Wednesday, March 28, 2012

Day Two of the Arguments

I would not hazard a guess on what today's oral argument portends for the future of the Affordable Care Act. It's dangerous to read too much into what the Justices say at argument and, as my NCAA brackets suggest, prognostication is not my forte.

We know the drill. Congress does not have plenary power but only those powers granted to it by the Constitution. What gives it the authority to require people to buy insurance?

Most of the argument today centered on the power of Congress to regulate interstate commerce. This is a power that has been interpreted quite expansively since the New Deal and may extend to activities that have an sufficiently strong impact on commerce or are necessary and proper to effectuate a Congressional scheme of regulation.

But I think it's fair to say (as I did on Charlie Sykes' show this morning) that a majority of the Court is concerned about the implications of upholding a law that regulates not existing commerce, but future commerce and that concerns itself, not with commercial activity, but with personal activity. These justices are looking for a limited principle.

I say a "majority" because there was little sign that the liberal wing of the Court is troubled by this at all. Justice Breyer, in particular, seems to have an expansive - I might even say unfettered view - of Congressional authority.

To my mind, the limiting principle suggested by Solicitor General Verelli is ad hoc and not persuasive. The idea is that health care is unique not simply because the failure to purchase insurance will drive up the cost for others but because the consequences of that failure will be borne by the community and not by the uninsured person. We will pay for his care whether or not he is able to do so.

Paul Clement, arguing for the 26 states who have challenged the law, seemed to have a rather strong response. The failure of someone to enter a market (in this case, by refusing to insure) will have an adverse impact on those in the market in any number of cases. If, for example, I choose not to buy a car, I will adversely affect the employment prospects of those who work in the auto industry. They may lose their jobs and go on welfare. If I do not buy an electric car, the price of those cars will stay high and fewer people will be able to afford them. The industry will be stillborn and whatever salutary impact on the environment more electric cars would deliver will be lost.

The government tried to save things by arguing that health care is unique in that almost everyone will need it at some time or the other. While there are other things that everyone needs - perhaps even more reliably than health care - such as food, shelter and clothing - the argument is that no one knows when they will need health care and the cost may be such that self insurance is not realistic.

There are still a few problems. First, it is not at all clear that everyone will need health care in this sense or that much of what the Affordable Care Act requires people to insure against fits the definition of unpredictable and catastrophic expenses. Routine health care may not be as predictable as the need to buy food, shelter or clothing but, over time, one can have a pretty good idea of what it will - or is likely - to cost.

Second, it is not at all clear that, even with this elaboration, Clement's point about the non-unique nature of health care is refuted. There are a number of things that might qualify such as, for example, retirement or disability. In fact, it is for this very reason that Congress enacted social security but, in that case, it imposed a tax and conferred a benefit - something that it could not get the votes to do here.

Finally, if health care is unique, why can't Congress mandate many other things that would affect that market other than mandate the purchase of insurance. Why can't it conclude that the failure to purchase healthy foods or belong to a health club imposes costs on other participants in the market justifying Congressional regulation?

There is more to be said but I think that the case may turn on whether or not Anthony Kennedy can be persuaded that there is a limiting principle. He did not appear to have settled on one during oral argument but, again, what is said during argument may not mean much later on. He expressed concerns that did not seem to be met with a very satisfying answer.

Yesterday on Charlie Sykes show, I suggested that Justice Scalia might not be a certain vote against the mandate. This was because of his writing in a prior case involving medical marijuana (the government's best cases involve wheat and weed). I thought, however, that Scalia would ultimately be unwilling to endorse a view of federal authority as expansive as an affirmation of the Affordable Care Act would require. Based on yesterday's argument, the likelihood is that my concern was unwarranted and my ultimate conclusion correct. He does not seem to buy it at all.

What is clear is that, contrary to the view of most legal academics over the past generation, the Affordable Care Act will not be upheld unless the Justices casting the deciding vote are persuaded of a substantial limiting principle. It is not clear that principle was articulated yesterday.
Some commentators have suggested that, if Justice Kennedy votes to uphold the Act, Chief Justice Roberts may join the majority to have greater influence on whatever the limiting principle turns out to be and to avoid a 5-4 decision. That could be. Others have suggested that the Chief won't want ObamaCare to be struck down by a single vote. But, if it is to be struck down, it's hard to see how it won't be by one vote.

There was much less discussion on whether the mandate can be upheld as a tax. I may post on that later. It just doesn't seem like a majority believes it.

Tuesday, March 27, 2012

Redistricting Struggles

So what to make of the manuevering following the panel decision in Wisconsin's redistricting case. Lots of spin. Some irresponsibility.

There appear to be three major talking points from the Democrats. One is that the legislature should now take up the entire map. Another, slightly differing take, is that the Democrats should limit themselves to fixing the Voting Rights Act violation found by the three judge panel but disregard the court's admonition that this be done within the outer boundaries of Assembly District 8 (the district found to be inconsistent with the VRA) and Assembly District 9. This would probably require changing the boundary of Senate districts because one cannot split an Assembly district between Senate districts.

Of course, neither of those things can or should happen. The three judge panel made clear that, while it would (quite properly) give the legislature the first crack at addressing the violation, it did not believe that the legislature should do anything other than change the boundary between Assembly Districts 8 and 9 without altering the outer boundaries of those districts.
In this, the panel is on solid legal ground. Recent Supreme Court precedent makes clear that courts are to alter only so much of a legislatively drawn plan as to remedy whatever violation has been found. The panel has made clear what it regards the scope of the remedy ought to be and, while that is not binding on the legislature, it effectivey delimits what the Republicans ought to agree to.

