Pipes and Theories

Court Curbing is Nothing New

noreply@blogger.com (Joe Ura) — Mon, 29 Jun 2015 14:52:00 +0000

In the wake of the Supreme Court's decisions on same sex marriage and the Affordable Care Act, at least two Republican presidential candidates have promised to limit the scope of federal judicial power if elected. Mike Huckabee promises to ignore Supreme Court decisions contrary to his reading of the law, vowing "As president, I will never bow down to the false gods of judicial supremacy." Ted Cruz proposed a constitutional amendment to create retention elections for Supreme Court justices. Regardless of one's views on these proposals or the candidates offering them, it is interesting to note that political efforts to limit judicial power in the United States are nothing new. My graduate student, Alison Higgins, and I write a bit about the history of court curbing in the United States and the political construction of judicial power in an chapter for the (forthcoming) Oxford Handbook of American Law and the Judiciary. Here's an excerpt:

[A]lthough Article III of the US Constitution asserts that federal “judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made…under their authority…” it adds, “with such exceptions, and under such regulations as the Congress shall make.” Likewise, the Constitution guarantees that federal judges receive compensation for their services, which “shall not be diminished during their continuance in office,” and may serve for life during “good behaviour.” The Constitution includes no provisions specifying the size, composition, structure, or resources of the federal judiciary, leaving these matters to Congress. In fact, as Geyh (2006) points out, the Constitution puts an array of tools for controlling the federal judiciary at Congress’s disposal, including: “impeaching errant judges[,]…holding their budgets hostage, ‘unmaking’ federal courts, thwarting the appointment of ‘activist’ judges, and depriving courts of jurisdiction to hear cases on politically sensitive subjects” (p. 1; see also Ferejohn 1999).

Congressional power to curb or control federal courts was not always a museum piece. The early decades of America’s history under the Constitution offers numerous examples of Congress making use of these constitutional prerogatives to undermine or challenge the Supreme Court’s authority or independence when it ran afoul of popular majorities (e.g. Kramer 2004; Friedman 2009; Fritz 2008). Some famous examples include disbanding circuit courts (Repeal Act of 1802), postponing a Supreme Court term (Amendatory Act of 1802), impeaching a justice (Samuel Chase in 1804), manipulating the size of the Court (perhaps most cynically in the Judicial Circuits Act of 1866 and the Judiciary Act of 1869), and abrogating a Supreme Court decision with a constitutional amendment (the Eleventh Amendment superseding the Court’s holding in Chisolm v. Georgia [1793] that Article III, Section 2 of the U.S. Constitution eliminated states’ sovereign immunity from private claims).

Indeed, the impulse to curb the Supreme Court when it acted against the preferences of popular majorities persisted well into the twentieth century. Both Presidents Roosevelt, for example, advocated ultimately unsuccessful plans to counter what they saw as excessive judicial independence. During his 1912 bid to return to the White House, Theodore Roosevelt championed a constitutional amendment that would have allowed Congress to overrule Supreme Court decisions that invalidated federal laws. In 1937, Franklin Roosevelt offered a plan that would have allowed him to appoint a new Supreme Court justice for each member of the Court over seventy years and six months old.

These episodes of muscular court curbing are mostly early deviations from a trend of greater deference to the Supreme Court by Congress and growing judicial independence and institutionalization (Kramer 2004; McGuire 2004; Segal and Spaeth 2002). Yet, they underscore a critical point: judicial authority as it exists in contemporary American politics is a fluid “political construction” rather than a firm constitutional structure (Graber 2005; see also, e.g., Clark 2009; Friedman 2009; Lovell 2003; McMahon 2004, 2011; Keck 2004; Kramer 2004; Whittington 2007; Ura and Wohlfarth 2010). In other words, independent judicial authority in the United States was established and is sustained by political processes rather than constitutional fiat.

Political Science Resources on the Supreme Court's Same-Sex Marriage Cases or Ten Things You Should Read to Understand the Supreme Court’s Same-Sex Marriage Cases

noreply@blogger.com (Joe Ura) — Wed, 29 Apr 2015 18:16:00 +0000

As we head toward the Supreme Court’s decision in the same-sex marriages cases consolidated in Obergefell v. Hodges later this spring, here are some links to recent work in political science on the Supreme Court and the political consequences of its decisions.

“Trying to Get What You Want: Heresthetical Maneuvering and U.S. Supreme Court Decision Making.”
by Ryan C. Black, Rachel A. Schutte, and Timothy R. Johnson
Political Research Quarterly (2013)

Abstract: Riker famously theorized that political actors faced with suboptimal outcomes might be able to garner a more desirable one by adding issues to the agenda. To date, limited support for Riker’s theory of heresthetics exists, primarily consisting of case studies and anecdotal evidence. We offer a systematic analysis of heresthetical maneuvers in the context of Supreme Court decision making. We argue justices who oppose a potential case outcome may add alternative issues to the record in an effort to restructure the terms of debate. Data from justices’ behavior during oral argument support Riker’s theory.

“The Legitimacy of the U.S. Supreme Court in a Polarized Polity”
by James L. Gibson
Journal of Empirical Legal Studies (2007)

Abstract: Conventional political science wisdom holds that contemporary American politics is characterized by deep and profound partisan and ideological divisions. Unanswered is the question of whether those divisions have spilled over into threats to the legitimacy of American political institutions, such as the U.S. Supreme Court. Since the Court is often intimately involved in making policy in many issue areas that divide Americans—including the contested 2000 presidential election—it is reasonable to hypothesize that loyalty toward the institution depends on policy and/or ideological agreement and partisanship. Using data stretching from 1987 through 2005, the analysis reveals that Court support among the American people has not declined, nor is it connected to partisan and ideological identifications. Instead, support is embedded within a larger set of relatively stable democratic values. Institutional legitimacy may not be obdurate, but it does not seem to be caught up in the divisiveness that characterizes so much of American politics—at least not at present.

“The Semiconstrained Court: Public Opinion, the Separation of Powers, and the U.S. Supreme Court's Fear of Nonimplementation”
by Matthew E.K. Hall
American Journal of Political Science (2014)

Abstract: Numerous studies have found that elite and popular preferences influence decision making on the U.S. Supreme Court; yet, uncertainty remains about when, how, and why the Court is constrained by external pressure. I argue the justices are constrained, at least in part, because they fear nonimplementation of their decisions. I test this theory by utilizing a recent study of judicial power, which finds the Court enjoys greater implementation power in “vertical” cases (those involving criminal and civil liability) than in “lateral” cases (all others; e.g., those involving schools or government agencies). I find that Court constraint is strongest in important lateral cases—those cases in which implementation depends on support from nonjudicial actors. My findings suggest that Supreme Court constraint is driven by the justices' fear of nonimplementation and is, therefore, dependent on institutional context.

“The Supreme Court’s Many Median Justices”
by Benjamin E. Lauderdale and Tom S. Clark
American Political Science Review (2012)

Abstract: One-dimensional spatial models have come to inform much theorizing and research on the U.S. Supreme Court. However, we argue that judicial preferences vary considerably across areas of the law, and that limitations in our ability to measure those preferences have constrained the set of questions scholars pursue. We introduce a new approach, which makes use of information about substantive similarity among cases, to estimate judicial preferences that vary across substantive legal issues and over time. We show that a model allowing preferences to vary over substantive issues as well as over time is a significantly better predictor of judicial behavior than one that only allows preferences to vary over time. We find that judicial preferences are not reducible to simple left-right ideology and, as a consequence, there is substantial variation in the identity of the median justice across areas of the law during all periods of the modern court. These results suggest a need to reconsider empirical and theoretical research that hinges on the existence of a single pivotal median justice.

“Court Decisions and Trends in Support for Same-Sex Marriage”
by Patrick Egan and Nathan Persily
The Polling Report (2009)

Abstract: The trends in public support for same-sex marriage should interest both those concerned about public attitudes toward gay rights and those with a larger interest in the way court decisions help shape public opinion. The political and legal dynamics of the same-sex marriage debate, as well as the public opinion response, are unique. Nevertheless, analogies to other legal contexts, such as abortion, desegregation and interracial marriage, help define the stakes in this debate and the potential directions in which public opinion may turn. Our own research, as spelled out in our book Public Opinion and Constitutional Controversy (Oxford 2008), suggests that the public is growing increasingly more amenable to same-sex marriage and that judicial decisions are unlikely to reverse that trend.

“The Swing Justice”
by Peter K. Enns and Patrick C. Wohlfarth
Journal of Politics (2013)

Abstract: In the Supreme Court’s most closely divided cases, one pivotal justice can determine the outcome. Given this fact, judicial scholars have paid substantial attention to the swing justice. This article makes two theoretical contributions to the study of the swing justice and this justice’s resulting influence on case outcomes. First, we show that in a substantial number of cases, the justice that casts the pivotal vote is not the median justice on the Court. Second, we argue that the swing justice will typically rely less on attitudinal considerations and more on strategic and legal considerations than the other justices on the Court. The analysis suggests that even among the Court’s most closely divided decisions, which are typically thought to reflect the Court’s most ideologically driven outcomes, the pivotal swing vote is significantly less likely to reflect attitudinal predispositions and more likely to reflect strategic considerations, such as the public’s preferences, and case-specific considerations such as the position advocated by the Solicitor General. The theory and findings suggest that a failure to consider the unique behavior of a pivotal actor—whether on the Supreme Court or any other decision-making body—can lead to incorrect conclusions about the determinants of policy outputs.

“Justices and Legal Clarity: Analyzing the Complexity of U.S. Supreme Court Opinions”
by Ryan J. Owens and Justin P. Wedeking
Law and Society Review (2011)

Abstract: Legal clarity is important to understand and measure because of its connection to the rule of law. We provide the first systematic examination of the clarity of Supreme Court opinions and discover five important results. First, certain justices systematically craft clearer opinions than others. Justices Scalia and Breyer write the clearest opinions, while Justice Ginsburg consistently writes the most complex opinions. Second, ideology does not predict clarity in majority or concurring opinions. Third, all justices write clearer dissents than majority opinions, while minimum winning coalitions produce the clearest majority opinions. Fourth, justices across the board write clearer opinions in criminal procedure cases than in any other issue area. Finally, opinions that formally alter Court precedent render less clear law, potentially leading to a cycle of legal ambiguity.

“Reassessing the Impact of Supreme Court Decisions on Public Opinion: Gay Civil Rights Cases”
by James W. Stoutenborough, Donald P. Haider-Markel, and Mahalley D. Allen
Political Research Quarterly (2006)

Abstract: The theoretical and empirical debate over the ability of the U.S. Supreme Court to influence public opinion through its decisions is far from settled. Scholars have examined the question using a variety of theoretical perspectives and empirical evidence, but there is no theoretical consensus, nor are the empirical studies without methodological weaknesses. We enter this debate in an attempt to bring some clarity to the theoretical approaches, overcome some of the methodological shortcomings, and bring a yet unstudied issue area, Court decisions on gay civil rights, under scrutiny. We argue that the ability of Court decisions to influence public opinion is a function of the salience of the issue, the political context, and case specific factors at the aggregate level. At the individual level these factors are also relevant, but citizen characteristics must also be taken into consideration. Our analysis of aggregate level and individual level opinion does indeed suggest that Court decisions can influence public opinion. However, the ability of Court decisions to influence public opinion is conditional. Our findings lend support to the legitimation hypothesis and the structural effects model. We conclude with a discussion of the implications of our findings and suggestions for future research.

