June 29, 2015

Courtly conclusions

The first line of Justice Scalia's dissenting opinion in Obergefell v. Hodges (gay marriage) sums up my thoughts about both "momentous" Supreme Court decisions last week: "The substance of today's decree is not of immense personal importance to me."

My libertarian instincts lead me likewise to shrug. As far as the state is concerned, marriage is a legal contract; what religions wish to make of it is up to them. In any case, almost all of the damage done to "marriage as an institution" comes from the misbehavior of the heterosexual majority.

On the other hand, Obamacare is about as far from a libertarian solution as can be imagined. But as George Will points out, conservatives are reaping what they sowed: "Their decades of populist praise of judicial deference to the political branches has borne this sour fruit."

And so Pournelle's "Iron Law of Bureaucracy" kicks in with a vengeance.

In any bureaucratic organization there will be two kinds of people: First, there will be those who are devoted to the goals of the organization. Second, there will be those dedicated to the organization itself. The Iron Law states that in every case the second group will gain and keep control of the organization.

As a sign of things to come, a third Supreme Court decision is eerily germane. In Horne v. Department of Agriculture, the Court struck down the insane actions of the National Raisin Reserve (a real government agency), that props up commodity prices by "seizing" (stealing) crops grown by farmers.

The Agricultural Marketing Agreement Act of 1937 authorizes the Secretary of Agriculture to promulgate "marketing orders" to help maintain stable markets for particular agricultural products. The marketing order for raisins requires growers in certain years to give a percentage of their crop to the Government, free of charge.

Farmers aren't exactly innocent lambs here. Thanks to equally stupid laws dating back to the same New Deal era, rent-seeking by all parties is rife within the agricultural economy.

Decade after decade, farm bills are debated and "reformed," an Orwellian term that means paying off the relevant constituencies (like Arizona cotton growers) and endlessly toying at the fringes, until things get so out of whack that the courts finally weigh in on the side of common sense (maybe).

It only takes three-quarters of a century. Or longer. Equally dreadful aspects of New Deal agricultural policy are merrily humming along (like paying farmers to grow cotton in the desert).

In other words, Obamacare isn't going anywhere anytime soon. Luckily for Obamacare opponents, health care isn't so arcane nobody cares about it, and the current implementation is hardly everybody's cup of tea. "Repeal and replace" is a dead letter, but there is currently an opening for commensense tweaking.

An obvious one is getting rid of employer-sponsored plans. Your employer doesn't dictate the terms of your auto or home insurance. Like FICA payments, a company's only responsibility should be depositing withholdings in the right bucket. That alone would eliminate religious objections to mandated coverage.

The one legislative error underlying all others is trying to do too much at once (fearing the chance won't come around again), and ending up writing laws so complex and opaque that they have to "pass it to find out how it works." Did Nancy Pelosi know she was paraphrasing a political cartoon from 1947?

Opponents to Obamacare and gay marriage shouldn't make the same mistake. Mark Shields is exactly right that the Supreme Court has done the Republicans candidates "an enormous political favor." Democrats now fully own Obamacare, while establishment Republicans have been shooting blanks on alternatives.

And when it comes to gay marriage, Republicans are demonstrating themselves to be empty of actual political principles. They're the ones who federalized marriage in the first place. Remember DOMA? That was back when everybody was gung-ho in favor of "traditional marriage."

At this point, Republican candidates risk self-destructing in order to garner a few primary wins. The best thing they could do for the cause is shut up about it until after November 2016.

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# posted by Anonymous Dan
6/30/2015 7:45 AM   
I agree with Scalia and his scathing dissents in both cases shows that partisanship and dysfunction pervades the court, just as it pervades congress. There are many flaws with the Supreme Court and with the federal court system in general. One is it takes far too long for cases to be resolved. If the courts are still working today to address the constitutional overreach of the New Deal I suppose in the year 2100 it might still be addressing ObamaCare. A second flaw is the court is schizophrenic on what its purpose is. On the notable cases it is seen as the magnificent court, making grand pronouncements of the discovery of new human rights or giving its blessing to major legislation despite the visible legal contradictions of such law. On less notable cases it is issuing very tight, limited judgments on discrepancies in the law and acting in a very reserved, technical manner. When the court acts grand it does so coarsely and thus introduces a myriad of new conflicts in society (as we will see with SSM). When the court acts with small technical correction the core of the matter is not addressed and continues to simmer, year after year after year (such is the case with the EPA and other bureaucratic regulations).

Of course it is naive to expect such a large government to not be complex and unwieldy. So there will never be a perfect system. But if I could have my wish it would that the Supreme Court would be exacting in its review of legislative actions and reserved in its response to civil rights claims. In other words, I would like a Supreme Court that is the opposite of what it is today! As the Federal courts exist now progressiveness is cooked into the system. For all it takes to discover a new civil right is for a single federal court to say it exists. Once that happens it becomes nigh impossible to put the “genie” back into the bottle. Ideally such progressiveness would be moderated by requiring the courts to follow the constitution as it is written, not as they wish it could be imagined. But such thinking is naïve. One cannot expect the patient to heal himself!

