Thursday, March 31, 2016

The Narrative About Bernie Sanders and Foreign Trade is Simplistic and Wrong

by Neil H. Buchanan

My new Verdict column, "Why Clinton and Sanders Are Both Right (and Trump Is Wrong) About International Trade," extends some points about economic theory that I made in two Dorf on Law posts earlier this month (here and here).  In this post, I want to expand on the broad political point that I make in that column, regarding how the notion of "free trade" is treated by supposedly responsible journalists, pundits, and politicians.  That treatment is, in fact, irresponsible in how it portrays Senator Bernie Sanders's positions on trade policy.

My column draws a clear distinction between Donald Trump on one hand and the Democratic presidential candidates on the other.  Whereas Hillary Clinton and Bernie Sanders might both be attacked by self-styled free traders as being in favor of protectionism, they are both in fact engaging in an important debate about what types of policies will make us better off.  Calling something a "free trade agreement" is good marketing, but because of the economic incoherence of that idea (which I discuss in today's Verdict column), it is perfectly appropriate to question and sometimes oppose things called free trade agreements.

The two Democratic candidates are engaged in an intense political debate, which necessarily involves emphasizing each others' weak points and political vulnerabilities.  In the end, however, they are asking whether the United States should have handled the process of globalization differently, and whether we can steer a better path into the future.  That debate includes inquiries into how we treat the people who are left behind when jobs are lost to foreign competition, which means that the trade debate is not simply a matter of whether we would forbid trade (a clearly bad idea) but about managing trade and its consequences.  Globally engaged economic powerhouses like Germany do this better than we do.  Both Clinton and Sanders, in different ways, say that we need to improve.

Even so, Sanders is the one who is caricatured as the anti-free-trader, mostly because he is tying Clinton to her husband's lead role in ramming through the North American Free Trade Agreement (NAFTA).  Interestingly, a recent column by New York Times economics columnist Eduardo Porter claims that NAFTA actually saved U.S. jobs, thus chastising Sanders for shortsightedness.  "See, Bernie?  You say NAFTA was bad, but it was good, even on your own terms!"  It is a nice twist, but it ultimately fails.

The economic argument that Porter cites, from a prominent trade economist at UCSD, essentially says that the reason NAFTA saved jobs is that it turned North America into a large economic fortress in competition with China.  We lowered "our" labor costs by building cars in Mexico, the United States, and Canada, rather than continuing to build them in the U.S. and Canada.  Without that move, the argument goes, even the relatively high-paying jobs that remain in the U.S. and Canada would have been lost.  So we lost a battle but won the war.

This argument, of course, concedes many of the points that Sanders (and Clinton) are making.  Many U.S. jobs were lost, and we did a terrible job of dealing with the fallout of those job losses.  More interestingly, however, Porter points out that the reason China would have otherwise been able to crush the Big Three automakers is that "China ultimately bumped Mexico out of many American markets after Beijing entered the World Trade Organization in 2001."  But the WTO is simply another of the series of trade treaties that Sanders is contesting.  "Yo, Bernie, you were wrong about NAFTA.  It was really WTO," is hardly responsive to Sanders's (or Clinton's) point.

And Porter's further assertion that NAFTA is not really to blame, because the devaluation of the peso and bad internal economic policies in Mexico were proximate causes, is a tacit admission that trade policies need to be responsive to a wide range of economic and political developments.  He even brings in U.S. domestic policies, noting that "autoworkers in Detroit were ... also competing with American workers in the union-averse South, where many car companies set up shop."  But Sanders and Clinton are both in favor of stronger national labor laws that would address that very issue.

The two Democrats disagree on some important aspects of how to manage the U.S.'s role in the global economy, but they are both aware enough to know that we could have done better, and we should stop pretending that there is nothing that can be done in the face of globalization.  We cannot turn back the tides, but we can at least figure out a better way to adjust to them.

As I argued in today's Verdict column, even though there is no single right answer in the trade debate, there are definitely wrong answers.  As with so many issues, Donald Trump has nothing but wrong answers on trade.  The problem, from a political standpoint, is that too many people hear Trump attack NAFTA, and then they hear Sanders attack NAFTA, and then they conclude that they are saying the same thing.  They are not.

This false equivalence is further fed by the established media narrative that Sanders is the Democrats' version of Trump.  Republicans, in turn, delight in feeding that narrative.  Last week, for example, in a cringe-inducing appearance on "The Daily Show with Trevor Noah," Senator Lindsey Graham tried to acknowledge yet deflect criticism of the Republicans' remaining two terrible choices by referring to Clinton as "the most dishonest woman in America" and by agreeing that, although Ted Cruz is "partially crazy," "[t]hat works in Washington. We’ve got Bernie Sanders."  Yuk yuk.

The trash talk, however, is not merely coming from failed presidential candidates who are now viewed as reasonable voices in a party that has come completely unhinged, yet who still insist that the Democrats are just as bad.  Unfortunately, even people who are not in the political arena are committed to the idea that Trump and Sanders are ultimately engaged in the same irresponsible game.

An economic analysis column in yesterday's Times, for example, quotes Cornell economist Eswar Prasad, who claims that Trump and Sanders "are following in the footsteps of politicians of all stripes who have found it convenient to blame the boogeyman of unfair trade for domestic economic problems."  Prasad continues: "Tough talk on trade is an easy way to distract attention from taking on difficult domestic challenges."

Sanders is trying to "distract attention from taking on difficult domestic challenges"?  If anyone is willing to take on difficult domestic challenges, it's Bernie!  One might not agree with Sanders's views on any particular issue, but he is certainly not guilty of trying to get people to believe that the economy would otherwise have been just fine if only we had never passed NAFTA.

Who actually does that?  Donald Trump.  Or, at the very least, Trump has given us no sense of anything that he would do to improve the economy for average people, other than to throw out immigrants and Muslims.  (Trump's tax proposals, such as they are, are merely super-sized trickle-down economics.)

This is where the lazy Trump/Sanders equivalence is most frustrating.  Eduardo Porter, in the column that I discussed above, says that "a wall of tariffs against America’s southern neighbor would probably do more harm than good." But "a wall of tariffs" is not the only way to manage trade.  To make the Trump/Sanders link even stronger, Porter's next sentence hammers it home: "To be sure, Rust Belt voters drawn to Mr. Trump and Mr. Sanders are not wrong to be angry."

Bernie Sanders has argued repeatedly that there are many policy changes that could provide prosperity to a broad range of Americans who are feeling vulnerable and left behind.  As it happens, he is almost surely right, and he is willing to take positions that Clinton is not willing to take.  Even if he is wrong on any of his particular policy proposals, however, he is at least trying to address the bigger picture of how our economic policies -- not just trade treaties, but labor laws, financial regulations, educational support, infrastructure spending, and so on -- can be changed to make the lives of everyone better.  So is Hillary Clinton.

Again, neither Clinton nor Sanders is blind to the obligations that our treaties impose on us, nor would they treat the outside world as our economic enemy.  They are trying to determine how best to move forward.  The other guy is promising a return to an imaginary past, without even bothering to say how he would get us there.

Sanders isn't Trump.  The very idea that it is necessary to write such a thing indicates how degraded the political conversation has become, even among supposedly responsible people.

Wednesday, March 30, 2016

Using the Products of Atrocities

by Sherry F. Colb

In my column for this week, I discuss the mixed legacy of Dr. J. Marion Sims, the father of modern gynecology, who developed a surgery to repair obstetric fistulas by experimenting on enslaved African American women.  In the column, I suggest what one might say about such experiments from a utilitarian moral perspective, and I draw an analogy between human and animal experimentation.

In this post, I want to pose the question that I did not pose in the column:  is it legitimate to utilize surgeries (and other products) that have come about through morally outrageous behavior?  In other words, should we hesitate to take advantage of a surgery that was developed in the immoral way that obstetric fistula surgery was developed?  Similarly, should we be reluctant to use the information that was gathered through immoral hypothermia experiments during the Second World War?

My first inclination is to say no, that we should not hesitate to use information that was gleaned through outrageous conduct.  Using the information does not necessarily condone the method by which such information was gathered, and we arguably compound tragedies by refusing to deploy the one good thing to come of horrific behavior.  Yet how can I say this as an ethical vegan?

Let me explain my question.  As an ethical vegan, I refuse to purchase and consume items that were derived through the exploitation and/or killing of animals.  This means that I do not consume animal flesh, dairy foods, or eggs and that I do not wear clothing made from animal skin, fur, or wool.  It also means that I avoid using body products (such as soap and shampoo) whose ingredients either came from an animal or were tested on an animal.  For whatever reason, avoiding products tested on animals has become far more mainstream than avoiding products taken directly from animals, so readers are likely familiar with the animal testing boycott.

