Monthly Archive for June, 2012

So Chief Justice Roberts threaded the needle pretty masterfully yesterday, somehow managing to expand federal power by upholding the entire law, yet also curtail federal power by refusing to broaden the scope of the Commerce Clause. Half-a-loaf outcomes like this usually only serve to piss everybody off, but in this case both sides appear to be equally mildly satisfied and emboldened (with a few notable exceptions!). On an issue featuring such public emotion and vitriol and hyperbole, this seeming positive-sum outcome is really quite miraculous.

Many opponents of the law are saying that rather than a tie or a defeat, this is in fact a secret conservative victory because of the Commerce Clause curtailment and what that means for the cause of limited government longer-term. George Will, for instance, seems to have written his celebratory column before the ruling, on the expectation that the court would strike down the mandate. When this didn’t quite happen, I suspect that he just published the same triumphant column with minor edits reflecting Justice Roberts’ nuance. Either way, he seems pretty thrilled, declaring that Roberts has ably “served the cause” of conservatism:

By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture… By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise….”

Ezra Klein, a strong supporter of the mandate and the law, actually ends up in considerable agreement with Will, declaring John Roberts a “political genius” for his deft triangulation. Jonathan Chait notes that by refusing a nakedly partisan outcome, John Roberts “saves us all.”

Did Roberts really save conservatism, liberalism, and judicial independence all at once?

I don’t think so. Let’s not overthink this. The liberals still won.

In his opinion rejecting the Commerce Clause rationale, Roberts relies almost entirely on the activity/inactivity distinction:

The power to regulate commerce presupposes the existence of commercial activity to be regulated…. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority….

I will not relitigate this argument. Ok just one thing. I don’t think enough attention has been paid to the fact that what precipitated this attempt to regulate inactivity is another already in place regulation of inactivity: The Emergency Medical Treatment Act of 1986 mandates that doctors provide care to anyone needing emergency treatment; ie, it regulates doctor inactivity and mandates that they stop “doing nothing” and go engage in commercial activity. It’s not a perfect analogy (it’s not a universal mandate and it’s not clearly interstate activity being regulated). But it is what makes the health care market super special, and the court, if it so chose, could have affirmed the Commerce Clause rationale so narrowly around the unique features of the health care market as to disallow its use as a precedent for any slippery-slope mischief down the road.

But actually, that’s not quite right, and that’s the point I want to make today. Nothing the court decides “disallows” anything in the future. Wholly irrespective of what happened or didn’t happen yesterday, a future group of justices can and will do whatever the hell it wants with regard to the Commerce Clause. They don’t need a previous case or a precedent to rationalize or “open the door” to whatever nefarious/enlightened designs they have for/against our freedom. The justices can concoct any brand new theory or sophistry to open or close any doors they want at any time. For instance, Justice Scalia wanted to strike down the entire health care law no matter what, even though there were plenty of provisions in the law that were plainly constitutional. What to do? Make up a theory! In this case, the “Christmas Tree doctrine.” (yes, seriously). Voila, cognitive dissonance averted!

The fact that there are an unlimited number of bullshit doctrines yet to be invented and employed by tendentious Supreme Court justices explains why Democrats still got a far better deal than Republicans yesterday, despite George Will’s et. al attempt at jujitsu.

One way to illustrate this is to think about the supposed far-reaching precedent established yesterday, that Congress can’t use the Commerce Clause to regulate inactivity. Where else would Congress actually realistically be interested in regulating inactivity in the future? Lots of people talk about nutrition/health (the dreaded broccoli mandate, etc) as the next frontier, but I doubt it. States will certainly get more aggressive with health regulation, but they’re not bound by the Commerce Clause, and anyway, like New York’s soda ban and all the smoking bans across the land, there’s plenty of activity for states to regulate or proscribe if they choose, without entering the controversial inactivity thicket.

At the federal level, I’d say privacy/security issues are where we are most likely to see future attempts at regulation of inactivity. There’s already widespread public support for anything sold as security-enhancing, and everyone already agrees the government has the power to protect and defend blah blah. I could see future fines and penalties for being inactive and not getting some new national ID card, or for failing to get a bar code implantation, or for not purchasing (with a heavy government subsidy!) some personal locator device or a retinal identification machine or something.

Perhaps there will be a Supreme Court challenge that says these sorts of security mandates and regulations of various types of inactivity are unconstitutional under the limits of the Commerce Clause. The problem is that as a general rule, the conservative justices are deeply enamored with government surveillance and tend to defer to government claims about defending national security. Will they turn to each other and say, “Ahh let’s remember the activity/inactivity distinction of 2012!” Maybe. I doubt it. Rather, they’ll make up some new ponderous legal rationale, à la the Christmas tree doctrine, to get them where they want to go. If yesterday’s ruling helps them along the way, they’ll use it. If not, they’ll detour around it.

That’s why this really isn’t a secret victory for conservatives even though they got their legal precedent. A legal precedent may not be totally worthless, but these days it’s always just one new justice away from obsolescence. At least liberals got their law.

