Vergara v. California and the Infinite Equal Protection Loop

17 06 2014

A common mantra of the education reform movement in response to evidence that “teacher quality” is a comparatively trivial cause of education disparities is, “So? If we can do something, anything, to improve outcomes, shouldn’t we?” This is more PR than argument; no, you shouldn’t just do anything. And in any case, you need to demonstrate pretty tight causation to radically upend a carefully built system. Yet, just as policy affection for technocracy seeped into takings jurisprudence in Kelo, policy affection for “labor flexibility” when it comes to workers seems to have seeped into Vergara. The resulting opinion featured a questionable weighing of some evidence over other evidence (in a bench trial, where there was no jury) but, more so, legal reasoning that strained to find a violation of equal protection rights by conflating perfect equality of outcome with basic equality of opportunity–a distinction that makes all the difference in equal protection claims.


Slate’s up–still reporting on education in their business section for some reason–with a story about how the judge in Vergara v. California relied on a basically made up statistic–that 1-3% of California teachers are “grossly ineffective”–to strike down tenure as violating the equal protection rights of children of color, who are disproportionately likely (based on trial testimony) to be assigned to a “grossly ineffective” teacher protected by tenure. The Court had to ignore copious evidence in order to rely on this fact–including the very limited role any individual teacher plays in determining standardized testing outcomes used to make this “grossly ineffective” distinction. But, as the legal expert cited in the Slate story points out, the bigger problem is the shaky legal reasoning. And indeed, it is a befuddling opinion not because the Court repeatedly chose to weigh the plaintiffs’ fuzzy data and testimony significantly more heavily than that of the State, but because the equal protection scheme required for it to make sense would result in infinite equal protection violations. 

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Labor Markets and the Jolly Monopoly

27 09 2012

I can’t believe I’m having to write this, but after a number of emails, twitter back-and-forths, and this fabulously stupid article by John Stossel at Reason, apparently it is in fact a thing that needs writing.

Critics of unions get easily worked up over the so-called “monopoly” that unions “enforce” in workplaces–their characterization of the requirement that upon a vote of employees, an employer must deal with an exclusive bargaining representative (i.e., a union) and may not cut individual deals. Basically, they say, if you work somewhere that is unionized, you are forced to join the union (this is technically untrue; at most, you are forced to pay an agency fee since the union is required by law to represent you); it is, they call it, “forced” rather than “free” association. Therefore it is the inverse of free association–and therefore it violates one of the most hallowed American rights, found right there in the First Amendment. Unions, unlike firms, get this “monopoly” power that they abuse to force people to pay dues. Outrageous.

Like so many reactionary arguments, it is elegantly simple and obvious until you spend an extra moment to think past the sloganeering.

Yes, in a superficial way unions act like monopolies–the sole “seller” of labor–in a single workplace or for a single employer. But that is only because the employer is a monopsonist–the sole “buyer” of labor. If you’re looking just at a single company, of course there is a sole “buyer” of labor–the single workplace. And if you’re in a situation where there is a single buyer, it only makes sense to allow the sellers to act like a single “seller”–that’s the only way they have equal bargaining power.
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Vacuous Deference and the Affordable Care Act

28 06 2012

During oral arguments on the Affordable Care Act, Justices asked the challengers of the bill if they wanted to see a return to the “Lochner era.” The bill’s challengers strenuously denied this was their aim. The term refers to the era of Supreme Court jurisprudence after the turn of the last century, when the Court repeatedly struck down state statutes regulating workers hours, overtime pay, child labor, and the like, on the grounds that they violate a nebulous “freedom of contract.” The name refers to the case Lochner v. New York, a case striking down a New York statute setting wages and conditions for bakers and confectioners. The Lochner era was characterized close judicial scrutiny of legislatures’ determination of social ills and the best means to address them. In other words, the Justices were concerned that striking down the ACA would set a precedent of lack of judicial deference to legislatures’ political judgment.

I was of the belief that Chief Justice Roberts would not vote to strike down the minimum coverage requirement of the Act as a whole, for two reasons: first, because invalidate a law so hotly debated, that resulted from intense negotiation between massive political and economic interests (not just between parties) in an election year, would forever tarnish his name and his Court as the politicized Supreme Court. Second, because as the Chief Justice, he could by voting with the upholding majority, author the opinion and narrowly limit the holding. These two dynamics certainly won out when weighed against the potential risks and rewards of creating a nebulous line between “activity/inactivity” that the dissent encourages and striking down the law.

