I don't often comment on letters to the editor in the Journal Sentinel but this one caught my eye. A guy named Peter Flannery who says that he is a business owner doesn't think taxes have any thing to do - absolutely nothing he says - with whether his taxes go up. It's all about supply and demand he says. He learned it in Economics 101.
If that's what he learned, he was a poor student. To be sure, lower taxes can't overcome a complete lack of demand - although lower costs can lead to lower prices that can lead to higher demand. but taxes affect both supply and demand. If, for example, I have to pay higher property taxes, my cost of providing goods or services will go up and that may reduce the demand for my product. Fewer people will pay what I must charge. If I cut my prices to a level that they will pay, I may eliminate or lower my profit to the point where I become unwilling or unable to continue or expand my business.
If I must pay payroll taxes on each new hire, the cost of adding an employee will increase. The marginal increase may make hiring that employee unprofitable given the demand for my product or service.
If I must pay additional taxes on my earnings, it may reduce my rate of return to a point where, again, I am unwilling or unable to expand my business regardless of the existing demand.
Similarly, taxes on my customers may reduce demand for my product. Sales taxes are a simple example but income taxes imposed on my customers may also reduce their demand for goods and services generally including those that I provide. While it is possible that the taxes they pay will fund valuable public goods that increase productivity, it is also possible - and given levels of public spending in today's economy I would say likely - that taxes will reduce aggregate wealth and demand.
Whether and the extent to which these things happen will, of course, depend on the circumstances. If tax increases are modest, tied to income and where adding employees does not require significant sunk costs or long term commitments, the effect on the supply side may be less than in other circumstances. (The demand side is another matter.)
People on my side of the aisle may overestimate the impact of tax increases, but taxes certainly affect both demand and supply.
But, wait, didn't Warren Buffett say that he's never seen anyone scared off a "good investment" by capital gains tax rates. That's a much narrower point than the one Mr. Flannery made, but might it be a worthy amendment of the point?
No. I have not had the investment or business experience of Warren Buffett but in the time that I spent as a member of the senior management team of an international manufacturing business, I observed people expressing great concern - and even being "scared off" - by the way in which taxes would affect the expected rate of return on an investment.
You don't even need to be in business to understand this. We put money in our 401(k) accounts (as opposed to some other vehicle) and probably put in more than we otherwise might because it is tax advantaged.
As Richard Epstein recently wrote, the problem with Buffett's statement (even if one takes it as face value) is that it is the product of sampling error. Anyone who had been "scared off" by capital gains rates would not be coming to him looking for money.
Tuesday, April 24, 2012
What's going on in the Prosser case
It's a bit of legal inside baseball but the current maneuvering going on in the proceedings on the complaint filed by the Judicial Commission against Justice David Prosser reflects the inherent flaw in the Commission's decision to file the complaint. It is unclear - I would say highly unlikely - that the Supreme Court will ever be able to act on it.
Justice Prosser's lawyers have filed a series of requests for individual Justices to recuse themselves. I am not sure that this is what I would do if I were in their position. I might ask the Court to dismiss the complaint because it is clear - under both state statute and applicable provisions of the Judicial Code - that there will not be a constitutional quorum.
The problem with my approach (and, I suspect, the reason that is has not been tried) is that the Court has made clear that it believes recusal decisions are committed to individual justices without review by the rest of the Court. I still think I can argue for my approach but let's put that aside.
The Chief Justice is reported to have said that a decision on recusal is premature because the matter is not "before" the Court and, presumably, is "in" the Court of Appeals.
Is that right? Technically, it would seem that the case is clearly "before" the Court. Under Chapter 757, a judicial discipline case is never "before" any other court. It is filed in the Supreme Court and never leaves that Court.
Just as with attorney disciplinary proceedings, the case is not tried by the Justices. Initial proceedings are to be may be conducted before a panel of three Court of Appeals judges or before a jury presided over by a Court of Appeals judge. But either proceeding is before the Supreme Court in that it can result only in a recommendation - as opposed to the panel issuing its own decision which is then subject to further appellate review.
This is reflected in the fact that pleadings in an attorney or judicial discipline case are generally captioned as pending in the Supreme Court throughout the matter.
Of course that doesn't mean that the Justices must act on a recusal request now or that they might not regard it as "premature." In that less formal sense, one might say that the matter is not yet "before" the Justices. The Chief Justice, or any Justice who has been requested to recuse may decide to defer a decision until after this three judge panel acts.
But I would hope that they do not do that. Here's why.
The proceeding before the three judge panel is pointless if the Supreme Court cannot act on the case. This is not like a normal criminal or civil proceeding in which the decision of the lower court stands even if it cannot be - or is not - reviewed by the Supreme Court. The three judge panel only makes a recommendation that must be adopted or modified by the Supreme Court.
In other words, if the Court can't hear the case, there will be no outcome. It would, in my view, better for the Court and in the public interest to decide now - rather than later - if the case can proceed to resolution.
It would be a different matter if there was reason to believe that proceeding before the panel would clarify the recusal decision, but that seems unlikely. The problem here is that six of the seven justices are either participants in or witnesses to the underlying conduct. All have publicly committed to a version of those events. Nothing in the proceedings before the panel will change or elaborate on that.
Nor does it seem that the outcome of the panel proceeding could make the need to decide on recusal unnecessary. As I have written before, the attorney for the Judicial Commission seems to think that the Court can simply accept whatever version of the facts that the three judge panel has decided to adopt.
That is, with respect, pure fantasy. First, the findings of fact, while subject to deferential review, are nevertheless subject to review. How a judicial officer is supposed to defer to a finding on whether he or she has accurately described what happened in his or her capacity as a witness is beyond me. This is one of the reasons that I think the doctrine of necessity has no role here.
