Fight The Hypo » Politics

What’s Severability Got to Do With It?

Casebook Sherpa — Fri, 15 Oct 2010 19:43:49 +0000

We have been following with great interest the various challenges to President Obama’s health care reform law. While we view the legislation as an example of how seeking a middle ground can appear to entrench the worst elements of the status quo (here: increasing corporate welfare and insurance company influence over health care), views of the wisdom of the law are secondary to the legal questions, a distinction stated quite eloquently in this opinion by Judge Roger Vinson of the U.S. District Court for the Northern District of Florida:

While these competing arguments would make for an interesting debate and discussion, it is not my task or duty to wade into the thicket of conflicting opinion on any of these points of disagreement. For purposes of this case, it matters not whether the Act is wise or unwise, or whether it will positively or negatively impact healthcare and the economy. Nor (except to the limited extent noted in Part III.A(7) infra) am I concerned with the manner in which it was passed into law. My review of the statute is not to question or second guess the wisdom, motives, or methods of Congress. I am only charged with deciding if the Act is Constitutional.

But this post isn’t about the role of the judge. We’re much more interested in how this judge — at the early motions stage — addresses the constitutional issues and collect some of his thoughts here. His opinion is an interesting, and rather long, read.

In prior debates on this blog (e.g.) we have sparred over whether the health reform law was a valid exercise of Congress’ Commerce Power and/or Taxation Power. It turns out this judge is skeptical of both, at least as it relates to the individual mandate to purchase coverage.

On the taxation issue, I paraphrase his argument to be: The Act authorizes the collection of a fee from those who choose not to purchase coverage. Because Congress has done nothing to indicate that it meant for the fee to be considered a tax, despite its usual practice of doing so and precedent suggesting that it must, the fee here may reasonably be considered a penalty for violating a law. Indeed, the Act itself calls the fee a “penalty” while using “tax” in other places such as the “excise tax” on the use of tanning salons. Congress clearly intended the fee as something other than a tax. Therefore, the taxation power does not authorize the mandate and the power must arise from the Commerce Clause.

It’s a really fascinating argument to read and we recommend you do so, particularly if you are in the throes of your Constitutional Law course. It is a good, clear primer on the constitutional bounds (or relative lack thereof of the taxing power.

On the Commerce Clause issue, the court emphasizes the use of the Commerce Clause to perform a certain act or buy a certain service is, in reality, an issue of first impression under that provision. He quotes a Congressional Research Service report (pdf download) at pp. 61-62 of his opinion:

[The Commerce Clause] case law is instructive, but ultimately inconclusive because the Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before. The power that the individual mandate seeks to harness is simply without prior precedent. The Congressional Research Service (a nonpartisan legal “think tank” that works exclusively for Congress and provides analysis on the constitutionality of pending legislation) advised Congress on July 24, 2009, long before the Act was passed into law, that “it is unclear whether the [Commerce Clause] would provide a solid constitutional foundation for legislation containing a requirement to have health insurance.” The analysis goes on to state that the individual mandate presents “the most challenging question . . . as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service.”

(internal citations omitted)

The Wall Street Journal law blog has collected some responses to the opinion here. And elsewhere in the Wall Street Journal, this gem appears:

The latest development raises a puzzling question for both sides: Would the whole law get struck down if a federal court finds the individual mandate in violation of the Constitution?

The plaintiffs argue that the entire law should be invalidated. The administration counters that many other pieces of the legislation could stand without the individual mandate, including the expansion of Medicaid.

Democrats who drafted the law didn’t include a “severability” clause, which would spell out that remaining parts of the law could stay intact should certain parts be struck down. A Democratic aide who helped draft the law said staff members discussed such a clause but decided it wasn’t necessary.

Many legal scholars believe the administration is likely to win the core case, but they don’t rule out a plaintiffs’ victory. They say it is surprising that Democrats didn’t include a severability clause just in case.

