich's logic-free obsession with a balanced-budget amendment, combined with a willingness to treat poor people as people, is the right mix?  Will they instead decide that Jeb Bush's mealy-mouthed melange of conservative talking points is better than Marco Rubio's hyper-extremism about abortion or Ted Cruz's hate-filled view of everything?

We have long known that the conservative coalition, as it is currently constituted, is puzzling.  Religious conservatives and Wall Street anti-regulatory types are hardly obvious allies.  It is not clear why evangelicals who oppose abortion would necessarily ally themselves with anti-immigration bigots.  These fissures in the coalition have been obvious for decades, summoning all manner of analysis in newspapers, magazines, and books (What's the Matter With Kansas? being the obvious instant classic of its genre).  Martin's article might simply reduce to the statement that "the Republican candidates have some differences, and they will inevitably disagree with each other in ways that might be interesting."

If so, then why oversell it?  Why say that the Republicans have started to engage in a rigorous intellectual debate that will define conservatism, when all that is really happening is that ambitious politicians are going to try to find the issues that can win the nomination by appealing to an angry, anti-intellectual primary voting base?

It strikes me that this is akin to the familiar notion of "false equivalence," about which I have written frequently here on Dorf on Law.  (See, e.g., here.)  The idea, of course, is that news outlets feel that they can only prove their objectivity by being "balanced," which means that they must find something negative to say about a Democrat every time that they say something negative about a Republican.  Who cares if, say, Republicans are threatening to shut down the government (again), while Democrats are saying that they will not agree to include an anti-abortion measure in an unrelated bill?  The message is that "both sides are stubborn and playing to their extreme bases."

Similarly, in the midst of recent questions about the veracity of Ben Carson's personal story, and Donald Trump's attacks on Marco Rubio's ties to FaceBook, a Times article ("Candidates Stick to the Script, If Not the Truth, in the 2016 Race") noted Hillary Clinton's silly claim that she used a private email server so that she could simplify her life by using only one device, even though we know that she was using multiple devices.  The article also noted that Clinton has claimed that all of her grandparents were immigrants, when it turns out that only three of the four were.  Yet these examples are somehow equivalent enough in the mind of the reporter to be included in the same article in which a story by Carly Fiorina is "almost entirely inaccurate," and that also noted Fiorina's refusal to back down on her claims about a video supposedly showing "a fully formed fetus on the table, its heart beating, its legs kicking while someone says we have to keep it alive to harvest its brain."  Yeah, Clinton's whoppers about her Pennsylvania-born grandmother and her hand-held devices are right up there!

The description of the supposedly emerging "robust seminar" among Republicans, then, can best be seen as another effort by the Times to say, "Hey, we take both sides seriously!  It does not matter that the Democrats' debates have actually involved substantive discussions of regulatory policy, or stagnant wages, or other important issues.  When one Republican candidate says to another, 'Nuh-uh!' and the other retorts, 'Yuh-huh!!' we'll report that as if it were an exchange at the Algonquin Round Table."

Monday, November 16, 2015

Lafayette, vous êtes ici

by Michael Dorf

As I recounted on the tenth anniversary of 9/11, very shortly after the attack I received a sympathetic and encouraging email from a French colleague with whom I had become friendly when she was a visiting faculty member at Columbia. Having just sent her a similar note, I am struck by the shared outpouring of affection for and solidarity with the French people currently being expressed by many Americans. I share that sense of affection and solidarity, and so I don't want this post to be read as sounding a sour note. And yet . . .

In his initial public statement after the attacks, President Obama noted that "France is our oldest ally," which, while true, does not quite capture the complexity of the relationship. Yes, there is a special bond between France and the United States--two republics forged in late-18th century liberal revolutions. Yet French support for the American side in our Revolutionary War came under the ancien régime. True, Americans initially supported the French Revolution, but following the Jay Treaty and the XYZ Affair, the U.S. tilted towards England, at least for a time. The 19th century was not all wine and roses either. France did not ultimately accede to diplomatic overtures to support the Confederacy during the Civil War, but it is fair to say that despite its formal neutrality, France sympathized with the Rebels.