Second, deciding on discipline is inextricably bound up with one's view of precisely what happened. Even if one could put aside one's lying eyes on the question of a violation, it can't be done - and legally need not be done - on the question of discipline.*
Now, you may think that this is no problem. That the five or six or seven justices should decide the case based on what they saw as witnesses. That doesn't look much like a judicial proceeding to me, but maybe you think that the doctrine of necessity compels such a curiosity. My point is that the merit - or lack of merit - in proceeding in this way is as clear now as it ever will be and, I would argue, ought to be addressed now.
This problem is further reflected in the skirmishing over whether or not a three judge panel can be empaneled without an order from the Court. That is apparently the way that is has always been done.
But here, the Judicial Commission wants to argue that it is not necessary. It claims that statutory language empowering the Chief Judge to appoint a judge in a disciplinary case filed with the Supreme Court empowers him to do so without being directed to do so by the Court.
Two things.
First, the Chief Judge of the Court of Appeals apparently doesn't read the statute in this way. He is refusing to act without an order. If he won't do form a panel, it's hard to see how he's going to be made to do it. Can a circuit court (or ultimately his colleagues on the Court of Appeals) order him to do it? Would they? We may found out - and, if they do issue such an order, we may find out whether there is a quorum on the Court when that order results in a petition for review.
I can't help but think that the effort of the Judicial Commission to go forward without the normal order from the Court is ill advised. I understand why a lawyer, as advocate for the Commission, would want to avoid asking the Court for an order to create a panel. It is possible - maybe likely - that he won't get one because there is not a quorum of participating Justices. If so, his case implodes.
Perhaps it is possible to make that implosion less likely if one can proceed before the panel and, hopefully, get a recommendation of discipline. That would increase political pressure on the Court to proceed and, while judges can be pretty good at ignoring political pressure, no one is completely immune.
That's good legal strategy but is it something that the Judicial Commission ought to be doing?
I understand the desire to have what was a very unjudicial episode reviewed in some way. But considerations of procedural fairness often prevent cases from going forward and that seems likely here.
In that regard, some of the comments by law professors in the Journal Sentinel miss an important point. For example, James Sample of Hofstra is quoted as saying that Prosser is asking to be immune from "basic judicial process." That's wrong. He's asking that "basic judicial process" be respected. I know James. I have debated him twice and I think he's a good and smart guy. But he is as far to the left as I am to the right and I can't imagine that he would be so ready to endorse trial by a intrinsically compromised panel for a garden variety criminal defendant.
Another prof, Keith Swisher of Phoenix, thinks that "the people of Wisconsin deserve a remedy." But that begs the question of what fairness requires and prejudges the matter. There was - and maybe could still be - a better way to proceed. But that's a subject for another post.
* Maybe a different result would be appropriate for the second claim advanced by the Judicial Commission regarding Justice Prosser calling the Chief Justice a bad name. If there are no factual disputes, maybe 5 of the 7 can sit. Whether or not we need to have a disciplinary proceeding for that is, of course, another question. Justice Prosser has already acknowledged and apologized for this remark. His colleagues could condemn it (which is all such a case would ever lead to) but, whether they do or not, is not what this controversy is about.
Justice Prosser's lawyers have filed a series of requests for individual Justices to recuse themselves. I am not sure that this is what I would do if I were in their position. I might ask the Court to dismiss the complaint because it is clear - under both state statute and applicable provisions of the Judicial Code - that there will not be a constitutional quorum.
The problem with my approach (and, I suspect, the reason that is has not been tried) is that the Court has made clear that it believes recusal decisions are committed to individual justices without review by the rest of the Court. I still think I can argue for my approach but let's put that aside.
The Chief Justice is reported to have said that a decision on recusal is premature because the matter is not "before" the Court and, presumably, is "in" the Court of Appeals.
Is that right? Technically, it would seem that the case is clearly "before" the Court. Under Chapter 757, a judicial discipline case is never "before" any other court. It is filed in the Supreme Court and never leaves that Court.
Just as with attorney disciplinary proceedings, the case is not tried by the Justices. Initial proceedings are to be may be conducted before a panel of three Court of Appeals judges or before a jury presided over by a Court of Appeals judge. But either proceeding is before the Supreme Court in that it can result only in a recommendation - as opposed to the panel issuing its own decision which is then subject to further appellate review.
This is reflected in the fact that pleadings in an attorney or judicial discipline case are generally captioned as pending in the Supreme Court throughout the matter.
Of course that doesn't mean that the Justices must act on a recusal request now or that they might not regard it as "premature." In that less formal sense, one might say that the matter is not yet "before" the Justices. The Chief Justice, or any Justice who has been requested to recuse may decide to defer a decision until after this three judge panel acts.
But I would hope that they do not do that. Here's why.
The proceeding before the three judge panel is pointless if the Supreme Court cannot act on the case. This is not like a normal criminal or civil proceeding in which the decision of the lower court stands even if it cannot be - or is not - reviewed by the Supreme Court. The three judge panel only makes a recommendation that must be adopted or modified by the Supreme Court.
In other words, if the Court can't hear the case, there will be no outcome. It would, in my view, better for the Court and in the public interest to decide now - rather than later - if the case can proceed to resolution.
It would be a different matter if there was reason to believe that proceeding before the panel would clarify the recusal decision, but that seems unlikely. The problem here is that six of the seven justices are either participants in or witnesses to the underlying conduct. All have publicly committed to a version of those events. Nothing in the proceedings before the panel will change or elaborate on that.
Nor does it seem that the outcome of the panel proceeding could make the need to decide on recusal unnecessary. As I have written before, the attorney for the Judicial Commission seems to think that the Court can simply accept whatever version of the facts that the three judge panel has decided to adopt.
That is, with respect, pure fantasy. First, the findings of fact, while subject to deferential review, are nevertheless subject to review. How a judicial officer is supposed to defer to a finding on whether he or she has accurately described what happened in his or her capacity as a witness is beyond me. This is one of the reasons that I think the doctrine of necessity has no role here.
