Wednesday, August 20, 2014

Ryan is right on the War on Poverty

In Sunday's Journal Sentinel, Joe Volk, a self-described Democrat and man of the left, expresses tentative support for at least some of Paul Ryan's anti-poverty proposals. Good for him. Although I'm not sure I'd describe Rep. Ryan's proposals as a policy epiphany - it's pretty much what he's always done, Mr. Volk is willing to engage in a serious conversation about something important. That's all too rare.

But there was one part of Mr. Volk's column that struck me as jarringly off-key and fairly important to that conversation. So in the spirit in which he started it, let me raise a few questions.

It response to Rep. Ryan's claim that the War on Poverty, begun in the mid-sixties, has largely failed, here is the story that Mr. Volk wants to tell. Anti-poverty programs dramatically reduced poverty until they were "dismantled" by the Reagan administration. Maybe he has access to numbers that I don't, but his story seems almost entirely wrong.

You can see movement in the poverty rate here. Poverty was falling at a dizzying rate during the years preceding enactment of the Great Society social problems. It continued to fall sharply until the early seventies and then fell no further. It has been relatively stable since then. It was not, as Mr. Volk says, at 11% in 1980.  Then the rate  started to turn up again after a run between 11 and 12% in that late seventies, hitting 13% in 1980 and 14% in 1981. You can't blame President Reagan for that.

Mr. Volk is right in that per capita anti-poverty spending was reduced in the early 80s (although it hardly represented a "dismantling' of the programs) and, for a time, the increase in the poverty rate that had begun at the end of the Carter administration continued. But  then it started to fall and then rise, fluctuating between 11 and 15% over the past thirty years. You can track the poverty rate against anti-poverty spending here. If you see a relationship between increased spending and reduction in the poverty rate over the past 40 years, I'd love to hear about it.

Per capita spending on poverty programs has continued to increase steadily without much discernible connection to the rate of poverty.  This is true even if one backs out Medicare spending on the grounds that much of its increase is due to health care costs rising above the rate of inflation rather than an increase in the nature of the support afforded poor persons. Again, so much for the "dismantling" of these programs.

So Paul Ryan's critique - that the War on Poverty has not been effective - seems spot on. But it does require a qualification.

While anti-poverty programs have not reduced poverty without regard to government transfers, it probably ameliorated it. The official poverty rate does not include non-cash transfers (e.g., food stamp, housing subsidies) or tax credits such as the Earned Income Credit (much beloved by Republicans).  If you take these things into account, the reduction in the poverty rate is more significant. In other words, the War on Poverty may have made people who are poor better off than they would have been in its absence.

It's necessary to say that this ameliorative effect "may" be the case because the apparent stagnation of the decline in the poverty rate roughly coincident with the beginning of the War on Poverty might be related. It is possible that the dramatic and continuing increase in anti-poverty spending has contributed to dependency. (This could be true even if poor persons "want" to be self reliant.)

Of course, it's also possible that the poverty remaining when the War on Poverty began is more intractable.

So the truth is more complicated that we fought on a war on poverty and poverty won. We've spent a lot of money - almost a trillion each year by some estimates - and made poor people better off. Whether it has done so efficiently is another matter. We may very well have been able to get the same ameliorative impact with less money or more improvement in the lives of poor people for the same money.

How you see this depends on what you think the War on Poverty was for. If it was just to get people some money, it is (perhaps) an inefficient success. If it was intended to make people self-sufficient (and it was), then it is time for a reassessment.

We have not dismantled the War on Poverty and the War on Poverty has been markedly ineffective in making poor people self-reliant.

Cross posted at Purple Wisconsin.