During the law’s drafting, Democrats argued that a requirement to buy coverage was essential to ensure that insurers had a broad mix of healthy and sick enrollees. Otherwise, they said, people could wait until they needed care to get covered, since the law also requires that insurers accept all comers regardless of health status.

The Administration must argue that the mandate is essential to the law while, at the same time, argue that the law could still stand if the mandate is struck. That is an interesting predicament though I wonder if it’s any different from an opponent arguing on the one hand that not buying insurance is non-economic and therefore immune from the Commerce power while on the other pointing to the rational decision of some uninsured young people to forego insurance in order to cover other costs or because of their relative health at this stage in life.

Of course, the severability issue is nothing new (though no less interesting to us today). Michael Dorf offers a helpful discussion:

Assuming no severability clause lurks in the text, the law would nonetheless be presumed severable. Supreme Court cases treat invalid provisions of a law as presumptively severable from valid ones–regardless of whether the law in question contains a severability clause. However, where the invalidation of a single provision of a law would impede the ability of the remaining provisions to function as a whole, the presumption of severability will be overcome. Would that be true for the individual mandate?

Here the core Commerce Clause argument is a double-edged sword. The best arguments for sustaining the individual mandate as an exercise of the Commerce Power build on the Comstock and Raich decisions, in which the Court held, respectively that: a federal law providing for civil detention of prisoners following the completion of their sentences was necessary and proper to carrying out the power to criminalize the conduct that landed them in prison in the first place, even absent any direct authority for civil detention; and federal law could validly criminalize intrastate cultivation and possession of marijuana for personal medical use because of the possibility of legalized medical marijuana finding its way into the illegal market for recreational marijuana. In each case, the validity of upstream regulations of interstate commerce (or the upstream exercise of some other power in some of the statutes within Comstock’s reach) validated the downstream application to activities that might not in themselves amount to interstate commerce (or otherwise regulable acts). So too with health care, healthy people who fail to purchase health care until they become sick deprive the insurance pool of premium payments needed to spread the risk, thereby undermining the effectiveness of the prohibition on dropping coverage for pre-existing conditions; that makes them regulable even if their failure to purchase health insurance would not otherwise constitute interstate commerce (or even “economic activity” within the meaning of Lopez, Morrison, and Raich).

Suppose the Court were to reject the foregoing argument as a basis for sustaining the individual mandate. It would be saying that the individual mandate is not necessary to effectuate the prohibition on dropping coverage for pre-existing conditions. But if that were true for purposes of affirmative power, then it would also seem to follow that the individual mandate is not necessary for severability purposes; the law could function as a whole without it. In other words, in order to accept the constitutional challenge to the individual mandate, the Court would have to find the predicate conditions for the further conclusion that the (putatively) invalid individual mandate is severable from the rest of the law. So, as a matter of logic, the scope of the victory that can be obtained by those challenging the mandate is limited; to defeat the mandate they must gift-wrap an argument for sustaining the rest of the Act.

So what’s severability got to do with it? Maybe everything.

This IS a big F-ING deal – the constitutional challenge, that is

Casebook Sherpa — Wed, 24 Mar 2010 14:43:58 +0000

Joe Biden is worth his weight in gold for his gaffes and ill-timed quips. When he whispered to the President in range of a live microphone before the signing of the health care bill: “This is a big f—ing deal!”, you could see the President purse his lips. At least one of them realized there was a live mic right there, though it would have been classic if he’d said, “That’s f—in’ A right.”

The health bill is a big deal. No doubt about it. Sure, I think it’s misguided and unfunded. But it sets up a huge new government program that, it’s easy to say fairly, is one giant leap towards a single-payer health care system in the United States. That’s a big deal.¹

Anyway, to this law student trying to write a blog, the bigger f—ing deal is the pending constitutional challenge to the law. Most of the media coverage is worthless, but I AM really f—ing grateful for some pretty f—ing serious dialogue about what a constitutional challenge looks like and what the f—ing issues are. This one in particular is well worth the lengthy read.

