Thursday, September 27, 2018

How Bad Will Things Become? Part Five: The Five Supreme Court Reactionaries Defund the Government

by Neil H. Buchanan

As I write this column, the Senate Judiciary Committee's emergency Kavanaugh hearing is either ongoing or is about to begin.  Although that hearing will certainly be important and could even change the course of history, it will also surely be stomach-turning in any number of ways.  I am, therefore, ignoring it as much as I can.

I thus return here to writing about the stakes of the Republicans' ongoing effort to remake the Supreme Court by adding either Brett Kavanaugh or one of several Kavanaugh-equivalents as a fifth arch-conservative vote.

I cannot, however, resist adding that Republicans are once again missing what seems like a promising opportunity to make lemonade out of lemons.  If they merely go through the motions with today's hearings but then immediately "plow through" with scheduled votes by the committee (tomorrow morning) and soon thereafter in the full Senate, not only will they be damaging themselves politically, but they will have missed an appealing escape route for themselves and Kavanaugh.

How would that work?  Republicans are claiming that the Democrats are merely using obstructionist tactics to delay the inevitably positive vote on Kavanaugh's nomination.  Leaving aside the sheer audacity of Senate Republicans accusing anyone else of politically motivated obstructionism, it continues to be impossible to imagine that they will not successfully seat someone before the next Congress takes over in early January.

But if the Republicans are truly worried about timing, they have a simple way out.  They can withdraw Kavanaugh and confirm someone else, but they could promise that Kavanaugh will be named to the next open seat after they have had time to prove that he is as pure as the driven snow.  They will thus have prevented his life from being "destroyed," promising that they will do (their version of) right by him as soon as they can -- without risking the loss of their current opportunity to put a new movement conservative on the bench.

It appears, however, that Republicans (pending, one might imagine, further political earthquakes today or in the next few days) are all set to inflict maximum political damage on themselves by pushing Kavanaugh through.  Democrats will surely be grateful.

The bottom line, in an event, is that the Court will soon shift substantively even further to the right than it had already moved with Anthony Kennedy as the swing justice.  (Recall, after all, that Kennedy voted in his final term to uphold Donald Trump's Muslim ban, gleefully bashed public sector unions, allowed states to suppress votes, and on and on.)  How bad could things become?

Frequent readers of my columns will have seen the previous four entries in this series, "How Bad Will Things Become?"  Because I have published more entries in this series than I initially anticipated, I have now gone back and added non-generic subtitles to each column:

-- "How Bad Will Things Become? Part One: The Post-Kennedy Assault on Reproductive Rights" argues that the new, much more conservative Court will not only make abortion either de jure or de facto unavailable, but it will most likely also go after birth control and perhaps even the notion of personal privacy as a protected Constitutional right.

-- "How Bad Will Things Become? Part Two: The Court's New Extremist Majority Will Be Truly Radical" examines the meta-question of whether the conservative "Unfab Five" justices will show any restraint in rewriting the law.  The answer is no.

-- "How Bad Will Things Become? Part Three: Will the Court's New Reactionary Bloc Bother to Cover Its Tracks?" extends Part Two's analysis by arguing that the Unfab Five will still bother to dress their politico-legal reactionary revolution in the garb of high theory, but they will over time become less and less careful about hiding their hackwork.

-- "How Bad Will Things Become? Part Four: The New Supreme Court Majority Brings Back Lochner -- and More" returns to substantive legal questions and argues that the Unfab Five will declare that the Constitution requires adherence to the comic-book version of Economics 101, with all attempts at government regulation vulnerable to being held to violate "freedom of contract" among private parties.

With Part Four having made such a broad prediction about where the reactionary revolution might go, what more is there to say?  I could explore some specific ways in which the neo-Lochner Court might pursue its agenda.  For example, it is not merely legislation that could be held to violate freedom of contract.  Why not hold that the Constitution requires that all contracts be enforced, even those that would violate prohibitions on "unconscionable" agreements?  Equitable doctrines in general could be killed off in the name of economic efficiency.

I might well add a future entry to this series that further examines what strict adherence to the conservative version of economic efficiency could entail.  Here, however, I will spend the balance of my time asking how the Court's right-wing members might reward their political allies with attacks on government itself.