Second, deciding on discipline is inextricably bound up with one's view of precisely what happened. Even if one could put aside one's lying eyes on the question of a violation, it can't be done - and legally need not be done - on the question of discipline.*
Now, you may think that this is no problem. That the five or six or seven justices should decide the case based on what they saw as witnesses. That doesn't look much like a judicial proceeding to me, but maybe you think that the doctrine of necessity compels such a curiosity. My point is that the merit - or lack of merit - in proceeding in this way is as clear now as it ever will be and, I would argue, ought to be addressed now.
This problem is further reflected in the skirmishing over whether or not a three judge panel can be empaneled without an order from the Court. That is apparently the way that is has always been done.
But here, the Judicial Commission wants to argue that it is not necessary. It claims that statutory language empowering the Chief Judge to appoint a judge in a disciplinary case filed with the Supreme Court empowers him to do so without being directed to do so by the Court.
Two things.
First, the Chief Judge of the Court of Appeals apparently doesn't read the statute in this way. He is refusing to act without an order. If he won't do form a panel, it's hard to see how he's going to be made to do it. Can a circuit court (or ultimately his colleagues on the Court of Appeals) order him to do it? Would they? We may found out - and, if they do issue such an order, we may find out whether there is a quorum on the Court when that order results in a petition for review.
I can't help but think that the effort of the Judicial Commission to go forward without the normal order from the Court is ill advised. I understand why a lawyer, as advocate for the Commission, would want to avoid asking the Court for an order to create a panel. It is possible - maybe likely - that he won't get one because there is not a quorum of participating Justices. If so, his case implodes.
Perhaps it is possible to make that implosion less likely if one can proceed before the panel and, hopefully, get a recommendation of discipline. That would increase political pressure on the Court to proceed and, while judges can be pretty good at ignoring political pressure, no one is completely immune.
That's good legal strategy but is it something that the Judicial Commission ought to be doing?
I understand the desire to have what was a very unjudicial episode reviewed in some way. But considerations of procedural fairness often prevent cases from going forward and that seems likely here.
In that regard, some of the comments by law professors in the Journal Sentinel miss an important point. For example, James Sample of Hofstra is quoted as saying that Prosser is asking to be immune from "basic judicial process." That's wrong. He's asking that "basic judicial process" be respected. I know James. I have debated him twice and I think he's a good and smart guy. But he is as far to the left as I am to the right and I can't imagine that he would be so ready to endorse trial by a intrinsically compromised panel for a garden variety criminal defendant.
Another prof, Keith Swisher of Phoenix, thinks that "the people of Wisconsin deserve a remedy." But that begs the question of what fairness requires and prejudges the matter. There was - and maybe could still be - a better way to proceed. But that's a subject for another post.
* Maybe a different result would be appropriate for the second claim advanced by the Judicial Commission regarding Justice Prosser calling the Chief Justice a bad name. If there are no factual disputes, maybe 5 of the 7 can sit. Whether or not we need to have a disciplinary proceeding for that is, of course, another question. Justice Prosser has already acknowledged and apologized for this remark. His colleagues could condemn it (which is all such a case would ever lead to) but, whether they do or not, is not what this controversy is about.
Monday, April 23, 2012
Redistricting Update
I want to comment a bit on the Attorney General's decision to appeal from part of the final order in the redistricting case. *
Peter Earle, attorney for Voces de La Frontera, denounced the decision to appeal as a "laughable, partisan stunt ....”
Whatever one thinks of Van Hollen's decision to appeal, it is not partisan. In fact, most Republicans that I have spoken to thought he should not appeal. As far as they are concerned, the redistricting case was a complete win. The Republican plan was upheld on 97 of 99 Assembly districts (including everyone that the GOP would ever have a chance to win) and all 33 Senate districts. All eight Congressional districts still stand. Why bother?
Earle and his group wanted to use a claim under the Voting Rights Act to tear apart the legislative redistricting plan. They were unsuccessful in doing do and all of their other claims were rejected.
But they were able to convince the panel that the VRA required packing even more Latino voters into the 8th Assembly District than the legislature had done. While they wanted the Court to use this finding to affect more than the 8th and 9th Assembly Districts, it refused. It ordered only that the boundary between 8 and 9 be redrawn while leaving the outer boundaries of the two districts is intact.
The result is an even safer district for JoCasta Zamarippa. Good for her and her allies at Voces. It may also make it harder for Latino voters to form a coalition with non-Latino voters to elect a candidate of their choice in the 9th. Bad for people who care about that.
But the one group that had no political stake in the outcome was the Republican party. They were never going to win either the 8th or 9th Assembly District and have no partisan interest in how the lines between them were drawn.
The reason that I think Van Hollen has decided to "bother" with an appeal - in fact I can think of no other reason - is that he thinks the panel is wrong on the law and he wants to ask the Court to clarify just what the Voting Rights Act requires. Maybe he'll turn out to be wrong (although I don't think so) but it strikes me as a perfectly appropriate thing for the state's chief legal officer to do.
I understand a lawyer not wanting the other side to appeal when he's won something but it happens. Indeed, it's quite normal and we usually don't castigate our brothers and sisters at the bar for doing their job. In any event, accusing the Attorney General of partisanship for doing something in which he and his party have no partisan interest is should we say, strained.
* Full disclosure: I represented Jesus Rodriguez and Hispanics Leadership as an amicus supporting the Government Accountability Board's proposed redrawing of Districts 8 and 9.
Peter Earle, attorney for Voces de La Frontera, denounced the decision to appeal as a "laughable, partisan stunt ....”
Whatever one thinks of Van Hollen's decision to appeal, it is not partisan. In fact, most Republicans that I have spoken to thought he should not appeal. As far as they are concerned, the redistricting case was a complete win. The Republican plan was upheld on 97 of 99 Assembly districts (including everyone that the GOP would ever have a chance to win) and all 33 Senate districts. All eight Congressional districts still stand. Why bother?
Earle and his group wanted to use a claim under the Voting Rights Act to tear apart the legislative redistricting plan. They were unsuccessful in doing do and all of their other claims were rejected.