Indeed, Justice Roberts hewed to some basic canons in Supreme Court jurisprudence: don’t judge a statute as policy; defer to the legislature’s judgment as to findings of facts and potential remedies; and, if a statutory provision can be considered constitutional in any way, it should stand. In other words, be deferential to the legislature. That deference cuts both ways.

He got the best of both worlds: he upheld the statute, avoiding the firestorm that would have resulted from a murky decision, but also reinforced the Court’s traditional deference to the legislature particularly on its use of the taxing power. Reading the opinion, Roberts’ elan and cunning shines through. Scholars are going to be all over this bad boy for the next decade.

Ultimately, the Court avoided the more exacting “Lochner deference” standard for economic legislation that requires a legislature to prove that their statute address an actual problem, and that the means they’ve chosen will certainly achieve those ends.

That’s good news. The legislature is the most frequently elected body of government, thus the most accountable; and it is the largest, thus most representative. It should be afforded deference in all but a handful of narrow categories of legislation.

It has also become hopelessly manipulated by corporate and cash influence, such that elections are perennially losing efficacy, and lobbyist power neuters what change is made at the ballot box–for an example, look at the Affordable Care Act itself.

Americans largely supported the public option, but it was a non-starter not for electoral reasons but because of the power of a handful of very wealthy and influential lobbies, particularly AHIP, the insurance trade association that made it clear that the public option was unacceptable to them.

In a post-Citizens United electoral landscape, expanding deference to the legislature is not necessarily a victory for progressives. It indicates very little risk for elites. In the Lochner era, the Court was applying minimal deference as a reaction to populist legislation fighting the excesses of capital. In the current era, applying generous deference just enables capital’s excess as it is expressed through the legislature. Deference to the legislature is in other words a neutral value.

What’s more, Justice Roberts’ narrow holding–that the minimum coverage requirement was constitutional as a taxing-and-spending power, not a commerce clause power–makes the jurisprudential effect of the decision even less problematic for the political right. Taxation is always less-than-popular. In the big-cash-as-speech era, expansive deference to Congress’ power to impose and spend new taxes is judicial deference to political poison.

Ultimately, the Court held that the minimum coverage requirement or individual mandate is constitutional not under the Commerce Clause, which gives Congress the power to regulate commerce “among the several States” (Art I, Sec. 8), but because it operates like a tax. If Congress wants to tax you for not having health insurance, a risk-taking behavior that potentially creates costs for others, they can do that. What they cannot do, Roberts says, is use the Commerce clause to induce people to buy a product. The Court held this explicitly.

The government briefed an alternative to their Commerce Clause argument, that the mandate was constitutional under Congress’ explicit power to lay and collect taxes for the public welfare. It was this alternative argument that Roberts accepted. Roberts is winning praise from progressive and moderate commentators for his deference to the political judgment of legislators–but the fact that he accepted this alternative argument means that that deference is qualified. The Commerce Clause is not a near-boundless grant of power for Congress to regulate social and economic relations.

Whether the case was “rightly decided” is not particularly interesting. The act of judicial restraint in not invalidating a statute because it is clumsy was appropriate. As a piece of precedent, the holding that the Commerce Clause does not justify consumer mandates is fairly politically neutral; recall that the individual mandate was originally a conservative idea. The precedent of deference shown to Congress’ taxing-and-spending power tracks with historical treatment of Congress’ taxing-and-spending power (see for example South Dakota v. Dole) and, in the big-money era of electoral wheel-spinning for progressives, such deference doesn’t promise anything new.

On the ramifications of the policy actually moving forward, more to come.

Do We Need Property Rights Over Our Jobs?

17 11 2011

In my various doings, toss-abouts, and private follies, I’ve known many socialists or quasi-socialists. I don’t know how common that is, to know a lot of socialists; nor do I know if I actually do know “a lot,” since there are probably many people who know lots more. Seems like a lot to me. I guess any would seem like a lot.

Anyway, my point is to say that I always profoundly disagreed with them on a lot of things, but the big one—and the reason I could never be a socialist, or even a proper Marxist—is that I’m big on property. I think reasonably strong property rights are not just important, but fundamental to a working democracy and liberty generally. I think it’s so plainly obvious that it’s not even worth arguing about. Property rights are a funny thing though; libertarians—hard libertarian, not the vague Ron Paul-ish ones—take the extreme view that property rights precede all civil society. In other words, they are inviolably ours, to the degree that the state can have no powers that conflict with that right.