I’ll poorly paraphrase the main arguments, which really focus on a discreet issue: does the Constitution anywhere authorize an individual mandate to purchase health insurance through either the commerce, taxation, or spending powers?

Challengers argue that Congress lacks the authority under the Constitution to tax people for not engaging in a commercial transaction (purchasing insurance). In other words, you can’t regulate person’s “inactivity.” The Commerce Clause does not warrant such intrusion because of not buying something is not commerce and a person’s decision to not buy health insurance is not vital to the overarching regulation. The taxing power does not support such an action because it’s an excise tax on existing, rather than a tax on income or consumption. This makes the tax (although revenue raising) a purely regulatory or punitive measure, which courts may view as unconstitutional. And the spending power does not support it because the tax itself isn’t really spending.

The supporter of the bill (and opponent of the constitutional challenge), says, in essence, “I call bullocks on all that.” At its heart the mandate is simply an exercise of Congress’ authority to tax and spend for the general welfare. This authority is broad and, basically, unlimited. The tax in question here raises revenue and is part of a broader regulatory scheme, much like most, if not all, tax provisions. Plus, the health care bill is well within Congress’ power to set economic policy, which the courts have avoided invalidating since Lochner. Congress has broad, discretionary authority to enact economic regulations that is based on decades of both Supreme Court jurisprudence and lawmaking that covers areas as diverse as education, gun policy, crime, estate taxes, and environmental protections. Where there are overarching areas of public concern that transcend state boundaries, the federal government is the only body qualified or authorized to regulate. Plus to suggest that not participating in a national health plan is not an economic decision is as irrelevant as it is dumb.

Perhaps it shouldn’t be though. Some believe this challenge may place us on constitutional ground unexplored since Lochner.

If defenders of the bill in this constitutional dialogue are correct, the Constitution really places no structural constraints on Congress to enact any regulation or mandate. The only constraints which exist are those which protect fundamental rights and those are protected only if Congressional action fails to withstand the strict scrutiny of the courts. A citizen’s only recourse is through redressing the government with her concerns or the electoral process.

Opponents of the bill argue that the Constitution is meaningless without the structural constraints placed on the federal government. Logically, you might add to this argument that federalism is dead as any sort of mechanism for defining spheres of power within our system.

The Constitution is as much a structural document as one that defines “fundamental rights.” The concepts are inextricably interrelated. To the extent structural constraints are eroded, our fundamental rights are imperiled as the federal legislature enacts economic legislation that courts refuse to second-guess. Yet, absent any meaningful constraints on legislative power, the courts are the sole arbiter of rights. I like judges and courts and lawyers, but not to tell me what to do. Asked in the form of a question: Can you have a “scheme of ordered liberty” without any real constraints, or order, imposed on government authorities other than periodic elections?

The concentration of power and authority in Washington (and, incidentally, in large corporations) is a direct threat to individual liberty. While such authority is often exercised for the good of people, it is far more difficult to hold accountable those who wield it when there are no discernible bounds to it.

I suspect the challenge will come to naught, colliding as it does with a host of precedents that grant Congress nearly unlimited authority to regulate even non-commercial, local activity through the Commerce Clause, ala Wickard. Since overturning Lochner, courts grant substantial deference to Congress when it comes to economic regulation.

But perhaps they shouldn’t.

Let’s return to Lochner. A court could defend a position that while there are no structural, constitutional constraints to enacting the health reform bill, the court does reserve the right to ensure that such regulations do not imperil individual liberties. Even if Congress has authority under the Constitution to enact an individual mandate to purchase health insurance with a fine for non-compliance, if such law places too heavy a burden on the individual right to contract or the right “to be let alone” by the government (to use the “right to privacy” reasoning), then courts can overturn that regulation. That would be the ONLY way to check congressional power, whichever party wielded it.