Wednesday, August 13, 2014

New York Mayor couldn't make it here

For those who may be savoring the failure of Mayor Bloomberg's inaptly named IndependenceUSA and the "dark money" Greater Wisconsin Committee to take down David Clarke, Charles C.W. Cooke has a great piece up at National Review Online. Cooke sees Bloomberg as a Captain Ahab. His white whales are many - big sodas, transfats, smoking, elevators, cars in the "wrong" places, unapproved headphones and .. guns. But he won't rest until everyone is just like Mike:

Michael Bloomberg, meanwhile, will remain, like Ahab before him, “tormented with an everlasting itch for things remote,” and resolved to “smite the sun” should it have the temerity to defy him. “For all men tragically great,” Herman Melville wrote, “are made so through a certain morbidness . . . all mortal greatness is but disease.” As of today, Bloomberg’s disease is not yet cured, and it will probably never be cured, for his affliction is to have been granted more money than sense; to have bought into the conceit that the average American hews to the same prejudices and privileges as do the chattering classes of the Upper East Side and of fashionable Brooklyn; and to have considered earnestly that his checkbook and his admonitions could ever have held more appeal to the electorate than the honest Midwestern sheriff in the cowboy hat.
Read the whole thing.

Cross posted at Purple Wisconsin.

Monday, August 11, 2014

Sixth District is all good

I live in the Sixth Congressional District where three conservative candidates are vying for the Republican nomination. I have not endorsed one of them because I would be happy to vote for any of them. Each has his strengths and weaknesses, but, on the whole, I can't come to the conclusion that one is clearly preferable to the others.

Ashley Schultz thinks otherwise. She is "terrified" of Glenn Grothman who she believes would "set us back fifty years." Now I think that Ashley is a rising young star and a great addition to Purple Wisconsin.* But I see it differently. 

I am not endorsing Glenn Grothman. His strength is his commitment and engagement with ideas, but, as Ashley points out, his weakness is his tendency to be, at best, overly blunt and, at worst, unmindful of important nuance. If all she is saying is that he has a weakness as a candidate - a tendency to gaffe - that may counsel a vote for one of the others, I have nothing to say. I don't necessarily agree, but it's a fair point.

But I do believe that there's a distinction that needs to be made clear. Ashley may have assumed it. I think it needs to be made explicit.

It's one thing to criticize a candidate for not adequately negotiating the shoals of our silly public discourse about things like a "war on women." But we still ought to recognize that the discourse is, in fact, silly.

We see it happen again and again. Someone will make a statement that is either ambiguous or "objectionable" only for its failure to show proper obeisance to certain sensitivities or to one of the canonical myths of politically correctness. The statement may fail to add a Seinfeldian qualification ("not that there's anything wrong with that") disavowing a bias that has not been expressed. It may  come too close to an uncomfortable truth that is susceptioble to misinterpretation (e.g., Paul Ryan's recent statements regarding the interaction of culture and poverty).

He or she will then be overwhelmed by charges of "racism" or "sexism." When his or her defenders point out that the charges are untrue, the attackers will just scream louder or say that, even if it was not biased, the statement was in some sense "insensitive" so "just as bad." Because being seen as "racist" or "sexist" is anathema in today's society, people who know better either join the pogrom or head for cover.

Now, to be clear, I don't think that's what Ashley is doing. But the examples that she gives are instructive. In our hypersenstive world, they may be political gaffes, but they are not substantive errors.

For example, Grothman made a statement about young men being more interested in making money because they may someday be breadwinners. He was arguing that disparities in pay between men and women do not necessarily reflect employer bias. One alternate explanation, he said, might have something to do with life choices. He gave the example of two lawyers who marry. The husband stays at his firm while the wife takes time off to raise the children. At 50, he'll probably be making more money than she is, but this will not be the product of employer bias.

The first thing to note is that Grothman is right. This story applies to about many lawyers that I know. For whatever reason, women have been more likely to step out of the workforce - or take less demanding jobs - for family reasons. This has consequences. Indeed, yesterday's New York Times reported on a study finding that "too much" family leave can hurt one's career prospects.

The second thing to note is that his point was not normative - he was not saying that this is the way it should be - only that it has been the way it is.

It could be that women who are becoming lawyers today will be less likely to do this in the future. It may be that the greater tendency - so far - of women to interrupt their careers (or take more family friendly jobs) is the product of "socially constructed" gender roles. It may be that employers should - whether on their own or by compulsion - adopt more family friendly policies so women are less likely to leave - even if this does impose costs on others.

But none of this is what Grothman was addressing.

Ashley quotes an old - and admittedly inartful - statement opposing mandatory life sentence for persons committed of two or more counts of sexual assault of a child. While one could read the statement as being "insensitive" to victims, Grothman's point was that all such offenses are not the same and that some sentencing discretion may be in order. For example, do we want to impose a mandatory life sentence on an 18 year old convicted of having sex with his fifteen year old girl friend? He could have said it better, but it seems pretty clear that this is what he meant.

