DOMA and the role of the Executive in Legal Interpretation

Recently, the Justice Department decided that it would not support certain provisions of the Defense of Marriage Act (DOMA) in court.  This is an interesting decision on Holder’s part, especially given the reasoning behind it.

As a quick Constitutional primer, the legal issue at hand is whether DOMA provisions violate the Equal Protection clause of the 14th Amendment to the Constitution (“no state shall … deny to any person within its jurisdiction the equal protection of the laws”).  This amendment was enacted in the aftermath of the Civil War as part of Reconstruction in an effort to ensure that newly-freed slaves would receive equal treatment from the states.

Laws can be reviewed by courts to determine whether they violate the 14th amendment’s requirement of equal protection.  Courts will review these laws under judicially-created standards which determine how thoroughly the court will examine the law.  The Supreme Court’s jurisprudence in this area has evolved over the years to include three standards of review: rational basis, intermediate scrutiny, and strict scrutiny.  The standard used depends upon the class of people allegedly discriminated against.  If they are a protected class, the law must pass strict scrutiny, if not generally the government must only pass the rational basis test (intermediate scrutiny is mostly used for gender cases).

Anyways, Justice conducted a legal review of DOMA and decided that GLBTers should qualify as a protected class, thus subjecting DOMA to strict scrutiny.  This is interesting for numerous reasons.

First, Justice’s letter explaining their decision claims that no precedent exists for classifying GLBT citizens under the Equal Protection clause.  This is technically true, the Supreme Court has not directly stated whether GLBTers are protected or not.  However, the Supreme Court has ruled on an Equal Protection case, Romer v Evans, involving a law discriminating against GLBTers.  In this case, a divided (and decidedly more liberal) Supreme Court invalidated the law using rational basis review.  So why does Justice think that GLBTers deserve protected status?

Because, as Holder notes in the letter, GLBTers meet many of the criteria articulated by the Court as factors in determining whether a class is protected.  And, it is common practice in the judiciary to rule as narrowly as possible, and since the ruling in Romer (and the infamous Lawrence v Texas) determined that those laws did not survive rational basis,  it was unneccesary for the Court to decide whether GLBTs are a protected class.

I think Justice has a reasonable legal argument that these provisions of DOMA are unconstitutional, but that’s not what I want to talk about.  I want to explore the role of the Executive branch of government in our federal system, and think about this decision in light of that.

Interpreting our nation’s laws is traditionally the function of our Judicial branch.  Of course, this is much too simplistic.  The Executive branch interprets the meaning of laws on a regular basis.  However, their interpretations are not binding in any legal sense.  Thus, when say, the EPA makes a rule on carbon emissions, they need to interpret the law authorizing them to do so.  This interpretation can be overturned by a court, but it still must be made.

In this context, Justice has a general obligation to defend the nation’s laws in court.  However, this obligation clearly should not extend to unconstitutional laws.  However, who determines when a law is unconstitutional? The Supreme Court.  Until they rule, it is  uncertain whether a law is constitutional or not (Congress generally doesn’t enact laws that are CLEARLY unconstitutional), which is the reason we have the judicial review process.

So, is it ok for Justice to decline to defend duly enacted laws which are of questionable constitutional validity?  I am genuinely conflicted about this question, so let me just lay out some points and then open it up.

In Favor:

• If Justice believes the law is unconstitutional, they might not be as effective advocating on its behalf. Shouldn’t other groups who believe in the law be allowed to defend it?
• If Justice thinks the law is unconstitutional, they should not defend it, since the constitution trumps legislation

Opposed:

• Separation of powers, this is the courts’ job.  Justice needs to defend the law until the court says otherwise.
• Democratic concerns, this law was enacted by a democratically-elected legislature, now Justice is deciding not to defend it.

There are many other points in favor of either side, but my brain hurts so I’m stopping here.  One additional thought experiment: Would your opinion change if the situation was President Palin’s Justice Department declining to defend the individual mandate in the recent health care bill?

Semantics

Ever feel like you are in an argument with someone and its like you’re not speaking the same language?

Maybe you aren’t.

For example, I recently heard a claim that is making the rounds on the internet :

40% of your happiness you can control,  10% is your environment, and 50% is genetic.