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¹ On a related note rant, we have a bunch of chicken-s*** leaders who refuse to level with us about our real choices are about taxes and spending. The CBO estimates for this bill are a joke; the CBO itself estimates their accuracy at “50/50.” Makes you wonder why the President can sound so certain about the bill’s budget impact. Perhaps that’s because, as a people (to the extent one can define that term), we refuse to believe trade offs will one day be necessary. Hands off my Medicare and unemployment, you socialist bastard! So long as we get ours and those taxes come after we’re dead, right? I guess the election will tell what the “people” think about this.

Nature of the “Loyal Opposition”

Casebook Sherpa — Fri, 04 Sep 2009 15:06:27 +0000

So, let me ask you this…

I have several friends who are very critical health care reform opponents for not coming up with a plan of their own. I’m often amazed at how vehemently they hold this position.

It raises a question of political theory that I’ve always found interesting: What is the role of the opposition in a republic?

One iteration of this argument goes: If you agree there’s something wrong with the system. You can’t criticize efforts to reform it unless you have a plan of your own. Just because you’re threatened by the plan proposed and how it would affect your own health insurance doesn’t give you the right to reject it out of fear of change.

One response, the weakest response actually, is expressed like this: But I have a right to my opinion. You can’t tell me to be quiet and you can’t make me propose an alternative plan.

First, that’s a ridiculous response to the argument advanced. Of course, it’s technically correct. You do have a right to not say anything. The point of the argument, though, isn’t that you can’t speak out. It’s a statement on how we want our public square to function as much as it is a partisan challenge to come up with a better plan. Incidentally just as you have a right to not have a plan, someone has an equal right to tell you to shut the hell up until you have something worthwhile to say.

So must have the opposition say anything worthwhile? Does the opposition have a responsibility to present alternatives to majority initiatives? Or is their role just to play defense?

To the extent that policy debates implicate ideas and developing consensus around solutions, I say the opposition should be incubators of new ideas and cogent alternatives to majority polices. Those who know me well, would know that I lean heavily toward this approach to opposition as an issue of principle. If an idea is worth being the policy of a nation, then you should invest heavily in developing a legislative proposal to advance it, sell it to the electorate, and bludgeon your political opponents with the strength of your argument. Plus a full airing of ideas is more likely to lead to creative solutions to complex problems. (I can just picture a relative of mine saying, “Egad. You’re a moderate!”)

But to the extent that policy debate involves political calculations about an electorate’s views about the majority’s policies and the strength of the opposition’s arguments, then the opposition need only tell people why the majority’s ideas are total bunk. This view has definite value when you disagree with the fundamental premise of a debate and refuse to fight on your opponents’ ground, so to speak. In this case, you disagree that a fundamental shift in how health insurance is governed, regulated, paid for, and provided is even necessary in the first place.

Adherents to this latter draw heavily on the example of leaders like Benjamin Disraeli, the 19th Century British Prime Minister who pioneered the idea of the “loyal opposition.” In this view the role of the party out of power is to oppose all measures except those central to issues of national defense or foreign policy and related issues. This places the impetus on the majority to make the case for their policies and explain why the opposition is wrong to do its job in, well, opposing the majority.

But you could also develop an approach that incorporates both views of opposition. The former is a strategic priority while the latter is a tactical consideration

An argument that incorporates both approaches goes something like this: The approach you’ve presented is a fundamental change to how we do health care. Our system is still the best by dozens of measures and produces world-class research, medicines, medical devices, and treatments. Sure, there is an issue with costs and the number of uninsured. But there’s ample evidence that the majority of uninsured simply choose not to be insured at all. So our view is that you need to tinker at the edges. Medical malpractice liability reform could help. A limited expansion of Medicaid would also help greatly. If anything, a public option should only work to save relieve people of catastropic health costs, not provide full health coverage. But an overhaul or a government intrusion into the market is unnecessary, would be unsustainable over the long-haul, and, as several economic and budget analyses show, would actually lead to a shrinking of the health insurance market and wouldn’t contain costs.

So maybe it’s both. Or maybe there are other approaches.

