No Guns for Cops (again)

When I wrote a post called "No Guns for Cops" it was after watching the shooting of a mentally ill man who would not put down a screwdriver.

 This video is, if possible, is even more horrifying.  The cop can't be bothered to try to chase down the driver. So he kills him.  

Needless to stay, there's been something of an epidemic of police brutality and murder.

So there's not a whole lot more to say. No guns for cops. 

Bernie Sanders, Populist Economics, and Immigration

The latest contribution to all the BernieBuzz was Senator Sanders recent interview with Ezra Klein. Though Klein covered a wide range of subjects, the bit that seemed to pop out the most (based on a non-scientific cursory look at various media and political sites) was Sanders' position on immigration.  Sanders was asked about his views on "open borders."  Sanders replied "that's a Koch brothers proposal...that's a right-wing proposal."

My reaction to this statement was the same as Klein's, to wit: "really"?

Sanders then proceed to give what was, as far as I can tell, the standard populist economic argument against immigration, i.e., that it increases the labor supply, and, hence, lowers wages.

Once again, my reaction was "really?"

It's been obvious for some time now that, despite how he identifies, Sanders is not a "socialist." His position is closer to that of a "social democrat," in the manner of the Scandinavian countries he so admires.    That has never troubled me in particular. I like his unapologetic rallying cries against economic inequality.  But this apparent anti-foreigner stance is another matter.  Again, it is no great surprise that Sanders is not really a socialist (let alone an internationalist.) Still, one might think that someone who identifies as "socialist" would not recycle the language that blames foreigners for "taking our jobs."  Rather, one might expect a socialist to call for solidarity among all workers, regardless of national origin.  It is of course the case that the capitalist class will take advantage of increased labor supply to depress wages.  But this "reserve army of the proletariat" is, after all, an army, and, even if they will not start a revolution in the near future, one might imagine that they could collectively bargain.  Indeed, some unions do precisely that, i.e., organize immigrants. Isn't this the obvious solution to an increase in the labor supply? To organize?   Even within the confines of trade unionism (never mind something like, say, the Wobblies, with whom Sanders, given his portrait of Eugene Debs on his wall, should be familiar?)

I find it exceptionally strange that Bernie Sanders, who is so insistent on "organizing" as a political strategy (as he says himself in his interview with Klein), might not see this. Instead, he doubles down, and says that restricting immigration is necessary to protect American jobs. What kind of socialist blames decreased wages and unemployment on the immigrant sector of the working class rather than the capitalist class?  It's bizarre.

Now, to be fair, I am writing this post only in the middle of attempting to discern Sanders' position on immigration.  Evidently, he does favor a path to citizenship for illegal immigrants, and generally supports immigration reform, including President Obama's executive orders protecting undocumented workers.   But he has also steadfastly opposed various "guest worker" immigrant programs, on the grounds of protecting American jobs.

This position does not strike me (at first blush) as intellectually coherent.  What Sanders giveth, he then appears to taketh away. Relying on supply and demand logic (and ignoring the possibility of organizing workers regardless of national origin), Sanders should be opposed to any relaxation of immigration laws. But he is not.

Now, it is possible that there is some intellectual consistency in his position.  He could argue, for example, that granting citizenship to illegal aliens increases their bargaining power, thus strengthening the position of American workers.  Therefore, he might say, this is consistent with his opposition to "guest worker" programs, since "guest workers" are likely not to have significant bargaining power.  I do not know, though, whether he has actually made such an argument.

It strikes me as well that Bernie's have-cake-and-eat-it-too position on immigration is an awfully good demonstration of the dilemma the Democratic party has been in for decades, i.e., how to be the political home for immigrants and people of color, while still retaining the coveted "white working class." (In standard political vernacular, immigrants and people of color are not "working class." Their class status, while they work, is evidently invisible in this body politic.)  Candidate Obama solved this dilemma by (so the pundits say) creating a coalition of white, educated "liberals", people of color, and "independents."  Sanders cannot be expected to take precisely the same road to the White House -- nor, it has been reported, does he want to.  He wants to take his message of economic populism directly to the coveted "white working class" and win their vote.  To do so, however, it appears he needs to repeat some of the more unfortunate strands of said populism, i.e., nativism.  Whether he can maintain this position while running in a party whose leadership has championed  immigration reform, remains to be seen.  If he does get further in the primaries, he's going to need clearer answers to these kinds of questions. (Or, at least clearer than I have been able to discern so far.  I welcome any comments that might edify me here.)

