Archives: 11/2011

Another Immigration Message from Arizona

Last year sometime, when the Arizona immigration law S.B. 1070 was big news, I was preceded on a cable TV talk show by an Arizona state senator who had sponsored the legislation. As I sat in a remote studio in Washington, I could hear the senator in another studio rattle off what seemed an unending list of people in his state who had allegedly been killed by illegal immigrants. Knowing that the state’s violent crime rate has actually been declining and is the lowest it has been in 40 years, I thought to myself, “This guy is a first-class demagogue.”

Apparently his constituents agree. The state senator was Russell Pearce, main sponsor of Arizona’s tough anti-illegal-immigrant law. Yesterday his constituents removed him from office in a recall election spurred largely by his obsession with rooting out low-skilled, undocumented immigrants from his state.

Pearce tried to blame the recall on liberals soft on illegal immigration, but the opposition in his conservative district was fueled mainly by other Republicans tired of the damage he was inflicting on the state’s reputation. After passage of S.B. 1070, Pearce had then tried to deny state-issued birth certificates to children born in the state to an illegal immigrant parent despite more than a century of settled constitutional doctrine on birthright citizenship. That effort was stopped by business leaders in the state who saw no upside but plenty of downside in Pearce’s single-minded efforts that did nothing to address the state’s depressed economy.

Defeating Pearce was another Republican, Jerry Lewis, who carried 54 percent of the vote despite being outspent 3-1. After his victory last night, Lewis said,

Certainly the immigration issue is important to many people including myself. We need to bring a civil tone to that discussion, a professional approach to solving it, an approach that is reasonable and won’t be … in the courts for years to come.

Perhaps there is a lesson here for the GOP presidential candidates who have been competing with each other in recent debates to prove who can sound the most like Russell Pearce on immigration.

The End of the Euro?

Global equity markets are falling, with the Dow Jones Industrial Average down around 250pts. A benchmark 10-year Italian government bond is yielding 7.4%. Every country whose sovereign debt went over the 7%-mark has required a bailout. I was in Italy a month ago, and the yield was under 6% (still pricey for a developed country).

A bailout of a country Italy’s size would be a gargantuan task – probably a larger effort than heretofore. It is beyond the capacity of the EU. Italy’s debt is just too large. I doubt China would purchase any real assets until labor-market reforms and pension reforms were enacted. China actually wants a return on its investments.

If the IMF gets involved, it would require massive new funds for which the US taxpayer would be on the hook for around 18%. I wonder how that would go over in the US House or even the Senate? That doesn’t mean the Obama administration won’t try to organize a rescue. The Fed has been backstopping the EU banks for some time.

Will the Euro survive? Will the global financial system survive?

The Longhorn Mismatch: Too Much Racial Preference, Too Little Success

Last week the Supreme Court asked the University of Texas to respond to a cert petition raising an issue that in any non-Obamacare year would be the most explosive part of the Court’s docket: racial preferences in higher education.  (UT had for some inexplicable reason failed even to file a waiver, which is customary in cases where the respondent feels no need to file an actual brief.)

The case was brought by Abigail Fisher, a white Texan denied admission to UT-Austin even though her academic credentials exceeded those of admitted minority students.  The district court granted summary judgment to the university and the Fifth Circuit panel affirmed because a divided Supreme Court in the 2003 case of Grutter v. Bollinger (the University of Michigan case) found narrowly tailored racial preferences to be constitutionally justified for the sake of diversity.  Judge Emilio Garza wrote an electrifying concurrence – starting at page 58 here – agreeing that the ruling was correct under Grutter but that Grutter itself, and the regime of “soft” racial preferences (i.e., not quotas) it created, is incompatible with the Equal Protection Clause. 

The Fifth Circuit then denied en banc rehearing by a vote of 7-9, over a sharp dissent by Chief Judge Edith Jones.  (Full disclosure: The judge I clerked for lo those years ago, E. Grady Jolly, joined Chief Judge Jones’s dissent.)