But they were able to convince the panel that the VRA required packing even more Latino voters into the 8th Assembly District than the legislature had done. While they wanted the Court to use this finding to affect more than the 8th and 9th Assembly Districts, it refused. It ordered only that the boundary between 8 and 9 be redrawn while leaving the outer boundaries of the two districts is intact.
The result is an even safer district for JoCasta Zamarippa. Good for her and her allies at Voces. It may also make it harder for Latino voters to form a coalition with non-Latino voters to elect a candidate of their choice in the 9th. Bad for people who care about that.
But the one group that had no political stake in the outcome was the Republican party. They were never going to win either the 8th or 9th Assembly District and have no partisan interest in how the lines between them were drawn.
The reason that I think Van Hollen has decided to "bother" with an appeal - in fact I can think of no other reason - is that he thinks the panel is wrong on the law and he wants to ask the Court to clarify just what the Voting Rights Act requires. Maybe he'll turn out to be wrong (although I don't think so) but it strikes me as a perfectly appropriate thing for the state's chief legal officer to do.
I understand a lawyer not wanting the other side to appeal when he's won something but it happens. Indeed, it's quite normal and we usually don't castigate our brothers and sisters at the bar for doing their job. In any event, accusing the Attorney General of partisanship for doing something in which he and his party have no partisan interest is should we say, strained.
* Full disclosure: I represented Jesus Rodriguez and Hispanics Leadership as an amicus supporting the Government Accountability Board's proposed redrawing of Districts 8 and 9.
Tuesday, April 17, 2012
Meet the New Boss
There were people - and I think there still are people - who think Barack Obama is a cut above other politicians. He's an exceptionally intelligent person who promised to free us, as he repeatedly says, from "false choices" and to usher in a new era of progress. Hope and change. Yes we can.
He is a smart man but it turns out he that he is given to heap demagoguery.The Buffet rule is an example.
We all know the facts. It is simply not the case that rich people, as a class, pay a lower effective tax rate than the middle class. In fact, they pay a higher rate. .
Now, it is true that, depending largely on how one earns one's income, a wealthy person can wind up with a lower effective tax rate than people who earn much less. But that is not so much a function of tax shelters and loopholes as it is a product of a deliberate policy choice - one that has a long pedigree and that is common in the developed world. We tax capital gains and dividends at a lower rate than ordinary income.
There are many reasons for this. There is a sense in which taxes on capital gains and dividends can be seen as "double taxation" since corporations typically pay tax on their income before paying dividends to shareholders. Capital gains often arise from the sale of corporate stock in which the price represents earnings that have often been taxed. Capital gains are, moreover, earned over time such that the gain can have a significant inflationary element. (This can, however, be the case for certain types of ordinary income as well.)
There is also a fair amount of evidence that raising capital gains rates reduces revenue because it triggers tax avoidance and deferral strategies.
Having said all that, I actually would be open to taxing ordinary income and capital gains at the same rate as long as we indexed the basis for capital assets. Maybe one can even make a case that the current capital gains rate (15%) could be raised a bit without causing disproportionate economic harm.
That's a debate that we could have but it is not the debate that the President has called for. Instead he wants a new form of Alternative Minimum Tax which is almost always a mess. It results in marginal rates that are opaque and often steep. Even if you want to raise taxes on the rich, it's the wrong way to do it. Economists of differing views think it's bad policy.
And it will bring in very little money.
But it polls well.
He is a smart man but it turns out he that he is given to heap demagoguery.The Buffet rule is an example.
We all know the facts. It is simply not the case that rich people, as a class, pay a lower effective tax rate than the middle class. In fact, they pay a higher rate. .
Now, it is true that, depending largely on how one earns one's income, a wealthy person can wind up with a lower effective tax rate than people who earn much less. But that is not so much a function of tax shelters and loopholes as it is a product of a deliberate policy choice - one that has a long pedigree and that is common in the developed world. We tax capital gains and dividends at a lower rate than ordinary income.
There are many reasons for this. There is a sense in which taxes on capital gains and dividends can be seen as "double taxation" since corporations typically pay tax on their income before paying dividends to shareholders. Capital gains often arise from the sale of corporate stock in which the price represents earnings that have often been taxed. Capital gains are, moreover, earned over time such that the gain can have a significant inflationary element. (This can, however, be the case for certain types of ordinary income as well.)
There is also a fair amount of evidence that raising capital gains rates reduces revenue because it triggers tax avoidance and deferral strategies.
Having said all that, I actually would be open to taxing ordinary income and capital gains at the same rate as long as we indexed the basis for capital assets. Maybe one can even make a case that the current capital gains rate (15%) could be raised a bit without causing disproportionate economic harm.
That's a debate that we could have but it is not the debate that the President has called for. Instead he wants a new form of Alternative Minimum Tax which is almost always a mess. It results in marginal rates that are opaque and often steep. Even if you want to raise taxes on the rich, it's the wrong way to do it. Economists of differing views think it's bad policy.
And it will bring in very little money.
But it polls well.
Monday, April 16, 2012
Primary Update
In 30 comments to last week's post on "fake" candidates, no offered any refutation of the points that I made and I have yet to read one any where else. No one has been able to dispute that the use of recalls is an attempt to accelerate the election cycle and put a variety of partisan offies on the ballot. No one can deny that, when we normally have multiple partisan elections, primary and general elections are held on different days. It is indisputable that holding a down ballot general election on the same day as a primary for only one party at the top of the ballot will give one party an advantage that it would not normally enjoy. There is no question that running canddates in the Democratic Senate primary is an attempt by the Republicans to level the playing field.
No one has been able to offer an argument that this is illegal. Sec. 8.20(2)(a) provides that a declaration of candidacy include a statement that the filer wishes to be "placed on the ballot at the (general or special) election to be held on (date of election) as a candidate [(representing the (name of party)) ...."
In other words, the candidate declares his or her intent to be placed on the ballot in a party's primary.
There is nothing in this statement that requires a candidate to affirm that he or she is a member of the party or believes in any of the various positions that the party (or most people in the party) hold. The law has never been used to enforce an ideological litmus or loyalty test on candidates and never could be.