The Court has made clear that it will lift its injunction against Act 43 if the boundary between 8 and 9 is adjusted to create the type of majority Latino district it believes is required. It has also made clear that, if it has to draw the line, that's all it will do.
And properly so. If you think there is a VRA violation (and I think the panel may well turn out to be wrong on that), it remedies the violation and defers to the legislature on the rest. It leaves all of the Senate districts - none of which were found to violate the law - in place.

While some have suggested that it is not possible to create a Latino majority district (as the panel sees it) within the confines of Assembly Districts 8 and 9 as originally drawn, that is not true. The alternative proposed by the plaintiff's expert is within those boundaries although it would create an odd looking "donut hole" shaped Assembly District 9. In any event, I understand that there are several ways to avoid that without creating an odd shaped district.

There is no chance that anything other than an adjustment to the boundary of Assembly Districts 8 and 9 will pass the Assembly or be signed by the Governor. There is little chance that it could even pass the Senate. Again, there is no reason why it should. The rest of the plan has been found to violate no law or, for that matter, to suffer from any other infirmity that would not be matched by other plans.

So unless the Democrats are willing to limit themselves to the only remedy that the panel said is legally required, there is no reason to revisit the issue in the legislature. In fact, doing so may well violate the state constitution. While I believe that prior case law interpreting the state constitution to permit only one redistricting every ten years cannot restrict the legislature's attempt to correct a legal violation or settle a legal challenge, going beyond what the panel has now said is required would be neither of those.

Some bloggers have claimed that refusal to bring the legislature back to address this is "defiance" of the panel. This is nonsense.

First, the legislature is under no order from the court because the legislature was not a party to the litigation. Second, if it is "defiance" to refuse to bring the legislature back when the Democrats have demonstrated that to do would be futile, why is it not also "defiance" for Democratic legislatures to announce that they do not intend to limit themselves to doing the only thing that the panel has indicated must be done to go forward.

I would not accuse either of "defiance." I don't get the vapors when politicians act like politicians. I do think the Democrats are trying to get something that they can't get but there is a bit of a twist.

More on that later.

ObamaCare, Day One

I will be on  Charlie Sykes show this morning at 11:07 to discuss the constitutional challenges to ObamaCare.

Yesterday's arguments were a bit of a prelude, addressing a preliminary question, i.e., does the Tax Anti-Injunction Act require the Court to dismiss the challenge to the individual mandate? The law forbids injunctions against the imposition of a tax, requiring that the taxpayer pay it first and then bring a challenge.

But there are three ways in which the case could go forward. First, the Court might find that the Act is not jurisdictional, i.e., that the government can waive it as an obstacle to the case going forward. The government has done that here. Second, the Court could find an exception. Finally, it could conclude that the mandate is not a tax.

The latter point is why yesterday's argument may be something of a prelude. Several of the justices expressed skepticism that the mandate is a tax. That could have bearing on its constitutionality should the challenge proceed because one of the arguments advanced to uphold it is that it is within Congress' taxing power.

It's always dicey to read a lot into oral arguments. Sometimes Justices ask questions in the guise of a devil's advocate - challenging the lawyers to bolster - or address the weaknesses of - a position that they already hold. And there is, of course, the potential for substantial interaction between members of the Court following argument having an impact on positions.

Nevertheless, the consensus of observers regarding yesterday's argument is that it looks like the Court will take up the challenge to the mandate. That is today's topic. More later.

Thursday, March 22, 2012

Redistricting Decision Upholds Almost Entire Plan

Today's decision in Baldus v. Brennan and Voces De La Frontera v. Brennan is, from a political perspective, an almost complete victory for the Republicans. It orders nothing more than a change in the boundaries between the Assembly Districts 8 and 9 - neither of which is ever likely to be won by a Republican.

Everything else stays the same and all of the other claims - the claims of a partisan gerrymander, of unacceptable population deviations, of "disenfranchising" voters moved between even and odd state senate districts - are dismissed. The plan essentially stands.

I think that this is a political victory for the Republicans because the one change that the Court has ordered will not have the slightest impact on Republican electoral prospects. Whether you think that's a good or a bad thing, it is a fact.

The decision was well written although there are parts with which I would take issue. It is clear that the panel judges would have preferred a different process and a different type of plan, but they recognized that they are bound by the law and not by their own views of how things should be. They each deserve credit for that.

The only relief ordered by the court settles an internecine dispute in the Latino community. Some community leaders preferred to have one more heavily "packed" Latino district which, they thought,  would be more likely to elect a candidate preferred by Latino voters. Other thought that maximizing Latino influence would be better served by having two districts with substantial Latino population. The latter view was well put by Aaron Rodriguez in a recent op-ed in the Journal Sentinel.

I don't agree with the panel's conclusion that the Voting Rights Act compels the legislature to choose one of these strategies over the other in the circumstances of this case. Its decision is, to be sure, a victory for Voces De La Frontera and (I suspect) the current incumbent over other elements of the Latino community (which is hardly uniform). It is, however, pretty much a matter of indifference to the Republicans - at least as their partisan interests are concerned.

So what happens now? From its perspective, the legislature should redraw the boundaries and call it a day. Whether that happens or not will depend on whether the senate Democrats will accept defeat and move on. They may try to block compliance with the court order unless the other districts are revisited. That won't happen and can't happen. They may hope that the court will then give them something that the Republicans won't, but the panel decision has made absolutely clear that won't happen either.

Of course, the plaintiffs may appeal but I don't see any real chance of success. If anything, the panel gave too much credence to their claims even as it rejected them. Although its not clear to me that they have anything to appeal from, I would think that Voces plaintiffs would be well advised not to appeal. They could easily lose their victory.