What do you think? How would you characterize the responsibility, if any, of those parties and blocs that are out of power to propose alternative solutions to the majority’s initiatives? And what arguments do you think are strongest using each view of opposition (or other approaches)? And what values are implicated under each approach?

Obama’s Justice

Casebook Sherpa — Wed, 11 Mar 2009 13:19:08 +0000

Did you see that Justice Souter this week described his job on the Supreme Court as “a sort of annual intellectual lobotomy“?

Say what? Law.com, where the link above takes you, suggests this confirms what many have suspeected for sometime, namely that Souter is seriously weary of being a Justice and seriously interested in retiring. (Compare to reports suggesting 89-year-old John Paul Stevens, some 19 years older than Souter, is still relishing his seat on the Court.)

Thankfully we have leadership in Washington that has really learned to work together to create a climate that would sustain a constructive, non-rancorous and efficient confirmation process.

Ok. Maybe not.

So, inquiring minds want to know. At some point President Obama will be appointing a new Justice. What sort of judge would he appoint? A Scalia of the left, a liberal lion whose passion for living Constitution could compete with Scalia’s passionate defense of texualism? A young lawyer? A current judge? A moderate in temperament if reliably “liberal” vote?

I suspect that he’ll go with the George W. Bush route and pick someone who has not thrown many bombs in their career but would generally rule in line with a certain ideological. That’s the “safe” way to go. It may result in the best person being picked. But it results in competent jurists who check off several boxes on the political checklist.

(Hopefully, the nominee’s taxes are in order. Sheesh.)

The Executive Branch and Lobbying

Casebook Sherpa — Fri, 30 Jan 2009 16:54:53 +0000

Obviously the President seeks to influence policy. He holds the bully pulpit. He has a legislative shop (as does each federal and independent agency) that offers feedback and positions on proposed bills. He issues Statements of Administration Policy on certain bills being considered in Congress. He visits the Hill. And he makes law, in his own way, through rule-making and executive agreements and orders.

But it’s been interesting though to see the Obama Administration seek to capitalize on its vast grassroots network to influence legislation as well.

For instance, there’s the series of listening sessions on health care reform hosted by (presumably) incoming HHS Secretary Tom Daschle. The purpose, according to Daschle, is to get the grassroots engaged “so that the special interests don’t win.” (Are they really mutually exclusive?)

Then there’s President Obama’s “Organizing for America” that was initially pitched as a way for community organizers to stay in touch but has turned into – perhaps always was, I’m just misremembering – a vast lobbying operation. (I thought we hated lobbyists now.)

I’m of two minds on this and you may not even think it’s a big deal. Obviously the political end is fine and natural. But what about using official resources to construct was is basically a political organization?

There’s the argument to be made that, while the President ought to weigh in on policy, he should not be taking the drastic step of organizing widespread pressure on lawmakers to pass a law that suits his preferences. Frankly, if the President has enough time and money to do this in his official capacity (as he is with the listening sessions) then Congress has given too much money and too few laws to execute and enforce. Plus, how is this any different from a Member of Congress having an e-mail list of his constituents?

Then there’s the idea that times change. The list in the first paragraph above are antiquated tools for influencing the process. They no longer work as well as they once did. Organizing mass public pressure is the only way to cut through the media noise and special interest money that clogs Washington up.

It’s really Obama’s end-around, right? I mean he’s made clear that there are certain lobbyists he doesn’t want to associate with, at least publicly. And there are certain special interests he doesn’t like (and others he does special favors for within hours of taking the oath of office).

So mass organizing of a campaign-style grassroots operation… A wise, savvy, and appropriate use of official resources or a border-line unconstitutional powergrab designed to short-circuit the legislative process?

What of the Electoral College?

Casebook Sherpa — Tue, 04 Nov 2008 14:25:40 +0000

The Electoral College is awesome. No, seriously. I like it, even if it’s a bit quaint. How do you feel about it?

I started thinking about it today as I entered Starbucks to claim my free coffee (which is NOT an incentive to vote), I overheard rather self-assured student at an obscenely wealthy local private school (he had his logoed sweater on and everything) discuss how his vote doesn’t matter because of the Electoral College since it’s not really a vote for the President.