Is there a difference between the vegan form of boycott that I have just described and a hypothetical boycott of fistula surgeries or hypothermia treatments derived from atrocities committed against enslaved women and concentration camp inmates, respectively, such that the former but not the latter is called for?  In a word, yes.

Though equal access to medical care regardless of race remains an elusive goal, our society has come to recognize--at least in theory--that human experimentation is a grave wrong, a human rights violation.  Accordingly, performing (or being the beneficiary of) a fistula repair surgery does not risk either conveying the message that slavery or experiments on enslaved people are morally permissible or providing support for further such experiments (since they are now illegal).  Purchasing the products of animal experimentation, on the other hand, does very much risk conveying the message that the consumer has no problem with animal experiments and furthermore, it provides financial rewards for companies that experiment on animals.  By the same token, the consumption of animal-based foods and the use of animal-derived clothing conveys both approval and financial support for more of the same, because animal exploitation is an ongoing, legal, and thriving atrocity.

Notwithstanding this distinction, of course, one might nonetheless choose to forgo the use of any treatment or product that came into existence as a direct result of human experimentation, but it does not appear morally mandatory to do so.  At the same time, the descendants of people who suffered and endured experimentation (whether as enslaved people or as concentration camp inmates) should perhaps be paid something like reparations to acknowledge the role of their ancestors in making treatments or products available.  Atrocities of the past certainly have an impact on the present (and in some ways, pave the way for current injustices, even though they have changed shape and form). Yet it may nonetheless be ethical for us to use the knowledge gleaned from those atrocities.

A final word should be said about medicines currently available in the United States.  For FDA approval, a medicine must be tested on animals before it is made available for human clinical trials.  (This is despite the fact that many medicines that harm various nonhuman animals are perfectly safe for humans, and vice versa, a subject expertly developed in greater depth in Animals and Public Health, by Aysha Akhtar).  As a result, a vegan who takes medication might feel that he is betraying his commitment to ethical veganism by doing so.  It is in a case like this that I would invoke the "necessity" for such medicines.  Ethical vegans spread the message of non-violence towards animals by refraining from consuming animal foods and animal clothing and animal entertainment that they do not need and replacing such foods, clothing, and entertainment with plentiful and satisfying vegan versions.  When it comes to a medicine that one needs to preserve one's health, however, different vegans will make different decisions, and most of us -- whichever decision we might make in our own personal lives -- would accept the proposition that the need for medicine is categorically and qualitatively different from the desire for dairy-based butter (especially now that there is an absolutely wonderful vegan butter available on the same web site as delicious vegan cheeses).  For similar reasons, it would be harsh to judge a person in need of a kidney for accepting one taken under suspicious circumstances, notwithstanding the wrongfulness of its retrieval.

Tuesday, March 29, 2016

Arguing With People Who Simply Do Not Care About Evidence

by Neil H. Buchanan

In a Dorf on Law post earlier this month, I noted an odd commonality between two very different policy issues.  In the oral argument regarding the Texas abortion case, specifically referring to the admitting privileges requirement in the challenged statute, Justice Breyer asked: "What is the benefit to the woman of a procedure that is going to cure a problem of which there is not one single instance in the nation?"  Not one single instance.  I then noted that Republicans repeatedly argue that family farms and businesses are frequently sold off and broken up in order to pay the estate tax, even though there is not one single instance in which that has been shown to have happened.

After writing that post, I started to think about other examples of this phenomenon, and about variations on this kind of fantasy-driven argumentation.  The concept of being "reality-based" became a meme among liberals after a political appointee in the George W. Bush administration brazenly brushed off people who care about evidence by saying: "We're an empire now, and when we act, we create our own reality."  This accompanied his claim that "the reality-based community" is made up of people who foolishly "believe that solutions emerge from your judicious study of discernible reality."  Where are we now, more than a decade into post-reality politics?

Some Republican positions follow the pattern described above, with empirical claims of a widespread problem being based on no actual examples, or at most on only a trivial handful of cases.  Most recently, the "toilet bills" that have been proposed in various states (one of which became law in North Carolina this month) are based on supposed dangers to women who must share public restrooms with people who were not born female.  As an editorial in The New York Times pointed out, however, "[s]upporters of the measures have been unable to point to a single case that justifies the need to legislate where people should be allowed to use the toilet."  Not a single case.

And then there is in-person voter fraud, the threat of which Republicans use to justify efforts to disenfranchise voters who are likely to vote for Democrats.  As one writer noted: "Gov. Greg Abbott of Texas says 'voter fraud is rampant.' It isn’t."  In fact, study after study has shown that of millions of votes cast nationwide in election after election, the number of verifiable cases of voter fraud is vanishingly small.  Has that taken the wind out of the efforts to make voting more difficult for targeted populations?  Of course not.

Then there are factual claims that are about something that supposedly happened that did not happen.  The recent attacks by Republicans in Washington and in the states on Planned Parenthood were motivated by a series of obviously doctored videos purporting to show the sale of "baby body parts" for profit.  Not only were the videos faked, but multiple investigations have shown that there is simply no evidence of anything happening that resembles the accusations.

It is heartening that Carly Fiorina's presidential campaign was unsuccessful, but she nevertheless felt comfortable repeating the general accusation about profiteering along with a completed fabricated story about what was in the doctored videos.  She not only refuses to believe that the videos were faked, but she insists on sticking to her story that she saw things in those faked videos that even the fraudsters did not claim.

Fiorina had a role model.  Sarah Palin's doomed vice presidential campaign in 2008 included daily claims that she had said "Thanks, but no thanks" to money from Congress for the Bridge to Nowhere, when she in fact accepted that money as Governor of Alaska.  (PolitiFact generously referred to that whopper as "half true," because Palin did finally kill the bridge, but only after it was impossible to save it.)

These lies have consequences.  The community group ACORN no longer exists because of similarly faked videos, with Republicans ignoring abundant evidence of a political hit job (and Democrats shamefully running for cover).  It looks like Planned Parenthood will survive, but Republicans nationwide -- including not-at-all-moderate Ohio Governor John Kasich -- have gleefully cut the organization's funding.

And then there are the false claims that have been studied to death, with Republicans simply ignoring the results even of their own investigations.  The "IRS non-scandal scandal" was originally based on an inspector general's report that made clear that there was no political aspect to the scandal, but Republicans insisted that the White House had used the tax agency to harass its political enemies.  Millions of dollars in Congressional investigations later, there was still no evidence to support Republicans' accusations.   Yet we are now approaching the third anniversary of the non-scandal, with no sign that Republicans are giving up the ghost.

The same pattern has been repeated with the Benghazi investigations.

In the category of broad assertions for which there is no statistical evidence, we also have the claims that the Affordable Care Act is failing, and that it is killing jobs.  This is not the same as the claims about voter fraud or the estate tax, but it fits the broader pattern of Republicans' making testable assertions and then not being able to support any of those assertions while failing to rebut the evidence that is actually available.

A reader of one of my recent posts also helpfully pointed out that there are still people in conservative think-tanks who are trying to debunk the empirical evidence that increasing the minimum wage does not (within the range of available evidence) lead to job losses.  These dead-enders are actually still going after two economists whose work on the issue became famous in the 1990's, as if discrediting that one study at this late date would change reality.  (And the study has not been discredited, in any case.)

Lest we forget, overwhelming numbers of Republicans are also still perfectly happy to deny climate change or man's role in it, despite mounting evidence.  And then there is evolution.  Yikes.

The standard answer to this is that Democrats and liberals are also guilty of shading evidence to their advantage.  Honestly, however, where is the Democratic equivalent of the Planned Parenthood craziness?  When evidence does not back me up, I adjust my views.  If a video on which I based a conclusion turned out to be fake, I would be embarrassed.  Maybe the difference is that the current Republican Party has lost the ability to feel embarrassment.  There once were honorable, evidence-based people who were in important positions in that party.  I disagreed with them, but I could respect them.  They are long gone.

Monday, March 28, 2016

Prosecutorial Discretion and Justiciability

by Michael Dorf

The main point of my post last Thursday--on the oral argument in Zubik v Burwell--concerned the effect of the Religious Freedom Restoration Act (RFRA). I suggested that where a provision of another federal statute fails RFRA's least-restrictive-means test, the right remedy for a court to choose or for the executive to adopt preemptively should not necessarily be to invalidate that other statute as applied to the RFRA claimant. Instead, given the principle that statutes should be read in harmony with one another, I proposed that RFRA could be read to delegate to the executive in the first instance, and then to the judiciary where the executive does not accommodate, the authority to fashion an exception that would otherwise be unauthorized.