Last week the Obama administration issued a directive which made anywhere from 800,000 to 1.4 million children of illegal immigrants eligible for work permits, and freed them from the fear of deportation. David Frum strongly disagreed with the policy, and advised us to heed the warning found in this classic piece by David Goodhart in which he explains the so-called "progressive dilemma": As the level of cultural and ethnic diversity increases in a developed society, social solidarity decreases, which undermines the basis for agreement about the redistributive welfare state. So two progressive ideals—more diversity and more redistribution—may not be able to coexist. Goodhart writes:

It was the Conservative politician David Willetts who drew my attention to the "progressive dilemma". Speaking at a roundtable on welfare reform, he said: "The basis on which you can extract large sums of money in tax and pay it out in benefits is that most people think the recipients are people like themselves, facing difficulties that they themselves could face. If values become more diverse, if lifestyles become more differentiated, then it becomes more difficult to sustain the legitimacy of a universal risk-pooling welfare state…."

This is an astute point and one that rings intuitively true: we all know one reason that Sweden has a larger and stronger social welfare system is because it’s a much more ethnically homogenous society, which makes it easier to come to agreement on issues of distributional justice. Meanwhile, in fragmented, multicolored America, ethnically-panicked white people tend to disapprove of means-based welfare programs because they view such programs as benefiting black people and other groups they perceive as "not like themselves."

There is a similar lack of solidarity or ethnic chauvinism at work with regards to hispanic immigration. This emphatically is not the only reason why people might disapprove of liberalizing immigration laws, but it’s certainly a major effect. People don’t perceive the prospective newcomers as being "like themselves" and so they don’t want to grant them membership in the private club that is America.

The scholarship on who benefits and who loses from immigration is complex, ever-evolving, and contentious. There are two main views that seem to be dominant. Some believe that the main benefits of immigration accrue only to the immigrants themselves (who clearly are bettering their life circumstances in immeasurable ways), and also to higher income Americans whose purchasing power is increased from the new influx of abundant and lower-wage labor; the losers in this view are working class and lower-skilled Americans whose wages and opportunities both decline due to the new competition. Low-skilled immigration on net therefore increases inequality and undermines the very group such policy should be designed to help—the native working class.

However, there is another scholarly view which suggests a near-total positive sum experience for everybody. The same benefits as above for the immigrants themselves and for higher-income Americans. But in this view low-skilled immigrants do not compete with or depress the wages of native low-skilled workers, but rather, their skills are complementary. Any American worker with fluent English skills and native cultural familiarity is not in economic competition with someone who lacks such skills. It’s why there are basically no Americans who work as agricultural day laborers or at similar purely physical work. However low-skilled you are (well, to a point), if you have language skills then you have better options. In this view, the only group that seems to lose out from an influx of new immigrants is recently-arrived immigrants, who share the same skills and deficiencies.

Whichever view is correct, it’s still a fact that many people remain and will continue to remain highly suspect of immigrants and strongly opposed to any liberalization of our immigration laws, irrespective of the empirical economic reality (whichever way it comes down).

But back to the "progressive dilemma" and the fear that Americans might sour on the welfare/entitlement stuff if we let in too many "other-looking" immigrants. Certainly, not everybody abandons their sense of social solidarity when someone "not like them" comes into view. So who is most apt to be aggrieved by all this unchecked diversity? Well, all manner of nativists and chauvinists and racists, that’s who.

So my problem is: doesn’t paying heed to the progressive dilemma cede way too much ground to this unseemly cohort? Beware the fragile psyches of identity-obsessed white people, lest they decide to undermine social cohesion with their ethnic and cultural panic? It seems as silly as saying, "Let’s not integrate black people into an equal rights framework too quickly, because it will exacerbate tensions with all the racists out there and make things worse for everyone." The instinctual response to this is to say, "Well stop being so racist and there won’t be such tension!" Likewise, to the people worried about the incompatibility between social solidarity and out-group animus, one just wants to say, "Well if they stopped having out-group animus there wouldn’t be a solidarity problem!"

The solution may lie in the fact that our definition of who belongs to the out-group changes over time. I don’t know if we get less nativist overall, but we do shift our ideas about who is sufficiently "like us" to merit our sense of solidarity and fellow-feeling, and gain membership in Club America. This induction and assimilation process has happened to many ethnic immigrant groups in our history Here’s the Italian story, for instance:

“At the turn of the century, the Italians were seen as a stigmatized minority group that could not be assimilated into the American mainstream.” It was common to describe Italians as “dark,” “swarthy,” and—in language that also has characterized African Americans—prone to crime and poverty. But as Italians rose out of working-class professions and joined a burgeoning middle class, they and other “nonwhite” immigrants assimilated. Eventually, the New Deal, along with unions, service in World War II, and the G.I. Bill, brought Italians fully into American life.

We have never had a stable conception of race in this country, and the same cohort that was seen as unacceptably "different" in 1900 represented monotonous white homogeneity by 1950. One hopes and expects that Latinos will undergo a similar trajectory, and anti-Hispanic sentiment will come to seem as anachronistic and silly as anti-Irish or anti-Italian sentiment. Though, incorrigible tribal creatures as we are, we’ll likely just shift our animus and anxiety onto a new disfavored group. But take heart, future pariahs of America, we’ll come around eventually! U.S.A! U.S.A!