Michigan v EPA: The Court and Cost-Benefit Analysis

Less well known then the gay-marriage decision of the Supreme Court (about which I wrote a few weeks back), was a June 29 decision on the question of the Environmental Protection Agency's regulation of power plants.  Under standard administrative law analysis, rules promulgated by an administrative agency are not to be overturned by a court so long as they are "reasonable." This, of course, is a notoriously tricky word in the law, but the general idea here is that the courts are to give deference to the administrative agency. That is, Congress has empowered administrative agencies to promulgate rules for the purpose of applying specific statutory frameworks. For example, the Securities and Exchange Commission is empowered to create rules applying the provisions of federal securities law. And the Environmental Protection Agency is empowered to create rules applying the provisions of federal environmental law (including, e.g., the Clean Air Act). In other words, many federal statutes leave aside all kinds of details. And it is the explicit intention of Congress that such details be dealt with by the relevant administrative agencies.

Since the Court itself has recognized that the rule-making process of an administrative agency is to be left alone unless it is "arbitrary and capricious" or, in other words "unreasonable," one might expect such rules to be overturned only in extreme cases. One might especially imagine this to be a view held by the purportedly conservative wing of the Court, i.e., those Justices who insist on the importance of not overstepping their bounds, of not overturning the will clearly expressed in a statute, etc.  But, alas, as has been pointed out elsewhere, there is nothing in the least bit consistent about the reasoning of the conservative wing of the court.

In the June 29 decision Michigan v EPA, the Court held that the EPA's rules limiting emissions from coal and oil  plants were "unreasonable." And the reason they were determined to be "unreasonable" is that the EPA had not considered the costs of imposing these regulations, only the benefits.

Now, in fact, as the dissent pointed out, the EPA did consider costs. They just didn't do it at the initial stage -- that is, they did not do so when determining that their regulations were "appropriate and necessary." That is, they determined their regulation of emissions was indeed necessary, but that they would calculate the costs of the regulation when determining the exact extent of the emissions regulations.  As the dissent noted:

Over more than a decade, EPA took costs into account at multiple stages and through multiple means as it set emissions limits for power plants. And when making its initial “appropriate and necessary” finding, EPA knew it would do exactly that—knew it would thoroughly consider the cost-effectiveness of emissions standards later on. That context matters. The Agency acted well within its authority in declining to consider costs at the opening bell of the regulatory process given that it would do so in every round thereafter—and given that the emissions limits finally issued would depend crucially on those accountings. 

So, in fact, the EPA did consider costs, just not in precisely the manner that the majority wanted.

There are two points I want to make here about this decision.  The first is that the right-wing of the Court did not give the "deference" that they otherwise insist they want to give. That is, all the talk about the hubris of the Court, the arrogance, etc., goes right out the window as soon as they see something they do not like.  Their job is to honor the intention of Congress.  As they themselves acknowledge, administrative law jurisprudence says that the Court may only disturb an agency rule only if it clearly violates the intent of Congress.  But that hardly seems the case here.  Although the Court was able to point to statutory language indicating that Congress expected the EPA to consider costs, they were not able to point to any directive that they consider costs at the initial stage, i.e., when determining whether regulation emissions from power plants was "appropriate and necessary." It appears entirely ideologically motivated, i.e., motivated by an economistic reasoning that has infected the Court's jurisprudence.

Which brings me to the second point, i.e., the continued growth the aforementioned malignancy, i.e. the insistence that the way to understand whether a regulation is "reasonable" is to weigh its costs against its benefits. And, of course, what could possibly be the objection to that line of reasoning? How could a regulation be reasonable if its costs far outweigh its benefits? As Scalia declared in the majority opinion: "One would not say that it is even rational, never mind 'appropriate,' to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits."