Fisher’s cert petition objects to the wide discretion the Fifth Circuit would grant UT in administrating its racially preferential admissions paradigm, arguing that affording deference to the university extends Grutter and cannot be consistent with the “strict scrutiny” Grutter requires. Indeed, rather than working to phase out public university race preferences consistent with the expectations the Court articulated in Grutter – Justice O’Connor famously wrote that the diversity rationale would only suffice for about 25 years – the Fifth Circuit provides a veritable roadmap for discriminatory state action.

Now, it would be ideal if all nine justices were courageous enough to uphold constitutional protections for all citizens by refusing to legitimize racially discriminatory state action, regardless of the good-faith motives or other political atmospherics surrounding that action. Progressive legal theory being what it is, however, such a result, where people are judged on the content of their character/qualifications rather than the color of their skin, is unfortunately still a dream. There is, however, an argument that might sway even those members of the Court who support affirmative action as a policy matter: race preferences hurt those they are intended to help.

As highlighted in Richard Sander and Stuart Taylor’s amicus brief, a growing body of research suggests that when the capabilities of a student’s peers exceed their own, the student performs worse than when surrounded by peers with objectively similar capacities. Sander (a UCLA economist and law professor) and Taylor (a lawyer and journalist who has long covered civil rights issues) utilize this “mismatch theory” to discredit the assumption underlying race preference programs – that they benefit minorities – and demonstrate that the opposite is true. They further point out that racial preferences have failed to have their intended effects; namely, preventing racial balancing, fostering diversity, and making universities more attractive to minorities.

Three U.S. Civil Rights Commissioners also filed an amicus brief presenting evidence that racial preferences produce the opposite of their intended effect; they discourage rather than facilitate the entry of minorities into prestigious careers by incentivizing elite public universities to admit students they would not admit if admissions were race-blind. They argue that racial preferences place students in environments that do not optimize to their learning. Citing robust statistics, they conclude that this effect actually discourages minorities from entering science and engineering careers and becoming college professors, and decreases the number of minority students accepted to law schools who actually earn JDs and pass the bar exam.

The well-intentioned advocates of race-conscious public university admissions got it wrong under the Constitution. These briefs further illustrate the detriment everyone in society suffers when state action based on race rather than merit dictates the paths of young Americans.

Under the Court’s request for a response, the university has until the end of the month to file, unless it asks for and is granted an extension.  If the university’s response arrives by January, the case – if the Supreme Court takes it – should be on schedule for argument and decision this term.  For more on Fisher v. University of Texas, see the case’s SCOTUSblog page.

Thanks to Cato legal associate (and UT alumna) Anna Mackin for help with this blogpost.

Michelle Obama on Personal Responsibility and the Limits of Federal Programs

Yesterday the First Lady addressed high school students visiting Georgetown University for a day. Her message was to encourage students to strive for academic success and college degrees, but her answer to one question said a whole lot more. Here’s the question:

about the community, like, about this violence and teen pregnancy that’s going on…. What could you and your husband do to change or help out us young people?  Because it’s like someone dying every day.  Like, it’s just crazy.

Mrs. Obama answered at length, stressing the need for every individual to take responsibility for his own life and his own destiny, going so far as to add that

there’s all this stuff the President and Congress can do, but trust me, they can’t fix that.  No matter what, they can’t get in your head and change that.  You have to do that.

The First Lady is right that people must take responsibility for themselves, but what she seems not to realize is that government programs often stifle that kind of behavior. Responsibility is like a muscle: use it or lose it. The only way you learn how to behave responsibly is to actually have real responsibilities. Government has gotten in the way of that process in a host of ways, but nowhere so perniciously as in education. Today, the only educational responsibilities most parents have is to get their kids up in the morning and point them in the direction of the school or the school bus. They don’t decide where their kids go to school, who teaches them, or what they’ll be taught. The natural result—the inevitable result—is the atrophy of parental responsibility towards their children’s education and the horrendous cascade of social ills that flows from it.

Most of this is the fault of our state school monopolies that automatically assign children to schools based on where they live. But the federal government has exacerbated that problem by centralizing control over schooling even further. By abolishing their failed k-12 education programs alone, Congress would save the nation’s taxpayers roughly $70 billion annually. And by encouraging states to return power over education to parents instead of leaving it with bureaucrats, they would dramatically increase the exact kind of responsible behavior that Mrs. Obama knows is essential to solving so many of our social and economic problems.