This is from psychology professor Sonja Lyubomirsky, and I assume has been reduced to this level of simplicity because she has a book to sell.

Leaving aside the question of whether genetic influences are as static as is implied by this quote (I doubt it), my reaction to this claim was one of skepticism, to say the least.  I thought it extremely unlikely that psychology has advanced to the point at which a statement like this could be made with any sort of certainty whatsoever.

After all, this statement implies that happiness has been defined precisely enough to quantitatively measure it.  A little digging led me to the measurement scale (Lyubomirsky Subjective Happiness Scale) that was used to generate the data leading to this conclusion.

Well now.

All of a sudden the word “subjective” has reared its ugly head.  So really we are talking about how happy you think you are compared with other people.  Which I’m sure is measuring something, but not something that I would summarize neatly as happiness.  It’s quite possible that your subjective happiness has a lot more to do with how perceptive you are about others, or what sorts of people you come into contact with on a daily basis.

The point is, semantics matter.  We can talk until we are blue in the face, but sometimes assumptions and personal perspectives can be embedded inside of a single word or grammatical structure.  This is why every technical field has developed jargon to encourage specificity in technical language.

So, if you find yourself struggling to understand someone who thinks they are stating the obvious truth, or vice versa, start focusing on semantics.  A lot can be hidden or revealed with a simple choice of words.

A Culture of High Health Care Costs

Note:  It’s been a busy week, so I’ve been slacking a little on the posts, but I promise this marks the start of a glorious return.

 

“The ordinary man looks outward” – Chinese proverb

To state that our health care system is broken has become a truism these days, with sage nods or murmured assent inevitably chasing fast on the heels of this remark.  But, when discussion turns to what, precisely, is the root of the problem, one is usually treated to partisan ranting about some hated group.  BIG GOVERNMENT! and GREEDY INSURANCE COMPANIES! are the most frequent targets, although those who want to be iconoclasts could probably manage to spread some blame to doctors or hospitals.

So, for variety, I’m going to blame myself.  Specifically, I blame the emotional responses that I have with respect to health care.

1. I feel that I should always have access to health care, especially emergency care.
2. I don’t want to pay for health care.
3. I don’t think that my personal choices should greatly impact my access to health care.
4. I want the very best treatment available, regardless of cost.
5. I want to be able to have choice/control over my treatment.

Now, obviously, these are illogical, nonsensical reactions that preclude my satisfaction with any system, but I think that stems from one simpler problem:

I don’t make any distinctions between different health care services.

Some of my attitudes may be more appropriately applied to (and more closely linked in my mind) for public health services like vaccinations (should be free, should have access).  Some of them might be appropriate for injuries like broken bones or gunshot wounds (should have access, best treatment available), or for consultations in the doctor’s office (choice where I get treatment).  But the inability to make any kind of distinction between different kinds of care has led to expectations that cannot possibly be fulfilled.

My newfound self-awareness, as gratifying as it is, doesn’t really solve anything, but I think it contains the seed of something useful.  Our attitudes about health care may have made sense when there was a limited array of health services, but the explosion of the health care industry has made our cultural attitudes outdated.  These attitudes haven’t changed because we are sheltered from health care; it is all behind the curtain.

In my opinion, we need to start making distinctions between different types of health care services, or we will never find a system that satisfies anyone, much less a majority.

A couple examples:

• The benefits of most public health services are so overwhelming that its hard to argue they shouldn’t be both free and ubiquitous, but many of them are still not being delivered to populations in need because of arguments about health care as a whole.
• We are currently guaranteed access to the poorly defined category of emergency care.  This is not compatible with the rest of our system.  We need to more strictly define emergency care or expand access to other types of care for this to make any sense whatsoever.

We can continue to ask for a health care system that costs nothing while delivering us everything, but the reality is that it is already costing plenty, and the health care industry will be glad to continue reaping very healthy profits from taxpayers while we argue about “health care”.

It’s true that a health care system has to function as a whole, but if that’s ever going to happen, we need to start by breaking it up into its parts.

 

PS – I have the statistics, so I know that there are actually some people out there reading this, and I’d really appreciate your comments.  These are not meant to be essays, they are meant to be thought-provoking, so please share some thoughts.

