For more on Sissel v. United States Department of Health & Human Services — and plaintiff Matt Sissel, a 29-year-old artist and former National Guardsman who earned a Bronze Star during his second tour as a medic in Iraq — see the Pacific Legal Foundation’s web site.
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Government and Politics
Is the Supreme Court Conservative?
In my last two posts I described how the New York Times misunderstands the Constitution and highlighted Reason’s great new article comparing conservative and libertarian theories of constitutional interpretation. Well, now I have a chance to put those topics together, in response to yesterday’s big front-pager entitled “Court Under Roberts Is Most Conservative in Decades.”
Times Supreme Court reporter Adam Liptak — generally a sharp and honest broker — surveys some new political science literature and concludes, among other things, that since John Roberts became Chief Justice five years ago, the Court has been moving (modestly) to the right and is now “the most conservative one in living memory.” Ed Whelan debunks both of these empirical claims at NRO’s Bench Memos blog — I disagree with Ed on some legal issues, not least unenumerated rights, but his fisking is worth a read — and I want to add two broad points.
First, the claim that “all” (or even most) judicial decisions can be assigned an ideological value is simply laughable. Are all decisions favoring criminal defendants, unions, and people claiming discrimination or civil rights violations “liberal” while those favoring prosecutors, employers, and the government “conservative” (as the scholars who maintain the database maintain)? What about union members suing unions or large corporations suing each other? What if the criminal defendant is a Fortune 500 CEO (like Conrad Black and Jeffrey Skilling in this past term’s “honest services fraud” cases)? What about “reverse” racial discrimination claims like those at issue in Ricci v. DeStefano (the New Haven firefighters case)? What about an oil company suing the EPA? A financial services company suing the SEC (or vice-versa)?
And what about civil rights claims involving the Second Amendment, or the Fifth Amendment’s Takings Clause, or the right to earn an honest living? Are those not “real” civil rights claims? What if it’s poor people losing their houses to a big developer who promises a town it will create jobs and increase tax revenues? What if it’s black hair braiders who can’t set up their shops without passing haridressing license exams requiring expertise only with white hair styles? What if it’s women who want to buy and carry handguns to defend themselves on their walks home in a dangerous neighborhood? Attempts to code such cases — like attempts to decide them based on “empathy” or support for the “little guy” — are bound to fail.
Second — and this ties together all the criticisms — the labeling of decisions (and courts!) as “conservative” and “liberal” ultimately boils down to results-based analysis that equates law with politics. The liberal political position is to favor abortion rights, separation of church and state, gun control, wealth redistribution, economic regulation, and racial preferences, and to disfavor the death penalty. It is then obvious that court rulings against those positions must be “conservative.” Add in the fact that the researchers performing all these analyses –and reporters writing about them — are themselves quite “liberal” and it becomes all the more alarming when the Supreme Court moves in a “conservative” (= wrong) direction.
But you can’t simply code cases, tally up votes, and call it a day. Is there no difference between a vote to uphold restrictions on partial-birth abortion and one to overturn Roe v. Wade? Is voting one way because of stare decisis the same as voting that way because you think the underlying precedent is correct? Is a vote to overturn the Slaughterhouse Cases and revive the Privileges or Immunities Clause the same as one to “incorporate” via the Due Process Clause?
And what about all those unanimous and “odd bedfellow” cases — the ones where Justices Scalia and Ginsburg are on one side and Justices Breyer and Alito on the other? Are Scalia and Ginsburg simply more “liberal” when it comes to the Sixth Amendment’s Confrontation Clause? Is a judge who votes to strike down economic regulations while also recognizing a broad right to habeas corpus just a “moderate” (or perhaps “confused”)? Or is that judge simply a “libertarian” as a matter of public policy?
While we’re at it, look at the First Amendment. How do you account for the leading pro-free speech justices the last 20 years being Kennedy, Thomas, and Souter? Is a vote allowing a statute that criminalizes certain kinds of disfavored speech “liberal” or “conservative”? (If you have a ready answer, contrast what you think about hate speech laws with what you think about anti-pornography laws.)