Consider that the state of Florida has a program that cuts taxes on businesses that donate to non-profit k-12 scholarship funds. Those scholarship organizations subsidize private school tuition for low-income families. According to two separate studies, this program improves achievement in public schools, by virtue of the new competitive pressures it introduces, and it improves the achievement of the students who participate. And by requiring parents to make the difficult decisions as to where to send their children to school, and by requiring most parents to contribute at least a small co-payment, this program builds exactly the kind of responsibility and exactly the kind of social capital that Mrs. Obama so rightly yearns for.

Oh, and, by the way, it saves taxpayers $1.49 for every dollar it reduces state revenue, so it makes economic sense in the immediate term as well as in the long term.

But there’s a catch: This practical and proven solution does not seem to fit well with Mrs. Obama’s political ideology—or, more damagingly, with her husband’s. So instead of ending failed federal education programs and encouraging parental choice, power, and responsibility, the president will keep pursuing federal programs that even his own wife recognizes are doomed to fail.

But while it’s hard for a person to change his ideology, it’s easy for a country to change its president.

Ohio’s 2-1 Vote against the Individual Mandate Is a Wholesale Rejection of ObamaCare

Yesterday, Ohio voters approved by 66-34 percent an amendment to the state constitution blocking any sort of individual mandate in the state.  The Cleveland Plain Dealer reported that this “strike at President Barack Obama’s health care plan…was ahead by a wide margin even in Cuyahoga County – a traditional Democratic stronghold.” A little over a year ago, Missouri voters likewise rejected ObamaCare’s individual mandate by 71-29 percent.

Supporters typically dismiss such setbacks, including two years of solid public hostility to ObamaCare, by claiming that voters don’t hate the entire law.  In fact, they actually like specific provisions.  A year ago this month, The Washington Post’s Greg Sargent quoted approvingly a McClatchy-Marist poll:

Almost six in ten voters – 59% – report the part of the health care law that prevents insurance companies from denying coverage due to pre-existing conditions should remain law while 36% want it repealed.

Supporters are in serious denial if they still cling to this theory. These overwhelming rejections of the individual mandate are indeed a rejection of the entire law.

Asking people whether they support the law’s pre-existing conditions provisions is like asking whether they want sick people to pay less for medical care.  Of course they will say yes.  If anything, it’s amazing that as many as 36 percent of the public are so economically literate as to know that these government price controls will actually harm people with pre-existing conditions.  Also amazing is that among people with pre-existing conditions, equal numbers believe these provisions will be useless or harmful as think they will help.

But as the collapse of the CLASS Act and private markets for child-only health insurance have shown, and as the Obama administration has argued in federal court, the pre-existing conditions provisions cannot exist without the wildly unpopular individual mandate because on their own, the pre-existing conditions provisions would cause the entire health insurance market to implode.

If the pre-existing conditions provisions are a (supposed) benefit of the law, then the individual mandate is the cost of those provisions. If voters don’t like the individual mandate–if they aren’t willing to pay the cost of the law’s purported benefits–then the “popular” provisions aren’t popular, either.

Or, as Firedoglake’s Jon Walker puts it, ObamaCare is about as popular as pepperoni and broken glass pizza.

The Christmas Tree Tax Is a Microcosm of What’s Wrong with Constitutional Law

Jim Harper beat me to the punch on the new Christmas tree tax – probably because I initially thought it was a joke – but there’s actually much more to say here beyond the USDA’s claim that it’s not a tax and the general absurdity of the situation.  Three quick things:

First, there are obvious Free Exercise and Equal Protection issues here.  That is, unless we consider Christmas trees to be wholly secular, this is an obvious burden on the free exercise of Christianity, and one that no other religion faces.  Even if it might be reasonable to see Christmas trees as not particularly religious – pine trees played no role in The Greatest Story Ever Told and, e.g., my secular Jewish family always had a traditional Russian New Year’s Tree (which has no ties to Russian Orthodox Christianity) – but do we want courts drawing lines between, say, creches/crucifixes and trees/Santa?