Accordingly, when, upon the arrival in Europe of the American Expeditionary Force in World War I, an aide to General Pershing (or in some tellings of the story, General Pershing himself), quipped "Lafayette, nous sommes ici," he was glossing over some of the antagonism between France and the U.S. during the intervening 13+ decades. Likewise now, American patriots waving Le Tricolore at football games and elsewhere seem to have forgotten that less than 13 years ago, the House of Representatives re-labeled French fries and French toast "freedom fries" and "freedom toast" to register American pique at France's objections to the U.S. rush to war in Iraq against Saddam Hussein. In the UN, France took the position that weapons inspectors ought to be given more time to do their work. As we now know, if they had been, they would have found that, contrary to the claims of the Bush Administration, Saddam did not have WMDs.

Had we listened to France in 2003, we would not have destabilized Iraq; thus, there would have not been an opportunity for Abu Musab al-Zarqawi to form what was then known as Al-Qaeda in Iraq; and thus that organization would not have become what it is today--ISIS. We owe France our support, but any fair recounting of recent history says we also owe France an apology.

To say that our military adventures in the Middle East have frequently produced blowback is not to say that the expenditure of blood and treasure to root out jihadists will always be the wrong policy. ISIS may be a monster of our own creation, but it is surely a monster. Having created it, perhaps we have some obligation to destroy it, even if attempting to do so risks creating yet more monsters.

After the apology that we surely won't issue to France, we might at least offer our own example as a cautionary tale. In the immediate aftermath of the horrors in Paris, President Hollande's language sounds an awful lot like the language that President George W. Bush used after 9/11. Vowing a "pitiless war" against ISIS, Hollande has already expanded French strikes against ISIS his strategy arguably validates the ISIS criminals' claim to lead a sovereign state, much as Bush's use of the language of war rather than crime became a kind of self-fulfilling prophesy.

To be clear, I am not advocating any particular policy path for France or the U.S. I am only saying that as we quite appropriately share in the grief of our friends in France, we and they should keep in mind that, while the use of overwhelming military force is sometimes a sensible policy, the fact that it is the first thing we think to do in our grief and anger does not mean it is in anyone's ultimate best interest.

Friday, November 13, 2015

Distinguishing Coddling From Censorship

by Michael Dorf

The 2004 animated film The Incredibles teaches two lessons: First, if you're going to be a superhero or supervillain, don't have a cape; and second, in a culture in which everyone earns trophies for participation, true excellence tends to go unacknowledged. Here I'll focus on the second lesson, relating it to recent instances of campus unrest and backlash thereto.

In the more than a decade since the release of The Incredibles, matters appear only to have gotten worse--at least as judged by mainstream journalism and pop culture. Millennials, we are told, have been pumped so full of self-esteem since birth that they cannot handle the slightest criticism or adversity.

The notion that millions of members of a generation share a single set of character traits is, of course, ridiculous. In my experience teaching older millennials--who have been showing up in law school for the last few years--they are not appreciably different from the GenXers who preceded them. (Full disclosure: I'm just barely a Boomer, having been born in the last year of the Baby Boom.) In any event, for purposes of this post, I don't really care whether the stereotypes of Millennials are true. I just want to note what the negative aspects of the stereotype are: Self-absorbed; fragile; coddled. I'll call it "Incredibles Syndrome."