The particular context was a suggestion during the oral argument by Chief Justice Roberts and Justice Alito. They said that the contraception mandate the administration has imposed under the Affordable Care Act (ACA) fails the RFRA test as applied to religious organizations that object to what they perceive as their participation in providing their employees with contraception insurance coverage if they comply with the existing method of notifying the government because there is a less restrictive alternative: Just let the employees buy contraception-only insurance on exchanges, these justices proposed. I noted the government's objections to this idea in my post, to which Marty Lederman adds another: it might not even work, because the current objectors might still object that the acts required to trigger coverage via the exchanges would themselves be sinful participation in violation of their RFRA rights. But my core point put this and other objections aside: If purchases of a contraception-only plan on an exchange really were an accommodation that made everyone happy, then maybe RFRA tacitly authorizes it, I suggested.

En route to that point, I included a side discussion of a question that Justice Alito posed for Solicitor General Verrilli. Justice Alito asked why--if contraception-only plans are forbidden on the exchanges by the ACA--the executive couldn't simply announce its intention to invoke prosecutorial discretion not to prosecute anyone offering such a plan and to reimburse such insurers with a premium. In my last post, I took this question seriously and wondered whether it foreshadowed an executive-friendly vote by Justice Alito in the pending litigation over the validity of the Obama administration's immigration program in United States v. Texas. To repeat my summary of the stakes in that case:
the parties appear to agree that the president has prosecutorial discretion to withhold deportation and other enforcement actions against undocumented immigrants, while they disagree about how to characterize other aspects of the programs of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). Texas and its amici argue that DAPA and expanded DACA provide status and benefits to undocumented immigrants that the law does not authorize. The government argues that DAPA and expanded DACA do no such thing, although other laws do kick in when an undocumented immigrant is eligible for DAPA or expanded DACA. What's notable about Justice Alito's question is that he seems to assume that the president has the authority--in the exercise of prosecutorial discretion under the ACA--to expand the scope of insurance available on exchanges and to spend money to subsidize that expanded scope. An analogous view in the immigration context would be that even if Texas is right in its characterization of DAPA and expanded DACA as granting undocumented immigrants lawful status unauthorized by Congress, that would be legal as an exercise of prosecutorial discretion.
I then added that perhaps I had misread Justice Alito. A couple of commenters persuaded me that I had. Rather than an admission by Justice Alito that his view against the government in Zubik heralds an Alito vote for the government in US v. Texas, they persuaded me that Justice Alito was really asking whether SG Verrilli's position in US v. Texas committed the government to the position that contraception-only coverage could be offered on an exchange via the exercise of prosecutorial discretion--and that therefore the government should lose Zubik because it was estopped from arguing that insurance-only plans on exchanges are illegal.

For the reason noted in the excerpt above, I continue to think that the government's position in the two cases is consistent. The government says in US v. Texas that the prosecutorial discretion exercised in DAPA and expanded DACA do not confer any benefits on undocumented immigrants; those benefits are conferred by other statutes. Texas and its amici contest this characterization. As Prof. Kalhan elaborated on this blog last June, there are good reasons to think that the Obama administration has the better argument on this point, but I don't want to take a position on the characterization question right now. Instead, I simply want to note again that insofar as Justice Alito was suggesting that the government's position in US v. Texas implies that the government can, in the exercise of prosecutorial discretion, confer benefits like subsidies on an exchange, Justice Alito was wrong. The government does not claim any such power in US v. Texas.

Meanwhile, there is another important distinction between, on one hand DAPA/expanded DACA and, on the other hand, Justice Alito's hypothetical executive exercise of prosecutorial discretion with respect to the exchanges, even setting aside the subsidy. In the immigration context, there is a plausible basis for treating withholding of deportation as within the traditional heartland of prosecutorial discretion--namely, resource constraints.

I have previously argued in the context of the Obama administration's policies with respect to both marijuana and immigration that any sound invocation of prosecutorial discretion must rest on something beyond the executive's simple dislike for the law in question. In extraordinary circumstances, that "something" might be the view that the law is unconstitutional, although enforce-but-don't-defend might be a better choice in that context. But putting aside hard questions about the scope of the president's power and/or duty to make independent judgments about constitutionality, by far the most frequent ground for non-enforcement or under-enforcement of a law will be resource constraints. Given the breadth of legal duties, faithful execution of the law necessarily includes decisions to prioritize enforcement of some rather than other laws.

In the post just linked, I also noted that a decision that is based on limited resources will inevitably also contain an element of policy judgment. How could it not? Even if one looks to legislative judgments about punishments as a source of guidance about what offenses are most serious, even the determination to focus on the most serious, rather than, say, the most frequent, types of offenses reflects a policy judgment. Accordingly, the fact that the executive mixes policy grounds with resource constraints does not render an otherwise-permissible policy of non or under-enforcement invalid. However, as I put the point in the earlier post, in my view the constitutional limit under the Take Care Clause is this: A president may not use considerations of resource allocation merely as a pretext for undermining a law that he would prefer to simply not enforce regardless of resources.

But I also think that for separation-of-powers reasons, courts probably cannot and should not enforce the foregoing italicized principle. If there is a plausible resource-allocation rationale for non- or under-enforcement of some statute, then courts are not well positioned to examine whether that rationale is the "real" reason for the non-enforcement. For that reason (again, putting aside the question of how to characterize the benefits) I think the government should win in United States v. Texas. There are millions of undocumented immigrants in the U.S. The federal executive lacks the resources to deport all of them, even if it wanted to. Thus, although it's probably correct to say that the Obama administration wouldn't want to deport any of the people who qualify for DAPA/expanded DACA, that ostensible motive shouldn't be relevant to judicial evaluation of the policy.

A somewhat more strongly pro-executive view--and one that can be found in some of the Court's more conservative standing decisions--would say that all challenges to the exercise of prosecutorial discretion are non-justiciable, even if there is no plausible resource-constraint ground for the non- or under-enforcement policy. That view is actually probably closer to the law than my own view. That is, my view is somewhat more hostile to the very broad exercise of prosecutorial discretion than is the existing law--although obviously we will learn more about what the law is in US v. Texas.

So now let's double back to the Zubik oral argument. I want to imagine a colloquy that might have occurred.

JUSTICE ALITO: Couldn't the Executive deal with the problem of what's available on the Exchanges at the present time in this way: Policies are available that provide comprehensive coverage. Could the Executive say, as a matter of our enforcement discretion, we are not going to take any action against insurers who offer contraceptive­ only policies . . . .? [Actual quote]. 
SG VERRILLI: I don't believe we have that authority. 
JUSTICE ALITO: Why not? If you exercised your prosecutorial discretion, then any challenge to a non-enforcement decision would be non-justiciable. 
SG VERRILLI: That's true, your honor, but that only means that the president can sometimes get away with violating his duty to take care that the laws are faithfully executed. He still has a duty to faithfully execute the law--and where, as in your hypothetical example, there is no plausible basis for the non-enforcement decision based on resource constraints or the like, the president can't do it. Whether a less restrictive alternative is available should depend on whether it is legal, not just on whether the government could get away with pursuing the alternative.
That last paragraph that I have placed in the mouth of the Solicitor General is my view.

Friday, March 25, 2016

The Dangers of Relying on Legal Fictions and Analogies (Social Security edition)

by Neil H. Buchanan

My latest Verdict column, "Social Security Will Be There When Today’s Young People Retire," was inspired by my continuing discussions about Social Security with people in their twenties.  With so much disinformation spewing from Republicans about Social Security, especially from the establishment candidates (with the front-runner's views being wrong in a different way), it is constantly necessary to debunk all of the hysterical warnings about "bankruptcy" and all that.  [Update: That column has now been republished by Newsweek under the title "No, Social Security Is Not, Repeat Not, Going Bust."]

The biggest takeaway from that column is that the worst-WORST-case forecasts do not show Social Security "running out of money," as even some journalists now describe it.  Even in that worst case, millennials would still receive modest but important benefits.  I show, for example, that a single person whose gross salary is $40,000 per year would receive about $13,400 per year in Social Security retirement benefits under current law.  This is by no means a fortune, but it would all be effectively tax free, so that a person with low-middle income during her working life would receive retirement benefits that are quite modest but would more than keep her from becoming homeless or destitute.  If the economy performs better than that absolutely worst-case forecast, benefits could be as high as $18,900 per year for a lifetime $40,000 earner, under current law.

One of the long-running confusions about Social Security is the question of whether a person's payroll taxes are being deposited in some kind of personal savings account.  Historical records show that President Roosevelt made a very deliberate decision to describe Social Security in exactly that way, so that each person would feel a sense of having earned her retirement benefits.