“Backlash and Legitimation: Macro Political Responses to Supreme Court Decisions”
by Joseph Daniel Ura
American Journal of Political Science (2014)

Abstract: This article is a first attempt to develop and assess the competing predictions of the thermostatic model of public opinion and legitimation theory for the responses of public mood to Supreme Court decisions. While the thermostatic model predicts a negative relationship between the ideological direction of Supreme Court decisions and changes in public mood, legitimation theory predicts that changes in mood should be positively associated with the ideological content of the Court's actions. I assess these rival expectations by modeling the dynamic relationship between mood and cumulative judicial liberalism. The model estimates indicate a complex interaction between the Court and the mass public characterized by short-term backlash against Supreme Court decisions in mood followed by long-run movement toward the ideological positions taken by the Court. The results emphasize the legitimacy of the Court in American politics and point to a unique role for the Court in shaping public opinion.

“The Supreme Court and Issue Attention: The Case of Homosexuality”
by Joseph Daniel Ura
Political Communication (2009)

Abstract: Previous studies have shown that a small number of Supreme Court decisions that “rearrange[d] the … distribution of political benefits” have drawn the media's attention to the underlying issues involved in those cases. This article provides an additional test of that empirical claim, examining the effects of the Supreme Court's gay rights cases on media coverage of homosexuality from 1990 to 2005. The data indicate that Supreme Court decisions that expanded the scope of gay rights increased coverage of homosexuality in both The New York Times and USA Today, while cases that affirmed the existing scope of gay rights had no such effect.

Income, Turnout, and Inequality

noreply@blogger.com (Joe Ura) — Mon, 15 Dec 2014 16:17:00 +0000

The London School of Economics and Political Science's USAPP blog today features a post by Lucy Barnes explaining that higher voter turnout in the United States would be unlikely to change redistributive policies in the American states. She writes:

In recent research, I have looked at differences in government spending, and spending targeted towards the poor, across the American states. This also allows for detailed investigation of the income mechanisms involved, as the Current Population Survey provides data, representative at the state level, on both income and (reported) voter participation. From this individual-level data I constructed measures of the income of the median voter for every state-year from 1978 to 2002. In considering the relationship between median voter income, spending, and the typical aggregate measures of turnout and inequality, we can investigate whether the mechanisms purported to explain the macro-level relationships (that higher inequality and turnout drive higher spending).

First, does the income of the median voter matter for the level of government spending? I find little evidence that it does. Or rather, there is some evidence of a statistically discernible effect, but its substantive size is very small. For a thousand dollar increase in the gap between average income and the income of the median voter, annual public welfare spending per capita increases by $6! Total government spending declines with the decisive voter’s income shortfall, but again the size of these effects is tiny– around $40 for a $1000 change. This small effect size, more than the statistical insignificance of the effects, indicates that any impact of the income of the decisive voter on policy outcomes is limited. Second, if the income of voters as a whole, which depends on inequality and who turns out to vote, is the mechanism by which these factors affect spending, we should see the effects of these aggregate-level variables reduced once the direct measure is included as a predictor in the statistical model. I find no evidence that this is the case, either.

Dr. Barnes attributes the limited impact of turnout on policy outcomes to Americans' abysmal turnout rates in state elections. She argues that so many low-income voters abstain, even in high turnout states, that "the necessary relationship between higher turnout and greater equality in turnout may no longer hold." That seems plausible, but I would also add that there is some evidence showing that lower-income Americans and higher-income Americans tend to have very similar policy preferences and, as a consequence, that biases in voter turnout related to income may not produce significant bias in the policy preferences of the electorate.

Randy Balko on Eric Gardner

noreply@blogger.com (Joe Ura) — Sat, 06 Dec 2014 22:54:00 +0000

Eric Gardner's death and a New York City grand jury's decision not to indict the police office who caused his death by placing him a choke hold during an arrest for selling loose cigarettes demand serious reflection on the state of race relations and law enforcement. Randy Balko's thoughts on these matters are well worth your time. Among other things, Balko points out how the proliferation of regulation on our daily lives creates a opportunities for violent confrontations between police and civilians, especially in minority communities:

Every law, no matter how seemingly innocuous, is enforced with the threat of violence: If you fail to follow it, the state is saying it reserves the right to use violence to force you to comply and/or force you to submit to a penalty for violating the law. Every law passed also creates more opportunities for interaction with police officers, the people entrusted to use the violence necessary to enforce the laws. How a proposed law will be enforced, and potentially abused, ought to be considered in addition to the content of the law itself....[Moreover, l]ow-level offenses are a tool police sometimes use to do sweeps for outstanding warrants, or as part of a “broken windows” strategy of law enforcement. These are tactics overwhelmingly deployed on low-income and minority communities.

Again, the whole thing is worth your time.

No, Indiana Did Not Just Make It a Crime for Same Sex Couples to Seek Marriage Licenses

noreply@blogger.com (Joe Ura) — Wed, 10 Jul 2013 14:54:00 +0000

News that Indiana has just made it a crime for same-sex couples to apply for a marriage license has started to creep into my Twitter feed. The National Journal's website, for example, claims:

Lawmakers in the Hoosier State have updated a 1997 law that makes it a felony to falsify information on marriage license. So, any couple of the same sex filling out those forms would automatically violate the law since there are only sections for one male and one female.

The law now states that it is a Level 6 felony, punishable by up to 18 months in prison and a fine of $10,000. The old law had a punishment of up to three years in prison.

This is a really misleading way to frame what's happened in Indiana.

This year, Indiana updated its entire criminal code criminal code, moving from a four-tiered system of felonies to a six-tiered system. It has been a Class D felony in Indiana since 1997 to submit false information on an application for a marriage license. Class D felonies are punishable by six months to three years in prison and fines up to ten thousand dollars. After the revised criminal code goes into effect next year, submitting a false application for a marriage license will now be a Level 6 felony, the lowest tier. Level 6 felonies are punishable by up to eighteen months in prison and fines of up to ten thousand dollars.

Indiana has not updated or amended its 1997 law forbidding criminalizing false marriage applications. This law may affect same-sex couples since Indiana's marriage application includes marked spaces for a single male applicant and a single female applicant. So, a same-sex couple would have to knowingly "misrepresent" the gender of on or the other applicants in order to submit the form. Doing so might theoretically trigger the state's license falsification law, though there are, as yet, no reports of the law being applied to same-sex couples seeking to be married in Indiana. Also, it is not clear that the law could be applied to same sex couples submitting marriage applications under the terms of the First Amendment.

I do not mean to let Indiana off the hook. The state is deeply hostile to same sex marriage. Marriage has been defined by law as a union of one man and one woman only in the state since 2004, and the state legislature is currently considering action to similarly define marriage in the state constitution. It would not surprise me to learn that the 1997 marriage application falsification act was somehow aimed at forestalling same-sex marriage, but I can't find evidence either way on that issue this morning.

The point is that there is absolutely nothing new here, except Indiana's revised criminal code, which is, by most accounts, a sensible set of reforms that, among other things, makes it easier for minor crimes to be expunged from individual records and increases protections against employment discrimination for ex-convicts.

The Supreme Court and Same-Sex Marriage: Will the Court "Split the Baby"?

noreply@blogger.com (Joe Ura) — Fri, 25 Jan 2013 21:03:00 +0000

The issue of same-sex marriage will arrive at the United States Supreme Court this spring in a pair high profile cases.

The first, Hollingsworth v. Perry, considers the constitutionality of California's Proposition 8, a 2008 ballot initiative which amended California's constitution to prohibit same-sex marriage, effectively over-ruling a state Supreme Court decision which held that California's constitution required allowing same-sex couple to marry along with opposite-sex couples. On Tuesday, a group of Californians who support Proposition 8 filed their brief on the merits, asking the Supreme Court to reverse the 9th Circuit Court of Appeals's decision invalidating the voter-approved measure. The case will be argued on March 23.

The second, United States v. Windsor, deals with the constitutionality of the part the federal Defense of Marriage Act, enacted in 1996, that defines marriage in federal law as "a legal union between one man and one woman as husband and wife." Among other things, the law prevents the federal government from recognizing same-sex marriages that are valid under state law. This prohibits spouses in these relationships from taking advantage of various federal programs and benefits available to opposite-sex spouses. For example, Edie Windsor, the respondent in the pending Supreme Court action, was required to pay over three hundred thousand dollars in federal taxes on her deceased wife's estate which would not have been due had the federal government recognized their marriage, which was valid in New York state, where Windsor resides. The House of Representatives, which will defend the constitutionality of the law before the Supreme Court, also filed its merits brief on Tuesday, and the case will be argued on March 26.

Already, there is some speculation that the Supreme Court will "split the baby" on the issue of same-sex marriage, invalidating the federal definition of marriage enacted by the Defense of Marriage Act (DOMA) and either refusing to decide the Proposition 8 case (perhaps by finding that the initiative's supporters don't have standing to defend the law) or reversing the Ninth Circuit's decision on some narrow grounds. A pair of decisions like this would provide substantial benefits to married same-sex couples under federal law, but leave the fundamental issue of marriage equality an open question among the states.

This is a certain appeal to predicting this kind of "compromise" outcome. There is a kind of cowardly strategic impulse that striking DOMA and dodging Proposition 8 enjoys. Though the Court would please neither strong supporters of same-sex marriage nor its strong opponents, it would also avoid a substantial backlash from either camp while letting the marriage issue continue to percolate. (More cynically, predicting a split decision is also a way for prognosticators to hedge their bets should both cases go the same direction.) Most importantly, predicting that the outcome of the marriage cases will together land in some political middle ground falls nicely into line with the heuristic of the Supreme Court as a institution divided between four liberals, four conservatives, and Anthony Kennedy.

Yet, I suspect that such a compromise outcome is unlikely.

First, a majority of the Court's justices probably favor extending the constitutional right to marry to same sex couples. The four members of the Court's liberal wing---Justices Breyer, Ginsburg, Kaga, and Sotomayor---almost certainly support marriage equality. It is likely that Justice Kennedy shares this sentiment and, I think, would be willing to join a majority for marriage equality.

Though it is tempting to think of the Court's "swing voter," Justice Anthony Kennedy, as a moderate who might like to stake out a compromise position on same-sex marriage, I don't think that's right. As Jeffrey Toobin has explained it, Kennedy is "not a moderate but an extremist—of varied enthusiasms." Recall, for example, that Kennedy took the lead among the Court's conservative justices against the Affordable Care Act. Had Chief Justice Roberts not gotten cold feet, Justice Kennedy's dissent in National Federation of Independent Business v. Sebelius would have been a majority opinion striking down President Obama's health care reform law in its entirety on Commerce Clause grounds.

More to the point here, Kennedy not only joined the majority in two of the Court's most important pro-gay rights cases, Romer v. Evans (which invalidated an amendment to Colorado's constitution that essentially prohibited the state or local governments from including homosexuals as a protected class in antidiscrimination laws) and Lawrence v. Texas (which invalidated state laws prohibiting consensual, private sexual activity, including homosexual sodomy), he wrote the majority opinion.

In each case, Kennedy wrote about gay rights broadly in terms that connected homosexuals' claims on equality and liberty to fundamental constitutional rights. Indeed, Kennedy's opinions make strong connections between the struggle for gay rights and previous civil rights movements as well as between the right to sexual liberty and the right to form relationships and marry. With apologies for their length, these passages from Romer and Lawrence make Kennedy's convictions about gay rights and his legal thinking on Equal Protection and privacy issues quite clear.

From Romer:

[Colorado's] Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; "[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision."