Now I understand that many people don't want to think this hard (although it's really pretty easy) about what someone has said. Some don't want to give a political opponent the benefit of the doubt. Others find it easier to suspend critical analysis. For them, it is enough that he said something that  - kind of, sort of  - has to do with gender roles or some other sensitive topic and that's icky.  It's easier to think one has preserved one's own virtue by pre-emptorily throwing the speaker under the bus.

Of course, Ashley Schultz is not one of those people. But I think we need to make a distinction between criticizing a candidate's political skills and judgment, on the one hand and his or her substantive positions on the other.

* By way of disclosure, Ashley works at St. Anthony's School where I am on the Board of Directors. I have no authority over her, but, even if I did, she should feel to tell me where I'm wrong. God knows I need it.



Cross posted at Purple Wisconsin



Saturday, August 09, 2014

Comments

This little blog used to have a robust debate in the comments section. But, over time and particularly after it became co-hosted at the Journal Sentinel, the quality of the comments deteriorated. Not that they became more critical of what I said - we always had that, but the posters were less likely to want to engage. I did not have the time - or the interest - to trade insults with people that I don't know. Eventually, I stopped reading them.

A couple of weeks ago, one of my colleagues said that the comments section here had become a cess pool. Last night, I checked on that and he was right. In fact, some one has been posting here as me. I actually have not posted a comment on this blog for two months.

In the past, I didn't want to moderate comments because it would pretty much eliminate them, but I can't let the type of silliness that occurred here continue.

So you can comment on this blog. You can criticize me or call me a fool. But you can't pretend to be somebody else and you can't use scatological references or make offensive remarks about Scott Walker or the President's daughters. You can't defame people. You can't link to ... well I don't know what it was and I'm not about to look. To try and make sure that doesn't happen, I've turned on comment moderation.

Of course, you have a First Amendment right to say whatever you want. You just can't do it here because I believe in property rights as well as free speech.

Support for the Tenth Amendment is not support of nullification

The headline over a recent Dan Bice column says that "For candidates, nullification a key campaign theme."

As it applies to Senate candidate Jonathan Steitz*, there is no evidence ot that. In fact, I'm afraid the column uses the term "nullification" too loosely. Here are a few things to keep in mind.

In it's legal sense, nullification has a very specific meaning. Dan Bice thinks that it is "pretty straightforward" to suggest that Steitz supports nullification because Steitz said, in response to a questionnaire, that he would support a law the questionnaire described as protecting Wisconsin's Tenth Amendment rights and told Bice that he would "resist any effort by the federal government to regulate the ability of Wisconsin citizens to exercise their Second Amendment Rights."

Let's begin by defining nullification - something that Bice neglected to do. It is a doctrine claiming that, because the Constitution was a compact between the states, each individual state is the ultimate arbiter of its constitutional obligations. Each state can "nullify" a federal law that it believes violates the Constitution by refusing to comply with it or, presumably, preventing federal officers from enforcing it within that state's boundaries. No state is bound by judicial decisions with which it disagrees, including those of the US Supreme Court.

This doctrine is typically associated with the resistance of southern states to the abolition of slavery or the enforcement of civil rights laws, but it has a broader history. While the matter is not without dispute, Madison and Jefferson seem to have supported at least some form of nullification and the issue first came to the fore over tariffs, not slavery. Even as it relates to slavery, there were proponents of nullification on both sides of the question. Indeed, the Wisconsin Supreme Court famously refused to abide by an order of the United States Supreme Court in a case involving enforcement of the federal Fugitive Slave Act against those who helped an escaped slave, Joshua Glover, evade federal authorities.

But whatever its more respectable historical provenance, nullification is no longer good law. It is now well established that, under the Supremacy Clause, states are bound by the federal courts' interpretation of the scope of federal authority.

But this doesn't mean that the federal government can order a state to do anything or regulate any conduct within its borders. It does not mean that all resistance to federal authority is nullification.