It is possible - although perhaps not likely - that persons in the Latino community who  prefer the boundaries originally passed by the legislature will seek to intervene for purposes of appeal.

But, in the end, much sound and fury signifying very little.

Monday, March 19, 2012

Necessity and Impossibility

One of the commentators to my prior post on the difficulties of proceeding before the Supreme Court with the complaint issued by the Judicial Commission against Justice David Prosser thinks the matter easily resolved by the so-called common law "Rule of Necessity." In a case called Will v. United States, the United States Supreme Court held that a district court could hear a challenge to a law that reduced the compensation of all district judges. Although 28 U.S.C. sec. 455 required disqualification of a judge in any matter "in which his impartiality might reasonably be questioned or where he has a financial interest in the subject matter in controversy or is a party to the proceeding," the Court concluded that Congress had not intended to repeal the common law rule of necessity. In it's view, an interested judge could hear the case because there would be no other judge to hear it.

It's a fair point and the idea had occurred to me, but I don't think it works here. First, whether Wisconsin law abrogated the rule of necessity is a point on which Will does not control. Second, and more fundamentally, there is a difference between a rule that allows a judge with an interest to hear a case and one that requires a judge who has been a participant to the events at issue to hear a case. Being a witness and being a judge who must evaluate the witnesses are fundamentally incompatible roles.

We can imagine that a judge might set aside his personal interest, but how is he to set aside what he saw? Recusal rules occasionally do make it impossible to get an outcome and, in the unusual circumstances of this case, that may well be what will happen.

Consider the alternative. At best, we are going to have a proceeding in which the extrajudicial impressions formed by the members of the Court will control the outcome. This is inconsistent with judicial function and, even if permitted, something of an empty gesture. Judges - like any other human being - are not going to disbelieve their own eyes because someone else has settled upon a different version of events.

In this case, the rule of Necessity is trumped by the fact of Impossibility.

I continue to believe that this should have been - and could have been - handled in another way.

So what to do now?

The best outcome would be for the parties to reach some creative resolution. I don't think that Justice Prosser will agree to a public reprimand, but perhaps the matter could be resolved by some type of conciliatory statement and commitment to civility - ideally joined in by all members of the Court. But this may be unlikely.

The second best would be to raise the issue of disqualification promptly. If the Court is not inclined to hear the case, then it would be best for this to happen before there is discovery and a evidentiary hearing, neither of which may be helpful or edifying.

The worst outcome would be full blown litigation. I can imagine discovery into the source of leaks to the press and into the background of the participants which would not be helpful to the Court's image or to its interpersonal dynamics - all for little or no gain.

I, for one, hope that can be avoided. But maybe it can't.

What were they thinking?

Here are a few questions about the Judicial Commission's charges against David Prosser. I know two of the members of the Commission and will not accuse it of bias or ill motive. But I have some rather serious questions about the decision to issue charges and can't quite follow the thinking behind it.

Here are my questions.

First, what is the rationale for charging only Justice Prosser? The rules that the Commission says were violated are very general. A judge must be "patient, courteous and dignified." A judge must cooperate with other judges. A judge must maintain high standards of conduct to preserve the integrity of the judicial system.

I want to put aside - at least for now - the allegations about Justice Prosser losing his temper and calling the Chief Justice a bad name. Making that the basis for an ethics complaint is beyond silly. Let's focus on what is the core of the complaint - the altercation between Justices Bradley and Prosser.

The witness accounts of the incident do have a bit of a Roshomon quality. As I have written before, that's not unusual. This was a startling and sudden event. But while the witnesses differ in certain details and in the characterization that each places on what they saw, their accounts can be summarized in the following way. 
Justice Bradley came at Justice Prosser - perhaps with some degree of aggressiveness. She may or may not have had her fists raised. He put out his hands (in order, he says, to defend himself). He either intentionally or inadvertently placed them on her neck. Although his hands may have been around her neck,he does not appear to have choked her or had her in a "chokehold."
It was an unedifying moment and one  I suspect that both of them wish they could have had back.

Depending on which of the witness accounts one takes to be more accurate, one could conclude that there is probable cause to believe that Justice Prosser violated one of the applicable standards.
But, in fairness, it is also possible to conclude that there is probable cause that Justice Bradley violated one of the applicable standards. This is not a question of "blaming the victim" but in deciding who the victim was and whether there even was a single victim and aggressor. To exonerate one and charge the other - if it can be done - requires one to pick and choose among conflicting accounts of what happened.  Moreover, the differences that must be chosen between often relate to very subjective things - someone's tone of voice or how rapidly something happened - that are almost impossible to resolve.
On what basis did the Commission make these choices? It does no good to say that no one filed a complaint against Justice Bradley. We don't Know that this is the case. Besides, although the administrative rules are written in a way that assumes a complaint, nothing in the authorizing statute limits the Commission to the allegations of a complaint or to a complainant's view of what happened.
I would have charged neither but going after one raises some difficult questions. Again, I am not interested in questioning anyone's good faith, but proceeding in this way will inevitably be seen as political and biased. 
But there is a  bigger problem.  
Second, how does the Commission expect this case ever to be decided? A three judge panel will be appointed to conduct the hearing and make a recommendation. While they will make findings of fact and conclusions of law, they actually decide nothing. All of their findings and conclusions are subject to Supreme Court review.
There is an obvious problem. Six of the seven Justices were either involved in or were witnesses to the underlying events.  Sec. 757.19(2)(b) provides that "[a]ny judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs: . . . [w]hen a judge is a party or a material witness." The Judicial Code contains a similar provision.
This seems to make it quite clear that only Justice Patrick Crooks can sit on this case and that means that the Court can't act. Wisconsin Constitution Art VII sec. 4(1) provides that "[a]ny 4 justices shall constitute a quorum for the conduct of the court's business."