He’s right, we don’t vote for the President directly. As my ballot this morning said, we choose a group of electors who then cast votes on our behalf. Perhaps it’s an anachronism. It’s certainly a potential barrier against popular majorities instituted, in part, because of a skepticism of the people.

The main argument against it of course is that the President remains the only office for which we vote that is not directly elected. Instead, the process we use allows a President to get a minority (or a plurality) of the popular vote and still win so long as he pieces together wins in the right states. To me, though, the Electoral College offers several important structural protections that I think make an individual’s vote more important. (If you’re looking for something to get your brain working this morning after a 6:00 a.m. trip to the polls, this debate is a good starting point even if the anti-EC guy won.)

I’ve heard a number of good arguments in support of the Electoral College. But there are three that strike me as the most central. Undercut these and the EC has little reason for continuing.

First, the Electoral College gives each vote more relative influence in that you are participating in a smaller pool of voters (your state) rather than with everyone in the country.

Second, it guarantees smaller states a semblance of influence over presidential elections. A compelling argument can be made that EC or not, only a handful of states or areas really matter in a given election. I contend simply that without an EC more populated areas become more important overall because of the efficiencies you gain by campaigning in more densely populated areas.

Third, it isolates voting irregularities. Today we talk about voting irregularities by state or precinct instead of nationwide because states are directly responsible for the elections and ensuring that their electors are properly chosen. In a national voter pool you can’t confine such irregularities and if a recount is called, it’s much easier to do it in individual states than nationwide.

Legal Drafting, Executive Compensation, and the Bailout Plan

Casebook Sherpa — Mon, 29 Sep 2008 13:55:03 +0000

The bailout plan that Congress will vote on this morning is an interesting mix of handouts to failing banks and market incentives to insure failing – or potentially failing – mortgage-backed securities. The latter objective, among others, is what hung up the bill on Friday. (You can download the plan from the New York Times’ website here and read some good commentary here.)

I haven’t read it all, but I’ve perused enough to worry about the future of the free market. Basically, the Act provides the Secretary of the Treasury with far-reaching authority to purchase nearly any asset he deems to be failing, including those assets held by foreign investors. One thing I did notice is that there is potentially a meaningful drafting issue with the executive compensation section (Section 111). I wouldn’t have come back to that provision had I not seen several interviews with congressional leaders this morning.

Both MSNBC and Fox are playing clips from Speaker of the House Nancy Pelosi where she speaks of “the end of the era of golden parachutes.” And Senator Judd Gregg, one of the GOP’s top budget experts, spoke of the same thing during an interview this morning on one of the news networks. I’ve written plenty of soundbytes for politicians to know that you can only trust them so much. But the finality with which they spoke about the end of excess executive compensation really struck me in light of the drafting issue I noticed in Section 111.

So what does the plan actually say about executive compensation?

Section 111 of the bill says:

(b) DIRECT PURCHASES.—

(1) IN GENERAL. Where the Secretary determines that the purposes of this Act are best met through direct purchases of troubled assets from an individual financial institution where no bidding process or market prices are available, and the Secretary receives a meaningful equity or debt position in the financial institution as a result of the transaction, the Secretary shall require that the financial institution meet appropriate standards for executive compensation and corporate governance. The standards required under this subsection shall be effective for the duration of the period that the Secretary holds an equity or debt position in the financial institution.

Subsection (b) then provides three criteria for executive compensation:

(2) CRITERIA.—The standards required under this subsection shall include—

(A) limits on compensation that exclude incentives for executive officers of a financial institution to take unnecessary and excessive risks that threaten the value of the financial institution during the period that the Secretary holds an equity or debt position in the financial institution;

(B) a provision for the recovery by the financial institution of any bonus or incentive compensation paid to a senior executive officer based on statements of earnings, gains, or other criteria that are later proven to be materially inaccurate; and

(C) a prohibition on the financial institution making any golden parachute payment to its senior executive officer during the period that the Secretary holds an equity or debt position in the financial institution.