With that in mind, I'd like to call attention to a subtle elision I've noticed in some of the reactions against recent campus protests and disruptions at Yale, the University of Missouri, and elsewhere. There is a tendency to run together complaints about Incredibles Syndrome with complaints about left/liberal political correctness on campus. For example, writing in USAToday on Wednesday, University of Tennessee law professor Glenn Reynolds chastises the Yale and U Missouri students for being overly sensitive and for being incapable of tolerating disagreement. Writing in The Atlantic on Monday, Conor Friedersdorf was a little more sensitive than Reynolds to the disturbingly routine patterns of subtle and not-so-subtle racism on campus at Missouri, Yale, and elsewhere that made the recent confrontations a flash point, but he made much the same connection. According to Friedersdorf, the Yale student protestors whom he sees as overreacting to a series of emails regarding potentially offensive Halloween costumes cannot tolerate different opinions because they have been and continue to be coddled.

These phenomena can go together, and they can even be causally related in the way that Reynolds and Friedersdorf think they are. Coddling can lead to intolerance and censorship. The phenomena may even be related in that way in these instances--although it is myopic to view these events simply as instances of immaturity and censorship, without also attending to issues of race relations. But even taking the narrower framing at face value, it's important to keep in mind that coddling does not inevitably lead to censorship, nor are all instances of coddling also instances of censorship. A recent event closer to home illustrates how these distinct phenomena can be confused.

Project Veritas is the brainchild of conservative activist James O'Keefe. It recently sent an undercover journalist posing as a student to Yale, Syracuse University, and Cornell. She surreptitiously recorded the respective universities' Title IX investigators' reactions to a complaint that someone distributing free copies of the Constitution "triggered" her. In each case, the university administrator listens sympathetically and makes supportive statements, but none of the administrators goes along with the suggestion of the undercover journalist that they "get rid of" the people handing out the free copies of the Constitution. The Yale officer comes closest, suggesting that it would be impermissible to distribute "obscene" or otherwise inappropriate material--although I could not tell from the edited video whether he thinks the Constitution itself might qualify as obscene or inappropriate, or whether he's merely stating the parameters of a general policy. Have a look below (or click here if you can't view embedded video).

The videos could be said to make a fair case for the proposition that college campuses coddle their students, taking too seriously complaints about the triggering effect of just about anything. But maybe not. Although the notion that the mere handing out of copies of the Constitution would lead students to feel attacked on grounds of race and sex (as the undercover journalist claims) is far-fetched, the makers of the Project Veritas video betray the same insensitivity to racism and sexism on campus and in the broader society that Reynolds does in his USAToday piece.

Moreover, the officials show compassion for (someone they think is) a student; they do not become censors. Indeed, the Cornell official pushes back a little bit, suggesting that perhaps the (woman posing as a) student oughtn't to be offended by the distribution of the Constitution. Perhaps, she says, they're distributing it so people can see how many different interpretations are possible. At the same time, she sympathizes with the "student" by agreeing that it's a "flawed document" written by "flawed people."

Nonetheless, the Project Veritas film ridicules the administrators for succumbing to a request that the filmmakers appear to think is a kind of blasphemy. The Cornell official and her Yale counterpart agree to the undercover journalist's request that they shred the Constitution; the Syracuse officer cuts up a photocopy of some pages of the Constitution.

Did these administrators go too far in taking the complaint seriously? I don't know. Describing the slaveowners who participated in writing the Constitution as "flawed" seems perfectly reasonable, as does agreeing that the document itself is flawed. Can anyone defend the requirement that the President be a natural-born citizen? Anyway, it is usually a conservative complaint about liberals that liberals regard the Constitution as they would interpret it as perfect, rather than flawed. Shredding or tearing up the Constitution does seem a bit much, but what do I know? Students who are in rough emotional shape tend not to come to see me. My students are older, and I'm not the warm and fuzzy type. Faced with a visibly upset student who apparently would get some peace from seeing the Constitution shredded, mabye it's sensible to oblige.

Even if it isn't, so what? Not every over-accommodation of student sensitivity censors other people's speech. The Cornell official expressly states that shredding is a form of free speech. And she's right. Shredding one's own private copy of the Constitution is an expressive act that doesn't in any way interfere with anyone else's free speech. And to state the obvious, it doesn't do anything to the Constitution, which is an abstraction, not its concrete embodiment in any particular print version. Even destroying the version under glass in the National Archives and the other surviving early versions would not destroy the Constitution (although it would be a crime). Yet Project Veritas treats Yale, Syracuse, and Cornell as all having somehow engaged in blasphemy and censorship.