Let’s ALL Freak Out

The ongoing crisis in Wisconsin is finally receiving some national media attention, and the debate over the federal budget (at least discretionary spending), is also heating up.

An opinion piece in the Wall Street Journal by Kimberley Strassel comments on the situation in Congress:

“Chaos,” “a headache,” “turmoil,” “craziness,” “confused,” “wild,” “uncontrolled” are just a few of the words the Washington press corps has used to describe the ensuing late-night debates. There’s a far better word for what happened: democracy. It has been eons since the nation’s elected representatives have had to study harder, debate with such earnestness, or commit themselves so publicly. Yes, it is messy. Yes, it is unpredictable. But as this Presidents Day approaches, it’s a fabulous thing to behold.

I concur.  I think that the relative prosperity of previous decades created a culture where we’ve been sweeping our problems and our divisions under the rug.  We had become content with politicians who issued the requisite sound bites and put off until tomorrow all the difficult choices, all the inconvenient disagreements.

I think its been very easy to isolate ourselves ideologically and pretend that we have all the answers, that it is the other side who refuses to see the obvious truths about good governance, but actual implementation of ideas is very different from generating them in a think-tank full of people who share your worldview.

So I, for one, am encouraged by these events which will force us to engage each other and possibly see more than our own ideology.  The question that remains, though, is how we will approach this discussion.  Will it be a productive meeting of the minds, where we actually listen to and learn from each other, or will we merely shout back and forth?

I have a simple suggestion.

Find someone who you respect, someone you love, even, who has different political views than you.  Discuss, argue, storm off, research, repeat.  Force yourself to consider their point of view.  It doesn’t mean you will ever agree, but you will learn a lot, at least enough to question some of the political rhetoric that you hear.

For those of you out there who are apathetic about politics (and who are highly unlikely to be reading this), shit is about to get real, so if you want to have any control over the significant changes that will affect your life, now would be a good time to tune in.

 

 

The Problem With Retirement

If you think about it, retirement is a pretty odd idea.  In terms of evolutionary history, its a complete aberration that any organism would have such astounding success that it would be able to cease its normal activities due to advanced age.  Even for humans, this is a relatively new concept.  It is no surprise, then, that we aren’t particularly good at it.

Poverty in the elderly population was a significant problem in the early 20th century, despite a significantly shorter average life span.  The savings strategy essentially consisted of having enough kids to ensure you were taken care of, perhaps along with some limited support from social groups.  Relying on family members or friends in tough times tends to exacerbate the ups and downs of business cycles, and even though families and social/religious institutions were arguably much stronger at this time, a significant number of people fell through the cracks.  Many people are simply not future-oriented enough to adequately plan for retirement, regardless of income.

The introduction of Social Security and pensions as social insurance programs for the elderly went a long way toward ameliorating this problem.  The beauty of the idea is that no one has to save, and the program acts as an automatic buffer against the whipsaw of the business cycle.  The elderly are provided with a reliable income that they are going to spend rather than save, which helps maintain demand.  Unfortunately, the drawbacks of this approach are now becoming clear.  Private companies and the government any better at planning for the future than individuals tend to be, and nothing was done to forestall the coming demographic crisis.  Simple mathematics dictates that the program will not be able to continue in its present form.  There will be too many retirees for workers to support.  Essentially, this type of program creates a longer, but more drastic, boom-bust cycle.  I think it also reduces incentives for individuals to save and conditions us culturally to be less concerned about saving.

Companies have shifted to 401ks, with contribution-matching that encourages saving, but many people do not take advantage of these programs.

Then there is the additional concern of having an appropriate risk/return profile.  To greatly simplify, the risk of investments should decline as retirement approaches.  Early investments can be riskier (and therefore more lucrative, on average) because there is still time for the investments to recover, or to alter savings levels.  Viewed this way, Social Security is probably not providing the type of returns that would be available to an intelligent investor.  At the same time, many people with 401ks carry much more risk than is advisable, and they can lose much of that money if the stock market dips before their retirement.

So, individuals and institutions (which, after all, are composed of individuals) both struggle to save enough to adequately fund retirement, and current programs do not always reflect an appropriate risk/return ratio.  So, what is to be done?  A few ideas…with the overall objective to make any changes to the system as gradual as possible, allowing people to adjust their expectations and their planning.