This isn’t a very common view; the Constitution itself gives the government the power of eminent domain in its 5th Amendment “takings clause.” The takings clause allows the government to take any property for a “public use” so long as it is done via due process and pays a “just compensation.” So our starting point, as a society, is that the right to and dominion over your property is not 100% absolute. The debate then settles in on what is an appropriate framework, or the optimal limits, for our property rights.

Consider two examples:

In the first, you are you. You work for a firm as, say, a designer of some kind. You lead a team, but don’t have any management authority. You’re there for five years. You get incremental raises every six months. You’re five years in, and you make $65,000 a year now, and pay about $18,000 in taxes. Now, a management position just under the executives, say, two levels above you, opens up. You interview and you get the job. Now you make $174,000 a year, and pay $55,000 in taxes, or a 5% greater rate. Is that fair?
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Obamacare and the Privatized Social Safety Net

16 11 2011

For all my discontent with “left neoliberalism” and its pervasive influence, it’s nice when you get some concrete specifics, as applied.

In my piece on the constitutionality of the individual mandate, I argued that the Affordable Care Act created a distressing precedent, whereby the government addresses inequality-causing market failures through broad requirements of consumers to protect profits as a precondition to regulations and requirements of capital. The administration’s thinking in creating the individual mandate was undergirded by left neoliberal preference for “market solutions,” as much as by an over-cautious political calculation whereby industry had to be placated before social ills could be addressed.

And lo and behold, unbeknownst to me, the Hon. Brett Kavanaugh, a D.C. Circuit Judge appointed by George W. Bush, was saying the same thing, although from the opposite perspective. In his dissent to the Fourth Circuit Court of Appeals’ decision upholding the Act’s Constitutionality, Kavanaugh characterizes the individual mandate as an example of legislative ingenuity in a new era of “privatized social services”:

The elected Branches designed this law to help provide all Americans with access to affordable health insurance and quality health care, vital policy objectives. This legislation was enacted, moreover, after a high-profile and vigorous national debate. Courts must afford great respect to that legislative effort and should be wary of upending it.

This case also counsels restraint because we may be on the leading edge of a shift in how the Federal Government goes about furnishing a social safety net for those who are old, poor, sick, or disabled and need help. The theory of the individual mandate in this law is that private entities will do better than government in providing certain social insurance and that mandates will work better than traditional regulatory taxes in prompting people to set aside money now to help pay for the assistance they might need later. Privatized social services combined with mandatory-purchase requirements of the kind employed in the individual mandate provision of the Affordable Care Act might become a blueprint used by the Federal Government over the next generation to partially privatize the social safety net and government assistance programs and move, at least to some degree, away from the tax-and-government-benefit model that is common now.

Courts naturally should be very careful before interfering with the elected Branches’ determination to update how the National Government provides such assistance. Cf. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). The significant implications of a Commerce Clause decision in this case – in either side’s favor – lead to this point: If we need not decide the Commerce Clause issue now, we should not decide the Commerce Clause issue now. I therefore would not strain to sidestep the Anti-Injunction Act.

(emphasis added)

In other words, Kavanaugh seems to be saying, the individual mandate may appear unconstitutional in the same way that the Civil Rights Act (Heart of Atlanta Motel) and the National Labor Relations Act (Jones & Laughlin Steel) did because it is novel, as they were. But novelty, or new-ness, isn’t proof of unconstitutionality; it may just augur a new era of legislative instruments. Kavanaugh, rightly I think, sees the Affordable Care Act as the first step in that new era: an era where the government, rather than redistributing wealth or restructuring economic relationships to address social ill, fuels capital’s ability to act on the assumption that the “spontaneous order” of consumer choice and entrepreneurial acumen will cure social ills.

You may believe this to be true, that it’ll work. But if you do, you have to contend with the fact that the empirical evidence for it is thin; for all the Great Society’s many failures, the replacement of tight regulatory regimes with preference for public-private partnerships and market mechanisms has seen an explosion in income inequality, economic insecurity, household debt, and the concentration of political power.

A Primer on the Individual Mandate and Its Unfortunate Constitutionality

15 11 2011

The Supreme Court has granted certiorari to an appeal from the 11th Circuit Court of Appeals decision holding the individual mandate, Section 1501 of the Affordable Care Act, to be unconstitutional. The case, United States Department of Health and Human Services v. Florida, looks at a number of issues arising from the bill, most of which are not of general interest, such as whether the federal Anti-Injunction Act prohibits challenges to the Affordable Care Act (probably not).