In Friday's Journal Sentinel, Franklin Gimbel, who the Commission has hired as a special prosecutor, was quoted as saying that the Court will "have to" hear the case. In making that point, he seems to be saying that it will only have to decide on sanctions if the Commission "establishes" a violation - presumably before the three judge panel who will conduct the hearing.

This is more wishful  thinking that anything else. First and most fundamentally, the prohibition against a judge sitting on a case in which he is a witness is not limited to one in which he decides "only" on sanctions. We would never expect a judge to sit on the case of a person charged with a crime that the judge had witnessed on the grounds that the jury will decide guilt.

Second, the Court's role is not limited to deciding on sanctions. It must review the finding of a violation as well.   While it is to defer to the findings of fact by the three judge panel, it must nevertheless review them. Under certain circumstances, they can be set aside. Moreover, it will not defer on conclusions of law, e.g. deciding whether the facts that have been found violate the rule,

Is Mr. Gimbel saying that the need to hear this case trumps clearly applicable law regarding disqualification? On what basis?

This appears to be a very unfortunate decision. The Commission has acted on one set of conflicting accounts to bring charges that can't possibly be acted upon. In doing so, it will inflame the divisions on the Court. It has taken a fire that was banked, and thrown gasoline on it without any hope of accomplishing anything.

I understand the Commission's concern about the unseemliness of the incident. But there was a way for it to act without plunging into this morass. Under its own rules - JC 4.08(4) - it could have dismissed the complaint "with such expression of concern or warning" as it deemed appropriate. It could have expressed concern and called on members of the Court to treat each other with respect. It could have called upon the Justices to remember that the outcome in any particular case is important, but so is the integrity of the Court.

Maybe that would have been an empty gesture but these charges are almost certainly one.

Thursday, March 15, 2012

Shark's Bracket

Humiliation is good for the soul. I have just uploaded my bracket.

Here are my first round upsets.

13 New Mexico State over 4 Indiana
12 Long Beach State over 5 New Mexico
14 Belmont over 3 Georgetown
11 NC State over 6 San Diego State

The Sweet Sixteen: Kentucky, Wichita State, Baylor, Duke, Michigan State, Louisville, Marquette, Missouri, Kansas State (!), Wisconsin, Florida State, Ohio State, North Carolina, Temple, North Carolina State and Kansas.

The Elite Eight: Wisconsin, Florida State, Ohio State, North Carolina, Kansas, Missouri, Michigan State, Baylor, Kentucky

The Final Four: Wisconsin, North Carolina, Kentucky, Missouri, Kentucky.

Kentucky over North Carolina on Monday night.

Here's where I'm sure to be wrong.

Wisconsin doesn't have the firepower to get that far. But I think it comes down to the Vanderbilt game. Syracuse is going out early. The winner of UW-Vanderbilt takes the bracket. (I'd like to see Harvard make a run but it won't happen.) I've decided that it's just still our time. (Hey, Lunardi has them there too.)

I'm betting against Tom Izzo. Probably a mistake.

Kentucky may just be too young.

I am not confident that Marquette makes the Sixteen. I think they are only a slight favorite over Murray State and could even lose to BYU today.

Shark on Dead Tree

Here's my column in this morning's Milwaukee Journal Sentinel.

Tuesday, March 13, 2012

More on Voter ID and what's next

I was struck by a couple of things in Judge Neiss' decision in League of Women Voters v. Walker. The first is how short  it is. The decision is not even eight full pages including three unusually long quotes from other decisions that are either inconclusive or unhelpful. The second is that much of what is there is given over to rhetoric better suited to affirming conclusions already reached than to legal analysis supporting those conclusions. Both of these characteristics lead to a number of unanswered questions.

First, the theory in this case is a bit different than last week's case, NAACP v. Walker. The idea here is that Art. III, secs. 1 and 2 of the state Constitution authorize the legislature to pass certain types of laws regarding voting. Art. III, sec. 1 provides that everyone who is a United States citizen over 18 who is resident in an election district is a qualified elector of that district. Art. III, sec. 2 states that laws may be passed defining residency, providing for registration and absentee voting, excluding certain defined classes of persons from suffrage and extending suffrage.

Judge Niess says that a photo identification requirement is not among the types of laws authorized by the Constitution. But this seems to be clearly wrong. The legislature certainly can pass laws enforcing the provisions of Art. III, secs 1 and 2. Judge Niess recognizes this, conceding that the legislature has implicit power to regulate elections.

That unavoidable concession would seem to be a rather serious obstacle to the plaintiffs' position. The photo ID law is quite clearly a law designed to enforce Art. III, sec. 1's definition of a qualified voter and Wisconsin's registration scheme which is authorized by Art, III, sec. 2. In other words, it is a way to verify that the person attempting to vote is that person who has registered to vote in the district (and is, therefore, a US citizen over the age of 18 who resides in the district).

You may not think it's necessary or a good idea, but that's not the legal question. If the law cannot stand, it must be because, even though it is within the legislature's power, it burdens the right to vote in some constitutionally impermissible way.

Unfortunately the decision simply assumes its conclusion. It doesn't really tell us why or even how we are to go about distinguishing between permitted and forbidden burdens. It asserts that the law abridges the right to vote, but doesn't explain how. To be sure, it imposes requirements that, if not complied with, will result in an inability to vote. But many permissible regulations of elections do that. If you don't comply with registration requirements, you can't vote. If you don't comply with the requirements of obtaining an absentee ballot or show up at the right polling place at the right time and during the right hours, you can't vote.