Second, and probably even more important given the times in which we live, where in the Constitution does the federal government get the power to tax the sale of a local agricultural product?  Setting aside trees trucked in from out-of-state, there’s no interstate commerce here to regulate.  And if it’s a tax (which, again, Ag officials deny) – presumably an excise, which is specified in the Constitution and which courts have construed to be a tax on transactions or privileges – how does assessing it to promote the general welfare or common defense?  The administration cites the Commodity Promotion, Research and Information Act of 1996, under which the tax mandatory fee funds a new program to ”enhance the image of Christmas trees and the Christmas tree industry in the United States.”  That’s what passes for the general welfare? 

Third, even if the tax is a lawful use of federal power, shouldn’t Congress be the body levying it, rather than an agency of the USDA?

I could go on, but this little 15-cent tree tax is a microcosm of what’s wrong with constitutional law, evermore divorced from the Constitution as it is.  Yes, under modern doctrine, the Christmas tree tax can be probably justified under either the Commerce Clause or the General Welfare Clause – and Congress can delegate to bureaucrats the power to levy certain “assessments” – but is that the kind of government we signed up for?

h/t Cato legal associate Chaim Gordon

Obama on Record: Supports Internet Regulation

I’m perplexed by the challenge of referring neutrally to legislation moving through Congress dealing with whether or not the government should regulate Internet service. Work with me as I untangle the Standard Federal Obfuscation™ involved here.

The White House has issued a “Statement of Administration Policy” that deals with S.J. Res. 6 (House companion H.J. Res. 37 passed in April.) The bill is a “resolution of disapproval” under the Congressional Review Act. The CRA allows Congress to reject federal regulations for a period of time after they have been finalized. Resolutions like this enjoy expedited procedures in the Senate, making it harder for Senate leadership to stop them moving.

The Federal Communications Commission voted in December to apply public-utility-style regulation to the provision of Internet service. Congress is moving to reject the FCC’s claim of authority using the CRA, and the president has now said he will veto Congress’ resolution that does that.

Well—the obfuscation continues—actually, the Statement of Administration Policy says “[t]he administration” opposes S.J. Res. 6, and, “If the President is presented with S.J. Res. 6, which would not safeguard the free and open Internet, his senior advisers would recommend that he veto the Resolution.”

At some point, it may be an important detail that the president hasn’t promised a veto yet. His advisers have promised to advise him to veto. OK. Whatever. They work for him. It’s a veto threat.

But, but,… Would these regulations safeguard a “free and open Internet”? The statement says, “Federal policy has consistently promoted an Internet that is open and facilitates innovation and investment, protects consumer choice, and enables free speech.” In a sense, that’s true: When the engineers at the Defense Advanced Research Projects Agency created the Internet protocol and when federal policy opened the Internet to commercial use, this made for the open Internet we enjoy today.

But it’s not federal policy driving these values today. It’s the Internet itself—all of us. Tim Lee ably pointed this out some years ago in his paper, “The Durable Internet: Preserving Network Neutrality without Regulation.” The marketplace demands an open Internet. If there are deviations from the “end-to-end principle” that serve the public better, the market will permit them. The Internet is not the government’s to regulate.

Now, some news reporting has things a little backward. Wired’s Threat Level blog, for example, carries the headline, “Obama Pledges to Veto Anti-Net Neutrality Legislation.” Headlines need to be short, but it could just as easily and accurately read “Obama Pledges to Veto Anti-Regulation Legislation” because the question is not whether the Internet should be open and neutral, but who should ensure that openness and neutrality. Should neutrality be ensured by market forces—ISPs responding to their customers—or by lawyers and bureaucrats in Washington, D.C.?

S.J. Res. 6 would reject the FCC’s claim to regulate the Internet in the name of neutrality. It says nothing about whether or not the Internet should neutral, open, and free. Again, that’s not the government’s call.

Did you follow all that? If you didn’t, you don’t need to. Here’s the summary: President Obama has gone on the record: He supports Internet regulation.