As a matter of political strategy, that was a brilliant move.  It has, however, created a political opening for ideologues who try to scare people by telling them that "your money" has already been spent.  Even though every bank would be a Ponzi scheme under this logic, because banks do not hold depositors' money in vaults (but instead lend it out at a profit), some people become scared and believe that there is something nefarious going on when an opportunistic politician tells them that there are no individual accounts holding their money.

Overall, I think that Roosevelt's move was a smart one.  To this day, people's reactions to proposals to decrease Social Security benefits are clearly based on a sense of personal ownership, so that the long-term political stability of the system has unquestionably been enhanced by giving people the (quite accurate) sense that their payroll taxes create an obligation for the system to pay them benefits in the future.

There is, however, another fiction about the system that is also being exploited for political gain.  The "running out of money" claim, after all, is a claim not about Social Security itself but about the system's trust fund, which might or might not reach a zero balance sometime within the next few decades.  (The absolute worst-case scenario has the trust fund reaching zero in 2028, would result in benefit payments for a $40,000-per-year worker of $13,400 every year thereafter, as I described above.)  Even if the trust fund goes to zero, therefore, the system will continue to operate and provide important benefits.

But the additional politically exploitable question is: What is "in" the trust fund, even before it reaches a zero balance?  George W. Bush's answer was that the trust fund was just a bunch of worthless pieces of paper.  Defenders of the system responded that the trust fund is "invested" in the safest asset known to man, Treasury securities, on which the government would default only if Republicans in Congress were ever to carry through on their threats not to increase the debt ceiling.  (Back in 2005, when Bush was pushing his partial privatization plan, the debt ceiling had not yet become a political weapon.  This meant that the safety of Treasuries was still seen as absolute.)

For years, I did not question the claim that Social Security's trust fund was, as an accounting matter, invested in Treasuries.  In part, I did not bother to inquire further because it frankly does not matter whether that is true, as I will explain momentarily.  But, at least as a matter of paper-shuffling, the picture that the system's defenders painted had Social Security buying a total of $2.7 trillion of Treasury securities during the Baby Boomers' working years, and then selling those securities on the open market during the Boomers' retirement, until the money is all gone.

It turns out that this is not true, even as a formal matter.  The securities into which the trust funds are supposedly deposited are "special issues," which means that the trust fund is not competing with the general public to buy Treasuries on the open market, nor will Social Security be dumping Treasuries on the market in the coming years as it draws down the trust fund.  The special issues, it turns out, are simply an accounting mechanism that Treasury uses to keep track of how much extra money Social Security has collected over time, to which it adds interest payments based on a legislated interest rate.

As I noted above, all of this is very much beside the point, as far as the actual underlying reality is concerned.  However, it is easy for people to become focused on a particular security or a particular interest rate and think that large purchases and sales by the Treasury would be important in some way.  In particular, during the build-up of the trust fund, the higher demand for Treasuries would seem to raise prices (which reduces rates), while Treasuries' prices would fall (and rates rise) when the trust fund is redeeming all of its holdings.

Is that bad or good?  It is neither, because Social Security is not in fact buying or selling anything.  The trust fund is a legal fiction, not a reality.  The legal fiction does, of course, create an essential legal obligation that we must continue to honor, but Social Security is not really in the business of buying and selling Treasury securities.

What is really happening?  Each year's Social Security surplus of payroll taxes over benefit payments has reduced total federal borrowing.  That means that the Treasury did not need to borrow as much money from the public as it otherwise would have, which means that there were fewer Treasuries sold to the public.  This held down interest rates in general, because the government's reduced borrowing needs left more money available for private borrowers, who did not have as much competition  from the government for loanable funds.  Now that Social Security is starting to spend more than it is taking in, overall federal borrowing will be higher for the next few decades than it otherwise would have been -- just as Reagan and Greenspan planned, back in 1983.

But wait, you say.  Is that not exactly what I said was not happening, only two paragraphs above?  As a matter of the system's effect on interest rates, yes it is.  The reasoning, however, is meaningfully different.  Based on the idea of "crowding out," which is about as orthodox an economic concept as one can find, the point of reducing federal borrowing is to leave more money on the table for private borrowers to finance productive investments.  Reducing the interest rate is the whole point, so that more such investments will be worth financing.  That is how the Baby Boomers pre-paid for our retirements, by building up a bigger pool of real investments that will allow the economy to support us during our golden years.  As we draw down the notional balance in the trust fund, we are in fact using up the excess investments that we put in place for exactly that purpose.

In other words, even though the trust fund is not really invested in anything, reducing Treasury's borrowing needs meant that the supply of Treasuries was reduced, which had the same effect as if the trust fund had actually demanded more Treasuries on the open market.  And during the draw-down phase, the effects will be again the same but in the opposite direction.

Would this have been different if we had never set up Social Security in the first place?  Not at all.  Imagine that we had in 1935 instead set up a system of private retirement accounts, with people making deposits into financial institutions during their working lives and then withdrawing money during their retirements.  The results would have been exactly the same as they are with a Social Security setup.  During Baby Boomers' working lives, funds available to banks would have risen, so that interest rates on loans to private investors would have gone down.  When Boomers started to draw down their savings, rates would rise, just as they would with a Social Security system.

It is possible, of course, that Baby Boomers would have built up less money in the aggregate in those private accounts than Social Security's trust fund has accumulated.  That would mean that living standards during retirement would be lower than with Social Security, which is one of the reasons that people defend Social Security.  But the devotees of private accounts insist that it is possible to set up such accounts so that people are no worse off than they would be with Social Security.  And because nothing in Social Security prevents people from saving more -- in fact, we actively encourage people to save via IRA's, 401(k) accounts, and so on -- an imagined world in which there are only private accounts would not have accumulated a greater net amount than the $2.7 trillion in the trust fund today.  In fact, if it had, then the decline in interest rates would have been even more pronounced during the Boomers' working lives, and the future increase in rates commensurately greater.

In other words, this yet another situation in which any supposed downside of the Social Security system -- in this case, the decline in interest rates followed by the rise in interest rates -- would have been fully replicated in a system of private accounts.  That is because the real issue is not how we are financing the retirements of Boomers, but simply that there was a Baby Boom at all.  When an outsized cohort moves through its life cycle, any system that tries to "save" for that cohort's retirement is going to have the same impact.

This does not, however, mean that there is no downside to switching now to a system of private accounts.  As I have noted before (and will surely write about again, many times), the transition to a system of private accounts would put a special burden on millennials, because they would have to honor the reliance interests of Social Security recipients while also building up their own savings accounts.  Moreover, all of the administrative costs of a system of private accounts would be a net drain on the system, compared to Social Security's incredibly low overhead.  And this says nothing about the difficult of dealing with people who would make bad investments and end up with nothing for their retirements.

Those issues, however, are separate from the fundamental point here.  The trust fund itself has no impact at all on the financial markets, because it is not "invested" in anything nor will it need to be "spent down."  Saving for the future, no matter how we do it, requires either having the government borrow less or private individuals save more.  The net result is the same, on interest rates and everything else.

All of this is far beyond the political debate, of course.  Still, it is fascinating to think through the many misconceptions that can arise when we rely on analogies -- payroll taxes are like bank deposits, the trust fund is investing in Treasuries -- rather than saying what is really happening.  The good news is that what is really happening with Social Security as it actually exists is no worse than, and is in many ways much better than, the alternative.

Thursday, March 24, 2016

Executive Discretion and RFRA Harmonization in the Zubik Oral Argument

by Michael Dorf

Yesterday's oral argument in Zubik v. Burwell raised a great many interesting and important questions. After setting out the background to the case, I'm going to zero in on one that is of special interest to me, which is not to say it is the most important: Could the federal executive effectively create new private contraception-only insurance programs on the exchanges, even if not directly authorized to do so by statute?

With important exceptions, the regulations implementing the Affordable Care Act (ACA) generally require employers that provide health insurance to their employees to provide plans that include contraceptive coverage with zero deductibles. In 2014, in Burwell v. Hobby Lobby, the SCOTUS held that under the federal Religious Freedom Restoration Act (RFRA), Hobby Lobby and similarly situated corporate employers whose ownership group had moral objections to providing (some kinds of contraception) to their employees could opt out using the same mechanism that the government had already established for religious nonprofit organizations, notwithstanding the fact that Hobby Lobby et al are for-profit business organized as corporations.

Zubik involves a challenge to the opt-out mechanism for nonprofits that are already entitled to opt out under the regs. The plaintiffs argue that the structure of the opt-out is itself a substantial burden on their religious exercise because notifying the government of the religious objection triggers the government's "hijacking" of the employee health insurance administrator the nonprofit uses for its non-contraception plan to provide contraceptive insurance coverage as well. The government contests this characterization of the consequences of an opt-out notice.