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "Equal protection of the laws is not achieved through indiscriminate imposition of inequalities." Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of `equal protection of the laws is a pledge of the protection of equal laws."...

Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, and Amendment 2 does not.

The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . ."

We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed. [Citations omitted.]

From Lawrence:

The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice....

In Planned Parenthood of Southeastern Pa. v. Casey, the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. [Citations omitted.]

Additionally, upending DOMA while sidestepping or preserving Proposition 8 is logically inconsistent. The provisions of the two enactments under review are substantively identical. Both restrict homosexual couples' access to the institution of marriage, and supporters of each enactment allege much the same state interest in preserving marriage as an opposite-sex institution. The defenders of Proposition 8 argue that preserving a traditional definition of marriage advances the government's interest in "regulat[ing] sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society." Likewise, DOMA's supporters argue that it furthers the legitimate government interest in encouraging "heterosexual relationships, with their unique tendency to produce unintended offspring, to be channeled into an institution designed to facilitate the raising of such offspring."

Legally, if the interest at stake in DOMA is not sufficiently "rational" or if a majority of the justices view it as a pretense to justify a policy motivated by animus toward homosexuals, it should fall. If DOMA falls, Proposition 8 shares its fatal flaw. Sure, the Court could side-step the issue for the time being by finding that the group defending Proposition 8 does not have standing to do so in federal court, but doing so would create substantial policy problems and run against strong currents in public opinion.

In terms of policy, ending DOMA and leaving marriage equality up to the states alone is nothing but trouble. It would put the Supreme Court in the position of positively leaving same-sex couples living in different states with different access to the "fundamental...freedom of choice to marry," and would start an avalanche of federal claims related to same-sex couples who legally marry in one state and ultimately move to another state which does not recognize same-sex unions. Ending DOMA would ultimately be the beginning of the final countdown to national marriage equality whatever the resolution of Hollingsworth might be in this term of the Court.

In terms of public opinion, most polls indicate that a majority of Americans now favor same-sex marriage outright. More importantly, support for same-sex marriage is rapidly growing. For example, in 2004, an NBC News poll found that 61% of Americans opposed "allowing gay and lesbian couples to enter into same-sex marriages," with 51% "strongly" opposing same-sex marriages. Only 30% of Americans supported marriage equality. In late 2012, another NBC News poll (asking the same question), found that 51% of Americans now support allowing same-sex couples to marry with only 40% expressing opposition. In the course of eight years, nearly a fifth of the American people swung from opposing same-sex marriage to supporting it, and it is reasonable to suspect that support for marriage equality will continue to grow in the future.

By acting strongly in favor of same-sex marriage---that is, by ending DOMA and invalidating Proposition 8 and other similar state laws that restrict marriage to opposite-sex couples a majority of the Court's members would avoid creating a hash out of our de facto national marriage policy, align itself with a solid and growing majority of Americans who support marriage equality, and get the policy outcome they want. Of course, the Court risks as backlash from a dedicated minority who oppose same-sex marriage, but given the current configuration of power in Congress and the White House, there is effectively no way for this minority to effectively retaliate or undermine the Court. A majority of the Court's justices are therefore substantially unconstrained, either by public opinion or by coordinate branches of government, from pursuing an ambitious agenda of marriage equality if they so choose.

So, How's the Tea Party Taking the News?

noreply@blogger.com (Joe Ura) — Wed, 07 Nov 2012 20:11:00 +0000

A few days back, Andrew Sullivan wrote that Mitt Romney losing the election would force the Tea Party and the rest of the conservative base to reconsider its positions and rhetoric:

My own view is that the only way to rehinge an unhinged party is for it to lose badly. And because Romney put Ryan on the ticket, and endorsed the entire Tea Party shebang, it will be hard for the wingnuts to blame defeat on running a moderate.

In response, I had written that channeling the spirits of the Tea Party faithful is not one of Sullivan's many gifts.

Sullivan is insightful about many things, but he utterly misunderstands the Tea Party and the Republican Party's primary electorate. Should Mitt Romney lose the election, as it seems reasonably likely that he will, the Tea Party movement and the larger set of Republican partisans who populate its primary electorate will, I suspect, draw precisely the opposite lesson from the election.

So, Romney has lost.

How is the Tea party taking the news?

It's still early, but it looks like I will turn out (sadly) to be right about this one. This morning, the website Tea Party Network News, ran a statement headlined "Tea Party Vows 'No Retreat': Promise to search out candidates with clear conservative records; no more Dole-McCain-Romney nominees." It opens:

Leaders of the Tea Party News Network (TPNN) and TheTeaParty.net offered an unflinching assessment of Election Day results. Todd Cefaratti, editor of the Tea Party News Network said, “We’re disappointed in Governor Romney’s loss. But this goes to the heart of what we have been saying all along. Bob Dole didn’t win. John McCain didn’t win. And now Mitt Romney hasn’t won. The lesson the GOP and Americans need to learn is that weak-kneed Republicans do not get elected. Conservatives do.”

“The Tea Party has not yet begun to fight. It’s time for a wholesale reassessment of the D.C. establishment politicians and party grandees who have no commitment or courage to reduce the size of government. We now have another four years ahead of us with Barack Obama leading the charge against liberty,” TPNN News Director Scottie Hughes said. “There were some bright spots tonight from Ted Cruz to Jeff Flake, to a decisive win in the U.S. House where Tea Partiers have a mandate to stand against Obama’s big government second-term agenda. ”

“I eagerly await the day the GOP establishment figures out that the ‘safe’ candidates are not getting the job done,” stated Hughes. “The GOP needs to adhere to stricter ideological purity and put forth candidates that represent a significant difference in viewpoint from the Democrats that are creating devastating policies for Americans. The Republican Party has been shoving ‘their’ candidate down the throats of conservatives for years, and it’s not working. It’s time for them to wake up.”

At Tea Party Nation, Judson Phillips writes:

There are some lessons to be learned from this disaster. The first lesson is, no more moderate Republican candidates. Mitt Romney now joins the long list of moderate Republicans who line up right next to General George Custer. Romney lost. McCain lost, George W. Bush barely won and set the stage for Obama. Bob Dole lost. The only reason George H.W. Bush won a single term was because he was Ronald Reagan’s Vice President. When he ran on his own as a moderate, he gave us Bill Clinton.

We conservatives have to say this time; we will not support a moderate again. Our desire to remove Barack Obama and the Party of Treason was so strong that we jumped on board the Romney train. The Republican establishment correctly assumed that if it could get Romney nominated, we would have no choice but to fall in line.

It happened this time. It will not happen again.

Daniel Horowitz writes on the front page of RedState.com:

We ran with Dole in 1996, and we lost; we ran with McCain in 2008, and we lost; we ran with Romney, and we lost. Romney took the issue of Obamacare off the table and barely attacked Obama directly for much of anything. There was no potent conservative philosophy that was offered to provide voters with a sharp distinction between the parties. The Republican convention was a pathetic Oprah show and the entire campaign was basically an advocacy of Obama’s policies, albeit with less enthusiasm. And let’s not blame the loss on Paul Ryan and Medicare reform; he outperformed Bush and McCain with seniors.

This line of thinking spills over into the Conservative semi-establishment. Writing at National Review Online, Grover Norquist faults Romney's lack of commitment to tax cuts and entitlement reform:

The Republican House was reelected after not just touching but fondling the “third rail of American politics.” It is clear that if you are specific about your reforms they cannot as easily be misrepresented to voters. The Republicans in the House all voted for Ryan. They lashed themselves to the mast and thrived. Romney hinted he was sort of in that general vicinity.

These examples are a nonrandom sample of the some of the Tea Party's first responses to the election. I don't know how representative they of of the Tea Party as a whole or the larger core of the conservative movement more generally. Still, I wouldn't be surprised if this line of thinking becomes the movement's conventional wisdom and motivates its leaders' strategic decisions between now and 2016.

Andrew Sullivan Utterly Misunderstands the Tea Party: The Conservative Response to a Romney Loss

noreply@blogger.com (Joe Ura) — Fri, 02 Nov 2012 21:16:00 +0000

In a blog post critiquing David Frum's endorsement of Mitt Romney, Andrew Sullivan drops this:

My own view is that the only way to rehinge an unhinged party is for it to lose badly. And because Romney put Ryan on the ticket, and endorsed the entire Tea Party shebang, it will be hard for the wingnuts to blame defeat on running a moderate.

Sullivan is insightful about many things, but he utterly misunderstands the Tea Party and the Republican Party's primary electorate. Should Mitt Romney lose the election, as it seems reasonably likely that he will, the Tea Party movement and the larger set of Republican partisans who populate its primary electorate will, I suspect, draw precisely the opposite lesson from the election.

The conservative movement, including the Tea Party, will conclude that Romney's loss was a result of his failure to forcefully articulate a clear and consistent conservative vision. Had Romney been a true Reagan conservative, it will reason, he could have easily driven Barack Obama from office in the midst of a slow and uncertain economic recovery in the same way that the Great Reagan himself defeated Jimmy Carter in 1980.

Instead, they will reason that the Republican Party lost a winnable election because the country club establishment pushed the great moderate from Massachusetts on them. As a result, they will say that RomneyCare took ObamaCare off the table as an issue, that Romney put too much distance between himself and Paul Ryan's original budget roadmap (and corrupted Paul Ryan in the process), that he failed hit the president on Benghazi, and that he was soft on abortion. In short, the movement will blame Romney's defeat on every way he diverged from its ideal rather than any way in which he embraced it.

I expect neither the leadership of the conservative movement nor its adherents in the mass public to find any reason to moderate their political ambitions or rhetoric as a result of a Romney defeat. Instead, I expect the most committed parts of the conservative movement, including the Tea Party, to double down on their prior beliefs. Among other things, if Mitt Romney loses next Tuesday, I expect that the next presidential nominee of the Republican Party will be much more like Rick Santorum than Jeb Bush. Likewise, Mike Lees and Richard Mourdocks will continue to seriously and successfully Bob Bennetts and Dick Lugers in conventions and primaries for seats in Congress and state legislatures across the country. And, the general trend of asymmetrical partisan polarization will continue.

EmpowerU and Texas A&M University System Analytics: One (but Only One) Step in the Righ Direction

noreply@blogger.com (Joe Ura) — Fri, 02 Nov 2012 16:47:00 +0000

The Texas Tribune reports that the Texas A&M University System is set to officially launch a new public accountability website on Monday called EmpowerU. The heart of the website is another website reporting "Analytics" for each system campus. The analytics website reports a variety of aggregate data on enrollment, student degree progress, completion rates, and finances for the various Texas A&M System institutions.

Having a centralized web portal for these data is a great improvement. While data on the system's workload and performance have been nominally public for some time, they have been hard to find online and available only from disparate entities within the system or from the state's Higher Education Coordinating Board. Putting the information in one spot is a huge boost for transparency and accountability, and the system should be commended.

Having said all of that, the analytics website looks and acts incredibly clunky. It doesn't so much report data as offer some pre-packed statistics reported in poorly formatted charts and clunky graphics. Here's an example. The following is a screen clipping from the reported generated for requesting data on the "Most Recent Fall" from the "Enrollment" tab.