Assertions of Tenth Amendment rights are not attempts at nullification. Because nullification has to do with who gets to decide the boundary between state and federal power, one cannot automatically call assertions of state sovereignty or claims of federal overreach nullification. If, for example, one claims that the federal government lacks authority to regulate the sale of firearms manufactured and sold wholly within the state of Wisconsin and argues that a federal law which purports to do so is unconstitutional, one is making a claim about Congress' power under Article I and Wisconsin's rights to regulate intrastate conduct under the Tenth Amendment. A claim that a federal law violates the Second Amendment is an argument about the scope of a provision in the federal Constitution. These claims amount to nullification only if one says that Wisconsin has the final say on these matters.

The law introduced by Rep. Michael Schraa - which I take to be the one asked about in the questionaire - doesn't take that extra step - at least not in the version that I've seen. As I understand, it does not prevent federal authorities from enforcing federal law in the state. It only prevents state and local authorities from doing so. (This is not to say that I would support the law; I don't think I would.)

But it does say that Wisconsin law enforcement officials cannot enforce federal laws - presumably without regard to the constitutionality of those laws. Isn't that nullification?

Actually, no.

The federal government cannot force states to enforce federal law. Remember the health care exchanges to be created under the Affordable Care Act? I bet you do. As we all know by now, Congress provided for federal exchanges in states that refused to create their own. It did so because the federal government cannot make states implement a federal regulatory scheme. One of the leading cases on this rule - often referred to as the "anti-commandeering" doctrine - arose in the context of federal firearms regulation.

When Congress enacted the Brady Handgun Violence Protection Act, certain interim provisions required state and local officials to conduct background checks to enforce the law. In a case called Printz v. United States, the U.S. Supreme Court held that this "commandeering" of state and local governments to enforce federal law was unconstitutional. Without knowing precisely how the issue would present itself, it may well be that Wisconsin is within its rights - no nullification - to refuse to assist federal law enforcement. Again, however, the US Supreme Court would have the final say on the question.

Of course, this is not to say that it is a good idea for state and local law enforcement to refuse to assist in the enforcement of federal gun laws. Indeed, some conservatives are critical of states and localities who refuse to cooperate in the enforcement of immigration laws. But these are questions of policy and not nullification.

*By way of full disclosure, I endorsed Steitz  - although the heat generated by that race compels me to say that it was because I thought he was best candidate and not because I thought his opponent was "bad."

Cross posted at Purple Wisconsin

Wednesday, August 06, 2014

What about the misery in our midst?

There was a recent conference in Milwaukee on violence in the central city. The "Misery in Our Midst" forum was hosted by Rep. Gwen Moore who invited, among others, Rep. Maxine Waters (D-Cal.) to speak. Rep. Waters apparently thought the key to the matter was that she could walk outside the hall and get a gun in ten minutes, but could not get a job in ten minutes.

Catchy, I suppose, but what does it really mean? Not, I think, what she intended.

I don't know that Rep. Waters could get a gun in ten minutes, but I do know that she could not get one legally. I also know that, in most parts of the city and metropolitan area, you cannot even get a gun illegally in ten minutes - and maybe not at all.

So if she is right, the observation reflects a certain degree of of lawlessness that does not seem to be present elsewhere. If true, it's not because the area in which the meeting was held is heavily African-American. There are areas in Milwaukee with lots of African-Americans (my sister lives in one) where I suspect you'd be arrested long before you ever got an illegal gun.

A culture of lawlessness certainly may be - probably is -  related to poverty, but this is where Rep. Waters statement begins to turn in on itself. Which way does causation run?

Let's stipulate that poverty contributes to crime, although we should acknowledge that there was a time in Milwaukee when discrimination was much more pervasive and the poverty rate much higher, yet the crime rate was a fraction of what it is today.

But the fact that poverty causes crime does not mean that one can reduce poverty without reducing crime first. As long as Rep. Waters is not safe outside that hall, it is unlikely that the surrounding neighborhood will ever enjoy economic prosperity. Just as poverty can cause crime, crime can cause poverty.

The second part of Rep. Waters comparison reinforces the point. It is a false and misleading contrast.
it is not reasonable to think that one ought to be able to get a job as quickly as one can engage in an illegal transaction. Certainly, external conditions affect the availability of jobs and the ease of getting one. But jobs are not entirely a thing that happens -  or is just given -  to you without regard to what you do to prepare yourself for one.