Except that this kind of thinking is hardly the kind of objective value-free analysis it purports to be.  The continued push for cost-benefit analysis is a boondoggle to industry, simply because the extra expenses they have to bear are typically much easier to quantify than are the benefits from regulation. Exactly how are we to put a dollar figure on improved health, or even lives saved, from emissions reduction?  Or, for that matter, on preservation of species, of ecosystems, or even the future preservation of the planet? It is, of course, possible to create methods for answering these questions, but any such attempt is just an exercise in sophistry. And the reason for this is that we are trying to put a dollar value on things that are not for sale in the market. This will inevitably give rise to exercises in silliness (at best.)   For example, in one study, researchers attempted to place a value and children's lives by looking at the manner in which parents fastened the children's car seats. If they rushed the job, thereby not completing correctly, they were, according to the researchers, saving money. That is, the researchers placed a monetary value on the parents time (based on their wages.) Saving time meant saving money. Hence, it was possible to determine by how much parents valued an increased risk of a fatality. (There are a host of examples of this sort of absurd thinking, some of which, including this one, are documented in an excellent piece by Ackerman and Heinzerling.)

The essential problem with this sort of thinking is that we are imagining that people place dollar values on lives *(or health, or the environment) just as they place dollar values on any commodity on the market.  And all we need do is find the right behavior (or verbal communication) that best captures those valuations.  But, of course, there are no such valuations. It is not a question of accurately measuring them.  They do not exist; therefore they cannot be measured. They are works of fiction, created by the collective imagination of the creators of the project known as "neoclassical economics." And yet, despite their status as pure works of fiction, they are essential for cost-benefit analysis.

It is therefore an absurd exercise to try to find the dollar valuation placed on (certain kinds of) benefits  (i.e., on non-market benefits).  On the other hand, determining the costs imposed on a firm via government regulations is a significantly more straightforward matter, because we are then dealing with market activity.  The costs impose on a firm are, that is, easier to quantify; the market has already translated such costs into monetary values.

In response to Scalia's question above, i.e., whether it could possibly "rational,"  let alone“appropriate,” to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits," one could pose the following hypothetical:  imagine that the pollution prevented will affect only one person. And imagine that that single person is extremely poor. There two ways that economists have typically tried to determine the value of improving a person's health (or saving their life.) One is the lost earnings caused by the health effects of pollution.  The second is the  amount the individual would be willing to pay to avoid the harm done to their health. If we apply the first method, we find that, if a person has very low earnings, then they have almost nothing to lose, and hence the dollar value of the benefit (to their health) is next to nothing. This is precisely the reasoning that Larry Summers infamously used in concluding that it would be most economical to dump the worse pollution in the poorest countries, proclaiming:  "I think the economic logic behind dumping a load of toxic waste in the lowest wage country is impeccable and we should face up to that."

If we use the second method, willingness to pay, we again run into the same problem. To the economist, there is no willingness to pay if a person has nothing to offer.  The demand curve typically drawn in standard neoclassical economics depends not just on a person's desires, but upon their income. The lower the income, the lower their willingness to pay.  In such a case, the "benefits" of increased health might amount to very little, economically speaking.  And yet, such a conclusion -- that the costs are justified -- because the victims of pollution would be too poor to buy their way out of it anyway -- is obscene (just as Summers' reasoning above is obscene.)  But it is precisely this sort of conclusion that standard economic reasoning countenances.

If the courts cannot see this, they will continue to insist on this myopic line of thinking where the benefits must outweigh the costs for a regulation to be justified.  There is some deep sort of foolishness going on here, where the commonsense notion that a reasonable decision requires a weighing of the 'upsides' and 'downsides' is magically converted into an economistic formula -- such conversion being  part and parcel of the continued imperialism of economistic thinking.

One job, then, for progressive scholars, lawyers, and economists, is to combat this particular form of imperialism. Some steps in this direction have already been taken.  And more will be.  My hope, ultimately, is that we get to the point where a determination of whether a given government regulation is "worth it" is not a mere technocratic question and product of economistic thinking (which is, in any event, built on pure fictional entities), but, rather, a judgement exercised by our polity. This would be a welcome change.