Project Veritas did apparently uncover one instance in which coddling became censorship. After their northeast sting, they went to North Carolina. Officials at Duke and UNC refused to ban distribution of the Constitution. However, an official at NC State ensured that there would not be copies of the Constitution in the entry to the residence hall of an undercover journalist posing a student. Depending on who placed the Constitutions in the dorm, and whether students were generally allowed to place other printed material there, that could even be unconstitutional censorship, because NC State is bound by the First Amendment (as made applicable to the state by the Fourteenth). So it's fair to condemn that reaction. But by portraying the reactions of the Yale, Syracuse, and Cornell officials as comparable to the NC State official's reaction, Project Veritas mostly displayed its own confusion. But as I've said before, even right-wing undercover journalists are entitled to free speech.

Thursday, November 12, 2015

Ben Carson's Overlapping Magisteria

by Michael Dorf

Dr. Ben Carson's ascent to front-runner or (depending on the poll) co-front-runner status in the Republican presidential field has brought with it intensified scrutiny of his past statements. I don't have a view on the extent to which his prior claims about West Point are exaggerations or how they might bear on his fitness for the presidency, nor do I have an opinion about the stabbing claim--which seems mostly grist for comedians. I do want to try to think through the implications, if any, of Carson's reaffirmation of his view that (some of?) the ancient Egyptian pyramids were built as grain storehouses pursuant to the plans for surviving seven lean years by the Biblical Joseph in his role as adviser to the pharaoh. To frame the discussion, I will assume that Carson's view is demonstrably false by the standards of archeology because there is overwhelming evidence that the pyramids (which are not hollow) were built as tombs (hundreds of years before the time the Bible places Joseph in Egypt).

Suppose that you have thus far supported Carson for president because you are very wealthy and, while you realize that he can't possibly run the government on a flat-tax of 10% tithe, as he proposes, you think that he is the candidate most likely to lower your taxes by the most. In other words, let's suppose that you are a generally rational person who had previously concluded that Carson was your candidate, but you are now concerned by his erroneous views about the pyramids. How concerned, if at all, should you be?

One answer might be "not at all." It's not as if any presidential decision will depend on the reasons the pyramids were built. At worst, these beliefs might slightly complicate some diplomatic relations with Egypt, but there are so many more pressing issues with respect to U.S. policy in Egypt and the Middle East, that it's hard to see this remote possibility as registering as more than a blip. Carson's belief about the pyramids seems just about completely irrelevant to what kind of a job he would do as president.

But perhaps that's taking too narrow a view of the matter. If Carson holds demonstrably false beliefs about the pyramids, you might worry that he also holds false beliefs about other matters--some of which are related to policy choices he would need to face as president. Just as his views about the authority of the Bible lead him to accept unscientific views about the pyramids, perhaps he will disregard the scientific consensus on matters that relate directly to public policy. Believing in Biblical cosmology, perhaps he will discount a NASA prediction that an asteroid will destroy life on Earth unless diverted. Or whatever.

Carson's claim that he has been subject to unprecedented scrutiny is, to put it mildly, absurd, as Trevor Noah nicely illustrates with some excerpts of the coverage of Barack Obama's media vetting in the last minute of this clip. Still, there is something to Carson's claim that the scrutiny to which he is now being subject is connected to the gap in perception between religious people like himself and the secular culture. That's an exaggeration, of course. So many Americans in all walks of life are religious, even deeply religious, that it is inaccurate to say that we have a secular culture. Nonetheless, I think it fair to say that the conventions of modern public life require some sort of commitment to what the late evolutionary biologist Stephen Jay Gould called "non-overlapping magisteria." As I explained the concept in a post last year, if you accept that religion and science are non-overlapping magisteria, then you think that science tells us "how the heavens go," whereas religion tells us "how to go to heaven."