So it can't simply be that the law imposes some mandatory condition on exercise of the franchise. What it is about photo ID that is different and, more importantly, what is the standard by which its burden on the right to vote is to be assessed? The decision doesn't say. The court makes no finding of facts because it believes that no findings of fact are necessary. The decision refers to affidavits that have been filed but does not rely on (or explain) them, ultimately asserting only that there may be some people who lack the "financial, physical, mental, or emotional" resources to comply. (Emphasis supplied.)

What does that mean? Is it that there are some people who cannot get an ID? If so, who are they? Assuming that a few such people exist, does that justify striking the entire law? If there is always some way to get an ID, is it nevertheless a constitutional problem that the law makes it "too much trouble" to vote? If that's so, then what is the standard by which we determine how much trouble is too much?

I know what the plaintiffs can and cannot say about these matters. But I don't know how, for the court, they added up to a constitutional violation - at least not in any way that can be measured against the applicable constitutional language and case law.

So what's next? This case was filed before change in the venue law so that the appeal is to District IV of the Court of Appeals. Last week's case cannot be appealed to District IV, but must be venued in another district of the state's choosing. I would expect both courts to certify the respective cases to the state Supreme Court.

The Inconvenient Glen Grothmann

So much of our political dialogue isn't serious. Here's a recent example.

Senator Glen Grothman is being criticized for suggesting that nonmarital parenthood is related to child abuse. He has sponsored a bill to require the state Child Abuse and Neglect Prevention Board to create educational materials that would stress the connection between nonmarital parenthood and child abuse.

All the usual suspects are up in arms. This is supposedly "anti-women" and "ignorant." It "targets" and "labels" single mothers. Tanya Atkinson, Executive Director of Planned Parenthood, says that ""[w]omen are really really getting fed up by all of this kind of legislation, they want it to stop and we're seeing them really raise up their voices ...."

Let's put aside the fact that "women" do not generally do anything en masse and, I'm pretty sure, did not elect Tanya Atkinson gender spokesperson. There is one inconvenient fact.

Grothman may well be right.

I've done a of reading on this in connection with the marriage issue. There is an awful lot of support for Grothman's position. Children raised in single parent and step families are more likely to be the victims of abuse and neglect.This is not to say that all - or, thank God, even most - single or step parents will be abusers. It simply reflects the fact that raising children alone or with someone who is not that child's biological parent (and, therefore, likely to be less invested in that child) is difficult. Although some people try to dismiss the correlation by pointing out that single parent households are poorer, this doesn't explain away the phenomenon and poverty can itself be the product of single parenthood. At the very least, the correlation presents a series of questions that policymakers cannot ignore

The uncomfortable fact is that family structure appears to matter. While there are people who pull it off well, the difficulties of single and step families lead to a higher rate of abuse and neglect and poorer outcomes for kids than we find in households of married biological parents. The Brady Bunch was one of the crueler myths of the Sixties.

I'm not so sure that I like the bill. I don't know that it helps much to fund another government agency to tell people what to do. But that's a libertarian objection and an expression of suspicion about the ability of government - as opposed to organic institutions - to have much impact on people by putting out pamphlets and holding meetings. Grothman's critics on the left are generally unconcerned about government getting up in people's business.

They just think that Big Macs and inefficient light bulbs are a greater threat to the public weal than children raised without fathers.

The larger point is that Grothman has spoken a truth that the left doesn't want to hear. So they'll distort it and vilify him. They'll do it even though he has got an awful lot of evidence on his side.

Tell me again who's anti-intellectual?

Saturday, March 10, 2012

The Facts Regarding the Walker Defense Fund

So how much innuendo and speculation can we squeeze out of the fact that Governor Walker has established a legal defense fund? Should the heavy breathing begin?

In reporting on the creation of the fund, Dan Bice cites a summary of the statute authorizing the creation of such a fund which suggests that it can only be created when an official is under investigation. He then quotes two lawyers who say the same thing,

But, once again, it's not so simple. With all due respect, Dan should have cited the law itself. Here is what it says:

Any candidate or public official who is being investigated for, charged with or convicted of a criminal violation of this chapter or ch. 12, or whose agent is so investigated, charged or convicted, may establish a defense fund for expenditures supporting or defending the candidate or agent, or any dependent of the candidate or agent, while that person is being investigated for, or while the person is charged with or convicted of a criminal violation of this chapter or ch. 12. (emphasis supplied)
In other words, one can set up a defense fund under sec. 11.64 when one's agent is under investigation. Thus, it is entirely plausible that the fund was set up because people who worked for Walker are under investigation and that he has been forced to incur legal fees because of that. It may well be that he is not "under investigation."

This is, I think, what former Judge William Jennaro (who is also quoted in the Bice column) is driving at when he says that the formation of a defense fund does not necessarily mean that Walker is being investigated.

But there's more.

It is not clear that Governor Walker would have any way to know whether he is "under investigation." The Wisconsin Supreme Court has held that persons summoned to provide information in a John Doe do not have to be informed of the nature of the proceeding or whether or not they are a target investigation. Ryan v. State, 79 Wis. 2d 83, 255 N.W.2d 910 (1977).

In fact, a free wheeling and long running investigation that goes where ever the spirit moves it (and this one seems to fit that bill) may not even have a clearly defined list of "targets."
Of course, it is possible that the Governor is being personally "investigated." In fact, "being investigated" is an amorphous concept. I would expect that, if a prosecutor is investigating the conduct of someone who worked for me and thinks he or she has found evidence of wrongdoing, that prosecutor might try to find out if I knew about it or directed to happen. I suppose that constitutes being "investigated."

But, of course, it doesn't imply that I am guilty or even that there is probable cause to suspect that I am guilty. That I may do what any lawyer would advise me to do (particularly in a partisan context) and engage counsel to make sure that I am treated fairly and my rights are respected doesn't imply guilt either.