The data breakouts are arbitrary (Why is ethnicity reported in a bar chart in the top left corner using one color scheme while gender is reported in a pie chart in the bottom right corner with another? Why does the ethnicity bar chart need a color scheme at all?). The space is poorly formatted (You must scroll down in the "Ethnicity" box to see internalization student enrollment, for example.) and much of it is wasted (e.g. the huge white spaces around the Texas map and space used by the redundant Texas A&M System logo in the top left corner of the data field). The bar charts in the lower half of the screen showing enrollment by campus puts enrollment on the main campus at College Station with enrollment at other system campuses on different scales. The campus labels are unhelpful (nine begin with the acronym "TAMU." They could simple be labeled "College Station, Prairie View, Health Science Center, International, Commerce, etc.) There is a lot of useless chart junk, like the boxes around the various figures. Options for manipulating the graphs are confusing. The whole thing is confusing, difficult to use, and, frankly, ugly.

These are more than just aesthetic objections. The presentation of the data make them hard to understand and contextualize. An citizen, parent, or legislator who wanted to compare the size and diversity of the various system campuses might easily be misled or distracted by this display of information.

Additionally, the underlying data themselves are not available to be downloaded. This makes it difficult for others' to independently assess the system's performance, which is the reason for making the data public in the first place. In this respect, the analytics website compares unfavorably with other government websites used to disseminate public information.

For example, the federal Office of Management and Budget's website includes a wealth of reports and analysis along with an array of historical data available to be downloaded as MS Excel spreadsheets, which can be read by a variety of free and open source software packages in addition to many commercial programs. Those interested in the federal budget need not take the OMB's word about anything. The raw data used in their reports are available for anyone else to analyze on their own. The TAMU System's analytics data are free and online, but the data themselves should be available in a convenient, widely used electronic format, also.

EmpowerU is a step in the right direction, but a serious effort to promote transparency and accountability should make a more significant effort to present data in useful and understandable ways and also make the relevant data easily available without the filter of the system's "analytics."

Finishing in Four: Texas Higher Ed Reform

noreply@blogger.com (Joe Ura) — Fri, 26 Oct 2012 17:31:00 +0000

In the upcoming session of the Texas legislature, there will be a big push to alter the formula for computing public support for state universities. Currently, public support is based on enrollment. There are various proposals floating around for an alternative, but almost all of the suggest pegging at least part of university's funding to its four-year graduate rate. The logic is that the current system creates incentives for institutions to delay students' progress toward their degree in order for colleges and universities to continue to extract tuition and fees from students, contributing to problems like excessive student loan debt.

Despite concerns that an altered funding formula emphasizing completing will create incentives to turn colleges and universities into diploma mills, it is clear that some kind of outcome-based formula adjustment is going to happen. For public colleges and universities, the challenge will be to respond to the new funding environment and the evolving economic realities of higher education in effective and constructive ways

The University of Texas has presponded to the finish in four push by setting up a pilot program to forgive a small amount of a student's loan debt should they make timely progress in their academic program. As I have explained here before, I am skeptical the UT plan will do much. The size of the incentives is too small to matter except at the thinnest margin.

Here at Texas's other flagship research university, the administration seems to be focusing its preliminary efforts on increasing the level of hand-holding thrust onto students. I hear that there will be a new computer interface that will allow students to map out a four year degree plan as incoming freshmen and cross-reference their original plans with their ongoing progress as well as maybe adding new advising staff in academic departments (and some other sneaky business like pushing students to declare majors earlier and making it harder to change majors later on).

I think both UT's and TAMU's approaches are flawed. There is no obvious way to offer financial incentives for timely completion of a degrees that are big enough to matter to students, small enough not to hurt the university's bottom line and be politically palatable, and not be counterproductive (insofar as they discourage students who get off track from completing a degree at all). I also think increased hand-holding won't do much but create more bureaucratic nonsense, overburden the university's generally excellent advising staff, and inadvisedly shift responsibility for students' progress from the student to the institution.

What to do, then?

There is no single magic bullet. Yet, colleges and universities can go a long way by helping to ensure that entering students have the skills they need to excel in college and offering help to students who are not prepared for college-level work. Likewise, colleges can eliminate policies that actually facilitate students getting off track on their degree plans and provide some modest, social incentives for students to keep moving toward their degrees. Along these lines, I have a handful of modest proposals for improving four year graduation rates at Texas A&M. Some of these will readily translate to other public college and universities in Texas (and elsewhere), but, others are idiosyncratic Aggie business.

1. The Structured Pass/Fail First Semester

I have adapted this idea from Dartmouth Political Scientist Brendan Nyhan. I completely agree with him that unprepared students are a huge problem for colleges and universities in general, and doubly so for Texas's public universities with mandates to automatically admit students based on their relative performance in high school regardless of the quality of their high school. Brendan advocates allowing students to take their first semester of classes pass/fail to let the acclimate to college while relieving some of the pressure that can come from that first semester of college.

I'll take this idea a step further and advocate that students entering college take a structured schedule made up of courses from the university core curriculum. Everyone would take composition, math, literature, a natural science, and either American government or American history, for example. The first semester course offerings would emphasize basic skills like writing, logical reasoning, and reading comprehension that would pay dividends throughout students' later coursework. Forcing students to take these up-front would avoid the problem of students getting in over their heads because they lack the basic academic skills they should have mastered in high school. Similarly, the freshman curriculum would provide the institution with a way to identify students who need remedial assistance in these areas to prepare for advanced work later on.

The first semester curriculum courses would be offered on a pass/fail basis to allow students to acclimate to college in a less stressful environment and to keep the emphasis on learning rather than performance. I know it sounds touchy-feely, and I was very skeptical of the idea when I first read it. As I have revisited Nyhan's post, though, and read other accounts of pass/fail first semesters, I have become convinced that the system provides a way to short-circuit many of the problems that lead to students getting off track in their degree programs in the first place: failing to effectively adjust to college, falling behind due to poor preparation in high school, and suffering from a lack of basic skills. The pass/fail system gives students incentives to admit academic weaknesses and seek help rather than incentives to cover-up their academic shortcomings and avoiding them. In other words, students could focus on improving their skills rather than gaming their courses.

2. A First Year Campus Residency Requirement

Most college students are legally adults. They are eligible to buy and smoke cigarettes, read dirty magazines, vote, serve in the military, etc. Generally, colleges and universities should treat students like adults. And, universities should definitely not simply replace helicopter parents with helicopter advisors, counselors, and staff. Having said all of that, colleges should be aware of the problems and challenges facing their students, and, in light of their educational mission, structure themselves in ways that help students learn and achieve their various academic, professional, and personal goals.

Many students who get off the track of a timely degree program do so because of problems that develop during their first year of college. Some of these are strictly academic, i.e. they are not prepared for college-level work. Others are "extracurricular." Removed from home for the first time, students get distracted from their academic endeavors and begin to fall behind in their courses. Obviously their grades suffer, but, more importantly, they are not learning material in introductory courses which will be necessary in later courses and in professional tasks related to their field of study. Early success, therefore, pays substantial dividends down the line.

Requiring first year students to live in on-campus dorms helps facilitate that early success. Trivial logistical obstacles to students getting to class or to the library, like parking, are minimized by living on campus. Access to a university's services and facilities are maximized. Some of the classic distractions of college life can be minimized or managed by dormitory rules. Likewise, students living on campus can be more easily organized into learning communities that can facilitate things like study groups, collaborative assignments, and student clubs and associations. Given these various benefits and with the possible exceptions of married students, students with children, or older students (say, those 21 or older), freshmen should be required to live in on-campus.

3. Eliminate "Q Drops"

At Texas A&M and other public colleges and universities, students are allotted a number of "Q drops," or opportunities to end their enrollment in a class without cause (e.g. a medical excuse, military deployment, etc.) after the normal drop/add period ends. Students receive no credit for Q dropped courses. Q dropped courses are reported on transcripts, but they do not factor into students' grade point averages. If a student Q drops a course after the twelfth class day, their tuition is not refunded. The state limits students to six Q drops; Texas A&M currently allows three, though that will increase to four next year.

Q drops are a drag on both academics and student finances. Academically, they provide students with an escape hatch from difficult coursework. Students who are not performing well in a course should be encouraged to redouble efforts to improve their performance for the rest of the term.

Q drops do the opposite. They allow students to avoid their academic problems and perhaps "shop" for easier alternatives to the Q dropped course, choosing a less demanding instructor or taking the dropped course elsewhere (perhaps online or at a community college).

Q drops obviously slow progress toward a degree, since Q dropped courses do not yield academic credit and cannot be replaced with another course once the normal enrollment period has ended. Students taking their state maximum allotment of six Q drops would be missing more than a full semester's worth of course credit. That means longer times to graduation and, of course, greater expenses for college, greater financial burdens on students and their families, and higher student loan debt.

Q drops should be eliminated. Texas A&M has very sympathetic policies for students to withdraw from courses for cause. I would be surprised if other state colleges and universities were not similarly responsive to students with medical problems, family emergencies, and other circumstances which may legitimately interfere with students' normal academic process. Allowing students to deal with difficult exigent is perfectly reasonable. Allowing student to drop courses without cause, though, serves neither the student's interests nor the institutions'.

4. Aggie Ring and Sports Pass Reforms

With the possible exceptions of the various U.S.military academies and their cousins like the Citadel, college rings are a bigger deal at Texas A&M than anywhere else I have encountered. Students crave their Aggie Ring. I have heard students in official university videos say that their ring is more important to them than their diploma. They are a big deal.

Likewise, A&M has a big time athletic program. Of course, football is king, but the University is a perennial contender for the Directors' Cup, a national award for the best all around collegiate sports programs. Student attendance at many sporting events, even those that draw spares crowds elsewhere, are very popular at A&M.

Students' eligibility for Aggie Rings and sports passes should be tied to timely progress toward a degree.

Currently, students become eligible to purchase their rings once they have completed at least 90 credit hours with at least an 2.0 GPR, which is what Texas A&M calls a GPA. That requirement should be updated. The university should authorize rings only for students who complete at least 90 hours in three years or less, i.e. students who are on track to complete degrees in four years. Students who are not on track for timely degree completion would become ring-eligible only upon completion of their degree. Likewise, the university should limit access to student tickets for sporting events to those who are making timely progress toward their degree and those students who are off-track who have also returned to a record of satisfactory progress toward their degrees for some period of time.

UT's Plan to Promote On-Time College Degrees: Will Financial Incentives Help?

noreply@blogger.com (Joe Ura) — Thu, 11 Oct 2012 21:53:00 +0000

The good folks out at Texas's other flagship research university have concocted a plan to create incentives for undergraduate students to complete their degrees on time. The university will forgive portions of students' unsubsidized federal student loans (those are the student loans that accrue interest while the student is in school) for students who stay on schedule to complete their degrees. The press release announcing the plan says, in part:

The University of Texas at Austin is testing a program to measure whether students can be encouraged to complete their degrees quickly by offering them forgiveness of the most expensive loans they must borrow to attend the university....

For this pilot project, the university will select 200 freshmen entering in the fall of 2013 who have been awarded Federal Direct Unsubsidized Loans on the basis of financial need. Half of the students would be offered loan forgiveness in the amount of $1,000 on the principal, plus interest accrued if they successfully complete 15 hours of their degree requirements by the end of each semester. The other half would be offered $2,000 in forgiveness, plus interest accrued, if they successfully complete 30 hours of applicable degree requirements by the end of the academic year.

UT's goal to increase timely completion of students' degree programs is laudable. Yet, I doubt that this program will successfully reduce students' time to completion.

In-state tuition at UT is roughly $10,000 a year for in-state students and $25,000 annually for out-of-state students. Throwing in room, board, fees, books, transportation, and other costs, and Texas residents can can expect to spend over $24,000 a year to attend UT with nonresidents shelling out between $40,000 and $50,000 annually. An incentive of $2,000 for staying on track to complete a degree in four years is great and all, but it amounts to something like 2-4% of the average cost of attendance at UT. If a student is not dissuaded from extending their time at the University of Texas by the relatively large price-tag of staying an extra year (or two), it seems unlikely they will be convinced to do so by the pilot program's relatively modest tuition rebate.