The idea of non-overlapping magisteria is attractive but wrong, because even today, most mainstream religions make truth claims that overlap with--and contradict--the evidence-backed truth claims of science. Belief in miracles is one example. Belief in the efficacy of intercessory prayer is another.

In American life, people make faith-based truth claims all the time, as when an athlete gives thanks to God for scoring a winning touchdown. I personally find these sorts of claims somewhere between silly and offensive: silly insofar as they suggest that of all the ways in which God might intervene in the natural order, He would choose sides in a football game, especially when athletes on both teams have typically sought Divine assistance; offensive insofar as they imply that, while God can't be bothered to answer the prayers of people facing genocide, famine, war, and more, He is a fan of the Baltimore Ravens.

I can't speak for other not-especially-religious sports fans, but my own inclination when hearing an athlete give thanks to the Almighty for guiding the ball is to wait it out. Eventually, he will mouth some sports cliche ("We never gave up," or "I'm just trying to help the team") or even say something insightful ("They were only rushing three, so we knew we had time to get open"). In any event, the thanks to the Lord end up becoming just so much filler.

But here's the thing: That's not how such statements are usually intended. Many of the people who thank God for answering their prayers by supporting their sports team rather than the opponent really think that God interferes with the laws of physics to help them win because they really believe in the power of intercessory prayer. Carson's view that the pyramids were built to store grain is likewise based on his belief in the authenticity of the Bible as a factually accurate record of events, although, to be fair to the Bible, it doesn't say that Joseph had the pyramids built to store grain. That's on Carson (and on St. Gregory of Tours, who popularized the pyramids-as-granaries idea in the 6th Century).

Where does that leave us? For me, the fact that Carson has religious grounds for holding some factually false beliefs is not, by itself, worrying, even on the assumption that he holds those beliefs quite strongly. The athletes who go on television to attribute their success to Divine assistance still play the games, typically extremely well. It's not as if a devout quarterback puts his faith in the Lord and, Jedi-like, closes his eyes and throws. (Insert Tim Tebow joke here.) Likewise, when he was a neurosurgeon, Carson was not simply praying that his patients would get better. He actually performed the surgeries, using the same sophisticated techniques that the best non-believing neurosurgeons used.

Bottom Line: There are plenty of reasons to think that Ben Carson would be a terrible president, but his false belief about the pyramids is not one of them.

Wednesday, November 11, 2015

The Lessons of Fetal Viability

by Sherry F. Colb

In my Verdict column for this week, I raise the question whether there is an inconsistency between being a committed ethical vegan, on the one hand, and being pro-choice on abortion, on the other. The column follows another on the question of whether violence has any ethical place in a principled movement for animal rights or for the rights of human fetuses.  Both columns address issues raised in Beating Hearts: Abortion and Animal Rights, a book co-authored by me and fellow blogger Michael C. Dorf, that takes up some of the common challenges and dilemmas that face the pro-life and animal rights movements.

In this post, I want to dwell on a line that our current constitutional law doctrine draws between protected abortions and those abortions that may, in general, be subjected to criminal prohibition. That line is viability. In Roe v. Wade and then again in Planned Parenthood v. Casey, the U.S. Supreme Court held that after viability, except where a woman's life or health requires an abortion, the Constitution no longer protects a woman's right to terminate her pregnancy. The big question is why.

In my column and in Beating Hearts, I and then I and my co-author, respectively, propose that the sensible line between abortions that do and abortions that do not raise serious moral questions, respectively, is sentience, the point at which an organism--whether human or nonhuman--begins to have subjective experiences such as pain or pleasure while living in the world. Because sentience is an important moral line, we argue, a late-term abortion that post-dates fetal sentience raises a tragic ethical dilemma between coercing a woman to serve as an incubator against her will, on the one hand, and sacrificing the life of an already-sentient being--"someone" rather than "something," on the other.