Thursday, March 08, 2012

Retire the Wall of Separation Metaphor

So Jim Burkee, a political science professor at Concordia (just down the road from me), wrote a column in Sunday's Journal Sentinel reacting to Rick Santorum's statement that reading John F. Kennedy's 1960 speech on the separation of church and state made him want to "throw up."

Two things. First, I've met Jim Burkee and he's a bright guy. Second, Santorum's comment was  overwrought.

But still ....

Criticism of Kennedy's speech as offering a over drawn view of the separation of church and state and a miserly view of the relationship between faith and public life did not originate with Rick Santorum. It is a political speech given for political purposes but it can be read to suggest that faith has nothing to say about policy and that whatever the government does or sponsors should be utterly devoid of religion. Burkee echoes this when he calls on conservatives to "build high the wall" of separation.

I have done a lot of work in this area and have become convinced of two things. First, the wall of separation is an overused metaphor that is almost entirely unhelpful in thinking about any of the real issues about the relationship between faith and public life. A wall, of course, cannot be breached by those on either side. If religion must avoid the concerns of politics then politics must avoid the concerns of religion.

That's a workable proposition only if you take a very narrow view of the province of either religion or politics. Once you recognize that religion is not simply about prayers on Sunday or making a series of claims about extratemporal matters unrelated to how to live life on earth, only the most modest government will remain on its side of the wall.

And once you allow (as we almost all do) that government has a role to play in educating children and providing social services or fighting wars, it is in religion's business. If you want a state as active as modern Progressives, you are all over it.

Kennedy's latent assumption was that religion is largely private. But that's a hotly contested view - one that few religious people believe. Even in his own time, much of the impetus behind the civil rights movement was religious. Did he really mean - and does Jim Burkee mean - that figures like Martin Luther King should have "offered no advice" to political leaders.

I agree with Jim that too much interaction between government and religion does religion no good (even if I'm completely unpersuaded that the decline of Christianity in Europe has anything to do with state support), but answering difficult questions about the extent to which religious views might be expressed in forums associated with the government, the proper cultural norms surrounding religious arguments for public policy (there are no legal limitations) and the extent to which government policy may intrude on religious practice and conscience are not readily answered by resort to a metaphor. There must be certain separations between religion and state, but referring to a "wall" that must be "high" and "absolute" doesn't help in deciding what they ought to be.

The Pride of the Ph.D.

One of my favorite writers on policy is Jim Manzi. He has a book coming out called "Uncontrolled" in which, I take it, he explores the limitations of social science (at least as currently practiced) and the value of randomized controlled trials.

In commenting on the book, Arnold Kling writes something that I think goes to the heart of what makes many people - including me - conservatives. Kling begins by noting that society, at any given time, includes both "embedded" wisdom and "embedded error." He continues:

The application of social science to public policy is an attempt to use conscious knowledge to replace embedded error. What I call Hayekian conservatism is the view that social scientists know so little that these attempts are more likely to undermine embedded wisdom than to correct embedded error. Therefore, policy ought to be cautious. .....
Hayek would argue that there is embedded wisdom in society that is beyond the understanding of social scientists. Call these the "unknown knowns," if you will. That is, social scientists are not aware of how habits and institutions work, but these habits and institutions have, through evolution, accumulated tacit knowledge. As social scientists, we can make some guesses about how property rights, the rule of law, trust, and trade contribute to higher per capita GDP. However, we are not able to explicitly "fix" underdeveloped countries. Richer countries are richer in the unknown knowns.
Extremely well put and much more important, I think, in the Age of Obama. As I argued here, he is strongly in the tradition of "top-down" Progressivism. He favors comprehensive, uniform, centrally determined policies.

(H/T: Russ Roberts)

Fluke and Limbaugh; Pills and Insurance

So how about Sandra Fluke and Rush Limbaugh?
Let's start with Rush? I don't listen much to his show. I've heard enough to know that he has a satiric style which ought not to be taken literally. On the other hand, he ought to have know that his comments could be understood as an attack on Ms. Fluke's personal conduct and should never have made them. They detract from the debate, undermine his position and are just mean.

On the other hand, the shock and horror is a bit contrived. Limbaugh's remarks were out of bounds, but are, unfortunately, not unique.
But here's the thing. I know nothing about Ms. Fluke's personal behavior and don't need to. In that area of life, I can only wish everyone the best. I personally believe that Ms. Fluke - and everyone else - should have as much sex as they want that is consistent with the commitments that they have made to others and their own well being.
Ms. Fluke's "promiscuity" - if we have to use that word - has nothing to with sex. It has everything to do with the assumption that other people ought to be made to pay for her stuff.
I intend to write separately on the religious liberty issues. There is an economic issue as well. Insurance, properly understood, is a hedge against risk. You pay something now to be covered against an expense that is extraordinary and unpredictable.
You don't insure against routine and ordinary expenses. Our auto insurance, for example, doesn't pay for gas and oil changes. We don't purchase grocery insurance. To do so would not be to buy insurance, but to simply buy the right to have someone else pay our bills. Moreover, as the expenses that we "insure" in this way become more routine and ordinary, the cost of the "insurance" will come to approximate what we'd pay for the goods or services in the absence of insurance - perhaps a little more since we have to compensate the party who we have contracted to pay them for us. There is no free lunch.
Contraception is closer to grocery insurance than it is to insurance against, say, getting cancer or being in a car wreck.* Most people will need it for a significant part of their lives and the cost is not high relative to the other goods and services we must obtain. Ms. Fluke's estimate of $1000/yr seems to be wildly overstated and there are, of course, alternatives to birth control pills that are extremely inexpensive if somewhat less desirable. Regardless of religious liberty objections, the case for insuring against the cost of birth control pills is weak. At best and even in the context of a student health plan, it is a transfer of wealth from students who are not sexually active to those who are. The "fairness" in that is not self evident.
But, you say, what about the fact that contraception can reduce health care costs by preventing pregnancy. Again let's put aside the religious liberty objections. Catholic institutions, for example, don't say that their religious objections can be overcome by the money the save.
If this were true, then contraception coverage would not require a mandate.  Insurers and employers would be happy to provide it in the same way that you'll give you a discount for having health screenings or participating in company wellness programs.