1. Gently encourage saving by individuals.  Shifting the tax burden from income and savings to consumption could help reduce the problem by creating an incentive to drive up savings rates.
2. Gradually convert Social Security to a welfare program.  That’s what it is essentially designed for, and you don’t need a sledgehammer to hang a painting.  The program should be strenuously means-tested, and provide a minimal level of comfort so as to reduce the incentive to take advantage of it (also a goal of 3.).
3. Convert the current payroll tax to a savings matching program.  If you don’t save, you are taxed, but otherwise it is used to match your contribution.  (Note:  I suppose there is some question now of whether this is constitutional, as it would technically be punishing non-activity, but really the intended purpose is to raise money for 2. from the people who would be using it, so I think it passes muster.)
4. By means of tax incentives, encourage the use of retirement funds to purchase an annuity or similar financial mechanism for reducing risk as retirement approaches (for example, use of retirement funds to purchase an annuity would not be penalized after age 50, while other withdrawals from the fund would be taxed at some minimal rate, 10-15%).

So what might this look like in practice?

If you are a future-oriented individual, you would have the freedom to invest as you desire, and the government would “match” (by reducing your payroll tax) your contributions.  You would hopefully have adequate funds to retire, and you would be encouraged to use that money to purchase an annuity that would help you live comfortably in retirement.

If you are a poor planner, you would be taxed over the course of your life and would be provided a minimal level of support when you choose to retire.

Certainly not a perfect solution, but I think it helps to blend the strengths and weaknesses of different approaches to reducing poverty among the elderly.

Let me know what you think.

 

 

Day Three

I just got back from the capitol building and the scene there is growing more and more intense. All four floors open to the public are packed full of protesters wielding signs and petitions, some with small children who would have likely been at school today if their teachers were not joining them at the capitol.

Most of the signs have been kosher, but there is a scattering of Hitler or Mubarak references.  I’m all for taking inspiration from the events in Egypt, but comparisons of Walker to Mubarak (and obviously to Hitler) cross the line and do more to distract from the message than anything else. I was happy to see them far outnumbered by Star Wars references.

The fireman’s union has been making the rounds in a show of support (they are exempt from Walker’s proposal), and they are very popular with the other protesters. Shouts of thanks and teary eyes follow them around wherever they march.

Around noon, the Senate Democrats left the capitol to break quorum and prevent a vote on the proposal.  They are rumored to have left the state and are being sought after by state police**.  On rumors that there is still a Democratic senator left somewhere in the state, protesters have begun to stage sit-ins blocking the doorways to prevent him or her from entering the building.  I wonder how long before the fireman’s union gets on that for safety violations? Also rumors that the GOP wants to break for lunch, but the police will not escort them outside the building. I wager that if this is true, it’s because of logistical concerns and not a part of the protest.

All in all, it’s a crazy show at the capitol. I’m not exactly sure what happens if the Senate Democrats can’t be found. Presumably they’ll have come back eventually to vote on the bill, it’s just a matter of convincing one or two of the GOP senators to switch their vote.  In the meantime, Assembly Democrats are in the building and will be debating the GOP on the bill.  The GOP has the assembly pretty well locked up with 60 members to the Democrat’s 38.

More updates to come.

-KB-

**Edit: Confirmed the Police are NOT looking for the Democrats as of 2:45pm today.

The Saga Continues, or ‘Hands Off Our Teachers’

This got big fast. As I write this post there are protesters bedding down for their second night’s sleep in Wisconsin’s state capitol in response to Governor Walker’s budget proposal. Yesterday there was an estimated 13,000 protesters outside the capitol, and today there were another 10,000. Madison public schools did not hold class today after almost 40% of the teachers called in sick, and school has been canceled tomorrow as well in anticipation of more teacher absences. The protests have begun to receive national attention, and even President Obama commented briefly.

On campus, the Teaching Assistants Association is planning a “Teach Out” for tomorrow, and many undergrads are planning on joining them, despite calls by the administration to continue classes as usual. The Associated Students of Madison (the student government here at UW) has voted to endorse the walkout in support of the TAs, faculty, and staff, and the Badger Herald editorial board has commended them for it.