While acknowledging the sincerity of the plaintiffs' religious beliefs, the government argues that its use of the third-party insurance administrators to provide the employees with contraceptive coverage does not count as a substantial burden within the meaning of RFRA. The government relies in part on cases rejecting Free Exercise claims even under the pre-Employment Division v. Smith case law. In "restoring" the pre-Smith law, the government contends, RFRA did not disturb the limits found in such cases. Amici and some justices also suggested that, as a categorical rule, a burden doesn't count as substantial under RFRA if it can only be accommodated by imposing costs on third parties (here, the female employees who do not have religious objections to using contraception). If the government wins on the substantial burden point, the government wins the case.

Even if the Court finds that the ACA substantially burdens the religious exercise of the plaintiffs, the government can still win if the substantial burden is the least restrictive means of advancing a compelling interest. There appears to be some dispute over what interest the government aims to advance. In Hobby Lobby, the Court assumed for the sake of argument that providing greater access to contraception is a compelling interest, and the government invokes that interest here. But there was some pushback. For example, Chief Justice Roberts appeared to conceptualize the case as calling for a balancing (or weighing) of the relative strength of the interest in easier access to contraception against the plaintiffs' interest in avoiding (by their lights) being complicit in (what they regard as) sin. This is somewhat non-standard. Ordinarily, one asks only whether the government interest is compelling, not whether it is more compelling than the right it is asserted against. But the Chief Justice is probably correct that in practice judges weigh the competing interests against each other.

In any event, if the government does not prevail in its argument that the ACA with opt-out is not a substantial burden, the case will probably come down to the question whether the regime that the government has established is (in the language of RFRA) "the least restrictive means of furthering" the government's interest of widened contraceptive access. The plaintiffs argue that it is not, because there are other ways of providing insurance for contraception coverage. The government in turn says that all of the alternatives the plaintiffs identify would make it harder, as a practical matter, for women to obtain contraceptives.

For example, the plaintiffs suggest that the government could allow women who work for exempt non-profits to obtain stand-alone contraception insurance on the health insurance exchanges, but the government responds that this would be cumbersome: each woman would have to shop for a supplemental plan and, depending on what she got, her primary care physician for her regular plan might not take the insurance from her contraception plan. Thus, the government argues that the alternatives proposed by the plaintiffs are not "seamless" with existing insurance coverage in the way that contraceptive coverage by the plan administrator of the plan women already have through their employers is.

Part of the argument in the case is over whether seamlessness of this sort is really a compelling interest or, as the Chief Justice would have it, whether the interest in seamlessness is as compelling as the religious claims that it needs to overcome. I want to put that issue aside to focus on a different one.

In order to show that the current accommodation is not the least restrictive means, the plaintiffs point to the fact that the government already exempts some employers from even the opt-out regime for contraceptive coverage: E.g., churches and other houses of worship; certain "grandfathered" employers; etc. The plaintiffs say that the fact that the government can make these exceptions shows that it can achieve the goals it deems compelling without resorting to the objectionably structured opt-out. The government, some amici, and some justices in turn respond that those exceptions are different, and, in any event, the existence of a few exceptions does not undermine the compelling nature of the government's goal in general. If it did, they note, the government would have perverse incentives: It would not provide exemptions from general obligations even to houses of worship, lest those exemptions be taken as evidence that its general purpose is not so compelling that it can't survive some additional religious exemptions.

I want to put that broad debate to one side as well, to focus on a subsidiary point that arose during the argument. As I have indicated, Solicitor General Don Verrilli resisted the alternatives proposed by the plaintiffs and various justices chiefly on the ground that these alternatives would not serve the government's interest in seamlessness, and thus would result in less access to contraception. But he also said that the proposed alternatives would require new legislation. For example, a health insurance company could not offer contraception-only insurance on an exchange because that is not authorized by the ACA. Justice Alito pushed back by asking:
Couldn't the Executive deal with the problem of what's available on the Exchanges at the present time in this way: Policies are available that provide comprehensive coverage. Could the Executive say, as a matter of our enforcement discretion, we are not going to take any action against insurers who offer contraceptive­ only policies, and in fact, we are going to subsidize those insurers at 115 percent, just as we do in the situation of the self-­insured plans?
SG Verrilli said no, but that even if this were in the power of the executive it wouldn't sufficiently serve the interest in seamlessness. Let's set aside the second point. Is Verrilli right about the first point? Does the executive have enforcement discretion of the sort suggested by Justice Alito?

I'm not confident what the right answer to that question is, but I would note how remarkable it is that Justice Alito apparently thinks the answer is yes. If that is his sincere view, and if he holds it consistently--two big IFs--then think of the implications for United States v. Texas, due to be argued next month. There the parties appear to agree that the president has prosecutorial discretion to withhold deportation and other enforcement actions against undocumented immigrants, while they disagree about how to characterize other aspects of the programs of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). Texas and its amici argue that DAPA and expanded DACA provide status and benefits to undocumented immigrants that the law does not authorize. The government argues that DAPA and expanded DACA do no such thing, although other laws do kick in when an undocumented immigrant is eligible for DAPA or expanded DACA. What's notable about Justice Alito's question is that he seems to assume that the president has the authority--in the exercise of prosecutorial discretion under the ACA--to expand the scope of insurance available on exchanges and to spend money to subsidize that expanded scope. An analogous view in the immigration context would be that even if Texas is right in its characterization of DAPA and expanded DACA as granting undocumented immigrants lawful status unauthorized by Congress, that would be legal as an exercise of prosecutorial discretion.

Now perhaps I've misread Justice Alito's question, or perhaps there is some provision of the ACA that gives the executive branch greater power to tinker with the exchanges than the immigration laws give the executive to tinker, but at the very least, if I were SG Verrilli, I would take heart that there's at least a chance that Justice Alito has a very expansive view of executive discretion, so that when Verrilli returns to the Court in April to argue United States v. Texas, he can remind Justice Alito of his question in Zubik.

Okay, obviously the previous paragraph is wishful thinking. I'm enough of a legal realist to know that judges and justices can come up with distinctions that enable them to vote in ways that initially look inconsistent. Is there such a distinction available here? My answer is yes. The distinction is RFRA.

Here's what I mean. Let's suppose that SG Verrilli's answer is correct as a reading of the ACA standing alone: It doesn't allow the executive to use its prosecutorial discretion and money appropriated for the ACA to encourage the creation of contraception-only plans on exchanges. But the ACA doesn't stand alone. A RFRA runs through it. By its terms, RFRA says only that government can't substantially burden religious exercise, unless it satisfies strict scrutiny. RFRA does not say what happens if a court determines that a generally applicable law fails the RFRA test.

In many cases, the answer is easy: If the law imposes a primary obligation--let's say it requires that people remove their hats upon entering courthouses--the religious objectors are exempt from the obligation. But sometimes an exception is not so simple. Take a case like Smith, which generated RFRA in the first place. The finding that Native Americans wishing to use peyote in a religious ritual are exempt from the general prohibition against peyote use is easily implemented if there is a peyote prosecution: RFRA means the indictment is quashed. But what if, as in Smith itself, the case arises in a benefits context? The finding that the general peyote obligation violates RFRA would, in a case like Smith, trigger a government obligation to pay the plaintiffs money because it would mean that the state cannot treat them as voluntarily unemployed. And if RFRA can impose financial obligations on government in a case like Smith, then maybe it can do so in a case like Zubik as well.

Put differently, maybe Justice Alito was suggesting something like the following:

This case requires the government to harmonize the ACA and RFRA. Simply exempting the plaintiffs from the obligation to provide contraception-covering insurance to their employees would serve RFRA's goal of protecting religious freedom by completely sacrificing the goal of the ACA (as construed through the regs) of widening access to contraceptive health care. Accordingly, we should read RFRA as authorizing the executive to take actions regarding exchanges that are not literally authorized by the ACA.

To be sure, Justice Alito didn't say anything like that. But CJ Roberts did--kind of. When SG Verrilli objected that current law does not permit the executive to create the alternatives that the plaintiffs suggested, the Chief replied: "Well, the way constitutional objections work is you might have to change current law."

There's an obvious error there, of course. RFRA is a statute, not a constitutional provision. But we know what the Chief meant: RFRA works like a constitutional objection. And there is a long line of cases that say that even if a government entity needs to violate statute to respect a constitutional right, the government must respect the constitutional right. To be sure, most of those cases involve state and local governments, but the principle is the same for the federal government: the Constitution trumps any statute.

To be sure, as just noted, RFRA is not the Constitution, and so it doesn't trump the ACA. But again, it works like a constitutional right. What the Chief might have been suggesting is that RFRA should be read as a delegation of authority from Congress to the executive (and, where the executive doesn't comply on its own, to the courts) to fashion otherwise unauthorized legal regimes where RFRA is violated. In my view, that would be a sound reading of RFRA.