If you grow up in an area wracked by violent crime, family breakdown and social chaos, getting yourself to a place where you are likely to get a good job becomes very difficult.

It would be wrong to think that addressing poverty is simply a matter of addressing crime or family breakdown (neither of which are simple). But doing something about them would probably do more than the pile of acronyms that provide job training and other "services" today. To rule out even talking about the problem because it is "blaming the victim" is to ensure that Rep. Waters observation will continue to be true and misery will remain in our midst.

Cross posted at Purple Wisconsin.




Kentucky law prof misses the mark

Yesterday's Milwaukee Journal Sentinel featured a column by a law professor from the University of Kentucky who made some serious charges against the Wisconsin Supreme Court in connection with its decisions last week on voter ID . Professor Joshua Douglas accused he Court of hypocrisy. He said that the decisions reflected "both breathtaking judicial activism and ignorance regarding the difference between the federal and state constitutions." He criticizes the Court for improperly questioning "a federal court's analysis on a federal issue."

He's wrong - perhaps even "breathtakingly" wrong - on all three counts.

Professor Douglas seems to think that the Court is hypocritical and "activist" (a term I suspect he would never use other than polemically) because it adopted a "saving construction" of Wisconsin law. The Court read state law to require photo identification to be given even to persons who lack documents, such as a birth certificate, used to prove their identity and who cannot get them without having to pay a fee. This enabled it to conclude that the voter ID law does not impose a burden on voters who lack these documents that is sufficiently severe to violate the state constitution.

Professor Douglas seems to think that this is wrong because a saving construction can "only" be made with respect to the statute being challenged and that this construction was not of the voter ID law itself but of a "a separate administrative regulation — one that was not at issue in the case."

There is no such ironclad rule that a saving construction of state law must be to the statute that is challenged when, as here, it is the interaction between that law (voter ID) and other statutes (e.g., those requiring a fee to obtain a birth certificate) that are said to impose an unconstitutional burden.

In any event, the Court was construing the voter ID law. It is the voter ID law - Act 23 - that requires the state Department of Transportation to provide IDs free of charge for purposes of voting. In implementing the law, however, the DOT required applicants to produce certain proof of identity that cannot be obtained without paying a fee. An administrative rule said that it may, but need not, waive this requirement. The Supreme Court's decision held, in effect, that the voter ID law's mandate that ID be provided free of charge did not permit any discretion when it comes to IDs to be used for voting. (It is true that the parties seemed late to the game on this; but the impact of this regulation was discussed in briefs and at oral argument.)

There is room for disagreement over whether this construction is consistent with the statutory language, but I don't believe that the Court's attempt to undertake it was hypocritical or "activist." Construing state law is what state courts do.

This is why the Supreme Court was not wrong - or at least not out of bounds - in criticizing the decision of a federal court to move ahead with a challenge under the United States Constitution and federal Voting Rights Act. The decision in question is Judge Adelman's opinion enjoining voter ID in Frank v. Walker. In a footnote, the Wisconsin Supreme Court said that his decision to move ahead before it had first ruled on what the voter ID law actually does was "most unusual." These comments were not, as Professor Douglas' thinks, a state court questioning "a federal court's analysis of a federal issue." Rather, it was a state court making the rather obvious black letter point that a federal court often cannot resolve a federal challenge to a state law without knowing what a state law means. On this latter question, it is axiomatic that the interpretation of the state's highest court controls.

As I have written elsewhere, last week's decision may have implications for the appeal of Judge Adelman's decision in Frank. In that case, the plaintiffs argued - and Judge Adelman accepted - that persons seeking free state ID would be unable to get them if they lacked underlying proof of identification and would have to pay to get it. That now turns out to have been wrong.

It is, of course, possible that Judge Adelman would reach the same decision on voter ID even with last week's saving construction. But he - and now the appellate court - are bound to accept it as correct because the Wisconsin Supreme Court is the final arbiter of what state law means. The court of appeals will now either have to review his decision without resort to one of the premises on which it was based or send it back for further consideration. One should not be suprised that the Wisconsin court thinks the federal court should have waited for it to clarify state law before moving ahead with a federal challenge.