In response to ASM’s vote in support of the TAs, some have questioned their involvement in a political issue that students are likely divided on.  The UW chapter of the college republicans even used up their one allowed use of the university wide listserv to issue a response.

Needless to say, the situation here in Madison is tense but exciting. What will come out of all this? Since the GOP control both the state assembly and senate, and they have the votes they need from their caucus, Walker’s plan will likely pass. This is obviously bad news for public employees. Not only are they taking what amounts to be a 10% cut in compensation (and as I mentioned in a previous post, they are not overcompensated relative to private employees), but they lose their collective bargaining rights.

This will affect students at UW in a number of ways. Our TAs benefit enormously from the strength of the TAA and their collective bargaining actions. Benefits like tuition remission, increased wages, and rules about the workload that professors can assign to their TAs, all gained through collective bargaining, ensure that our TAs are adequately compensated for their work. Good compensation for TAs encourages quality TAs; and in a tier one research school, quality TAs are essential to a good undergraduate education.

While it’s unclear to me whether public employee unions are a net positive for the state (see Matt’s previous post on unions), it is pretty clear that they are good for the university. And while it’s difficult to net out the big picture economic costs of changes made to the collective bargaining rights of the TAs, a state facing serious ‘brain drain’ problems with a capitol city largely dependent on the university would be well served to look in other directions while making budget cuts.

-KB-

The Problem with Targeting Public Workers

Hi there!  I’d like to echo the welcome extended by Matt in his first post. I hope you find this blog to be a place to enjoy and contribute to lively discussion. Now on to the content!

As TJ mentioned in his previous post, Wisconsin Gov. Scott Walker’s plan to repair the state budget includes some highly contentious provisions.  The most obvious of which are the strict limits to be placed on public worker’s collective bargaining rights and requiring them to increase their contributions to their health care premiums and other fringe benefits.

One of the most popular justifications for targeting Wisconsin public employees is the idea that they are overcompensated relative to workers in the private sector. Most of this comes from the fact that Wisconsin’s public employees enjoy better fringe benefits than privately employed individuals. For example, they contribute, on average, around 6% of the premium costs for their health care plans. Nationally, private workers typically contribute around 21-32%. Supporters of Gov. Walker’s budget repair bill claim that this plan will merely ask public workers to contribute at a rate more in line with that of private workers.  While this claim is true on its face, the full picture is, as usual, less clear.

Public employees in Wisconsin do have better benefits packages than private employees, but their wages are often much lower. According to a recent study done the Economic Policy Institute, an individual holding a bachelor’s degree will earn an average annual wage of $65,302 in the private sector while only earning $47,174 in the public sector, a 28% difference. These are raw data that do not adjust for many variables. However, after adjusting for hours worked, years of experience, gender, and a host of other variables, the difference in annual wages between the public and private sector remains at 14.2%.  Even after adding in the benefits packages for both groups total annual compensation is 8.2% less for public employees, and hourly compensation is 4.8% less.

So we see that contrary to the conservative narrative, Wisconsin public employees are not living large at the expense of the taxpayer. Their expanded benefits packages are mostly a trade off for lower wages.  There are, of course, larger issues at play here.  You no doubt noticed I avoided entirely the proposed limits on collective bargaining in this post, a major contention among many public employees to be sure.  And the fact remains that Wisconsin’s budget is in poor shape. It may be that regardless of the level of public worker’s total compensation relative to their private counterparts, the state simply cannot afford to pay them.  However, rather than playing political football with hardworking individuals and the families (and businesses) that depend on them, it might behoove Gov. Walker at least leave some other options on the table. His pledge to not raise taxes at all comes to mind, especially if the situation really is as dire as he claims it to be.

-KB-

 

The role of unions in a fast-paced, global economy

Since tj made such a nice current events contribution on what is essentially a labor dispute in Wisconsin, I think its an appropriate time to have a discussion about unionization and its effects.

It seems likely that some degree of organization of labor groups has been occurring for as long as there have been laborers.  This reflects a simple economic truth; although most enterprises depend on a partnership between sources of labor and capital, the capital source frequently enjoys a disproportionate share of the power because of both the scarcity of capital and the likely cohesion of capital partners (note that even in a publicly traded company, the shareholders are represented by a relatively small board who frequently share past experiences and goals).  The cohesion of capital partners is, in fact, a necessary precondition for employing workers, so they have a head start, so to speak.  Laborers, on the other hand, usually consist of a large and diverse group of individuals whose bargaining power is reduced by a lack of knowledge and infighting within the group.