Is that what the Chief really meant? Probably not. If I had to bet, I'd say that the Chief meant that if the government can't accommodate the Zubik plaintiffs under the ACA as written, then it should simply exempt them, unless and until Congress changes the law. But even though that's what he probably meant, the alternative reading I'm proposing makes at least as much sense. It takes account of the fact that a reasonable Congress would want the executive and the courts to harmonize the goals of RFRA and whatever statutes RFRA limits, where possible. True, we don't actually have a reasonable Congress, but sound statutory construction has long proceeded on the assumption that, as Hart & Sacks put it, the legislature consists of reasonable people pursuing reasonable goals, reasonably--even if that's not actually true.

Wednesday, March 23, 2016

Should Reporters for Blacklisted News Organizations Lie To Get Into Trump Rallies?

by Michael Dorf

In my Verdict column today, I invoke two studies that were recently featured on the NPR podcast Hidden Brain to ask whether boredom might explain the appeal of Donald Trump. The studies find that boredom increases feelings of nostalgia and prejudice--both key elements of Trump's appeal. I do not literally argue that Trump's attraction rests on the ennui of his target audience, but I try to connect the studies to some larger themes.

Here I want to move beyond the question of why people support Trump to ask a question inspired by his treatment of the press. Trump's best-known attack on the press was his boycott of the Fox News debate immediately preceding the Iowa caucuses based on Trump's belief that Megyn Kelly had treated him unfairly (by asking him questions) in an earlier debate. But that is hardly the only example. At his rallies, Trump routinely derides the press en masse, jeering at the reporters caged in their pen at the back.

The fact that the media have accepted this treatment is itself a major story of the current campaign. Trump depends on free publicity and, despite--or perhaps even because of--the shabby way in which Trump treats the news media, they continue to give him what he craves. My point today is not that the press have acted irresponsibly (although undoubtedly there has been some of that). As I note in the Verdict column, the press are in a bit of a bind: It seems irresponsible to permit Trump's outrages to go unanswered; yet Trump benefits even from negative publicity.

I therefore assume that the media will continue to cover Trump. The question is how. In particular, I want to focus on how to cover Trump rallies. Lately Trump has been excluding individual reporters and publications from his rallies based on his disagreement with what they have written about him and his campaign--as noted in a recent NPR discussion: Trump's campaign took away Politico reporter Ben Schrekinger's credentials for a press conference after a critical story. The same NPR discussion indicates that Trump has completely banned HuffPo, which routinely ends stories about Trump with "Editor's note: Donald Trump regularly incites political violence and is a serial liar, rampant xenophobe, racist, misogynist and birther who has repeatedly pledged to ban all Muslims — 1.6 billion members of an entire religion — from entering the U.S."

That's a great tag line, but Trump's retaliation against HuffPo and other organizations and reporters who honestly report on him puts these organizations and reporters at a competitive disadvantage. Although that has hardly eliminated negative coverage of Trump, over time it skews the coverage in a more positive (or perhaps merely less negative) direction than the facts warrant.

This is, of course, a well-known problem with news coverage of everything and everybody. Reporters need access to the people they cover. Even politicians who are not racist demagogues will tend to grant better access to reporters who give them positive coverage.

There is no perfect solution to this problem. Fawning reporters get better access, even to presidents. But norms among journalists and politicians at least mitigate the problem. As a matter of professional ethics, journalists do not promise positive coverage (even tacitly) in exchange for access. And even in circumstances where the First Amendment does not forbid viewpoint discrimination--such as nominally private events--politicians do not systematically freeze out reporters and organizations because of critical coverage.

Trump and his team of brownshirts do not respect the norms applicable to politicians. In such circumstances, it might be reasonable for journalists to loosen some of their norms. I have in mind one norm in particular. But first, a little background.

In January, Prof. Colb and I wrote a CNN op-ed about the indictment of the anti-abortion activists who used false IDs to gain access to Planned Parenthood officials. Although we condemned the defamatory claims that the activists made against Planned Parenthood, we worried that prosecuting even self-appointed journalists for using deception to gain access to targets of their investigation could chill legitimate journalism. We got some pushback from professional journalists who said that as a matter of sound journalistic practice: (1) they didn't break the law to gain access; and (2) they didn't lie about the fact that they were journalists--although most of them said that they didn't tell the whole truth either, unless pressed.

Our response (set forth anticipatorily in the op-ed) was that journalists have thus far been lucky, but that aggressive enforcement of nominally neutral laws--like trespass laws--could freeze out journalists. We argued for legislation that would give journalists (and potentially other investigators) a limited right to undercover access to privately-owned property in order to report on matters of public concern.

To my knowledge, no draft legislation has (yet) been introduced at the state or federal level that would exempt journalists or other investigators from criminal liability, but no legislation is needed for journalists to suspend the norms that they currently observe voluntarily. In the NPR discussion linked above, Ryan Grim of HuffPo said that since his organization has been denied press credentials to cover Trump rallies they send reporters in as part of the general public. Grim added, however, that if his reporters are affirmatively asked whether they are reporters, they will truthfully answer yes, even though that means they may be excluded.

Given the context, I think HuffPo and other news organizations that are denied press credentials to otherwise-open Trump events would be justified in making an exception to their general no-affirmative-deception policies--at least in states where that is legal. If a state trespass law imposes criminal or civil liability for gaining access to private property by lying about one's identity, then the news organizations' legal advisors would almost certainly nix such an approach. However, in most jurisdictions lying per se is not illegal, and I doubt that lying to get into a rally would count as trespass, fraud, or any other crime.

To be clear, I'm not giving legal advice. I am suggesting that if a news organization's legal team determines that there is no legal obstacle to instructing its reporters to deny that they are reporters when asked, any general principle of journalistic ethics barring such deception should be suspended due to Trump's failure to abide by the norms applicable to politicians.

Tuesday, March 22, 2016

"Originalism as Faith": My Response to Professor Solum

By Eric Segall

I recently placed on SSRN an essay that is forthcoming in the Cornell Law Review on Line titled “Originalism as Faith.” Professor Larry Solum responded to the piece on his Legal Theory Blog, and suggested I made three “mistakes” about his views.

My essay discusses the role (or lack thereof) originalism plays in constitutional interpretation and critiques a recent article in the Columbia Law Review by University of Chicago Law Professor Will Baude titled "Inclusive Originalism." My main thesis is that Baude's "inclusive originalism" specifically and "New Originalism" more broadly, either inaccurately describe constitutional decision-making by mislabeling non-originalist decisions as originalist, or define originalism in a way that is indistinguishable from non-originalist methods. Either way, Professor Baude and other New Originalists overstate the importance of original meaning to constitutional law. I suggest at the end of this piece that they do so largely to avoid the realist critique that values, not text or history, drive Supreme Court decisions.

Professor Solum says that I should not have referred to him as a “moderate” as he keeps his political views to himself. He is correct. I made an error, I own it, and I have apologized to him.

Professor Solum also takes issue with my statement that "Other New Originalists such as Randy Barnett and Lawrence Solum agree with this notion that the meaning of vague constitutional provisions may evolve over time as facts and circumstances also change." Professor Solum responds that his “view is that the meaning of every constitutional provision, including but not limited to the vague, open-textured, and irreducibly ambiguous constitutional provisions, is fixed at the time each provision is framed and ratified.” Thus, I mistakenly characterized his views.

But, Professor Solum also says that “although meaning is fixed, applications of meaning to fact does change--necessarily so, since facts themselves change over time.” My point throughout the piece, indeed a point I have made repeatedly on this blog, is that judges only care about the “applications of meaning to fact,” and thus if results in cases change over time because facts and context change, where text does not, and one views that as permissible, then there is no meaningful difference between “living constitutionalism” and “originalism.”

This point is furthered by my concession in the essay that I am, like Professor Baude, writing for judges and lawyers, not philosophers. For the actual practice of law, there is not a dime's worth of difference between a judge concluding that the meaning of a provision has changed or concluding that the application of that meaning has changed. As I wrote in 1998, the very first person to ever use the phrase the "living constitution" in what I believe is the first serious scholarly effort to discuss original meaning in constitutional litigation (the article was written in 1900), said the following:
While denying in the most unqualified terms the notion that the Constitution is capable of a varying construction, we may often be swayed by the same arguments advanced in favor of that heresy, and even reach the same results, but in a perfectly legitimate way, simply by a careful discrimination between matters of law and fact. The law of the Constitution remains forever unchanging: the facts to which it must be applied are infinitely various.
I think this is an accurate description of how the Supreme Court decides cases, I think it is essentially the same description as Professor Solum's, and I think it shows that in real cases litigated in real courts, originalism and living constitutionlism end up in the same place.