But what does viability have to recommend it? Viability designates--at least in theory--the line between a fetus that can survive outside a woman's womb and a fetus that must remain in utero as a condition of survival. Is there a morally relevant difference between someone who can breathe on his own (or with medical assistance) and someone who cannot do so? Do we believe that a man in the process of drowning is in some way morally inferior to a man who can breathe easily? If viability as a line is meant to distinguish between moral unequals, it seems that it does a very poor job of that.

Viability, however, may do something else that is very useful in our thinking about abortion. It designates the point at which the two effects of abortion may be teased out from each other. Until viability, a woman who wants to regain her bodily integrity and end the enormous burden that pregnancy places on her body can do so only at the cost of ending the fetus's life. By definition, a non-viable fetus cannot be separated from the mother without dying. Once the fetus is viable, however, it would be possible to say with clarity that a woman has the right to (a) end her status as pregnant, but does not have the right to (b) procure the death of her fetus as such (particularly if the fetus is already sentient).

What viability does for us, then, and what might have recommended it to the Justices is that it has the potential to restore to women the three choices that people ordinarily possess with respect to  another being in trouble:  (1) be a Good Samaritan; (2) be a Bystander; or (3) affirmatively harm the other being.

Prior to viability, a woman must either do #1 or #3.  Being a bystander is simply not an option, and the woman is therefore caught between the extremes of affirmative violence and intensive and intrusive obligations of Good Samaritanship. Once she has the bystander option--an option that viability (in theory) can give her, the woman could decide to remove her fetus from her body and let someone else take care of him or her. That is not, at present, the law of viability and abortion under the precedents.  It is, however, a useful way of thinking about what it means to be pro-choice and to favor bodily integrity without necessarily endorsing a right to kill one's own fetus at whatever stage of pregnancy it happens to occupy. Viability thus lends some clarity to what remains an area of law in need of still greater clarity.

Tuesday, November 10, 2015

Measuring the Chilling Effect of Late-Term Abortion Limits

by Michael Dorf

Late last year I participated in a conference at the University of Chicago Law School on empirical work in constitutional law. In a post at the time, I provided very brief overviews of each of the papers. The papers have now been published in the NYU Law Review. They are well worth reading.

Here I will say a few more words about my paper, co-authored with Princeton political scientist Brandice Canes-Wrone: Measuring the Chilling Effect. After describing our paper, I'll offer some thoughts about how our findings might bear on the Texas and Mississippi abortion cases currently before the Supreme Court on petitions for certiorari.

Here is the abstract for our article:
Supreme Court doctrine grants special protection against laws that “chill” protected speech, most prominently via the overbreadth doctrine. The overbreadth doctrine permits persons whose own speech is unprotected to challenge laws that infringe the protected speech of third parties. The Court has not generally applied overbreadth and the other speech-protective doctrines to other constitutional rights even though other rights could also be subject to a chilling effect. The case law simply assumes that the chilling effect only acts on the exercise of speech, and that this justifies treating speech differently from other rights. 
We tested these assumptions with respect to abortion rights. By comparing abortion rates with state laws over a two-decade-plus period, we found a statistically significant correlation between laws forbidding late-term abortions and the reduction of not only late-term but also “near-late-term” abortions, i.e., abortions in the roughly one month before the period in which abortions are forbidden. That effect persists even after controlling for potentially confounding variables, such as the number of abortion providers and pro-life public opinion. Moreover, the effect is not limited to the year of enactment or associated with failed policy initiatives, suggesting that the impact is due to the law itself rather than associated publicity. These findings are consistent with, and strongly suggestive of, a chilling effect on abortion providers and/or women seeking abortions. This result undermines the implicit assumption that the chilling effect is unique to laws regulating speech and vindicates the general proposition that laws can chill the exercise of constitutional rights beyond their literal coverage. 
Because that is an abstract, i.e., a summary, it necessarily simplifies. The article itself makes clear that although the Supreme Court cases frequently say that overbreadth doctrine only applies with respect to freedom of speech, the Court in fact often applies something like overbreadth doctrine in a variety of contexts, including--sometimes--to abortion cases. We cite some of my own work, as well as work by Harvard law professor Richard Fallon and others that distinguishes between the Court's description of its practices and its practices themselves.