No one has been able to point to anything that is intrinsically wrong with this attempt to level the playing field. It might be a different case if the candidates in question were misrepresenting their actual positions and running hard to take votes away from Democrats.But that's not the case.
One commenter did say that it's a waste of money and there is, to be sure, a small cost involved. An additional office has to be added to some primary ballots and someone has to count the votes. But, given the distortion that would accompany holding a down ballot general on the same day as a top of the ballot primary in only one party, it's not a waste of money.
No one has been able to offer an argument that this is illegal. Sec. 8.20(2)(a) provides that a declaration of candidacy include a statement that the filer wishes to be "placed on the ballot at the (general or special) election to be held on (date of election) as a candidate [(representing the (name of party)) ...."
In other words, the candidate declares his or her intent to be placed on the ballot in a party's primary.
There is nothing in this statement that requires a candidate to affirm that he or she is a member of the party or believes in any of the various positions that the party (or most people in the party) hold. The law has never been used to enforce an ideological litmus or loyalty test on candidates and never could be.
No one has been able to point to anything that is intrinsically wrong with this attempt to level the playing field. It might be a different case if the candidates in question were misrepresenting their actual positions and running hard to take votes away from Democrats.But that's not the case.
One commenter did say that it's a waste of money and there is, to be sure, a small cost involved. An additional office has to be added to some primary ballots and someone has to count the votes. But, given the distortion that would accompany holding a down ballot general on the same day as a top of the ballot primary in only one party, it's not a waste of money.
Monday, April 09, 2012
More False Outrage About Fake Candidates
One Wisconsin Now and some bloggers seem to think it is illegal for the Republicans to run "fake" or "placeholder" candidates in the Democratic primaries. One blogger, Chris Liebenthal, cites Democratic election lawyer Jeremy Levinson in support of that position.
I know and like Jeremy Levinson. I respect him and, in fact, he was gracious enough to accept my invitation to speak to my Election Law class last week. But he's wrong about this. Very wrong - as the GAB seems to recognize.
The argument is that filing nomination papers to appear on the ballot to force a primary violates Wis. Stat. sec. 12.13 (3) (a) which provides that no person may "falsify any information in respect to ... [a] declaration of candidacy", and sec. 12.13 (3)(am) stating that no person may "... file a false declaration of candidacy or amended declaration of candidacy." Filing for a Democratic Party primary when one is not a Democrat and doesn't intend to campaign is, on this view. "falsification."
But it's not. The declaration of candidacy to be filed by these candidates is not due until tomorrow. But, based on press reports, there is no reason to believe that anything on those statements will be false. In other words, the filing candidates will be who they say they are, live where they say they live, be qualifed to run, etc. On the GAB form, one simply avers that he or she is a candidate for an office representing a particular political party, i.e., that one is a candidate for that parties' nomination. These documents do not include any representation that the candidate supports the party, its principles or even that he or she does not belong to or support another party. Indeed, the statute requires nothing more in this regard than an affirmation of candidacy.
Isn't the fact that someone is a "real Democrat" implied?
No - at least not as the law is concerned. Criminal statutes are to be strictly construed. There is no chance that prosecuting these candidates would be successful. There are ways in which Wisconsin could try to protect parties from "outsiders" - and there are some states who employ such devices, e.g., closed primaries. But Wisconsin does not.
So, even if it is "legal," isn't it "wrong?"
No. I fail to see what is intrinsically wrong with the Republicans' strategy. Running candidates in the Senate primaries can be seen as a response to the extraordinary - and arguably unanticipated - use of recall elections as a devise to accelerate the election cycle and flip partisan control of the legislature.
We usually hold primaries and general elections on different days - even if there are not contested primaries for a particular office. One of the reasons this makes sense is to prevent a primary in one party from distorting the result in down ballot races. Assume, for example, that there is a heated race for the Republican Senate nomination this fall and no contested contested primaries of any significance on the Democratic side. If we accelerated the general election for, say, Secretary of State because neither party has a primary, we would distort the outcome of that race. People are far less likely to turn out for that office than for a contested primary at the top of the ballot. The electorate will be more heavily Republican than it will be on the day of the general.
The recall statute doesn't do that because it is predicated on the assumption that recalls will be directed at a particular office holder for something that he or she has done or failed to do and not as a generalized effort to accelerate the partisan election cycle based on policy disagreements.
But even if that is not the assumption, the fact remains that, if there are no primaries in the Senate recalls, then there will be "general" elections for the Senate at the same time that there is a a primary in only one party in much higher profile race in which it is far easier to turn out voters.
This gives the Democrats an advantage that a party would normally not enjoy. We generally do not hold primaries on the same day as general elections. I understand why the Democrats want to hold on to that advantage. I understand why the Republicans don't want to let them have it.
The law permits the Republicans to take that advantage away and I fail to see what is unfair or mischievous about it. The upshot is that we will have a primary day and a general election day. That is how we normally conduct elections in this state. Acting to make that so does not unfairly "disadvantage" Democratic candidates.
Running candidates for Governor and Lt. Governor seems superfluous given that there is going to be a Democratic primary. One reason to do that would be to ensure there is a primary if, for some reason, you want more time before the general election. That may serve some strategic advantage for the Republicans but hardly seems to disadvantage Democrats in an intrinsically unfair way.
It will also present the type of gamesmanship that we have saw last summer when the Democrats had candidates register and file nomination petitions and declaration of candidacies, but then (after nominations are closed) fail to file statements of economic interest so that they could not be certified on the ballot. That would have the effect of unexpectedly accelerating the recall election.
If that suggests to you a bit of inconsistency in the complaints about fake candidates from the Democratic Party, it should.
I know and like Jeremy Levinson. I respect him and, in fact, he was gracious enough to accept my invitation to speak to my Election Law class last week. But he's wrong about this. Very wrong - as the GAB seems to recognize.