Professor Solum’s third objection to my piece is to my statement that “apparently, Randy Barnett’s and Lawrence Solum’s “New Originalism” and Professor Baude’s “inclusive originalism,” allow Supreme Court Justices to permit legislatures to ignore clear constitutional commands, and clear original expectations about those demands, if modern circumstances so require."  Professor Solum responds that “this is not my view, and Segall provides no citation in support of this assertion.  My view, expressed on multiple occasions and defended in depth in a work-in-progress, 'The Constraint Principle,' is that constitutional actors, including legislatures and the Justices of the Supreme Court, should not act in ways that are inconsistent with the communicative content of the constitutional text.”

I will not argue with Professor Solum’s description of his own views other than to suggest that, to the best of my knowledge, he has not described with any specificity constitutional provisions that express “communicative content” that he believes would actually bind judges in real life constitutional cases without regard to changed “applications.” Lawyers and judges don’t have a strong stake in hypothetical “clear meanings." Professor Solum, however, may be writing for a different audience.

Finally, Professor Solum also says the following: “Professor Baude can speak for himself, but my sense is that Segall's representations of Baude's views should not be taken on face value and that readers should consult Baude's article and compare his position to Segall's representations of that position.”

I agree people should read both pieces (I sent mine to Professor Baude months ago), but the implication or "sense" that I did not fairly represent his views is false. Of course, reasonable people can disagree about my assessment of Baude’s views.

In the interests of collegiality, and without confessing error on any point other than my characterization of his views as “moderate”, I have deleted all but one reference to Professor Solum in my essay. 

Apostasy on Free Trade Should Be Good News for Everyone

by Neil H. Buchanan

In a Dorf on Law post last week (cross-posted at Newsweek's website under the title "From Austerity to Free Trade, Elites Play Catch-Up"), I discussed some rather surprising recent concessions by some top-flight economists, who now admit that they have been over-selling the virtues of "free trade" for decades.  (I will explain the scare quotes below.)  I specifically stated that, notwithstanding this surprising news, almost "no one thinks that we should now rip up all trade agreements and go back to what economists call 'autarky.'"  That is, saying "freer trade is not always good" is not the same as saying that all trade is bad.  Conversely, however, we now can say with greater certainty than ever that not everything that purports to enhance "free trade" is automatically virtuous.

One of the things that makes economists' hearts beat with pride is the idea that their insights are deep and often counter-intuitive, which allows them to say that without economists, the world would be a worse place.  Yet their supposed insights are often a bit of a letdown.  Statements like "You can't just print money!" and "You can't just set prices!" are true as far as they go, but to be honest, those admonitions are hardly all that difficult for people to understand.  "You shouldn't run a closed economy," however, is much harder to explain, and it is based on a truly elegant insight known as the theory of Comparative Advantage (CA).  The central insight from CA is that even if one country were better than every other country in the world at producing every good and service, that country would still gain by producing the goods and services at which it is "more better," while importing the goods for which its absolute productivity advantage is smaller.  Truly brilliant.

Even so, it turns out that this insight only takes us so far.  In last Tuesday's post, I summarized some recent writing by Paul Krugman, who made his bones as an economist in the field of international trade and finance, but who now concedes that "the elite case for ever-freer trade, the one that the public hears, is largely a scam. That’s true even if you exclude the most egregious nonsense."  Eduardo Porter's "Economic Scene" column in last Tuesday's New York Times makes similar points while offering more detail.

One way of thinking about their point is that there genuinely are huge gains from opening up a country to trade, but we have already exploited almost all of those gains, so we are currently sitting on a flat part of a curve relating the "freeness" of trade and economic gains.  That is, we have already picked all the low-hanging fruit.  That does not deny that extreme movements back toward closed economies would be bad, but it does say that small movements either way are probably not going to make much difference -- which means that movements in one direction are not presumptively better than the other direction, even if we call one direction "free trade" and the other "protectionism."

The problem, however, is deeper than that, because the notion that the freeness of trade can be measured or described rigorously assumes that there is some natural baseline that counts as "free trade," and that every government action that deviates from that knowable baseline is in some sense protectionist.  But that is clearly not true, because there have to be some laws in place that set the table for trade to take place.  There are any number of such sets of laws, none of which is per se better than the others, because there is no state of nature that exists without rules for commerce.

For example, if a country requires all companies to put certain safety features into the products that they sell, or imposes environmental restrictions, or indeed if it sets any legal requirements at all for conducting commerce in the country, one can reasonably say that those laws create the basis for efficient market transactions, not that they are anti-free-trade.  Depending upon one's baseline, however, such legal requirements could just as easily be described as hampering trade.  (Child labor laws are a particularly interesting example of this concept.)

This is why scare-quotes are needed when people talk about "free trade," because there is no consistent way to say that commerce that is governed by one set of rules of the road rather than another is more free or less free.  In domestic economics, we understand that the types of contracts that we enforce, the protections that we provide to property (including intellectual property), and all of our other legal rules are the foundation that allows commerce to occur.  That is no less true in international trade than it is in domestic commerce.  (Longtime readers of this blog will note that I am merely applying "the baseline problem" to international trade.)

In any event, Krugman is making a much narrower (but still essential) point in support of his claim that the free-trade case is a scam.  He noted that "the numbers aren't huge" when it comes to measured gains from trade.  Working from a recent research paper to produce back-of-the-envelope estimates, he noted that global incomes have risen by about 45% since 1990, with 40% caused by non-trade-related factors and 5% by trade-related factors.  That is surely better than nothing, but Krugman correctly notes that this is hardly the kind of thing that most people imagine when they talk about the virtues of free trade.  Note as well that this is a period of unprecedented growth in global trade, with tectonic shifts in shipping technology, communications, finance, and international trade agreements that cannot be replicated again.  We truly are on the flat part of any curve, so if we are hoping for further gains from changing even more laws to try to increase global trade, we are likely to be disappointed.

Moreover, we are looking at global growth here, not merely U.S. growth.  If there is a reason to think that the U.S. benefited more from expanded global trade than, say, China did, I cannot think of it.  The super-fast growth in some economies was surely driven by export-focused policies.  But the U.S. was not one of those countries.  Moreover, the growth that the U.S. did see in its GDP over those years (and, in fact, going back to 1980) has not been shared widely, so that the generally defensible statement that "increased trade increases national income" would need to be understood as actually saying that "expanding trade by an unprecedented amount contributed to a small amount of income growth that was not shared at all equally."

To be sure, Krugman also takes people like Bernie Sanders to task for overselling the opposite case, which is that we could be doing much better domestically without "Hillary Clinton's free-trade policies."  Krugman argues that "[g]lobalization is only one of several factors behind rising income inequality, and trade agreements are, in turn, only one factor in globalization."  Krugman's point is thus that this is all overstated on both sides.  This is why he came out mildly against the Trans-Pacific Partnership last year, arguing that we have already seen the biggest gains that we are likely to reap from trade agreements, and noting correctly that TPP is actually a way to protect U.S. monopolies via intellectual property enforcement, which is hardly what Adam Smith had in mind when he talked about the importance of allowing free markets to function.  (Krugman adds more about Clinton's mixed support for supposedly pro-free-trade deals here.)

Yes, I know that there is a case that patents and so on end up helping the economy, but there are also good arguments of exactly the same sort showing that various trade restrictions can end up having similarly net positive effects.  Not all trade restrictions are good, but not all are bad, either.  Too many people have bought into a "trade is good, so more trade is better" notion that simply is not always true.

One of my points in Tuesday's post was that there are economists like Tom Palley who have known this all along, and they are rightly annoyed that their work was dismissed for years as "anti-free trade" (and therefore blasphemy), whereas mainstream economists like Krugman now seem to be suggesting that they never oversold the virtues of free trade.  Let me share three stories that, in various ways, illustrate why I find Palley's complaint persuasive:

(1) By pure happenstance, my first summer job in Washington during college was a research assistant position with an economic research firm that specialized in representing U.S. companies in trade complaints against foreign competitors.  These complaints are frequently litigated before the International Trade Commission, and my firm worked with BigLaw firms to provide the economic research to back up the U.S. companies' positions.  Because I had taken college-level economics, and in fact had just finished the upper-level International Economics class, I asked the hiring partner during my interview how he could be "against free trade."  He was not surprised by the question, not even when it was posed so impertinently by a naive college kid.  In fact, he and his partners spent a great deal of their time trying to explain to people that "free trade" is simply a convenient cover for policy choices that are no more (or less) free than many alternatives.  His argument was, in fact, a trade-specific version of the baseline question that I described above.  (See also the latter part of this Dorf on Law post from 2014).  Again, there is no default category of laws that is somehow "the state of nature," because every rule of commerce (domestically and internationally) is just as artificial as any other.