Put simply, law matters. Judges are not super-legislators voting on their preferred policy positions; they have different jurisprudential theories, some of which lend themselves more to “liberal” political results, some less, but hopefully it’s the Constitution and statutes that ultimately lead to those results over the long term.
In short, Adam, c’mon, covering the judicial branch is not like covering the political branches. You know the difference between the Court and Congress so don’t allow your readers to think there isn’t one.
ObamaCare Remains Unpopular, or Round Two of My Exchange with Maggie Mahar
Maggie Mahar responds to my response to her critique of Michael Tanner’s claim that ObamaCare is deeply unpopular. Mahar’s alternative narrative, espoused by many on the Left, is that “the more voters learn more about the reform legislation, the more they seem to like it.”
Mahar shows that her narrative works if you begin looking for a trend at the high-water mark of opposition, if you look at a few select polls, if you look at not-so-straightforward poll questions, if you interpret simultaneous declines in both support and opposition as growing support, and if you devise a rationale for ignoring the views of those who most oppose ObamaCare. Which is to say, her narrative doesn’t work. ObamaCare remains deeply unpopular.
Mahar claims that support for repealing ObamaCare has been trending downward since reaching its high water mark of 63 percent on May 22, as measured by the polling firm Rasmussen Reports. This was shrewd; if you’re going to look for a downward trend, the high water mark is an excellent place to start. But it doesn’t paint an accurate picture of what’s been happening with public support for repeal. Starting on the enactment date, as I wrote before, “Rasmussen finds opposition to repeal hovering between 32–42 percent, and support for repeal hovering between 52–63 percent, with no clear trend on either side.” No clear trend, and a majority consistently supports repeal. Check out Rasmussen’s data and see for yourself.
Next, Mahar selects a few polls that do support her narrative (e.g., Gallup, NBC/Wall Street Journal, Kaiser Family Foundation). For example, in her first post, Mahar cites an NBC/Wall Street Journal poll from June that suggests voters would prefer a Democratic congressional candidate who didn’t want to repeal ObamaCare over a Republican who did. Aside from the results being barely statistically significant, the question she cites introduces confounding factors such as party affiliation. When that same poll asked a more straightforward question, it found that 47 percent of respondents would be enthusiastic about or comfortable with a candidate’s desire to repeal ObamaCare, compared to 40 percent who would have reservations or be uncomfortable.
Moreover, selecting just a few polls probably paints a less accurate picture than looking at something like Pollster.com, which aggregates all polls and therefore (presumably) cancels out the quirkiness of individual polls.
The above graph shows that opposition to ObamaCare surged after Obama’s inauguration and surpassed support just as the debate began in earnest in July 2009. (That rising opposition fueled the angry town halls of August 2009.) In other words, from the moment the public began to focus on ObamaCare, they didn’t like what they saw, and opponents have out-numbered its supporters for 12 months now. (Note: the above graph only includes polls that ask the straightforward support/oppose question. It does not include Rasmussen’s polls showing broad and deep support for repeal, nor the NBC/Wall Street Journal and Kaiser Family Foundation polls Mahar cites, which show weaker support for repeal. It would be interesting to see Pollster.com aggregate the “repeal” polls.)
When Mahar turns her attention to all available polls, she argues, “if you’re looking for a trend, it’s only sensible to begin the day the bill was signed, March 23.” Why?
It was only after the final bill was passed, that people could begin to offer an opinion.
How true that is. Also: mere voters can hardly be expected to offer an opinion about would-be presidents until after Inauguration Day.
One would think that Mahar would only insult the public’s intelligence, and dismiss the views that a plurality/majority of adults consistently expressed for 9 months, if it would help to bolster her argument. But it doesn’t. When we look at the trend in public opinion on ObamaCare since the signing ceremony, we see that opposition and support are declining:
If the trendline showing declining opposition to ObamaCare supports Mahar’s narrative (“the more voters learn…the more they seem to like it”), the trendline showing declining support for ObamaCare supports the opposite narrative (“the more voters learn, the less they like it”).
But recall that Mahar claims that voters are warming to ObamaCare. When we look only at polls of adults who are registered to vote, there doesn’t appear to be any change since ObamaCare became law:
Looking just at voters also reveals that the opposition leads support by an even wider margin (9.5 percentage points).