Although it is not true that conservatives actually care about budget deficits (which would be fine, given that anti-deficit hysteria can be so damaging, except that conservatives are now willing to run deficits in precisely the worst circumstances and for the worst reasons), they do care about "big government."  The party of the rich and powerful is deeply committed to undermining all of the institutions that in any way nettle the wealthy and that might limit their power, which is what (among many other examples) causes them to attack labor unions so relentlessly.

The ultimate check on wealth and power, of course, can be government itself.  A full-scale extreme conservative agenda, therefore, does not merely limit what government can do (via rewriting Commerce Clause jurisprudence or expanding property rights to make environmental laws invalid), nor does it stop at allowing the wealthy and powerful to control the government (by treating political donations as "speech" and allowing Republicans to suppress the votes of non-rich, nonwhite people).  That agenda most definitely includes an attack on government itself.

The economist Milton Friedman is a conservative icon of the first order (who was nonetheless bizarrely attacked by right-wingers years after his death for his argument that the central bank should occasionally act to guide economic activity).  Friedman argued that the withholding of income taxes inevitably led to bigger government, because it made paying taxes less painful.

In the 1990's, the Republican Majority Leader in the House, Dick Armey of Texas, proposed eliminating tax withholding, making a Friedman-style argument that writing a big check every April rather than simply noticing the "taxes withheld" lines on pay stubs would make people angry enough to demand a smaller government.

Fortunately, that argument never went anywhere.  Among other things, Armey was not even willing to take the argument to its logical conclusion, which is that all taxes should be "death taxes."  That is, if we want to force people to pay painfully large tax bills, we should want those bills to be as large as possible, which means that there is no reason to adhere to an arbitrary annual payment schedule.  Let those tax liabilities grow, so people will be even more angry!  When would the person pay?  When the game is over and no more taxes will be due.  That is, at death.

But even beyond that exercise in reductio ad absurdum reasoning, the fact is that the government does not spend its money once a year but rather makes expenditures on a continuous, daily basis.  Taxes pay for government, so why not collect taxes on an ongoing basis to fund government's ongoing actions?

Those, however, are political arguments that (along with many other objections to Armey's proposal) carried the day to prevent this attack on the financial underpinnings of government action.  The Court's emboldened right wing faces no such constraints.  Although there are those who plausibly suggest that worries about political blowback, perhaps along with Chief Justice Roberts's purported concerns about the Court's institutional legitimacy, might temper the passions of the Unfab Five, I stand by my argument in Part Two that those justices will be fans of Janis Joplin, who told them to "get it while you can."

So how would the 5-4 majority decide that payroll taxes are unconstitutional?  Again, I honestly do not think that they care how they do it.  A group that (even with their least conservative member, Anthony Kennedy, on the Court) could issue decisions like Shelby County v. Holder, District of Columbia v. Heller, and Citizens United will not have a hard time mangling the Constitution to do its bidding.

What might their cover story be, assuming that they are still in the business of justifying themselves rather than saying, "Because we can"?  They might possibly say that a legal requirement to collect someone else's taxes and forward the money to the IRS constitutes commandeering of nongovernment actors to perform government services.  Or perhaps they will argue that such a requirement constitutes an uncompensated "taking" of private property when the government forces private businesses to turn over some of their resources to fulfill government requirements.

And it is not merely tax withholding for employees that is at stake.  When businesses collect and remit sales taxes to state governments, those are also taxes that are as a legal matter being levied on the purchaser, not the vendor.  The vendor, too, would then be seen as an unwilling conscript in the government's tax-collection army.  Just as people could be told to pay their income and payroll taxes on their own directly to the government, they could also be told that they are responsible for paying their sales taxes directly to their states and cities.

The net result is that tax collections to plummet, which is exactly what the conservative movement has always wanted.  The Unfab Five could say that Congress's taxing power under the Constitution is sacrosanct but that the Court is merely saying that Congress (and the states) must find a way to collect taxes directly from the people rather than using businesses as unpaid and involuntary intermediaries.

Yes, this would require ignoring the extremely high cost of such an approach (which conservatives would usually decry as "inefficiency" or simply "waste"), but that high cost would be a feature from the conservative viewpoint, not a bug.

Will any of this happen?  No one can know for sure.  What is certain is that everyone would be wise not to focus solely on high-valence matters like abortion or same-sex marriage.  An aggressive and motivated group of arch-conservative politicians in robes will be able to fundamentally change the way people live their lives, and they will not be limited to the current battlegrounds when doing so.