A bigger problem is that the program seems to misconceptualize why students aren't finishing degrees on time in the first place. Students (and their families) have huge financial incentives for finishing degrees on time. By doing so, they avoid the expense of additional education and earn the ability to work full-time with the wage premium that accompanies a college degree. Many students stay in school longer than four years despite costs (and opportunity costs) for doings so that are orders of magnitude larger than the UT pilot program's rebate. The problem, therefore, is unlikely to be redressed by marginal and naive price adjustments.

In my experience, many students who extend their time in college beyond four years tend to fall into one of two categories. The first are students who were not academically or personally ready for college when they arrived as freshmen and have stayed beyond a fourth year to re-take courses they failed or did poorly in when they first arrived. The second are students who got off-schedule due to various circumstances beyond their control: illness, childbirth, financial problems that required leaving school or taking on paid work at the expense of a full course load, etc. Neither of these groups are likely to be pulled onto a four year degree program by the lure of a couple of thousand dollars of tuition remission.

Instead, universities, including UT, will have to do the harder work of making sure that incoming freshman are placed in appropriate courses given their level of preparedness (including remedial courses if need be) and providing services and support to students with common personal and economic problems to help them stay on track for timely completion of degree programs when possible or to return to a normal academic program as soon as possible. These tasks are especially daunting for public institutions like UT and Texas A&M, who have limited control over their own admissions and enrollment given various state mandates. Yet, universities that take seriously their educational missions in general, and the growing imperative to help students manage the costs of their education by completing their degree programs in a timely fashion in particular, should not be satisfied with superficial efforts. Indeed, a serious effort to investigate the problem of extended degree completion, to understand its causes, and to develop effective interventions should be a top priority for UT and higher education as a whole.

Income Taxes, Payroll Taxes, and the 47%

noreply@blogger.com (Joe Ura) — Thu, 11 Oct 2012 15:10:00 +0000

Yesterday, Mike Bailey from Georgetown University (h/t Brendhan Nyhan) discussed results from a YouGov survey which finds that 78% of Americans believe they pay income taxes, even after they have been primed to consider the distinction between "income taxes" and "payroll taxes."

When Mitt Romney’s 47% comments came to light, many were surprised that Romney’s claim that only 47% of households pay income taxes is, in fact, true....

What’s going on, of course, is a disjuncture in the technical and ordinary usage of the term “income tax.” Technically, the income tax is a progressive tax on income that does not include the “payroll taxes” paid to support Social Security and Medicare. In ordinary usage, however, these payroll taxes are often considered federal income taxes – after all, on April 15, payroll and income taxes are rolled into the bottom line owed to the federal government....

The most recent YouGov/Economist poll asked, “Do you pay federal income taxes?” Seventy-eight percent said they do. Given that about 54 percent of households pay federal income tax that suggests roughly 24 percent of respondents report that they pay federal income taxes, but do not.

The upshot, as the title of Bailey's post reports, is that only 22% of Americans know that they are part of the 47% that pays no income tax. The result is interesting and suggests that Mitt Romney has a bit of a rhetorical advantage on the issue of distributing the tax burden since more than half of the people indicted by Romney's 47% comment don't think he's talking about them. Bailey adds a bit of an editorial to this analysis, though, criticizing Mitt Romney for being disingenuous about the income tax/payroll tax distinction.

What this means is that there is important political slippage between the tax policy debate in Washington and the way it is heard by many Americans. For Romney, this slippage is convenient as discussing income taxes as if they were all or even a majority of federal taxes paints the current tax system in a particularly unfavorable light.

Convenient is not correct, however. Everyone who discusses taxes should report the full context on taxes so that Americans working with common sense views of income taxes are not misled.

I completely agree with Bailey that the American people deserve a full and fair reporting of the context of the national debate on taxes. Respectfully, though, I disagree with him about the source of the "slippage" in the way many many Americans understand their federal tax burdens.

In fact, most of the misunderstanding about "income taxes" versus "payroll taxes" arises directly from the existence of a "payroll tax" that is separate from the "income tax" in the first place. The problem is worse than that, though. The the federal government often refers to payroll taxes as "contributions" that individuals make to "earn" various "insurance" payments. Indeed, the federal that authorizes payroll taxes is called the Federal Insurance Contributions Act (FICA).

If the payroll tax is just an income tax by another name, why isn't it just called an "income tax" and included as part of the rest of workers federal income taxes?

It is no accident. The framers of the Social Security program intentionally separated the system of taxation that would support retirement insurance from the rest of the federal government's revenue collections. They didn't want workers to think of FICA payments as ordinary taxes. They wanted to create the illusion that working people were paying into a system to "earn" benefits that would be paid back to them later rather when they retired. Of course, Social Security does not work like that. It works like any other welfare program. People who are working now pay taxes to fund payments to people who are now retired. When those of us who are presently working retire in the future, our Social Security payments will be funded by taxes collected from people who are working then.

The separation of "federal insurance contributions" from income taxes was an intentional effort to obfuscate the nature of the Social Security program (and, later, Medicare) to insulate the programs fro subsequent political opposition. As President Franklin Roosevelt famously explained:

We put those payroll contributions there so as to give the contributors a legal, moral, and political right to collect their pensions and their unemployment benefits. With those taxes in there, no damn politician can ever scrap my social security program.

Roosevelt knew exactly what he was he was doing. By "submerging" this part of the state, Roosevelt and the other parents of Social Security (and subsequently Medicare) successfully and fundamentally shaped the way that most people think about their payroll taxes and old age entitlements. A quick conservation with nearly anyone who is retired or near retiring will almost certainly show you that she thinks---no matter how conservative she may be otherwise---that she has a "right" to the Social Security and Medicare "benefits" that she "earned" by making her "contributions" over her whole working lifetime. This sentiment is not some abstract social contract business in her mind. It is a concrete, transactional and contractual reality.

The folks who are down on Mitt Romney for blurring the distinction between payroll taxes and income taxes and who also support continuing Social Security and Medicare in their present form as near universal, publicly financed entitlements through separate payroll taxes are trying to have their cake and eat it too. Mitt Romney's rhetoric about the 47% assumes a distinction in the contributions that people make to the federal government that was created by political liberals to manipulate public perceptions of massive transfers of income in order to insulate those programs from political attacks. Romney did not create that distinction and, to the extent that Republicans' desire to debate and reform old age entitlements are frustrated by the distinction, he and his party do not benefit from it.

So, by all means, let's have an open, fully contextualized debate about federal tax policies. But, the openness should start by recognizing that "federal insurance contributions" are just ordinary income taxes and that Social Security and Medicare are just ordinary income transfers. Unless and until the official and political vocabulary used to describe the nation's old age entitlements changes, we should not be surprised that many Americans misunderstand the nature of their tax obligations. Likewise, those who support the separation of income taxes and payroll taxes to protect old age entitlements from political opposition have little room to criticize politicians who try to capitalize on that separation for other purposes.

Texas A&M's proposed stadium expansion: Does this seem like a good idea?

noreply@blogger.com (Joe Ura) — Thu, 27 Sep 2012 20:31:00 +0000

The Texas A&M University System (TAMUS) is proposing to spend $425-$450 million to expand and renovate Kyle Field, the football stadium on the system's flagship campus here in College Station. To help fund the project, TAMUS has asked area local governments (the city of College Station, the City of Bryan, and Brazos County) to pitch in $38 million. If the local governments fail to pay up, TAMUS has threatened to relocate home football games during the renovation. A recent study commissioned by the Bryan-College Station Chamber of Commerce claims that relocating Texas A&M home games for a season would cost the area $63 million in direct business activity.

A few thoughts:

1. The proposed stadium expansion will cost a minimum of $425,000,000 to add a maximum of about 15,000 seats to the stadium. Average season ticket prices are now $360. Presuming the project actually produces the maximum expansion at the minimum cost, the expansion would generate $5,400,000 of extra ticket revenue each season at current season ticket prices. At that rate, the expansion would pay for itself in just under 79 years. Even if we double the marginal revenue estimate to $10,800,000 to account for concessions, increased ticket prices in the newly renovated stadium, etc., the project would still take almost four decades to pay for itself. Obviously, the situation is more complicated than that since I have not accounted for inflation, borrowing costs, the potential to sell naming rights, etc., but even these rough calculations show that it will take a long time, even under favorable circumstances, to recapture the expense of the stadium expansion.

2. Where in the world will TAMUS get half a billion dollars?

3. The costs of the renovation are staggering---an up-front estimate of nearly half a billion dollars. The opportunity costs are even more staggering. What else could the university or the state of Texas buy for half a billion dollars?

Just for comparison, Texas A&M bought Texas Wesleyan University's Law School for $25,000,000 (depending what you count) and TAMUS will start up a national center for researching and manufacturing vaccines for $285,000,000. So, for the same amount of money TAMUS wants to spend on adding 15,000 seats to the football stadium, it could build another national vaccine research and manufacturing center, buy five law schools, and still have $15,000,000 to kick around.

4. What are the savings from shuttering Kyle Field for a year during the renovations? The stadium as currently configured holds about 87,000 people, paying an average of $360 per season. That's $31,320,000 a year plus concessions, parking, etc. If the team leaves town, that's almost certainly fewer ticket sales plus sharing revenue with the owner of another venue, the cost of managing "home" games in another city, etc. Even if local governments don't buy a home season for $38,000,000, its seems like the financial incentives for moving a season might be pretty spare.

5. The Oxford Economics study of the impact of losing a home football season claims that the direct economic cost of a season away would be $63,000,000 and the total (direct and indirect) loss would be $86,000,000. Taking the study totally at face value, it is still not self-evident that local governments should pay $38,000,000 to buy a home season from TAMUS. The estimated losses are revenue figures. Not all of that money stays in town. A lot of leaves for out-of-town wholesale suppliers, etc. Even the report admits that the $86,000,000 figure includes only $21,000,000 in lost household income. Meanwhile, the $38,000,00 season ransom would be a real out-of-pocket expense for the local communities, which would mean that much less money in the local economy to begin with. It's not immediately evident to me that buying a home football season at that price is a good deal for the affected communities.

6. Colorado State University wants to spend $250,000,000 to build a stadium from scratch. The University of Houston's new stadium is expected to cost $105,000,000. Why does it cost 2-4 times as much for TAMUS to expand its stadium capacity by about 10-15% as it does for other institutions to build new facilities from scratch?

Diplomatic Security in Libya

noreply@blogger.com (Joe Ura) — Mon, 17 Sep 2012 16:08:00 +0000

I am no expert on international security, but Susan Rice's appearance on This Week seems to cast a pretty unfavorable light on the administration's handling of security for the American diplomatic mission in Libya in a pretty poor light.

First, the administration's claim that the attacks at the U.S. consulate in Benghazi and at other American diplomatic facilities around the world last week were totally spontaneous and uncoordinated is contradicted by a variety of independent reports. The UK's Independent reports that the United States received specific warnings about attacks in Eqypt and Libya at least two full days before the riot in Cairo and the assault in Benghazi. CNN reports that Libyan officials had warned American diplomats that the security situation in Benghazi was unstable. The president of Libya claims that post-attack investigations leave little doubt that the assault on the consulate was planned.