The only remedy to judicial overreach is for states and legislatures to step up and reclaim their power. Unfortunately this does not happen because legislatures tend to be occupied by selfish, short-sighted people who have no interest in long term strategies – and fixing the courts would be a long-term project. It also does not happen because the political parties are beholden to the dysfunctional system and they value being able to blame the courts rather than themselves for whatever injustice is in the world.
# posted by Blogger Joe
7/01/2015 8:26 AM   
One problem in your thesis, Dan, is that rights are a defacto given and the real question is whether there is governmental authority to restrict or obviate those rights. In this, Madison was quite wrong (he originally opposed the Bill of Rights, which is surprising given how cynical he was about power.)

Interestingly, from Wikipedia; "[a]nother delegate, James Wilson of Pennsylvania, later argued that the act of enumerating the rights of the people would have been dangerous, because it would imply that rights not explicitly mentioned did not exist; Hamilton echoed this point in Federalist No. 84."
# posted by Anonymous Dan
7/02/2015 6:40 AM   
The claim that the Bill of Rights is unnecessary or counter-productive is a myth. I understand that this argument was made back when the Constitution was debated. But this point was based on a naive or erroneous understanding of how the Federal government would evolve. The idealistic plan for the Federal government (ie Hamilton) was that of a strong administrative state that centralized government management while delegating to states the management of the people. In such a philosophy there was no need for the Federal government to be concerned with the rights of the people as the Federal government was not involved in governing people. The flaw in Hamilton's model is it presumes such an administrative state will be self-limiting. The people did not believe it would be and history shows they were right.

James Madison evolved from a Hamiltonian idealist to a Jeffersonian disciple because he came to realize that Hamilton’s government was just more of the same – the same assembly of politically opportunist men (and eventually women). In Federalist 10 Madison argues a large, strong Republic can lessen the influence of dangerous factions. But this presumes the Republic is led by statesmen. Yet there was no guarantee this would be the case and, of course, it was only a matter of time before political parties and factions took their place in the Federal government. Federalist 10 and the Federalist argument in general failed to address the political environment as it would really become. The people, spurred by the anti-Federalists, saw through the ivory tower thinking and demanded explicit protections.

On this this anti-Federalists were right. For how did the Federalists respond to the political challenge? By restricting the rights of the people! By the Alien and Sedition acts John Adams and the Federalists showed their duplicity. For 1st amendment or not the Federalists were clearly interested in managing the citizenry and regulating their affairs. Of course 200 some years hence we can see the same government attitude. It is only because of the explicit guarantees in the Bill of Rights that the people have a chance to secure their rights and even then the government has shown it often does not take those rights seriously.
# posted by Anonymous Dan
7/02/2015 6:41 AM   
As for SSM the 1st amendment allows it. In fact the 1st amendment allows any consenting adults to conceive of any marriage relationship they want and to memorialize it with ceremony. Want to marry a space alien? The 1st amendment says you can. So the real question being debated is this: What marriages must government recognize?

This is where we see the Supreme Court being skitzo and inefficient. For if the court was principled, it would have long ago identified the principles by which this question is answered. But no. Instead we have this evolutionary process of the court first nullifying sodomy laws, then the court nullifying DOMA and then finally the court saying “We found it! The Constitution actually says same-sex marriage is a civil right!” Please, can we all agree this process is nonsensical? At a minimum it is stupid that the court dances around the question that matters as if no one sees the elephant in the room. Sure, the court can do this but don’t then try to pretend there is any fundamental basis for the conclusions it draws. For what fundamental change has there been in the Constitution to allow such a new fundamental conclusion?

There are fundamentally correct decisions the court could have made. It could have affirmed that the Federal Government (and Federal courts) does not have the authority to define marriage (ie DOMA). It could have affirmed that a marriage performed in one state must be recognized by every state. And if the Supreme Court had done this then Voila! The problem is all but solved. For this would have allowed gays to marry and to have their marriages deemed legal. Over time more and more states may have joined in allowing the legal performance of gay marriage but in the meantime every state would have been required to recognize a person’s claim to marriage, if that marriage had been performed legally in some other state.

Of course the Supreme Court may have opted to affirm states rights and proclaim that states actually have the autonomy to decide what marriages they recognize. States already do this with gun laws and, of course, with many other laws. This would have presented a consistent application of Constitutional law. But who are we kidding? The Supreme Court is just another assembly of political men and women and as opportunists, any decision they want to make can be rationalized and justified, as needed, reversed.
# posted by Blogger Joe
7/02/2015 4:11 PM   
I don't disagree that the decision was a muddle mess. I was simply protesting the notion that a right was invented.

At a deeper level, the problem is that once government attached very real benefits to marriage and penalties to those not married, they lost the constitutional ability to not recognize SSM (and polygamy.) This is the danger of entangling your religious beliefs with government.

As a side effect, there is the worry that this ruling will mean that a church which doesn't perform same sex marriages, will lose their tax exempt status. And they should! If you stick your hand out to government, don't be surprised if it gets chopped off. This is a HUGE mistake religious conservatives are constantly making (liberals make it, like with Title IX, but generally don't mind the consequences for now.) Look no further than Civil Forfeiture, mostly made possible by the "Comprehensive Crime Control Act of 1984", a law Reagon signed and which was lauded by many conservatives as a great weapon in the "War on Drugs".

(Of course, my view is that the difference between most Democrats and Republicans is what the government should be controlling, not whether they should be controlling things. In this, I think the left/right political paradigm is inadequate. While similar to the Federalist/Anti-Federalist argument, it goes well beyond it since the states have followed the lead of the federal government in taking what power they can. It's become statists vs anti-statists. Alas, the latter will lose.)