The argument is that filing nomination papers to appear on the ballot to force a primary violates Wis. Stat. sec. 12.13 (3) (a) which provides that no person may "falsify any information in respect to ... [a] declaration of candidacy", and sec. 12.13 (3)(am) stating that no person may "... file a false declaration of candidacy or amended declaration of candidacy." Filing for a Democratic Party primary when one is not a Democrat and doesn't intend to campaign is, on this view. "falsification."
But it's not. The declaration of candidacy to be filed by these candidates is not due until tomorrow. But, based on press reports, there is no reason to believe that anything on those statements will be false. In other words, the filing candidates will be who they say they are, live where they say they live, be qualifed to run, etc. On the GAB form, one simply avers that he or she is a candidate for an office representing a particular political party, i.e., that one is a candidate for that parties' nomination. These documents do not include any representation that the candidate supports the party, its principles or even that he or she does not belong to or support another party. Indeed, the statute requires nothing more in this regard than an affirmation of candidacy.
Isn't the fact that someone is a "real Democrat" implied?
No - at least not as the law is concerned. Criminal statutes are to be strictly construed. There is no chance that prosecuting these candidates would be successful. There are ways in which Wisconsin could try to protect parties from "outsiders" - and there are some states who employ such devices, e.g., closed primaries. But Wisconsin does not.
So, even if it is "legal," isn't it "wrong?"
No. I fail to see what is intrinsically wrong with the Republicans' strategy. Running candidates in the Senate primaries can be seen as a response to the extraordinary - and arguably unanticipated - use of recall elections as a devise to accelerate the election cycle and flip partisan control of the legislature.
We usually hold primaries and general elections on different days - even if there are not contested primaries for a particular office. One of the reasons this makes sense is to prevent a primary in one party from distorting the result in down ballot races. Assume, for example, that there is a heated race for the Republican Senate nomination this fall and no contested contested primaries of any significance on the Democratic side. If we accelerated the general election for, say, Secretary of State because neither party has a primary, we would distort the outcome of that race. People are far less likely to turn out for that office than for a contested primary at the top of the ballot. The electorate will be more heavily Republican than it will be on the day of the general.
The recall statute doesn't do that because it is predicated on the assumption that recalls will be directed at a particular office holder for something that he or she has done or failed to do and not as a generalized effort to accelerate the partisan election cycle based on policy disagreements.
But even if that is not the assumption, the fact remains that, if there are no primaries in the Senate recalls, then there will be "general" elections for the Senate at the same time that there is a a primary in only one party in much higher profile race in which it is far easier to turn out voters.
This gives the Democrats an advantage that a party would normally not enjoy. We generally do not hold primaries on the same day as general elections. I understand why the Democrats want to hold on to that advantage. I understand why the Republicans don't want to let them have it.
The law permits the Republicans to take that advantage away and I fail to see what is unfair or mischievous about it. The upshot is that we will have a primary day and a general election day. That is how we normally conduct elections in this state. Acting to make that so does not unfairly "disadvantage" Democratic candidates.
Running candidates for Governor and Lt. Governor seems superfluous given that there is going to be a Democratic primary. One reason to do that would be to ensure there is a primary if, for some reason, you want more time before the general election. That may serve some strategic advantage for the Republicans but hardly seems to disadvantage Democrats in an intrinsically unfair way.
It will also present the type of gamesmanship that we have saw last summer when the Democrats had candidates register and file nomination petitions and declaration of candidacies, but then (after nominations are closed) fail to file statements of economic interest so that they could not be certified on the ballot. That would have the effect of unexpectedly accelerating the recall election.
If that suggests to you a bit of inconsistency in the complaints about fake candidates from the Democratic Party, it should.
Thursday, April 05, 2012
The President, Judicial Review and Judge Smith
So, of course, the President's statement that it would be unprecedented for the Supreme Court to invalidate a law that was passed by a "strong" majority in Congress is wrong and, for a law professor, seems breathtakingly stupid. There are legal academics on the left who have come to be opposed to judicial review but no one would say it is unprecedented. Law students learn in about the first week of Constitutional Law that it is very precedented - that it is, in fact, one of the cornerstones of our constitutional jurisprudence. Ask any lawyer to tell you about Marbury v. Madison. It's one of the few first year cases, he or she will remember by name.
But President Obama is not breathtakingly stupid and we are reminded - constantly - that he taught constitutional law as an adjunct professor of law at Chicago. He knows that what he said is wrong.
The current White House spin is that he meant to say - in fact did say - something different than the meaning of the words he chose. I don't believe that. Indeed, he could have said that it would be rare (it wouldn't be unprecedented) for the Court to invalidate a Congressional enactment predicated on the Commerce power.
But a nuanced statement like that would not have served his purpose. It would have invited an argument about legal technicalities and not about the legitimacy of the Court. It would have been dismissed by most people as an argument between experts and that would not do.
Obama may be trying to influence the Court. It would be a big thing to strike down Obamacare - not because it would be unprecedented or even unpopular, but because it place the Court and President in conflict on a major national issue. That happens but it is always uncomfortable.
In making his statement, the President signalled that he intended to exacerbate such a conflict. He intends to go after the Court and make it an issue in his reelection campaign. While some liberal commentators, while forced to admit that the statement itself was nonsense, have said that it is not much of an attack, it is also the case that the Court has not yet ruled. This is a signal of what is to come and was intended to be read as a signal of what it to come.
So I have some sympathy for Judge Jerry Smith who, in the course of proceedings on a different challenge to the health care law, asked the DOJ to clarify its position on judicial review. I understand why he felt compelled to do it.
But, in the end, I think he ought not to have done it. The President of the United States was engaged in silly political posturing for which he has been, and richly deserves to be, slapped down.
I think it would be better for federal judges to stick to knitting and ignore the antics of politicians - even the President of the United States. What he said was wrong. We all know it's wrong. Let's attend to the law as it is.
But President Obama is not breathtakingly stupid and we are reminded - constantly - that he taught constitutional law as an adjunct professor of law at Chicago. He knows that what he said is wrong.