If the administration's line is not correct, then the United States either failed to act on (general or specific) warnings about emerging danger in Benghazi or failed to detect a serious security threat to its diplomatic mission in Libya.

Even if the administration's line is correct, it's attitude toward security in Libya seems pretty flip. Ambassador Rice admitted that there was no military security at the consulate in Benghazi or the embassy in Tripoli, claiming that the "circumstances" didn't indicate that level of security and that the Libyan diplomatic mission was "relatively new."

Unlike other embassies around the world, Rice said there were no Marines present last week to protect the consulate in Benghazi, or the main U.S. embassy in Tripoli, saying the U.S. presence there is “relatively new” since the revolution that overthrew former dictator Moammar Gadhafi.

“There are not Marines in every facility. That depends on the circumstances. That depends on the requirements,” Rice said. “Our presence in Tripoli, as in Benghazi, is relatively new, as you will recall. We’ve been back post-revolution only for a matter of months.”

Again, I am not a security expert, but Libya is obviously a country under a tremendous amount of stress. It deposed its long-time dictator only a few months ago and a variety of internal and external forces have been jockeying for influence and power ever since. So, we have an unstable country with lots of heavy weaponry from a revolt floating around and foreign and domestic Islamists trying to stake out claims on the new Libyan state and the "circumstances" don't justify Marine guards for U.S. diplomatic missions? Or, maybe they did and the State Department just didn't have time to get around to it over the last few month?

The claims that the circumstances didn't justify military security and that the mission was too new to have set such security up are not necessarily exclusive, but Ambassador Rice's statements imply that there was a determination that no such security was necessary and that there was a failure to setup such security in time. Together, they leave me wondering exactly how military security is allocated to U.S. diplomatic missions in general and what didn't work in Libya.

All told and the presidential campaign aside, there are serious questions still unanswered about the attack in Benghazi and the murder of Ambassador Christopher Stevens.

If Zakaria Plagiarized Lepore, Did Lepore Plagiarize Cramer?

noreply@blogger.com (Joe Ura) — Tue, 14 Aug 2012 17:43:00 +0000

As the New York Times reports here, Time magazine writer and CNN host Fareed Zakaria has been suspended from both of these positions for a month after he admitted plagiarizing an essay by Harvard University historian Jill Lepore in an column he wrote for Time. Zakaria has admitted that he made a "terrible mistake" and a "serious lapse," and he has been suspended from Time and CNN. I don't read or watch Zakaria on anything like a regular basis, and he apparently has a history of "borrowing" from other journalists' work. Whatever.

According to the New York Times, here is Lepore's original (which you can also read, in full, here):

As Adam Winkler, a constitutional-law scholar at U.C.L.A., demonstrates in a remarkably nuanced new book, “Gunfight: The Battle Over the Right to Bear Arms in America,” firearms have been regulated in the United States from the start. Laws banning the carrying of concealed weapons were passed in Kentucky and Louisiana in 1813, and other states soon followed: Indiana (1820), Tennessee and Virginia (1838), Alabama (1839), and Ohio (1859). Similar laws were passed in Texas, Florida, and Oklahoma. As the governor of Texas explained in 1893, the “mission of the concealed deadly weapon is murder. To check it is the duty of every self-respecting, law-abiding man.”

And, here is Zakaria's (and here's the link to the full Time piece):

Adam Winkler, a professor of constitutional law at UCLA, documents the actual history in Gunfight: The Battle over the Right to Bear Arms in America. Guns were regulated in the U.S. from the earliest years of the Republic. Laws that banned the carrying of concealed weapons were passed in Kentucky and Louisiana in 1813. Other states soon followed: Indiana in 1820, Tennessee and Virginia in 1838, Alabama in 1839 and Ohio in 1859. Similar laws were passed in Texas, Florida and Oklahoma. As the governor of Texas (Texas!) explained in 1893, the “mission of the concealed deadly weapon is murder. To check it is the duty of every self-respecting, law-abiding man.”

So, here's the question: Did Zakaria actually plagiarize?

Though many institutions and organizations have distinct definitions, in general, I understand plagiarism to be the representation of someone else's intellectual work as your own. In this case, the intellectual work being reported by both Lepore and Zakaria is Adam Winkler's.

Zakaria clearly cites Winkler's historical work.

Does his close paraphrasing of Lepore's paragraph summarizing Winkler's work require an additional citation?

Lepore's paragraph does not make an intellectual contribution distinct from Winkler's book. Though her essay uses the paragraph to support a unique intellectual effort, the summary of Winkler's work, taken alone, is not something that need be cited.

Indeed, Lepore's summary of the early state gun control laws is a fairly close paraphrase of Winkler's original. Here are key sentences from Winkler’s book, Gunfight, that Lepore summarizes, perhaps paraphrases, in her New Yorker essay:

No gun control law was more common in the late 1800s—on the frontier and elsewhere—than bans on concealed firearms. According to the gun rights historican Clayton Cramer, concealed carry laws were among the earliest type of gun control laws adopted in the years after the American Revolution. The first bans on possession of concealed weapons in public were adopted in Kentucky and Louisiana in 1813. Indiana banned concealed carry in 1820, Tennessee and Virginia in 1838, Alabama in 1839, and Ohio 1859 (p. 166)… The intent of these laws was the same as that of many forms of gun control today. As Governor James Stephen Hogg of Texas said at the time, the “mission of the concealed deadly weapon is murder. To check it is the duty of every self-respecting, law abiding man” (p. 167).

As Winkler makes clear, the history of early state gun laws is not his own work. Rather it is due to Clayton Cramer.

This is from Cramer's book Concealed Weapons Laws of the Early Republic (an online excerpt from the book on his website http://www.claytoncramer.com/books/concealed.pdf).

The adoption date for the state laws prohibiting or regulating the concealed carrying of deadly weapons in the early Republic would appear to be: Kentucky, February 3, 1813; Louisiana, March 25, 1813; Indiana, January 14, 1820; Georgia, December 25, 1837; Tennessee, January 27, 1838; Virginia, February 2, 1838; Alabama, February 1, 1839 (p. 2).

The source of the quotation from Governor Hogg used by Winkler is Gun Violence in America: The Struggle for Control by Alexander DeConde (p. 98), though it is available elsewhere.

Winkler cites Cramer as the source of his summary of early state gun laws and paraphrases him and also takes a quote from DeConde. Lepore cites and paraphrases Winkler (making Winkler seem like the source of the original historical facts), but fails to cite either Cramer or DeConde. Zakaria cites Winkler and paraphrases Lepore but fails to cite Lepore, Cramer, or DeConde.

Is Zakaria a plagiarist? Is Lepore? Is Winkler's phrasing of the date summary too much like Cramer's?

No. No. No.

Everyone involved in this episode, such as it is, are making reference to historical facts, which are usually (but not always) subject to a "common knowledge" exception to most citation requirement. Here, though everyone is citing their own immediate source of the information they are passing on so that careful and interested readers can track the provenance of the historical record. No one is copying anyone else word for word, and everyone is describing a simple chronology that cannot help but be described in very similar language. (Go ahead and try to write a few sentences that describe the order in which states adopted these laws or ratified the Constitution or whatever and see if you don't come up with something similar.)

At the end of the day, Winkler did nothing wrong in summarizing Cramer and DeConde's work. Lepore did nothing wrong in repeating Winkler's summary. Zakaria did nothing wrong in passing along that summary of historical facts (except, given his admission of cribbing from Lepore, not reading Winkler's book).

Plagiarism is, of course, very serious business in journalism, academia, and any other intellectual enterprise. Zakaria was certainly flirting with plagiarism by closely paraphrasing and nearly copying Lepore's essay. Yet, he did not, in fact, copy her writing exactly. Instead, he repeated the same historical facts she did and cited the source from which he understood them to be drawn. Zakaria's work is poor journalism for failing to actually check his source, but it is not plagiarism.

Listen to This: The Lumineers, "Ho Hey"

noreply@blogger.com (Joe Ura) — Fri, 20 Jul 2012 15:01:00 +0000

I belong with you.
You belong with me.
You're my Sweetheart.

Best New Restaurant Name in a Long While: Proudest Monkey

noreply@blogger.com (Joe Ura) — Wed, 11 Jul 2012 15:43:00 +0000

The menu ain't bad, either.

This place is at 108 S. Main in Bryan for you locals, and I now have lunch plans.

Also, glad for an excuse to flashback to 1996.

Engineered to Fail? The ACA's Individual Mandate

noreply@blogger.com (Joe Ura) — Fri, 06 Jul 2012 21:37:00 +0000

Since the Supreme Court ruled that the Affordable Car Act's mandate for individuals to purchase health insurance could be constitutionally sustained as a use of Congress's power to collect taxes, the political world has flipped out over whether the "penalty" for failing to purchase health insurance is a "tax." Whether the penalty is a tax or a fine is immaterial from a policy perspective, though. The ACA doubles-down on the worst aspects of the American health care system---particularly its reliance on insurance to structure the pricing of and finance most routine medical care.

In addition, though, I don't see how the twin pillar's of the ACA's insurance scheme work on its own terms. The law is supposed to advance universal health insurance be requiring health insurance companies to extend coverage to anyone (regardless of any preexisting conditions) and that everyone buy health insurance whether they want to or not. The basic idea is that by forcing people who currently do not purchase health insurance to do so, the risk pool will be sufficiently expanded to allow people with preexisting conditions to buy in without bankrupting the insurance companies. The viability of private insurers and the feasibility of the plan hinge on forcing enough buy to literally into the health insurance system (who currently opt out) to cover the costs of insuring those who are currently uninsurable. If all of those with preexisting conditions rush into the health care market while those who are supposed to be mandated in continue to stay out, the costs of paying for health care for the newly insured will create large increases in premiums, pushing more people out of the private insurance market, further raising premiums, and creating a viscous cycle that ends with private insurance having to surrender to a single payer system.

So, the mechanism that incentivizes or forces people into the health insurance system has to be as watertight as possible. As it stands, though, the mandate is almost anything but mandatory.

In the first place, the penalty for opting out of purchasing health insurance is too low. Penalties for failure to have health insurance range from $695 for low income individuals, to $4,700 for those making up to $200,000 a year (and up to the cost of a basic health insurance plan for those making over $200,000 a year). For most people, the cost of health insurance will exceed the cost of the penalty. Since the ACA commands that insurers *must* sell policies to anyone, even those with preexisting conditions, the maximum risk a person faces for failing to have health insurance under the ACA is the cost of any medical care their might need in the interval between the present moment and the moment the can start a policy---which he or she can buy with certainty. That maximum liability is substantially lower than that faced by most people who presently opt out of health insurance, who face the prospect of having to pay for all medical services they may need from the present moment until the end of time since they could not obtain insurance once a medical condition was known. That means that many people who prefer to opt of private health insurance now are likely to continue to opt out even when the ACA's mandate to purchase goes into effect.

The problem is even worse than that, though, since, apparently, there is almost no mechanism in the ACA as it now stands to collect the penalty for failing to purchase health insurance other than withholding it from a person's tax refund. If a person is not owed a refund, the law provides almost no way to punish a person who does not pay the penalty or to force him or her to pay it. As Howard Gleckman of the Urban Institute and Brooking Institution's Tax Policy Center writes:

The ACA says the IRS should enforce the law by imposing a tax penalty—but then effectively blocks the agency from using most of the tools it normally uses to go after tax scofflaws.

The ACA bars the IRS from bringing a criminal enforcement case against someone who refuses to pay the non-insurance penalty. And it makes it very difficult, if not impossible, for it to enforce a tax lien. Law professors Jordan Barry and Bryan Camp have a nice piece in Tax Notes explaining it all.