* To be more accurate, researchers generally are not trying to find the value of a life, but rather on a statistical life.  That is, they are attempting to find the value that people place on increased risk of death.   The problem with this methodology is that one cannot translate so easily between risks of death and death itself. That is, one cannot use any monetary value on increased risk of death supposedly found to justify the loss of any actual lives. And yet this is precisely the move that is implicit in cost-benefit analysis.

The Supreme Court on Gay Marriage (Obergefell), and the Business of Constitutional Interpretation

I wanted to put down here a few thoughts on the Obergefell v Hodges decision.

Since the Court's decision, we have been met with repeated claims that the so-called “liberal” wing of the court abused and distorted the Constitution, engaged in “judicial activism” etc. If only, so the argument goes, we just stay faithful to the plain meaning of the words in the Constitution, we would apply it correctly.  We would stop all judicial activism. We would end the horror of unelected judges striking down democratically-enacted statutes.  And, moreover, only the right-wing of the Court adheres to this principle. The “liberal wing” (so-called) is forever reading into the Constitution. These were the predictable claims found in the dissent, and elsewhere. 

This is all patent nonsense, and needs to be put to rest.  

To begin with, it cannot be said with a straight face that the right wing of the Court renders some kind of purely objective, value-free reading of the Constitution (as if there could be such a thing, discussed below.)  They abandon their deep concern about overturning the will of the people as soon as they are certain that the Constitution requires it.  Hence, the decision in Citizens United, striking down portions of McCain-Feingold, Scalia and his ideological coterie (+1, i.e., Kennedy), were positive absolutely positive, that the First Amendment means that individuals have the right to spend unlimited amounts of money on political messages, with only the size of their bank account acting as a restriction.  And yet the First Amendment says nothing, nothing at all, about money.  And the historical context does not  point to such a conclusion either. (The Founding Fathers were clearly concerned with repression of political speech, but restrictions on spending money does not target the content of speech. In any event, could the Founding Fathers even envision 21 century politics? Would it be recognizable to them?) John Paul Stevens, in his dissent, made the persuasive case that McCain-Feingold was more akin to a "time, place and manner" restriction on political speech, which the Court has repeatedly permitted. (For example, the government may lawfully prohibit political protesters and picketers, etc. from demonstrating outside a certain prescribed area.   It is a commonplace for police to restrict demonstrators' ability to protest ,i.e., limit it to certain times and places.  And this is entirely Constitutional, so long as the government does not get into the business of restricting the content of speech). Therefore, to imagine that the Founding Fathers, if alive today, would look at something like McCain-Feingold and say “Well, that obviously violates the First Amendment” is pure pretense. The right wing of the Court did not merely “find” this in the Constitution, all their protestations otherwise.

But the point here is not merely to say something about the hypocrisy of the right-wing of the Court. (This has been commented on much elsewhere).  It is to make the larger point that the Constitution generally does not, particularly with respect to the passages and clauses that seem to command the most attention and spark the most debate, dictate its terms of interpretation and application. 

The Constitution does not contain a set of technical rules. It does not even consist of “defined terms” (as statutes generally do.) Rather, it announces a set of principles. These principles are, by nature, semantically open.  The business of interpretation is inevitable.  Hence, in precisely those portions of the Constitution where debates rage most fervently, decisions regarding their application in a particular set of circumstances is inevitably bound up with a set of beliefs and values about the proper functioning of the body politic.  Hence, when we confront the question of applying the text of the Constitution, we are necessarily left with open questions.  What is a “reasonable” search and seizure? How much process of law is “due” process? Which sort of "liberties" are protected by such due process? What laws “abridge” our “freedom of speech” or “impede” our exercise of religion? What constitutes “equal protection” of the laws, when the legal system itself is a system of classification, which, by its very nature, discriminates?