Indeed, the Frank case was stayed for quite some time to permit state litigation to move forward and many lawyers believed that Judge Adelman would wait for the state courts to rule.

Finally, Professor Douglas should be disabused of any notion that the Wisconsin Supreme Court does not "understand" the difference between the state and federal Constitutions. I am quite confident that it does.

It is true, as he notes, that there is no explicit "right to vote" in the federal constitution and that there is such an express right in Art. III, sec. 1 of the state Constitution. But federal courts have held that voting is a "fundamental right" subject to protection under the Fourteenth Amendment's Equal Protection Clause. While this does mean that, in a sense, the "polestar" under the US Constitution is "equality," it is also important to be more specific about what that means.

It does not mean that federal courts will no invalidate state election laws that treat everyone the same. To the contrary, any law that burdens the right to vote will be subject to federal review with the standard of review, i.e., the level of scrutiny applied by the court, varying based on the nature of the burden that the challenged law imposes.

The Wisconsin Supreme Court certainly understood that the challenge before it was under the state Constitution. But it held that its precedent required it to adopt the same standard used by federal courts in assessing claims under the Equal Protection Clause.

You can argue that it should have adopted a different - and tougher - standard. I don't think so - and argued as much in an amicus brief filed on behalf of former Lieutenant Governor Margaret Farrow and others. A more exacting standard would unduly interfere with state regulation of regulations as Justice Roggensack recognized.

But the mere fact that the Supreme Court disagreed with you does not mean that it did not "understand" the question. Professor Douglas wants the Wisconsin Supreme Court to review burdens on the right to vote differently than federal courts. There is a vigorous debate over when and why the state Supreme Court might depart from federal interpretations of similar constitutional guarantees. I know that, often to my disappointment, it rarely does so. While the existence of an express right to vote may be used to impose a higher standard of review than the federal courts use in protecting the "fundamental" right to vote under the Fourteenth Amendment, I am not surprised that the state Supreme Court decided to move in lockstep with the latter line of cases. That is what it usually does.



Cross posted at Purple Wisconsin





Thursday, July 31, 2014

The Affordable Care Act and the rule of law - again

The rule of law is popular in theory, but a hard sell in practice. It tends to get in the way of what "we" want to do and requires that all sorts of procedures be followed before people can be legally bound or the public's money can be spent. It can be hard, under those circumstances, to "get things done."

Thus we have President Obama's impatience with Congress. It would be easier for him to get what he wants if he could just do it himself. I've often felt the same way.

But the thing is that the rule of law - the insistence upon following the law as it has been written and respecting the proper procedures for changing it  - is what separates citizens from subjects. You may like what President Obama does outside the law withe respect to, say, health care or immigration. But just remember that the power you cede to him may one day be exercised by a President Paul Ryan or Marco Rubio. Maybe even Rick Perry or Scott Walker. There are no permanent victories in politics.

So what of last week's decisions about the availability of subsidies in states that have not established insurance exchanges under the Affordable Care Act.  There are three things to keep in mind.

First, the language in the ACA that restrict payments of subsidies to policies purchased on "exchanges established by a state" is not readily dismissed as a typo or grammar error. No one forgot to change the number of a section or make uniform a change in terminology. If it was a mistake, it was an egregious one - the kind that no competent lawyer who was paying attention ought to make.

It's simple English. If I allow for exchanges to be established 1) by a state or 2) by  the federal government and then provide for subsidies only for exchanges established by a state, then the subsidies don't apply to exchanges established by someone else.

The Milwaukee Journal Sentinel's editorial board suggests that "established by a state" can mean "established for a state." Not in English.

Second, the editorial board regards the "intent"of Congress as obvious. "Of course," it opines, Congress did not "really" mean to exempt the residents of 36 states from "the benefit" of tax credits (credits, incidentally, that can impose penalties on state employers and which cost real money) just because those states did not establish an exchange.

One might answer that they must have been what Congress "really" intended this because it is what Congress "really" did. But there is another problem with the board's reading of the legislative history of the relevant legal provisions as self -evidently clear.

Neither of last week's decision agreed with the board on this.

That's right. Neither the DC Circuit or Fourth Circuit majorities thought that the legislative history established that Congress intended that tax credits be available for federal exchanges. Even the Fourth Circuit found that the evidence of Congressional intent was inconclusive.