That leaves only one tool—the IRS can subtract the penalty from any refund it owes a taxpayer. But that applies only if the IRS happens to owe somebody a refund. These days, two-thirds of taxpayers get one, but it is usually their choice.

Only low-income households who receive refundable credits, such as the Earned Income Credit, always get refunds. But the ACA specifically exempts most of them from the tax because their income is so low.

Bottom line: Notwithstanding the nutty Internet rumors that the IRS is hiring 20,000 revenue agents to collect the tax, most people who really want to game the system will probably get away with it.

That Tax Notes piece Gleckman references concludes similarly:

The restrictions placed on the IRS’s ability to collect the tax penalty make it unlikely the IRS can effectively enforce the individual mandate. The only major collection tool that remains unaffected is the offset, which, by its nature, applies only if the taxpayer happens to overpay her federal income tax obligations or is entitled to a net refund in a given year. Thus, many taxpayers who neglect or refuse to pay the tax penalty could structure their affairs in such a way as to avoid being subject to legal consequences of any sort for years to come, if ever. For those taxpayers, the individual mandate may not actually be mandatory after all.

So, not only will the penalty dissuade few people who are voluntarily outside of the private health insurance system from entering it, the penalty is nearly unenforceable.

Unless the mandate to purchase health insurance in the ACA is actually mandatory, the law's requirement insurers to take all comers will ultimately undermine the entire system of private health insurance in the United States. Yet, the law's enforcement provisions are, apparently, essentially frivolous. Though I am sure most of the ACA's supporters were sincere in their desire for the law to help extend the number of people covered by health insurance in the United States, the ACA continues to look like a "Trojan Horse" for pushing more aggressive public interventions in health care.

Post-Game: The Supreme Court and the Affordable Care Act

noreply@blogger.com (Joe Ura) — Mon, 02 Jul 2012 17:06:00 +0000

The Supreme Court ruled last Thursday that the President's health care reform law, the Affordable Care Act (ACA), often call ObamaCare, is constitutional. The decision was nominally 5-4 in favor of the law. However, as Yale Law School Professor Akhil Reid Amar noted in an interview with Ezra Klein, the decision was really 4-1-4. Four conservative members of the Court---Jutices Alito, Kennedy, Scalia, and Thomas---found that the law as a whole was unconstitutional. In particular, they found that the individual mandate to purchase health insurance exceeded the scope of Congress's power under the Commerce Clause, that the mandate was not otherwise constitutionally permissible, that the mandate was not severable from the rest of the law, and that the law as a whole was therefore invalid. Four liberal members of the Court---Justices Breyer, Ginsburg, Kagan, and Sotomayor---found that the mandate to purchase insurance was within Congress's power to regulate interstate commerce, that the mandate was also sustainable by Congress's power to collect taxes, and that the law as a whole was constitutional.

Chief Justice John Roberts, however, wrote a majority opinion on behalf of himself and the four more liberal members of the Court that split the difference between these positions while upholding the law. The Chief Justice agreed with the Court's conservatives that the mandate to purchase health insurance was beyond Congress's power under the Commerce Clause; however, he also agreed with the Court's liberals that the mandate could be sustained under Congress's power to collect taxes since the penalty for failing to purchase health insurance could be considered a tax rather than a fine. This latter conclusion was sufficient to sustain the mandate and other related provisions of the law. (In a separate analysis, Roberts led a majority of 7 justices in concluding that the ACA's Medicaid provisions are unconstitutionally coercive and that states may therefore opt out of expanding Medicad coverage without losing any existing Medicaid funds.)

In addition to the obvious and critical questions about the implications of the decision for health care in the United States and the interesting puzzle of how it might influence the upcoming presidential election, the decision reflects important challenges for scholars of law and judicial politics.

First, I should point out that the decision in the case was---in the one most important respect---contrary to my own expectations. I had predicted a 5-4 decision striking down the mandate under the Commerce Clause. Though the Court ruled exactly as I predicted on that issue, the five justice majority resurrected the the tax argument on behalf of the law after every appeals court that had heard challenges to the law had rejected it. I certainly did not predict that. Though a handful of people predicted that Roberts would join a narrow majority to save the mandate (Adam Serwer and Will Wilkinson spring to mind, but there were undoubtedly others. Also, Ann Coulter's 2005 take on John Roberts is worth a looksee.), no one I know of predicted that the case would hinge on Roberts's reading of the tax clause.

Law professors who argued from legal doctrine made the worst predictions about the outcome of the case. Laurence Tribe's analysis of the case and his prediction that the law would be upheld 8-1 under the Commerce Clause are especially comical in retrospect. Political scientists, as a group, did much better, but still missed the boat. Attitudinalists like me typically assumed Kennedy was the mostly likely member of the Court's conservative majority to side with the liberals against the mandate. Mike Bailey and Forrest Maltzman's forecast---based on a statistical model accounting for both justices' preferences and the weight of precedent---of a 6-3 decision in favor of the mandate under the Commerce Clause hinged on a Kennedy defection and Roberts going along to control the opinion. Though this law-and-politics forecast got the direction of the decision right, it did not predict the composition of the majority or the holding on the Commerce Clause issue.

As I look back now on what I wrote about the Supreme Court last February when I predicted a 5-4 decision against the mandate and hold it up against the decision itself and news reports that Chief Justice Roberts initially sided with the Court's other conservatives in voting to strike down the entire law before switching sides and crafting an opinion that broke for the ACA while still holding against it on the moot Commerce Clause issue, I can't help but think (self-servingly) that I was generally right about what makes the Court tick but (obviously) wrong in one important detail: John Roberts took the threat to the Supreme Court's legitimacy that would come from the backlash against a decision striking the law more seriously than I.

In particular, I see these three things going on the decision.

1. The "law" doesn't matter much in Supreme Court decisions. Despite the legal academy's nearly complete consensus that the Court's prior Commerce Clause cases left the action-inaction distinction raised by opponents of the ACA's individual mandate utterly insupportable, a majority of the Court held that Congress could not directly compel commerce as part of a regulatory scheme. Despite the fact that the ACA does not refer to the penalty on failing to purchase health insurance as a tax, the repeated public insistences of President Obama and other supporters of the law that the uninsured were not going to be taxed, and the failure of any lower federal court to decide for the ACA under the power to tax, the Court held that the mandate is constitutional since the penalty may be considered a tax. As I see it, the decision looks like it does because John Roberts wanted to decide for the mandate but did not want to publicly surrender the principal that Congress could do anything it pleased. These are political judgments, not legal ones, and the law---understood as precedent or the language of the statute---was ultimately no constraint on what the Court did or did not do.

2. External constraints matter. I had written that public opinion was so evenly divided on the ACA question that the Court could decide the case however it wanted without facing a realistic threat to its standing. My hunch is that John Roberts saw a public that was deeply divided on health care reform, a president and party willing to actively campaign against the Court for the first time since FDR, and a news media willing to back a court-curbing movement to the hilt, and he backed down. I think the Court could have weathered the storm, but John Roberts, of course, has much more reason to be risk averse on this count than I do. After all, history has been quite kind to John Marshall's wily assertion of judicial independence amidst total political surrender. Perhaps John Roberts hopes to pull off a similar trick.

3. The Chief Justice is different. I am working on a project that makes the claim that the Chief Justice plays a unique role in protecting the legitimacy of the Supreme Court. My coauthor, Carla Flink, and I write:

[There is a] general...relationship between the leadership capacity of the chief justice and the quality of the Supreme Court’s decisions in terms of their prospects for supporting the legitimacy of the Court... Synthesizing this intuition with on a model of public management due to Meier and O’Toole (1999), we articulate a theory of the chief justice’s role on the United States Supreme Court. In particular, theories of public administration tend to emphasize the effects of management on the quality of outcomes produced by an institution rather than by its ability to produce outcomes consistent with a particular political ideology or by a particular process. This approach suggests that the leadership of the Supreme Court, embodied formally in the office of the chief justice, has a special interest in producing outcomes of high quality for his institution rather than merely producing outcomes consistent with his personal policy preferences or legal philosophy. Unlike prior theoretical accounts of the chief justice’s role in Supreme Court decision-making, we do not view the chief as a merely a justice of ordinary motivation (perhaps political) with some extra-ordinary institutional prerogatives (e.g. the ability to assign opinion authorship when voting with a conference majority). Instead, we consider the chief justice as a “manager” who exerts leadership on his institution to improve the quality of its outputs in terms of the standing of the institution itself.

The upshot is that the Chief Justice's office is different than that of the Associate Justices. In particular, the Chief has special responsibilities to protect and enhance the legitimacy of the Court as an institution. If John Roberts acted to preserve the standing of the Court, then his behavior is entirely consistent with this approach (even if it might not have been necessary in this case).

TAMU Law School: The Rent Is Too Damn High

noreply@blogger.com (Joe Ura) — Thu, 28 Jun 2012 15:36:00 +0000

Texas A&M is apparently set on buying Texas Wesleyan's law school. The deal will cost A&M $20 million up front, another $5 million sometime in the next five years, plus $2.5 million a year to rent the law school's building and grounds in Ft. Worth from TWU (a figure that will be adjusted for inflation). That's a cost of $50 million over the first ten years and $125 million over the forty year facilities lease.

What is A&M getting for that?

An unranked law school with an pretty awful record of placing its graduates that's at least a three hour drive from its main campus plus the chance spending untold millions more to upgrade the facilities and faculty at the new law school.

A&M System Chancellor John Sharpe estimates that the University could have started a new law school "from scratch" for $100 million. Given the up-front costs, the facilities lease, and the costs of overhauling TWU's law school, the purchase won't end up offering big savings over that figure. Plus, many of the benefits of the law school (e.g. a law library, public events and lectures) will accrue at TWU's campus in Ft. Worth and not on A&M's main campus.

The deal between A&M and TWU is still taking shape. So, I may end up being pleasantly surprised by the way that the law school ends up integrating with the rest of A&M. Also, having a law school may add a lot of value to A&M in general and certainly would be useful for my work on judicial politics. Still, given the cost of the deal and the distance between the law school and the main campus, I can't help but be a bit skeptical about whether this is the right time and place for A&M to enter the law school world.

Five Things about Tom Perriello's Post at The Atlantic

noreply@blogger.com (Joe Ura) — Wed, 27 Jun 2012 16:26:00 +0000

Tom Perriello's post at The Atlantic comparing opponents of the Affordable Care Act to secessionists and segregationists has effectively annoyed the bejesus out of me.

1. Calling people "Confederates" is tantamount to calling them traitors and racists. Pierello admits this explicitly, noting, "the term 'Confederate' rightly conjures up America's sin of slavery and the racially charged movements for states' rights and state nullification." Conflating opposition to the the constitutionality of the individual mandate in the Affordable Care Act with slavery, secession, and segregation is sloppy and ignorant. Calling people "confederationists" in a context in which you have already invoked the Civil War is no better.

2. The Founders did not write "a Constitution that empowered America to 'legislate in all cases for the general interests of the Union.'" That language is not in the Constitution at all. In fact, the Constitutional Convention explicitly rejected James Madison's proposal to authorize Congress to "legislate in all cases." Instead, the Convention granted Congress a limited set of enumerated powers---including the power the regulate interstate commerce. As a result, Congress may not do whatever it likes or whatever might be expedient. It must act within the confines of its enumerated powers.