Here’s the drafting issue…

Subsection (b)(1) purports to take effect when “the Secretary receives a meaningful equity or debt position in the financial institution” (emphasis added). However, at every other mention of the Secretary’s equity or debt position omits “meaningful.”

Read literally, then, the provision’s requirements are triggered upon purchase of a meaningful stake but allows the requirements to stay in force as long as the Secretary holds any stake in the company. It does not seem so far-fetched that a Secretary bent on lowering executive compensation would use this as authority to make that happen at least at the group of companies in which he has a financial stake. It also does not seem so far-fetched that this is simply a first step to a broader effort at controlling executive compensation, as it’s frequently a tactic to attack big issues in piecemeal fashion. (Whether or not limiting executive compensation is a good thing is another debate, what we’re arguing is the potential effect of drafting in this Act.)

In practice, I suspect this will mean very little in the short-term. There is a sunset provision (albeit one that allows the Secretary to extend his authority under the Act – Section 120) that will likely lessen this Act’s long-term effects. There are several qualifications on which assets the provision applies to and it’s likely that any doubt would be clarified by the regulations promulgated by Treasury.

But the force of the rhetoric on this particular issue, given how complex the entire plan is, concerns me. Getting a foothold on an issue like this could be just what the doctor ordered for those chomping at the bit to cut into executive compensation.

Dr. Burton Sums it Up.

Dr. Bombay — Mon, 22 Sep 2008 13:47:10 +0000

In light of our discussion on political advertising and its truthfulness, I ran into this very timely article in Salon today by a Dr. Robert Burton, former head of medicine at Mt. Zion-UCSF Hospital and the author of “On Being Certain: Believing You Are Right Even When You’re Not.”

Dr. Burton succinctly makes the point that people are very bad at letting facts influence their decision making process. One of the better example that he gives is from a 1999 study completed at Cornell bleakly entitled “Unskilled and Unaware of It: How Difficulties in Recognizing One’s Own Incompetence Lead to Inflated Self-Assessments.” In that study, undergraduates were asked to rank their projected performance before taking excerpts from the LSAT (Boo.)
Not surprisingly, people tended to overestimate their performance. Most interesting perhaps was that those that did the worst predicted their performance was going to be the best. As a corollary, those that did the best tended to overestimate the performance of other, assuming that those at the bottom really understood what was going on. The quotes that Dr. Burton provides from that study should send shivers up the spine of all and singular:

“People who lack the knowledge or wisdom to perform well are often unaware of this fact. That is, the same incompetence that leads them to make wrong choices also deprives them of the savvy necessary to recognize competence, be it their own or anyone else’s.”

The question this suggests is if we – as a species – are prone to think we get it, is democracy and the process of making laws just a crap shoot? Do we just piss in the wind based on our perception of facts and sometimes get it right, and sometimes die in a hail of bullets? Is the faith that some among our loyal readers place in the American people, the misplaced optimism of the smart?

Kennedy v. Lousiana – Who needs a legislature, anyway?

BigShow — Thu, 26 Jun 2008 14:01:33 +0000

I know that Dr. Bombay is working on a piece about the Court’s ruling in the child rape death penalty case, Kennedy v. Louisiana, which you can read here, but I wanted to get out ahead of him before his communist propaganda saps and impurifies all of our precious bodily fluids. (Ed Note: bodily fluids reference.)

The Supreme Court in this case basically stated that five Justices of the Supreme Court are better at determining the will of the people of the United States than Congress and the state legislatures are. This is the kind of judicial activism that makes people disgusted with the judicial branch.