The current White House spin is that he meant to say - in fact did say - something different than the meaning of the words he chose. I don't believe that. Indeed, he could have said that it would be rare (it wouldn't be unprecedented) for the Court to invalidate a Congressional enactment predicated on the Commerce power.
But a nuanced statement like that would not have served his purpose. It would have invited an argument about legal technicalities and not about the legitimacy of the Court. It would have been dismissed by most people as an argument between experts and that would not do.
Obama may be trying to influence the Court. It would be a big thing to strike down Obamacare - not because it would be unprecedented or even unpopular, but because it place the Court and President in conflict on a major national issue. That happens but it is always uncomfortable.
In making his statement, the President signalled that he intended to exacerbate such a conflict. He intends to go after the Court and make it an issue in his reelection campaign. While some liberal commentators, while forced to admit that the statement itself was nonsense, have said that it is not much of an attack, it is also the case that the Court has not yet ruled. This is a signal of what is to come and was intended to be read as a signal of what it to come.
So I have some sympathy for Judge Jerry Smith who, in the course of proceedings on a different challenge to the health care law, asked the DOJ to clarify its position on judicial review. I understand why he felt compelled to do it.
But, in the end, I think he ought not to have done it. The President of the United States was engaged in silly political posturing for which he has been, and richly deserves to be, slapped down.
I think it would be better for federal judges to stick to knitting and ignore the antics of politicians - even the President of the United States. What he said was wrong. We all know it's wrong. Let's attend to the law as it is.
Tuesday, April 03, 2012
Republicans' Secret Weapon?
If I didn't know better, I'd suspect that Graeme Zelinski was a Republican Party plant - dirty trick. I would find it hard to believe that a political party would want its spokeperson to act in the way that he does.
If I didn't know better.
If I didn't know better.
Compulsory Compassion and Freedom
In his classic book, The Road to Serfdom, Friedrich Hayek wrote about the ways in which the movement away from classical liberalism toward socialism threatens the advances that classical liberalism has brought, including individual freedom. When one seeks to order society from above, the refusal of those below to act as they must constitutes interference with the grand plan and must be, if not eliminated, strongly discouraged.
Becoming our brother's keeper - particularly when we are compelled to do so - implies that he truly be "kept" - not only assisted but directed to act in a way that facilitates our assistance.
Isn't the individual mandate a perfect example of this? The justification for this infringement upon the liberty of those who do not wish to purchase insurance is said to be the legally mandated compassion that will provide the care that they cannot afford.
The notion that people not be permitted to act in a way that makes it more difficult to help them has no obvious stopping point. For the left, compassion most often dictates restrictions on economic freedom. But might not social conservatives argue that compassion requires limits on self destructive personal behavior? If I am to be my brother's keeper, then I need to fight an aggressive war on drugs because they will frustrate - and raise the cost - of my efforts to help those who might take them. My brother should not have children out of wedlock. He ought not freely divorce his wife when there are children at home.
People will answer these questions in different ways but movement toward greater degrees of collectivism increases the frequency with which they must be asked. Obamacare is an extraordinarily ambitious effort to manage a large area of human interaction - to achieve better outcomes than its advocates think will be obtained through the voluntary interactions of individuals. It's not surprising that it requires extraordinary limitations on personal freedom.
Even if we avoid the temptation to micromanage personal conduct, we will inevitably be tempted to choose between deserving and undeserving objects of our compassion. While choices in life are inevitable and compassion can never be unlimited, collectivism centralizes these decisions. It tends to make them uniform.
It takes an extraordinarily sanguine view of human nature and of the capacity of elites to properly order society not to be troubled by this.
.
Becoming our brother's keeper - particularly when we are compelled to do so - implies that he truly be "kept" - not only assisted but directed to act in a way that facilitates our assistance.
Isn't the individual mandate a perfect example of this? The justification for this infringement upon the liberty of those who do not wish to purchase insurance is said to be the legally mandated compassion that will provide the care that they cannot afford.
The notion that people not be permitted to act in a way that makes it more difficult to help them has no obvious stopping point. For the left, compassion most often dictates restrictions on economic freedom. But might not social conservatives argue that compassion requires limits on self destructive personal behavior? If I am to be my brother's keeper, then I need to fight an aggressive war on drugs because they will frustrate - and raise the cost - of my efforts to help those who might take them. My brother should not have children out of wedlock. He ought not freely divorce his wife when there are children at home.
People will answer these questions in different ways but movement toward greater degrees of collectivism increases the frequency with which they must be asked. Obamacare is an extraordinarily ambitious effort to manage a large area of human interaction - to achieve better outcomes than its advocates think will be obtained through the voluntary interactions of individuals. It's not surprising that it requires extraordinary limitations on personal freedom.
Even if we avoid the temptation to micromanage personal conduct, we will inevitably be tempted to choose between deserving and undeserving objects of our compassion. While choices in life are inevitable and compassion can never be unlimited, collectivism centralizes these decisions. It tends to make them uniform.
It takes an extraordinarily sanguine view of human nature and of the capacity of elites to properly order society not to be troubled by this.
.
Monday, April 02, 2012
Obamacare and Coercion
We moved our offices last week so I have not had much time to look at what happened in last week's Supreme Court arguments on Obamacare. Day three was probably the best one for the government but let's not get carried away. The government's "good day" involved asking whether it had acted with the tender mercies of La Cosa Nostra. Had it made the states an offer they can't refuse?
Up for consideration was that feature of the Affordable Care Act that requires the states to substantially expand eligibility for Medicaid. The Constitution quite clearly forbids the federal government from requiring the states to adopt - or to dictate the nature of - social programs, so the Act uses an old tried and true trick. If the states refuse to do federal bidding, the Secretary of Health and Human Services is empowered to eliminate all Medicaid funding for the state. (The cost of the expansion is also to be paid for completely by the federal government at first and then at 90% after that, although there is - and can be - no guarantee that this will continue.)