So, how to resolve this problem?  Communism!  The rise of the working class!  But, as it turns out, no matter what you call them, a small group still tends to end up with the capital, and goshdarnit if they don’t seem to act a lot like the people they replaced.

Which leaves unions.

Unions organize laborers into cohesive bargaining units to level the playing field and create an infrastructure to negotiate and fight for the interest of the workers.  Wrangling with the sources of capital on behalf of workers is their raison d’etre. In the era of large, dominant, stable corporations, this was a successful strategy.  Unions improved wages and benefits for workers in many diverse industries.  Companies may have groused about unions driving a hard bargain, but there was enough of the pie to go around.

These days, pie is in short supply.  Globalization and increased competition has made it difficult for even large companies to keep up, and the extensive negotiation and lack of flexibility in planning that come with unionization can be a tremendous disadvantage (Big Three).

One solution to this issue would be global-scale unionization.  However, cultural, geographic, and linguistic factors make this scenario rather unlikely, which leaves many unions trying to cut their share out of the shriveled remains of once-competitive organizations.  (The public sector has not borne the full brunt of global competition, since many government services are not as easily outsourced, but at a macro-scale, there is still a need to compete with other nations/states/localities for residents and businesses).

A more challenging solution is to alter the nature of unions.  The strictly adversarial relationships many unions have with employers are draining both of the resources they need for mutual success.  A new emphasis on providing value and aligning with the strategic goals of the organization might have the dual benefits of increasing the bargaining power of unions and ensuring that there is something left to bargain over.  A focus on creating real, measurable value is one way that unions might continue to help workers earn the wages they deserve.

Lest I run away with empty platitudes, let’s consider the case of teacher’s unions  (Disclaimer:  This is not an attack on teachers.  I like teachers.  They taught me things.  As well as they could, considering…).  My (perhaps incorrect) perception of teachers’ unions is that they will protect the interests of union members at all costs, shielding them from being laid off or losing benefits, and protecting the tenure system.  But what if the true interests of the group could be served by helping to weed out or reform under-performers?  By putting peer pressure on members to continually improve their work, and then measuring those improvements?  What if teachers’ unions were on the forefront of school reform?  Starting pilot programs and partnering with outside groups to try and reach measurable goals?  Introducing rigorous peer review programs to help reduce the need for the dreaded standardized test?

Consider the example of physicians.  A few short centuries ago, doctors had no flipping clue what they were doing.  They prescribed toxic substances, drained blood, and all other sorts of truly silly things.  The voluntary adoption of professional standards and scientific methods helped increase their cultural authority (and actual efficacy!) and thus their bargaining power with patients.  Today they enjoy as much prestige as any profession.

It’s not easy to shift a culture, or to focus on the long-term at the expense of the short-term, but unions might be able to improve both their image and their results by adapting their role to reflect the realities of the environment.

Waiting for the “oops”…

Wisconsin Governor Scott Walker has had a string of ambitious announcements recently.  News of his decision to remove most collective bargaining rights for most state employees has seen considerable opposition in Madison over the last few days.  Thousands of students, union members, and others have filled the Capital building to show their disagreement with Walker’s solution to the budget deficit.  Tuesday night, there are even plans for the “protesters” to run a citizen filibuster and “sleep in” the capital to delay the vote on the budget bill.

Aside from the budget bill and it’s reaction, Scott Walker has another “oops” moment that should make the news tomorrow.  Governor Walker announced today that he plans to deliver his budget plan to the state from a local livestock feed manufacturing facility.  The media initially reported about how this breaks years of precedent (Governors have traditionally given the address at the capital), but what is even more interesting is that it might also break the law.

According to a letter responding to a request by WI State Assembly Rep. Grigsby, the Governor is required by law to hold the address at the “seat of government”, which is defined by law to be the State Capital.  As the letter states, only under  ”extraordinary occasions” (e.g. being invaded, disease pandemic, etc.) may the legislature convene outside the capital.

Looks like Walker might want to start taking his time to think things through before he continues to make rash decisions like he’s been making lately.