(2) Bill Clinton muscled the North American Free Trade Agreement (NAFTA) through Congress in 1993 by expending political capital that he never brought to bear on, say, policies to expand public investment.  Shortly before Congress was to vote on the deal, I was speaking with a friend from graduate school who was an acolyte of Krugman and his colleagues.  This friend told me that he and his economist friends were planning a party to watch the Congressional vote, cheering on the "yes" votes.  I asked why he thought that NAFTA was a good idea, and he said that it would "increase free trade."  I pointed out that it was in fact simply managed trade by a different name, and that this was merely one of many possible frameworks through which governments can manage trade.  Why is NAFTA the right one?  "Because it's for free trade," was his unhelpful reply.  Was he aware of the theoretical work in international economics that undermined the simple (but admittedly appealing) notion that countries are always better off due to expanded trade?  Yes, but he was unmoved by it, even though it was coming from some of the very people that Krugman now points to as having "known it all along."  Trade is good, so he was in favor of anything that was labeled "free trade."  Even if the literature was ambiguous at best, there was no ambivalence among even left-of-center economists who rallied around the free-trade flag.

(3) While I was still an economics professor, in the late 1990's, my department was interviewing entry-level international economists.  Because I had studied a fair amount of trade theory over the years (even though I had decided not to specialize in trade as part of my Ph.D. program), I had the sense that there were a million and one papers that had "proved" (in the sense that economics papers try to prove things, by deriving theorems from assumptions) that free trade was either bad or not always good.  (I was referring to some of those papers in point 2 above.)  In other words, even when the theory of Comparative Advantage was being used as the natural baseline against which we should measure countries' deviations from so-called free trade, even less-than-free trade could be shown mathematically to be superior to free trade, using any number of plausible assumptions.  During an interview of one of our job candidates, therefore, I asked, "What are the three most recent theories that you've seen that undermine that case for free trade?"  Without hesitation, that near-Ph.D. from a top department rattled off three clever models that he had seen that purported to show that trade limitations could be welfare-improving.

Again, to be extremely clear, none of what I have written here, or in my post last week, can reasonably be read to say that "trade is bad" or that trade restrictions will always make Americans better off.  In the article by Eduardo Porter that I noted above, however, he points out that Germany has expanded trade with China, but the German government has managed that trade in a way that was good for German workers, unlike in the U.S.  There are different ways to set up the rules of the road, and Germany wrote better rules than we did, to the benefit of all. 

Which brings us to Krugman's other concession.  As I noted on Tuesday, he now also says that the theoretical possibility of compensating the people who lose from expanded trade is even less realistic politically in the United States than it used to be.  Therefore, those who say that trade could be better for everyone (as in Germany) need to acknowledge that there will be people who will be worse off when we expand trade, because our political system has all but foreclosed the possibility of mitigating the harms to those who will be displaced.

That is probably the more politically important point in the current context, and it explains why Hillary Clinton got into such trouble by saying that "we're going to put a lot of coal miners and coal companies out of business, right?"  What she actually meant was that "we, the people of America, through a series of acts of commission and omission," are dooming the coal industry.  For a lot of reasons, that is a good thing.  Clinton was not saying that "we, the Clinton campaign and the Democratic Party, are eager to destroy coal as a viable business."

In fact, she was trying to say that she would try hard to make sure that, even though "we've got to move away from coal and all the other fossil fuels, ... I don't want to move away from the people who did the best they could to produce the energy that we relied on."  But her $30 billion plan to protect the pensions of those people, and to allow their communities to enter a post-coal future, would cost a large amount of money.  (Maybe even thirty billion dollars.)  And guess who is against having the government spend money?  The very people who tell us that trade is always good, and that economists who claim otherwise are just a bunch of union hacks who cannot understand simple economics.  It's enough to make a person cynical.

Monday, March 21, 2016

Do Dogs Go To Heaven?

By Michael Dorf

Last week Prof. Colb and I were fairly busy promoting our book Beating Hearts: Abortion and Animal Rights. We wrote an essay mostly drawn from the book's Introduction that gives a capsule summary of our thesis and argument. That essay was published in The Chronicle of Higher Education. We were also interviewed about the book by Prof. Gary Francione and Anna Charlton, who were filling in for Bob Linden by hosting Go Vegan Radio. The show aired live (where available) on the Genesis Communications Network on March 13, and is now available here as a podcast. (Our segment begins at the 32:45 mark and runs through 57:12).

Our discussion with Francione and Charlton ranged over a number of issues, including the question whether there is common ground between people like us--whose views about the morality of late-term abortion are colored by our views about sentient creatures, whether cows, pigs, or substantially developed human fetuses--and people who oppose abortion on religious grounds. Prof. Francione expressed the view that the orthodox grounds for the pro-life position make sentience irrelevant. Rather, religious opposition to abortion is rooted in the idea of "ensoulment." We do not disagree, and indeed, the book uses this difference as part of the explanation for why there is not much overlap between the animal-rights and the pro-life movements, even though both movements aim to protect innocent vulnerable life.

But "not much" does not mean zero. As Prof. Colb pointed out in the interview, we have encountered people who connect pro-animal and pro-life activism. Some well-known examples are Prof. Charles Camosy at Fordham and former Bush II speechwriter Matthew Scully, author of Dominion. Moreover, as I noted during our discussion with Francione and Charlton, and as we explore in the book, much pro-life activism seems aimed at protecting the interests of human fetuses as sentient beings, rather than at protecting zygotes and embryos as ensouled entities. Laws restricting abortions of pain-capable fetuses are a prime example.

During our conversation, I explained that our book doesn't take a position about ensoulment as a theological matter, and I was about to tell a related story about a pamphlet I was once given, when Prof. Francione announced that we were out of time. I thought I would take this opportunity to recount what I would have said if we had a few more minutes.

About a dozen years ago, when we lived in NYC, I was walking my dogs in Riverside Park when a couple of clean-cut twenty-somethings approached me and asked whether I was interested in attending a party for dog-lovers. After a few seconds of conversation, it became clear that "party" was a euphemism for "church service." I politely declined the invitation but thanked them, whereupon they handed me a pamphlet in case I changed my mind. The pamphlet featured smiling attractive people frolicking with each other and their dogs. It included a stamp on it giving the time and location of the "party." The back of the pamphlet had a short essay titled "Do Dogs Go To Heaven?".

I didn't save the pamphlet, but as I recall, it was similar to a webpage I found when I googled "do dogs go to heaven?".  The webpage says that there are animals in heaven but that they are not there as their reward for leading good lives because only humans are moral agents. The pamphlet said more or less the same thing. The webpage fudges on the question of whether the pets we find in heaven will be our pets or new pets that God creates just for heaven, whereas the pamphlet I received was pretty clear that they would not be our pets. Indeed, the pamphlet said that because animals lack eternal souls, there can't be real animals in heaven--although the animals will seem real to those of us who end up in heaven.

I found this answer disturbing. Because I'm not religious, I hadn't previously thought about the question whether pets go to heaven, but I imagine that anyone who was concerned enough to ask the question did so because she worried about two things: First, that she would be lonely in heaven without her beloved dog Rex; and second, that Rex himself would face eternal oblivion following his death, in the way that we nonbelievers assume all flesh-and-blood creatures will.

I'll say a few words about the existential dread on behalf of Rex in a moment, but I want to dwell a bit on the first concern. So far as the pamphlet was concerned, heaven is like The Matrix. You think the dogs and cats are real; they feel real; but they're not. And unlike the robots in The Matrix who appear to have achieved sentience (albeit evil sentience), the simulated dogs and cats in heaven are just simulations. They are not silicon-based rather than carbon-based dogs and cats. They're not dogs and cats at all. Perhaps some people who love their cats and dogs would be okay with that if they never found out that the heavenly cats and dogs are fake, but the fresh-faced pamphleteers were ruining the illusion by spreading the bad word. And anyway, I took one of the points of The Matrix to be the same as one of the points of Plato's allegory of the cave on which it is (loosely) based: That it is harmful to be fooled by an illusion, even a pleasant one.

In any event, quite apart from the inadequacy of fake dogs and cats as companions for people in heaven, what about the dogs and cats themselves? The sort of person who worries about whether cats and dogs (and other animals) go to heaven is likely to be worried on behalf of the animals. To my mind, the very fact that the pamphlet and website address the question whether pets go to heaven shows that a great many religious people--like a great many non-religious people--think that ensoulment is irrelevant to the interests animals have in continued existence. They think that the animals' sentience grounds the animals' interests even though, per their theology, the animals lack immortal souls. The answers the religious authorities provide are bad, but the fact that religious people even ask whether pets go to heaven shows me that there is a lot of potential common ground.