This trick - justified under Congress' implicit authority to spend to advance the "General Welfare." Courts have long justified that money spent by sending it to the states can come with all sorts of strings attached extending the federal writ where it might not otherwise have run.
There is a substantial criticism of these cases. In a forthcoming book, The Upside-Down Constitution, Michael Greve argues that the use of the spending power in this way constitutes an uhholy alliance between the states and the federal government in which both substantially evade accountability for policy decisions.
But the permissibility of this approach is well established and the Obamacare case is about its limits. The Supreme Court has suggested the possibility that federal money with strings attached might be coercive of the states and, if so, impermissible. The Court has never found this to be the case. Might this be the first time?
How can giving someone money be coercive? There are two ways. The weaker arguments are that a deal can be too sweet to say "no" to or that states have become dependent on federal money that they have effectively ceded their sovereignty,
A stronger version is that the states are faced with an offer that they can't refuse. These programs are not truly "opt-in" or "opt-out." The citizens of any particular state have to pay for the federal program whether or not their state participates. Seen in this way, Wisconsin can only "opt-out" of the benefits and not the costs.
Seen in this way, the larger the program - particularly the larger the loss of benefits - the more it is likely for participation to be no choice at all.
Is the Affordable Care Act such a case? Here we saw a bit of reversal from the argument on the individual mandate. With respect to the individual mandate, certain of the Justices were looking for a limiting principle on the power of Congress. With respect to the Medicaid expansion, they were looking for a triggering principle on coercion. Just when does an offer become one that a state can't refuse?
Up for consideration was that feature of the Affordable Care Act that requires the states to substantially expand eligibility for Medicaid. The Constitution quite clearly forbids the federal government from requiring the states to adopt - or to dictate the nature of - social programs, so the Act uses an old tried and true trick. If the states refuse to do federal bidding, the Secretary of Health and Human Services is empowered to eliminate all Medicaid funding for the state. (The cost of the expansion is also to be paid for completely by the federal government at first and then at 90% after that, although there is - and can be - no guarantee that this will continue.)
This trick - justified under Congress' implicit authority to spend to advance the "General Welfare." Courts have long justified that money spent by sending it to the states can come with all sorts of strings attached extending the federal writ where it might not otherwise have run.
There is a substantial criticism of these cases. In a forthcoming book, The Upside-Down Constitution, Michael Greve argues that the use of the spending power in this way constitutes an uhholy alliance between the states and the federal government in which both substantially evade accountability for policy decisions.
But the permissibility of this approach is well established and the Obamacare case is about its limits. The Supreme Court has suggested the possibility that federal money with strings attached might be coercive of the states and, if so, impermissible. The Court has never found this to be the case. Might this be the first time?
How can giving someone money be coercive? There are two ways. The weaker arguments are that a deal can be too sweet to say "no" to or that states have become dependent on federal money that they have effectively ceded their sovereignty,
A stronger version is that the states are faced with an offer that they can't refuse. These programs are not truly "opt-in" or "opt-out." The citizens of any particular state have to pay for the federal program whether or not their state participates. Seen in this way, Wisconsin can only "opt-out" of the benefits and not the costs.
Seen in this way, the larger the program - particularly the larger the loss of benefits - the more it is likely for participation to be no choice at all.
Is the Affordable Care Act such a case? Here we saw a bit of reversal from the argument on the individual mandate. With respect to the individual mandate, certain of the Justices were looking for a limiting principle on the power of Congress. With respect to the Medicaid expansion, they were looking for a triggering principle on coercion. Just when does an offer become one that a state can't refuse?
The core of Act 10 survives
On Friday, the United States District Court for the Western District of Wisconsin upheld the core of Act 10's reform of collective bargaining, i.e., it upheld the Act's prohibition of collective bargaining on terms and conditions of employment other than total base wages. It upheld the limitation on increases in collectively bargained base wages. It upheld the right of public employees to decline to support the union.
The only aspects of Act 10 that it found unconstitutional were the requirement of annual recertification elections and the prohibition of payroll deductions to collect dues from those employees who choose to pay them. The state could adopt either of these provisions, the Court recognized, but held that it could not adopt them for only those public employees who are not public safety workers (essentially police and fire.)
This is, largely, a victory for the defendants and you can be sure that the plaintiffs will appeal. Because of that, I am not going to write much about it. The Wisconsin Institute for Law & Liberty represented a group of public employees who moved to intervene in the case as defendants and to file an amicus brief. Friday's decision denied the former motion (there are currently, in any event, no further proceedings in the district court into which to intervene) and granted the latter motion. Because the case may continue at the appellate level, there is only so much that I feel free to say in a blog.
There is, however, one fact that ought to be kept in mind when reading press reports of the case. It is not quite right to say that Act 10 exempted only public employees whose unions supported Governor Walker. The only public employee unions that supported Walker were the police and fire unions in West Allis and Milwaukee. The union representing all other police and fire employees - over 70% of the total - endorsed Barrett.
The only aspects of Act 10 that it found unconstitutional were the requirement of annual recertification elections and the prohibition of payroll deductions to collect dues from those employees who choose to pay them. The state could adopt either of these provisions, the Court recognized, but held that it could not adopt them for only those public employees who are not public safety workers (essentially police and fire.)
This is, largely, a victory for the defendants and you can be sure that the plaintiffs will appeal. Because of that, I am not going to write much about it. The Wisconsin Institute for Law & Liberty represented a group of public employees who moved to intervene in the case as defendants and to file an amicus brief. Friday's decision denied the former motion (there are currently, in any event, no further proceedings in the district court into which to intervene) and granted the latter motion. Because the case may continue at the appellate level, there is only so much that I feel free to say in a blog.
There is, however, one fact that ought to be kept in mind when reading press reports of the case. It is not quite right to say that Act 10 exempted only public employees whose unions supported Governor Walker. The only public employee unions that supported Walker were the police and fire unions in West Allis and Milwaukee. The union representing all other police and fire employees - over 70% of the total - endorsed Barrett.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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:
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.
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.
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.
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.
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.
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