(NB: These Pollster.com graphs will update automatically as new polling information becomes available, which may affect the trendlines. My description of the trends and the numbers I cite are current as of July 26, 2010. Also, readers using Internet Explorer have reported difficulty seeing the trendlines in user-generated graphs from Pollster.com.)
Finally, Mahar channels Marion Barry, who (in)famously claimed that if you don’t count murders, the crime rate in Washington, D.C., is really quite low. She cites a poll that “suggests that opposition is largely confined to the one group that already has universal coverage–seniors,” and then invokes Ezra Klein’s rationale for dismissing their opinions:
[S]eniors, of course, aren’t opposed to government-run health care. They love their Medicare, and insofar as they have a policy concern here, it’s that the Affordable Care Act will interfere with the single-payer system they rely on.
It is nonsense to say that ObamaCare is popular if we just ignore the views of people who will suffer. If ObamaCare weren’t taking the money for its insurance-company bailouts new government spending out of Medicare, it would have to take that money from somewhere else and those people would be angry. (Actually, since those Medicare cuts probably won’t happen, we’ll get to see that scenario play out.) Even if ObamaCare were popular among non-seniors, all Mahar and Klein would have established is that massive new government entitlement programs would be popular if we didn’t have to pay for them.
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Conservatives vs. Libertarians on Judicial Activism
I should have posted this earlier, but if anyone interested in legal issues — should be everyone given that most things coming out of Washington these days have constitutional defects — hasn’t yet read Damon Root’s cover story in the July issue of Reason magazine, drop what you’re doing now and do so.
While not a J.D. — or perhaps because he isn’t — Damon paints a completely accurate picture on the differences between conservative and libertarian approaches to constitutional interpretation and judicial philosophy. And I don’t mean a rehash of debates on social issues except in legalese; there are real subtleties involved, particularly when most people adhering to either of these camps call themselves “originalists” of one stripe or another. Damon’s article is both deep and wide, surveying the landscape of relevant legal thinkers and explaining to non-lawyers why all this is so, so important. (And no, I personally am not featured.)
What is more, you can now also watch Damon discussing his article and reporting in this area:
This is groundbreaking and important journalism.
The White House Has Declared Class War on the Rich, but the Poor and Middle Class Will Suffer Collateral Damage
The 2001 and 2003 tax cuts are scheduled to expire at the end of this year, which means a big tax increase in 2011. Tax rates for all brackets will increase, the double tax on dividends will skyrocket from 15 percent to 39.6 percent, the child credit will shrink, the death tax will be reinstated (at 55 percent!), the marriage penalty will get worse, and the capital gains tax rate will jump to 20 percent. All of these provisions will be unwelcome news for taxpayers, but it’s important to look at direct and indirect costs. A smaller paycheck is an example of direct costs, but in some cases the indirect costs — such as slower economic growth — are even more important. This is why higher tax rates on entrepreneurs and investors are so misguided. For every dollar the government collects from policies targeting these people (such as higher capital gains and dividend taxes, a renewed death tax, and increases in the top tax rates), it’s likely that there will be significant collateral economic damage.
Unfortunately, the Obama Administration’s approach is to look at tax policy only through the prism of class warfare. This means that some tax cuts can be extended, but only if there is no direct benefit to anybody making more than $200,000 or $250,000 per year. The folks at the White House apparently don’t understand, however, that higher direct costs on the “rich” will translate into higher indirect costs on the rest of us. Higher tax rates on work, saving, investment, and entrepreneurship will slow economic growth. And, because of compounding, even small changes in the long-run growth rate can have a significant impact on living standards within one or two decades. This is one of the reasons why high-tax European welfare states have lost ground in recent decades compared to the United States.
When the economy slows down, that’s not good news for upper-income taxpayers. But it’s also bad news for the rest of us — and it can create genuine hardship for those on the lower rungs of the economic ladder. The White House may be playing smart politics. As this blurb from the Washington Post indicates, the President seems to think that he can get away with blaming the recession on tax cuts that took place five years before the downturn began. But for those of us who care about prosperity more than politics, what really matters is that the economy is soon going to be hit with higher tax rates on productive behavior. It’s unclear whether that’s good for the President’s poll numbers, but it’s definitely bad for America.