What about the poor? I'm all for a social safety net, but that's not what this debate is about. A mandate on private insurance will cover very few people who are truly poor. If that were the issue, we'd be talking about providing contraception through Medicaid - which we already do. I have no problem with that.
Let me close by saying something unexpected. It is now well documented that Ms. Fluke is not a run of the mill law student but a left wing activist. Nothing wrong with that. It has been pointed out that she has argued that health insurance plans should be required to cover sex change operations.
I don't think that they should but as a simple matter of the nature of insurance, there is a stronger case to be made for covering sex changes than for covering contraception. The need for a sex change, after all, is unusual, unpredictable and expensive. Putting aside arguments about morality and the nature of the "transgendered," I may well want to insure against the possibility that I will one day learn that I must change my gender.
Having said all of this, I understand that we have come to use health insurance to pay for routine and ordinary expenses. That is not necessarily a good thing but it is unlikely to change any time soon. Nevertheless, it seems to me that whether or not to cover contraception ought to be left to private decisionmakers. If it is a good idea, it will happen. If certain employers have a moral objection, those rights of conscience will be respected.

*That may not be true where oral contraceptions are prescribed for something other than preventing pregnancy but, Ms. Fluke's anectodes notwithstanding, that's not what this controversy is about.

Wednesday, March 07, 2012

Recalls and Judging

Last night, I got a call from WKOW in Madison about the fact that Judge Flanagan had signed a Walker recall petition and that the Republican Party intends to file a complaint with the Judicial Commission. This prompted me to take a look at the Judicial Code of Ethics in between coverage of Super Tuesday and Championship Week. (Harvard is dancing for the first time since '46!).

I report. You decide.

In Dan Bice's column, Mike Maistelman says that its not a problem because the Governor was not sued in his personal capacity. It's not that easy.

SCR 60.06(2)(a) prohibits a judge from, among other things, participation in the "affairs, caucuses, promotions, platforms, endorsements, conventions, or activities of a political party or a candidate for partisan office" and says that a judge may not "[p]ublicly endorse or speak on behalf of its candidates or platforms."

Has he done either of these? I think it would be a stretch to say that he did the former but less of a stretch to argue that he did the latter. Signing a recall petition could be viewed as a public endorsement of a partisan position. If the purpose of the rule is to prevent judges from publicly injecting themselves into partisan elections, he can be said to have done that.

It is possible (although also a bit of a stretch) that he simply thought the voters should have a chance to vote in a recall election. He might also argue that signing a recall petition is, in any event, more like a general indication of support such as affiliation with a party. The rules prohibit that, too, but that prohibition was held to be unconstitutional in a case called Siefert v. Alexander. The Siefert court held that, absent some specific and individualized relationship, the relationship between simply announcing party affiliation and the potential for bias was insufficiently close to justify the rule's restriction on speech.

But the Siefert court upheld the rule against endorsement. The state does have an interest, it said, in preventing judges from injecting themselves into partisan elections. But maybe a signing a recall petition does differ in material ways from an endorsement. The signature of any one individual is normally not used to promote a candidate or partisan platform.

One can argue - and I have - that ethical rules should be construed in a way that gives those who are subject to them clear notice of what is requirend and which minimizes interference with constitutionally protected rights.

But there are two more rules to worry about.

SCR 60.05(a) says that a judge "shall conduct all of the judge's extra-judicial activities" so they do not "cast reasonable doubt on the judge's capacity to act impartially as a judge. " Here is where Brother Maistelman's point might have some weight but it's hardly dispositive. Walker was, as he notes, sued in his official capacity. But the recall petition is aimed at removing him from that capacity for acts undertaken in that capacity. The voter ID law has been one of his more prominent legislative accomplishments.

If a judge signs a recall petition and then sits on a a case challenging a key legislative accomplishment of the targetted politician in which the politician is a defendant, might a reasonable person question his capacity to act impartially? Is it reasonable to be concerned that the judge, who has publicly stated that he wants that politican out of office might be tempted - however subtly -  to help that process along by holding that the politician has promoted and signed into law an unconstitutional act?

In answering that question, is the concern underlying SCR 60.06(2)(a) - the idea that judges should not inject themselves into partisan politics - instructive?

Similarly, SCR 60.04(a) provides that "a judge shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish one of the following or when reasonable, well-informed persons knowledgeable about judicial ethics standards and the justice system and aware of the facts and circumstances the judge knows or reasonably should know would reasonably question the judge's ability to be impartial"

The same question must be asked and answered. Keep in mind that the recusal question here is a bit different than when asked at the Supreme Court level. The Supreme Court is a collegial law developing court of last resort. Justices who recuse themselves are not replaced. Recusal raises a whole set of issues that simply don't exist at the trial court level where a judge who steps aside is simply replaced by another.

But keep in mind as well that it is not enough to say that he exercised poor judgment or should not have signed the petition. That his signature would become public and that people would raise hell was perfectly foreseeable. For him to sign a recall petition and then proceed to sit on a case involving one of the Governor's more prominent policy initiatives was certainly to sow the wind. But even if that makes signing a poor choice, that alone does not make it a violation of the ethical rules.