To the (quite considerable) extent that existing case law is unclear about whether laws restricting abortion are subject to something like overbreadth analysis, the empirical results of the Canes-Wrone/Dorf article may be helpful in addressing the normative question of whether something like overbreadth doctrine ought to be applied to laws restricting abortion. Our findings suggest that it should. The risk that overbroad speech-restrictive laws will chill protected speech plays a very important role in justifying overbreadth analysis of speech-restrictive laws; thus, our demonstration that overbroad abortion-restrictive laws chill constitutionally protected abortion should count as a reason to subject abortion-restrictive laws to overbreadth analysis.

To be sure, our findings do not bear directly on the questions in the Texas and Mississippi cases. We found that late-term abortion restrictions chill abortions in the "near-late-term," i.e., the period before the formal beginning of the late term. The Texas and Mississippi cases involve abortion restrictions--requiring doctors to have admitting privileges at nearby hospitals and imposing the standards of "ambulatory surgical centers" on facilities performing abortions--that make it more difficult for women in Texas and Mississippi to obtain abortions at all points in pregnancy. The issue is less that doctors will "self-censor" by denying women protected abortions out of fear that they will inadvertently cross the line than it is that doctors and facilities are unable to comply with the new laws and so women are denied access to abortion.

Nonetheless, our findings may be relevant to a broader question in the Texas and Mississippi cases: What, exactly, does the "undue burden" standard announced in Planned Parenthood v. Casey mean in practice? The Court has decided only three abortion cases since Casey in 1992, and none sheds much light on the issue. Two of those cases (Stenberg v. Carhart in 2000 and Gonzales v. Carhart in 2007) involved so-called "partial-birth" abortion restrictions that, at least so far as the Court was concerned in the latter case, did not infringe anyone's ability to obtain a constitutionally protected abortion. The other--Ayotte v. Planned Parenthood in 2006--ended up addressing only a remedial question about what courts should do if they find that an abortion prohibition is invalid.

In the more than 23 years since Casey, lower courts have issued a variety of conflicting opinions about the meaning of the undue burden standard. Judges sympathetic to the Court's abortion jurisprudence have tended to give the standard teeth, while those who are unsympathetic to abortion rights tend to cut the states a good deal of slack, as the Fifth Circuit did in the Texas case now on petition for cert. Undoubtedly, for many of the Justices, the question of how to flesh out "undue burden" is connected to the underlying merits of the abortion right.

But assuming--as I think it is safe to assume absent a change in the Court's personnel--that there aren't five votes either to overrule Casey and replace it with Roe's strict scrutiny or to overrule Roe and eliminate protection for abortion as a constitutional right, a grant in the Texas and/or Mississippi cases will mean the necessity of applying Casey's undue burden test, which, in turn, should require clarifying it. And putting aside various doctrinal nuances, that will require the Court to decide whether to apply a more or less deferential test.

The findings of the Canes-Wrone/Dorf paper are relevant to that broad question. Although we only found a chilling effect with respect to late-term abortions, that is all we tested. Abortion rights may well be susceptible to a chilling effect across a variety of contexts. The existence of a chilling effect means that doctrine that is applied neutrally will, in many contexts, undercount constitutional violations: it will sustain laws that do not visibly violate constitutional rights but do chill them. An especially lax test will exacerbate that bias. Accordingly, our findings could be used to support a general approach that is either especially rigorous in finding undue burdens or at least neutral. A deferential version of the undue burden test would be especially difficult to justify.