I have a real problem with the the legal arguments behind this opinion. Kennedy’s reasoning seems tautological – no one has been executed for these crimes in 40 years, and only six states have enacted child rape capital punishment laws. He uses these facts as a means of justifying the argument that society has decided child rape should not be punished by the death penalty. This is a ridiculous conclusion, given that it was the Court’s jurisprudence that was the reason behind the amount of time since the last execution, and the Court’s dicta in Coker v. Georgia, 433 U.S. 584 (1977) that suggested that the death penalty for any crime not involving the death of the victim would probably not pass constitution muster, made states hesitant to go through the long process of creating a child rape death penalty law – why go through the process if the Court will likely strike the laws down anyway?

Determining whether society’s morals have evolved on capital punishment is not a role for the Court. It certainly shouldn’t be a part of any Constitutional anaylsis framework. It’s a question for Congress and the state legislatures. The Supreme Court here substituted their own morality for the views of the American people. They have now made it effectively impossible to impose the death penalty for any cases that don’t involve the death of the victim. That is a decision that should have been made by the elected representatives of the people themselves, not the Court.

Why Is The Second Amendment Different Than The First?

Casebook Sherpa — Wed, 20 Feb 2008 11:10:13 +0000

Dr. Bombay is convinced that I’m going to walk in one day and, much to his delight, burn my Right Wing Conspiracy Membership Card in front of our Torts class. That’s not about to happen, but several beliefs of my conservative brethren do give me pause.

Since BigShow has joined in the fray here at Fight The Hypo and since the Supreme Court is in the middle of considering its first Second Amendment case in decades I thought I’d begin the painful process of revealing my drift from certain tenets of modern conservative orthodoxy (to the extent one can “confess” to something pseudonymously anyway).

Let me start with a gross generalization… why is it that the very people who support limits on First Amendment rights oppose limits on Second Amendment rights? It’s as if some say, “No, you can’t burn that flag, but here’s an AK-47 to protect yourself and, in the meantime, hunt some deer.”

Say what? Hopefully we’ll hear from our Second Amendment friends on this, but hear me out…

Can’t you make the same public order justification for limits on Second Amendment rights that you can make on First Amendment rights? If you argue that the Founders did not intend to protect child porn with the 1st amendment can you credibly argue that they did intend to protect ownership of a TEC-9 with the 2nd Amendment?

I’m a believer in the individual’s right to own a gun (as opposed to the view that the 2nd Amendment was intended simple to allow formation of militias). I enjoy hunting and sporting clay shooting. I simply have a problem doing what the NRA seems to ask of me: conflate the right of someone to own a gun with an absolute license for anyone to own any gun.

Why can’t we seem to find agreement on sensible regulations? Doesn’t it make sense to require registration? Can we agree that the law should presume someone with profound mental illness should not buy a gun at a state fair? Why should we not require trigger locks on guns kept in houses with children under 15 (or whatever age is reasonable)?

For some reason none of that “makes sense” in our current political climate. And despite the research and writing I’ve read to the contrary, I still have serious concerns with how easy it seems to be to purchase firearms. Call me the great skeptic (squishy moderate? cocktail conservative?), I guess.

More broadly than my tepidness on the issue, I think, is that the lack of any real movement on gun regulation has much to do with trust of gun control champions and commitment to what seems to be abstract notions of force.

Gun owners simply do not trust politicians when they say that we need sensible controls on gun ownership – particularly rural gun owners when they hear urban, northeast, liberal politicians say it. This mirrors how distrust erodes public discourse generally. On the issue of climate change, for instance, entire swaths of voters – on all sides – have suspended critical reasoning about the issue simply because Al Gore is championing his point of view so visibly and effectively.

The lack of trust is also related to this sense that the absolute right to gun ownership is necessary to counterbalance the monopoly on force held by the state. I get that and agree with it in principle. I’m not so naive to think that this country will always be a freedom and rule of law-valuing democracy. The trouble with this view, though, is that if we need guns to resist state power and tyranny (should it ever come to that), we’re gonna need rocket launchers, anti-tank mines, shoulder fired missiles, warehouses full of ammo…. As the government’s weapons get better, shouldn’t the citizen’s right to secure bigger, better arms expand accordingly? That doesn’t make sense to me.

So what do we do?