Treasury Secretary Timothy F. Geithner took the lead Sunday in continuing the Obama administration’s push for extending middle-class tax cuts while allowing similar cuts for the nation’s wealthiest individuals to expire in January. …The tax cuts, put in place between 2001 and 2003, have become an intensely political topic ahead of the congressional elections this fall. Republicans have argued that extending the full spectrum of tax cuts is essential to strengthening the sluggish economic recovery. Geithner rejected that notion, telling ABC’s “This Week” that letting tax cuts for the wealthiest expire would not hurt growth. …On Saturday, the president used part of his weekly address to chide House Minority Leader John A. Boehner (Ohio) and other Republicans who oppose the administration’s approach, saying the GOP was pushing “the same policies that led us into this recession.”
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DISCLOSE Again and Maybe for the Last Time
The DISCLOSE Act, slightly modified, is headed for a cloture vote on Tuesday afternoon. The alterations to the bill have changed few minds outside of Congress. It remains to be seen whether the modification in the bill — the sponsor removed a passage allowing labor unions to transfer funds among its affiliates — will be enough to attract enough support to achieve cloture.
My policy analysis of DISCLOSE applies to the altered bill.
The Center for Competitive Politics provides an analysis of the altered bill here.
The American Civil Liberties Union is sending around a letter of opposition that states “we believe this legislation would fail to improve the integrity of our campaigns in any substantial way while significantly harming the speech and associational rights of Americans.”
The ACLU has four objections to the altered bill:
- The DISCLOSE Act fails to preserve the anonymity of small donors, thereby especially chilling the expression rights of those who support controversial causes.
- The DISCLOSE Act would chill not only express advocacy on political candidates, but also issue advocacy.
- The DISCLOSE Act imposes impractical requirements on those who wish to communicate using broadcast messages.
- The DISCLOSE Act imposes unjust restrictions on contractors, TARP participants and corporations with minimal foreign participation.
Taxes Are for the Little People, not John Kerry
In the future, dictionary publishers should get rid of their existing definitions for “hypocrisy” and replace them with a photo of Massachusetts Sen.ator John Kerry. He’s just been caught committing the horrible sin of saving his family more than $500,000 by domiciling his new yacht in Rhode Island (which is a tax haven for such luxuries) rather than his home state. Or at least Senator Kerry says that tax planning is a horrible sin when conducted by “Benedict Arnold” companies and facilitated by those wicked tax havens. But I guess that it’s not such a bad thing when Senator Kerry is protecting his wealth. For the rest of us peasants, it’s our job to meekly get in line and submit to whatever taxes Senator Kerry graciously decides to impose.
The Boston Herald reports:
Sen. John Kerry, who has repeatedly voted to raise taxes while in Congress, dodged a whopping six-figure state tax bill on his new multimillion-dollar yacht by mooring her in Newport, R.I. Isabel — Kerry’s luxe, 76-foot New Zealand-built Friendship sloop with an Edwardian-style, glossy varnished teak interior, two VIP main cabins and a pilothouse fitted with a wet bar and cold wine storage — was designed by Rhode Island boat designer Ted Fontaine. But instead of berthing the vessel in Nantucket, where the senator summers with the missus, Teresa Heinz, Isabel’s hailing port is listed as “Newport” on her stern. Could the reason be that the Ocean State repealed its Boat Sales and Use Tax back in 1993, making the tiny state to the south a haven — like the Cayman Islands, Bermuda and Nassau — for tax-skirting luxury yacht owners? Cash-strapped Massachusetts still collects a 6.25 percent sales tax and an annual excise tax on yachts. Sources say Isabel sold for something in the neighborhood of $7 million, meaning Kerry saved approximately $437,500 in sales tax and an annual excise tax of about $70,000. …[S]tate Department of Revenue spokesguy Bob Bliss confirmed the senator “is under no obligation to pay the commonwealth sales tax.”