It is easy to imagine that Congress wanted something else. Indeed, one of the current enthusiasms among lawyers and scholars on the legal left is "cooperative federalism." It is, in fact, quite common that federal largesse is made contingent on states setting up a program or adopting a particular policy. While there is certainly an argument that this should not be done with a law like the ACA (assuming one wants like a law like the ACA), there are also arguments that it should.

In fact, there seems to have been two versions of the ACA originally drafted in the Senate. One provided for subsidies in federal exchanges and the other did not. The two were merged and the language of the latter survived. Normal principles of statutory construction say that a legislative body could not have intended to adopt language that it rejected.

Third, the board's conclusion that the "purpose" of the law should trump what it says ought to scare you. We are governed by the rule of law and not persons. We are, as I wrote earlier, citizens and not subjects. Perhaps Congress never believed that states would not set up exchanges. Maybe, as some evidence suggests, they understood that some may not do so and wanted to use the tax credits as an incentive.

Either view is consistent with the "purpose" of the law. Adopting some broad and unqualified purpose -  to "increase" coverage" - is to beg the question. In enacting the ACA, Congress did not authorize the President to change the law as long as it increased coverage. It passed a law that it thought would increase coverage in a particular way. Just what that way entails is best discerned by reading the law that they wrote.

Cross posted at Purple Wisconsin




Friday, July 18, 2014

The eggshell President

Over at Right Wisconsin, I have a column on the notion that Barack Obama is somehow subjected to more abuse or disrespect than other Presidents. Until this week, I would have thought that the idea that opposition to President Obama can be dismissed as based on his race was either intellectually lazy or simple partisan mischief.

If in a particularly ornery mood, I might have pointed out that this view is, in its own way, a manifestation of political hatred and ignorance. It should not he hard to understand why conservatives and libertarians would be apoplectic over a President who, whether you like him or not, is a pretty strong statist and fairly far to the left by recent standards. You can disagree with them, but to believe that they could have no reason for their opposition other than race is to refuse to even listen to those you disagree with. it It is to accuse them of subscribing to a noxious set of views without the slightest evidence.

In short, flinging allegations of racism at the President's critics is every bit as divisive and demagogic as the worst you may imagine about the late 60s GOP's supposed "southern strategy."

But it may even be worse than that.

If all you do is follow the mainstream media (including this newspaper). you probably have never read this story. (Indeed, to get the story locally, you would have had to listen to the "hateful" people on talk radio who "destroy everything that is good in our lives.")

At a holiday parade in Norfolk, Nebraska,  someone entered a float that depicted the Obama Presidential Library as an outhouse. There was some kind of mannequin - described as "zombie-like" - that the proprietor of the exhibit said was supposed to be himself and not the President. He says he is a veteran and was depicting himself as dismayed by the poor care at VA hospitals.

Others disagree. They say that he was portraying the President outside of an outhouse. I don't care. Let's assume it was the President.

The float was, in my view, simple-minded and unimaginative. Potty humor got old for me sometime around 1962.  I also tend to agree with the idea that Fourth of July parades aren't the best venue for political commentary.

The float certainly was not original. President George W. Bush's future Presidential library was also portrayed by as an out house - but not by an obscure float in a relatively small town. To the contrary, the Bush Presidential Outhouse was a product of Mike Luckovich, a nationally syndicated political cartoonist who has received two Pulitzer prizes for his brand of progressive potty humor.

And that was his constitutionally protected right. I would have thought that we were permitted to mock our Presidents. We've sure done a lot of it.

But, no. The Department of Justice has actually sent representatives to Nebraska to address this potential violation of our civil rights laws. It's Community Relations Services team has been dispatched to "resolve" this objectionable criticism of the boss.

I could explain all of the reasons why this is wrong, but I shouldn't have to.

If you aren't bothered by the idea that the federal government would send agents to investigate and "mediate" criticisms of the head of the federal government, you are not a civil libertarian. Don't tell me that you give to the ACLU. Don't explain how groovy you are on gay marriage, abortion, marijuana or the NSA. You have no regard for the First Amendment. You are committed to freedom for yourself and those like you, but not for others.

Cross posted at Purple Wisconsin.