3. In Lochner v. New York (1905), the federal Supreme Court ruled that the due process clause of the Fourteenth Amendment to the federal Constitution prohibited states from imposing minimum wage laws. Lochner is a case about the federal government imposing its will on the states. Invoking Lochner to indict the current Supreme Court's alleged preference for a weak central government is inappropriate at best.

4. Yes, the Supreme Court just ruled that Montana's restrictions on corporate contributions to political campaigns violated the First Amendment. Once again, that is evidence of the Supreme Court's willingness to impose a centralized view of government power on the states. That is also evidence in its decision in Arizona v United States, which held that that most of Arizona's strict immigration law, SB 1070, is preempted by federal immigration law.

5. Invalidating the Affordable Care Act's individual mandate and other, nonseverable provisions of the law does not threaten Social Security or Medicare. Congress has the power to tax and spend for the general welfare. It could have enacted health care reform in any number of ways that simply raised tax revenues and spent money on health care, just as it does for Medicare. Instead, it chose to mandate that people purchase health insurance. Medicare and Social Security may or may not be wise policies, but they are within the bounds of Congress's enumerated powers. The mandate to purchase insurance is outside of those bounds. The Court can invalidate the mandate and leave those other programs, and indeed, the rest of the architecture of the modern welfare state intact. This is precisely the position adopted by Randy Barnett, the lead attorney in the case against the mandate.

Immigration, Health Care, and the Legitimacy of the Supreme Court

noreply@blogger.com (Joe Ura) — Tue, 12 Jun 2012 19:45:00 +0000

Today, Francisco Pedraza and I have a post at Latino Decisions reporting some data from our recent survey of attitudes toward the Supreme Court among Latinos and other Americans. The post focuses on how the Supreme Court's pending immigration decision might affect its standing among Hispanic Americans. However, we also deal with the health care case and some other evidence out there indicating relative low "approval" ratings for the Supreme Court. So, the post is (hopefully) useful to anyone interested in the public standing of the Supreme Court.

Here's some of our key analysis:

[W]e asked, “Would you say the Supreme Court is too liberal, too conservative, or about right in its decisions?” Here, we find strikingly similar results to the Time’s survey. Only 43% of our respondents said the Supreme Court’s decisions were “about right,” a figure almost identical to the 44% approval rating identified by the Times. However, our survey shows that those dissatisfied with the Supreme Court are evenly divided between those who believe the Court is “too liberal” (25%) and those who believe it is “too conservative” (25%).

This basic pattern is true among both Latinos and non-Latinos. As Figure 1 shows, a plurality of Americans, Latinos and non-Latinos alike, believe that the Supreme Court is getting its decision-making right in ideological terms while the remainder of the public is about evenly divided between believing the Court is too liberal or too conservative. Though it may look like Latinos are more likely than other Americans to regard the Supreme Court as too conservative, this is because Latinos are more strongly Democratic partisans. Latino Democrats are actually more likely to say the Supreme Court decides cases “about right” (42%) than non-Latino Democrats (37%).

Figure 1: Would you say that the Supreme Court is too liberal, too conservative, or about right in its decisions?

The even ideological division between those who are dissatisfied with the Court for being too liberal versus being too conservative means that we should probably interpret the Supreme Court’s 44% “approval” rating much differently than, say, President Obama’s 46% approval rating in the latest Gallup poll. The set of Americans who “disapprove” of the job President Obama is doing in office undoubtedly includes some strong progressives who do not think the president has been aggressive enough in promoting liberal policies. Yet, the bulk of the President’s critics are conservatives and moderates who think his policies are too liberal or that he is doing a bad job managing the economy. In contrast, those who disapprove of the Court share no such ideological unity. Whether the next major decision of the Supreme Court is liberal or conservative, there is a well of support for that decision among those who think the Court has not been liberal or conservative enough that the justices can count on to get behind their institution.

The whole thing is here.

Yes, Obama is really a big spender.

noreply@blogger.com (Joe Ura) — Wed, 23 May 2012 20:00:00 +0000

Apparently, the latest Democratic blog fad is to claim that federal spending has been restrained under President Obama. Last week at ThinkProgress, Michael Linden had post called, "CHART: Spending, Taxes, And Deficits Are All Lower Today Than When Obama Took Office." As I discussed here, the post's headline is untrue and its content is substantially misleading.

Today at Talking points memo, Sahil Kapur has a post called, "An Obama Spending Spree? Hardly (CHART)." Here's the crux of the post with the CHART.

Obama’s policies, including the much-criticized stimulus package, have caused the slowest increase in federal spending of any president in almost 60 nears, according to data compiled by the financial news service MarketWatch.

The chart shows that Presidents Reagan, both Bushes, and to a lesser extent Clinton, grew federal spending at a far quicker pace than Obama.

Can this be true?

Sure.

Is it misleading?

Yes, and putting "CHART" in all caps in a post title doesn't make it any less so.

I generated the figure below using data on real federal spending from President Obama's Office of Management and Budget (Table 1.3) for 1981-2012. It shows real federal spending, i.e. federal spending in constant 2005 dollars, scaled on the left vertical axis and the percent change in federal spending in each year from the previous year scaled on the right vertical axis. I also included a line showing the average percent change in year over year spending for the period, which was 2.76.

Three things about recent political history pop out for me. First, the Clinton years were a sustained period of spending discipline with spending growing at below average rates throughout his presidency, including the two years before Republicans took over Congress. Second, the Bush spending spree was real. Federal spending grew at above average rates for most of George W. Bush's presidency. However, by far, the most striking thing about the graph, of course, is the huge spike in federal spending that was coincident with the financial crisis and the worst of the Great Recession in 2009. Federal spending---which included TARP and the auto bailout in addition to the stimulus, which was apparently "assigned" to Obama in Kapur's chart---jumped by a sixth, 17.4%, in that year alone.

That 17.4% year-over-year increase was more than six times the average rate of growth in federal spending since the start of the Reagan administration. It is nearly a quarter larger than the 14.2% increase in federal spending in 1967 that accompanied the implementation of Medicare. In fact, the 2009 increase in federal spending was the largest one year jump federal spending since the Truman Administration.

So, Obama came into office at essentially the high point of crisis spending on top of the Bush-era's historically high levels of ordinary spending. Yet, under President Obama, these unprecedented levels of real (adjusted for inflation) and relative (compared to GDP) of federal spending have not only been preserved, they have begun to push upward again.

The only place Obama and his supporters have any wiggle room to escape the charge of being the spendiest president in modern American history is by covering his tracks by making 2009 the explicit or implicit baseline for comparison between Obama and his predecessors. By this logic, though, Obama escapes all blame for supporting, preserving, and extending the ridiculous fiscal balance that was established in 2009.

About that socialized medicine chart...

noreply@blogger.com (Joe Ura) — Wed, 23 May 2012 16:44:00 +0000

The following charts has shown up a couple of times in my Facebook feed in the last couple of days.

It was produced by Oliver Uberti and posted at the National Geographic Magazine's blog. It wound up on my Facebook after it was posted at Upworthy.com by Sara Critchfield with the comment, "It looks like that 'socialism' thing seems to be working out pretty well for the rest of the world." The little icon on the Upworthy page indicates that "27k" people have "liked" Critchfield's post on Facebook.

Critfield seems to want us to take away from the graph that countries with health care "socialism" have health outcomes that are generally comparable or a bit better than the United States. The author of the National Geographic blog post that originally accompanied the chart made a much more precise claim:

The United States spends more on medical care per person than any country, yet life expectancy is shorter than in most other developed nations and many developing ones... The U.S. has a fee-for-service system—paying medical providers piecemeal for appointments, surgery, and the like. That can lead to unneeded treatment that doesn’t reliably improve a patient’s health.

Here are my thoughts on the chart in the order in which they occurred to me:

1. Ubertis's post is correct in one key respect: There is basically no relationship between health care spending and life expectancy at birth in this small set of developed and developing countries. Even within the group of universal health care countries, there is an awful lot of noise in the relationship between spending and life expectancy.

2. If non-universal health care is so awful, why is life expectancy in Mexico so good?

3. Life expectancy seems like its has more to do with development than health care. Developing countries have life expectancies clustering loosely around 75, developing countries cluster around 80. I am sure we could track down some data on under-developed countries with some kind of universal care showing that their life expectancies are well below the 75-ish year mark we see in the small number of developing countries shown here.

4. Beyond making sure that most people have access to some pretty basic stuff (e.g. childhood vaccines, antibiotics, medically supervised child birth, etc.), spending more money on health care won't help people live much longer since most people don't use much health care until they are old.

5. I would bet that Americans' diet (fatty, salty) and lifestyle (sedentary with lots of driving and, therefore, exposure to accident risks) has a lot more to do with our marginally lower life expectancy than anything related to how we deliver health care.

6. Given that Americans, as a group, live a less healthy life in many ways than Western Europeans or Japanese, it may simply cost more money to keep us, as a group, living as long as we do.

7. How long someone lives is a really crude measure of "health." Eliminating or rationing care for non-life threatening health conditions could certainly reduce total health care costs without injuring a country's life expectancy. Are other countries achieving these "savings" because they have moved away from private health care or a fee-for-service model, or do they simply provide a smaller ranger of services on a less frequent basis? Might people in other countries choose to spend more on health care to improve the range and availability of health care options if that were an option?

Elizabeth Warren v. Thomas Jefferson

noreply@blogger.com (Joe Ura) — Tue, 22 May 2012 16:22:00 +0000

My cousin (approvingly) sent me a link to a short YouTube video of Elizabeth Warren---Professor at Harvard Law School, candidate for the United States Senate in Massachusetts, self-described "rock thrower," and central figure in a controversy over an unsubstantiated claim of Cherokee ancestry---giving a campaign speech on someone's porch.

Here is the clip:

The audio is a bit fuzzy, but this is my transcript of the whole twenty-four second video:

Government basically has three functions. One is to provide for the common defense, our national defense. The second one is to put a cop on the beat, to write some basic rules of fairness and transparency to make sure that nobody steals your purse on Main Street and nobody steals your pension on Wall Street. That is a basic function of government.

I presume that Warren does not pull a Rick Perry here and eventually lists the third function of government. Try as I might, I couldn't find a video or transcript of the whole speech, though. Still, the brief clip was enough to raise my blood pressure.

The first thing that caught my ear was the slick conflation between the unobjectionable governmental role in protecting private property, making sure nobody steals your purse or your pension, and a call for government regulation of banks to provide "fairness and transparency."

The second, more important thing, though, is Warren's casual (implicit) dismissal of an important cornerstone of American constitutionalism. Sure, governments can help keep us safe by coordinating things like police protection and some health and safety regulations, e.g. inspecting meat. (Although, even seemingly innocent things, like food inspections, can go too far.) However, government has a more fundamental purpose in the American political tradition: to protect our rights and liberties. This principle was expressed in the Declaration of Independence, drafted by Thomas Jefferson:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Maybe Warren's third function of government is precisely this, though I somehow doubt it. Also, perhaps, I am making too much of a brief segment of her stump speech. Yet, Warren's formulation of the basic functions of government seems, on the whole, extremely paternalistic, even authoritarian: We need the government to keep us and our stuff safe, to take care of us. She says nothing about our rights or our freedoms, which, I sense, she cares little about.

To be fair, I think Warren is an excellent scholar, and she has taken some positions on "Washington Reform", like a lifetime lobbying ban for members of Congress and filibuster reform, that I support. Despite these things, though, Warren's authoritarian streak and her confidence that she knows the right way to do things are, in my opinion, the worst and most dangerous characteristics a political leader can have. I hope the good folks up in Massachusetts don't end up sending her to the Senate.