So what do you think?

Quick Reaction to Voter ID Decision

Yesterday's decision in NAACP v. Walker enjoining the voter ID bill may be hard to defend. It's  weakness is that there is not much law to support to it. Indeed, it is very hard to reconcile with Crawford v. Marion County Election Board, the United States Supreme Court decision upholding Indiana's voter ID bill.

Crawford was an equal protection case decided under the United States Constitution. There is no clearly recognized right to vote under the United States Constitution although the Wisconsin Constitution does have a suffrage provision. See Wis. Const. Art. III, sec. 1. The plaintiffs in NAACP brought there claims under that provision and Wisconsin's equal protection guarantee (Art. I, sec. 1) which can, at least under certain circumstances, be read to provide more limitations on the government than the federal equal protection guarantee (although it almost never is.)

Yesterday's decision survives only if the Wisconsin Supreme Court is willing to subject laws regulating voting to much more exacting scrutiny than the United States Supreme Court did in Crawford.

But I don't see that happening.Let's review.

Without rehearsing all of the legal niceties, reliance on the Wisconsin Constitution gives the plaintiffs an opportunity to argue that laws that may make it more difficult to vote should be subject to what lawyers call heightened scrutiny. Judge Flanagan accepted that argument, stating that the law must be subject to what is "strict scrutiny," i.e., that the law must be necessary to serve a compelling interest.

This is what I think won't hold up on appeal. While it may be superficially attractive to say that anything that makes it harder to exercise the "sacred" and "fundamental" right to vote should be held to this high standard, a little thought reveals that this is not a workable idea. Elections have to have rules. Rules will make it harder to vote than it might otherwise be. Recognizing this, courts have not always subjected rules regulating voting to "strict" or even "heightened" scrutiny. Rather, they have tended to do so only when the restriction on the voting rights of some group of electors has been severe or is wholly unrelated to the qualifications to vote and the rational administration of elections.

In Crawford, for example, one group of justices (Chief Justice Roberts, Justice Stevens and Justice Kennedy) employed an ad hoc balancing test to evaluate the Indiana law. Another group (Justices Scalia, Thomas and Alito) said that only severe restrictions on voting rights would be subject to strict scrutiny while others would be subject to a deferential standard. According to these justices, '[o]rdinary and widespread burdens, such as those requiring 'nominal effort' of everyone, are not severe." They saw the voter ID law as such a "non severe" burden and upheld it.

I suspect the Wisconsin Supreme Court will apply this less exacting standard. There is not much support for the circuit court's position that it will impose a higher standard. The court cites some older cases that are really not apposite.

The plaintiffs will still argue that there is a better evidentiary record here than there was in Crawford and that Wisconsin's law is more restrictive.

The evidentiary record, however, may not be as different as it appears. There was arguably even less record of a voting fraud problem in Crawford. Nevertheless, six members of the Court held that the state's interest in preventing and deterring voter fraud, dealing with inflated and inaccurate voter rolls and instilling voter confidence justified the law. Although there seems to be a better record here of how many persons lack ID, both the Stevens and Scalia groups seem to have been more interested in how many would lack ID after the provision of free ID for voting. The evidence cited by Judge Flanagan doesn't really do that.

The one thing that seems different about Wisconsin law is that, apart from religious objectors and certain people that are, for lack of a better word, "shut ins," there is no provision for voting without ID. Indiana allowed people who couldn't get an ID due to indigency to vote by affidavit although the process for doing that was not very easy.

But this is not be enough to uphold a facial challenge, i.e., one that strikes down the entire law. If this is a constitutional problem (and if the Wisconsin Constitution follows Crawford, that's far from clear), it may only mean that persons who are truly unable to obtain an ID will be excepted from producing one. It is unclear how many people that really is. Studies seeking to show that photo ID laws actually disenfranchise people, even though conducted by scholars who oppose ID, have been inconclusive.

Maybe there is a stronger case to be made. The decision has all the signs of being a rush job, citing incorrect provisions of the Constitution, garbling a few sentences and, most oddly, referring to Justice "William Scalia." My guess is that the judge wanted to get it out there as far in advance of the April election as he could. He may make a more persuasive case when he takes more time.

My guess is that the state will try to take an interlocutory appeal. One interesting thing to watch is whether the AG's office will choose, as it now may do, a court of  appeals district other then District IV (which sits in Dane County). Whatever it does, I think it is likely that the court of appeals will certify the matter to the state Supreme Court.

Thursday, March 01, 2012

Hate from a writer at Slate

From Russ Roberts at Cafe Hayek:

Andrew Breitbart has passed away. I didn’t know him. I never met him. I know little about him. I know he had something to do with the hidden camera video that exposed ACORN as not being very particular about the kind of people that they helped. Google it if you don’t know about it. He was a conservative. A conservative activist with a bit of the prankster in him. That’s what I know. Anyway, Breitbart has died at 43.
Here is what Matt Yglesias just tweeted (misspelling Breitbart’s name):
Conventions around dead people are ridiculous. The world outlook is slightly improved with @AndrewBrietbart dead
Huh? I have no trouble with the idea that when bad people die it’s OK to say bad things about them. But that second sentence stuns me. For starters, Breitbart leaves behind a wife and four kids. I would never presume that one’s public acts dwarf the private ones. But put that aside. Somebody dies whose politics are different from yours and you conclude that the world is now a better place?
I am sympathetic to the idea that my views on how the world works are the right ones. But dear God, please spare me from hubris that says people who look at the world in a way that is different from my own make the world a worse place and their passing is a plus.
I can't put it any better. What's disturbing is that Matthew Yglesias is a fairly prominent pundit.