The big constitutional question at issue is whether Congress’ Commerce Clause powers allow it to compel people, “as a condition of residency in the United States” to purchase monthly health insurance coverage. It’s a big important question, because it is an unprecedented exercise of power by Congress, not in scope, but in form: where Congress has tried to achieve similar things in the past, it has typically either regulated producers or used its taxing powers, which is nearly infinite.

So here’s a bit of a primer to help you argue with the blowhard Randite at your office who thinks the individual mandate is slavery, as well as with your Democratic partisan former college roommate who thinks it’s the greatest thing since the New Deal.

What the Commerce Clause Has To Do With It

Article I, Section 8 of the Constitution lays out Congress’ enumerated powers. Clause 3 specifies that Congress shall have power to “regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” This is the “Commerce Clause,” and it is made up of two broad areas: the more obvious facial power, to regulate commerce between parties in different states, and the “dormant” power to prohibit states from passing their own laws that would, in effect, regulate such commerce. In other words, regulating commerce between states is the sole province of the U.S. Congress, and the U.S. Congress, unlike state legislatures, has only those powers granted by the Constitution, whereas states have a “general police power” [PDF] that Congress does not.
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Can We Just Agree to Disagree?

26 04 2011

Thank you, minority associate, for writing up this stockphoto modeling contract.

Contracts have to be the answer. Nobody leaves a contract perfectly satisfied, but they’ve come to some agreement over their disagreement and walked away better off. If the goal is the most free and equitable human society, then contracts must be a primary medium in which it is accomplished.

Contract law is such a relief. Maybe because it’s a newish area of law, and so just feels more intuitive. Property law struggles under the weight of its feudal and confusing post-feudal roots, and so is full of terms of art (“enfoeffment” “covenant of seisin” “the rule against perpetuities”) and complex, non-intuitive rules. Torts deals with civil wrongs often not based on specific statutes and with extremely flexible or ambiguous rules (when is someone negligent? What constitutes a battery?). Criminal law of course is really ultimately based on social morals and mores. So, where once any felony got you a trip to the…I don’t know, head peeler–back in the day, now there are about seven levels of criminal homicide (murder in the first, second and third degree; manslaughter–both “heat of passion” voluntary manslaughter and involuntary manslaughter, which can be reckless or negligent).

Or this thing.

Contract law, though, is straightforward. Not that it isn’t complex, because it is, but rather its complexity is elegant. While facts can complicate just about anything, the rules in general make sense because all disputes ultimately lead back to one question: should the state enforce this promise?

Everything else is left to the individuals or organizations for themselves to decide. So long as the contract isn’t for something illegal (thus why bookies break legs but payday lenders garnish your wages) or made under fraud or duress (Cf., Johnny Fontane‘s personal service contract), the courts just try to figure out what people promised to one another and whether it’d be just to enforce those promises.

In theory, contracts can’t be literally one-sided. Part of the formula to determine whether a promise has been made at all is the doctrine of consideration, which basically means you can’t have a contract unless both parties are giving something up. Both parties also have to agree free of duress or fraud, meaning they were voluntarily giving something up. As far as human interactions go, this is pretty swell.

There’s even a rule that contracts that are egregiously one-sided should not be enforced. Yay!

At the same time, getting a contract is an adversarial process. Both sides are trying to get the best deal they can. Neither side gets everything, but they get something–they always end up in a better position than when they started. Nevertheless, there are two competing interests that must come to voluntary solution. So while negotiations can be competitive, even rough, their resolution must be satisfactory to some degree.

Its this simple fact that draws me to the labor movement as a solution for structural social inequality. Because while collective bargaining agreements don’t leave everybody perfectly satisfied, everybody is nevertheless still ahead–and got to their position through their own voluntary actions.

If the program of the left is to make sure people have truly equal opportunity for material security, it seems backward to wait until wealth has accumulated and then use the power of the state to force them to share it. Why not just take out the obstacles to ideal negotiation and let wealth be distributed by private parties by mutual agreement?

Libertarians believe that anti-trust legislation is unnecessary because individuals will naturally defect from the cartel to seek the advantage of offering a lower price. (The assumption being that monopolies will artificially maintain high prices). Thus their token support for collective bargaining in theory but opposition to it in practice: because unions can enforce a monopoly in a specific workplace, they bar individuals from defecting from the “cartel” to seek a comparative advantage. In practice, collective bargaining is probably impossible without that power.

Empirical proof of the instability of monopolies under natural conditions.

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