There are no answers in the Constitution to this question.  One can, of course, look to the historical circumstances surrounding its drafting. That kind of historical context is always salient.  Hence, 14 Amendment jurisprudence, for example, is particularly cognizant of racial discrimination, regarding race as a “suspect category” warranting “strict scrutiny” by the Court.  However, the Equal Protection Clause is not limited to questions of race.  It does not say “Congress and the states shall make no law discriminating on the basis of race.” That would limit its application to a certain set of facts. But the 14 Amendment is not drafted that way.  Instead of being limited to certain specified classifications, it announces a general principle – i.e., the general principle of equal protection of the laws. It therefore can be, and ought to be, applied to sets of facts other than those that specifically gave rise to its inclusion in the Constitution. To put the matter another way, to read the Equal Protection Clause as being exclusively about race would be to ignore its language, and hence to ignore that it is drafted so as to be malleable enough to apply to facts not considered at the time of its drafting.  This is not a flaw – it is a design feature. 

Put yet otherwise, faithfulness to the text of the Constitution (not just the 14 Amendment, but, again, those clauses as are drafted openly) requires a recognition that its text invites application to varied and differing cases. Indeed, the very strength of the Constitution generally lies precisely in its malleability.  Its semantic openness is precisely what allows it to endure.  The so-called “living Constitution” doctrine is not some artifact of a fanciful liberal imagination.  It is, rather, a way of saying (though, in my opinion, a poor way), that the Constitution is drafted so as to permit application to cases not foreseen nor foreseeable.  And if it was not so drafted, it would be of no use to us now.  

Hence there is nothing strained or forced in extending the Equal Protection Clause to prohibit discrimination against gays in about the claim that gays ought to enjoy the protection of the Equal Protection Clause in exercising the right to marry. Or similarly, that one of the fundamental “liberties” protected by the Due Process Clause includes the freedom to marry, and that the state therefore cannot  deny this liberty to same-sex couples.

(Note that I am not here engaging in a full analysis of, or even tracking the reasoning of, the opinion in Obergefell, much of which was based on arguing why the right to marry is “fundamental,” for purposes of Due Process jurisprudence.   The point, again, is the larger one, that the language of the Constitution cannot be said to compel an outcome in particular cases.  Put otherwise, if the Court goes ahead and applies a clause of the Constitution in ways not considered at the time of drafting, it is not acting at odds with the Constitution's purpose. It is, rather, entirely in accordance with its purpose) 

I am aware, of course, of the objection this sort of argument invites. Something along the lines of "what, don't you believe in the rule of law."?  What if this 'semantic openness' cannot be contained"? What stops judges from interpreting it however they like?" 

My answer to that question is, the requirement of making a legal argument places limits on how we interpret the Constitution.  Judges cannot simply make whatever decision they like. They must justify their decisions, using all the tools of legal reasoning and interpretation,  e.g.,. text, historical context, precedent, and attention to the facts (i.e., the present circumstances to which the Constitution must be applied.). The Court is therefore not just another political body. It is bound by the legal tradition (I might say "common law tradition") itself.  

Such an answer might seem insufficient. After the use of legal reasoning (as described above) isn't there still room for disagreement? Of course there is. Again, the Constitution is not drafted as a technical blueprint. Nor it is an exercise in formal logic, wherein conclusions must follow inexorably from assumptions and axioms. The business of interpretation is the business of disagreement.  

There is therefore, it seems to me (as alluded to above), no "value-free" Constitutional interpretation.  Therefore, the intellectual dishonesty of the right does not consist of their claim that they are merely reading the Constitution. It consists of the claim that there could be such a thing as "merely" reading something without bringing to it a set of values.  

To return to Citizen's United (as an example) -- my view is that it is simply impossible to render a decision in that case without having some view of the relation between money, speech,  and democracy.  While the dissent had the view that money corrupts democracy, the majority had the view that it facilitates democracy.  That is, they viewed any limitation on political spending as the very sort of suppression of speech that the founders were concerned would prevent the functioning of a vital democratic society. Since the text and the historical context  together, clearly did not "dictate" the result in the case (though the majority pretends it does), one must bring to bear one's views on the relationship between money, speech, and liberal democracy.  

More generally (and to repeat myself) it strikes me as straining all credulity to imagine that one could interpret a political document consisting of general principles (and not narrowly drafted technical rules) without at the same time having a set of values that one brings to bear on that interpretive process. This is not some kind of flaw of the interpretative process. It is at the heart of it.