If You’re Already Eligible, Your Benefits Are Safe

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I’m always hearing fearful whines from several left-of-center retirees in my circle of my acquaintances: they say the GOP wants to cut their Social Security and Medicare benefits. That expression of angst was reprised as a talking point just before the midterm election, and some of these people actually believe it. Now, I’m as big a critic of these entitlement programs as anyone. They are in very poor financial shape and in dire need of reform. However, I know of no proposal for broad reductions in Social Security and Medicare benefits for now-eligible retirees. In fact, thus far President Trump has refused to consider substantive changes to these programs. And let’s not forget: it was President Obama who signed into law the budget agreement that ended spousal benefits for “file and suspend” Social Security claimants.

Both Social Security (SS) and Medicare are technically insolvent and reform of some kind should happen sooner rather than later. It does not matter that their respective trust funds still have positive balances — balances that the federal government owes to these programs. The trust fund balances are declining, and every dollar of decline is a dollar the government pays back to the programs with new borrowing! So the trust funds should give no comfort to anyone concerned with the health of either of these programs or federal finances.

Members of both houses of Congress have proposed steps to shore up SS and Medicare. A number of the bills are summarized and linked here. The range of policy changes put forward can be divided into several categories: tax hikes, deferred benefit cuts, and other, creative reforms. Future retirees will face lower benefits under many of these plans, but benefit cuts for current retirees are not on the table, except perhaps for expedient victims at high income levels.

There is some overlap in the kinds of proposals put forward by the two parties. One bipartisan proposal in 2016 called for reduced benefits for newly-eligible retired workers starting in 2022, among a number of other steps. Republicans have proposed other types of deferred benefit cuts. These include increasing the age of full eligibility for individuals reaching initial (and partial) eligibility in some future year. Generally, if these kinds of changes were to become law now, they would have their first effects on workers now in their mid-to-late fifties.

Another provision would switch the basis of the cost-of-living adjustment (COLA) to an index that more accurately reflects how consumers shift their purchases in response to price changes (see the last link). The COLA change would cause a small reduction in the annual adjustment for a typical retiree, but that is not a future benefit reduction: it is a reduction in the size of an annual benefit increase. However, one Republican proposal would eliminate the COLA entirely for high-income beneficiaries (see the last link) beginning in several years. A few other proposals, including the bipartisan one linked above, would switch to an index that would yield slightly more generous COLAs.

Democrats have favored increased payroll taxes on current high earners and higher taxes on the benefits of wealthy retirees. Republicans, on the other hand, seem more willing to entertain creative reforms. For example, one recent bill would have allowed eligible new parents to take benefits during a period of leave after childbirth, with a corresponding reduction in their retirement benefits (in present value terms) via increases in their retirement eligibility ages. That would have almost no impact on long-term solvency, however. Another proposal would have allowed retirees a choice to take a portion of any deferred retirement credits (for declining immediate benefits) as a lump sum. According to government actuaries, the structure of that plan had little impact on the system’s insolvency, but there are ways to present workers with attractive tradeoffs between immediate cash balances and future benefits that would reduce insolvency.

The important point is that enhanced choice can be in the best interests of both future retirees and long-term solvency. That might include private account balances with self-directed investment of contributions or a voluntary conversion to a defined contribution system, rather than the defined benefits we have now. The change to defined contributions appears to have worked well in Sweden, for example. And thus far, Republicans seem more amenable to these creative alternatives than Democrats.

As for Medicare, the only truth to the contention that the GOP, or anyone else, has designs on reducing the benefits of current retirees is confined the to the possibility of trimming benefits for the wealthy. The thrust of every proposal of which I am aware is for programmatic changes for future beneficiaries. This snippet from the Administration’s 2018 budget proposal is indicative:

Traditional fee-for-service Medicare would always be an option available to current seniors, those near retirement, and future generations of beneficiaries. Fee-for-service Medicare, along with private plans providing the same level of health coverage, would compete for seniors’ business, just as Medicare Advantage does today. The new program, however, would also adopt the competitive structure of Medicare Part D, the prescription drug benefit program, to deliver savings for seniors in the form of lower monthly premium costs.”

There was a bogus claim last year that pay-as-you-go (Paygo) rules would force large reductions in Medicare spending, but Medicare is subject to cuts affecting only 4% of the budgeted amounts under the Paygo rules, and Congress waived the rules in any case. Privatization of Medicare has provoked shrieks from certain quarters, but that is merely the expansion of Medicare Advantage, which has been wildly popular among retirees.

Both Social Security and Medicare are in desperate need of reform, and while rethinking the fundamental structures of these programs is advisable, the immediate solutions offered tend toward reduced benefits for future retirees, later eligibility ages,  and higher payroll taxes from current workers. The benefits of currently eligible retirees are generally “grandfathered” under these proposals, the exception being certain changes related to COLAs and Medicare benefits for high-income retirees. The tendency of politicians to rely on redistributive elements to enhance solvency is unfortunate, but with that qualification, my retiree friends need not worry so much about their benefits. I suspect at least some of them know that already.

Missouri Prop B: the Unintended Consequences of Wishful Thinking

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Proposition B sounds really good to many Missouri voters: all we have to do to help low-wage workers is declare that they must be paid a higher wage. That’s the pitch, of course. But voters should hear the cruel truth about the unintended consequences of this well-intentioned and ill-considered proposition on the ballot this week:

  1. Businesses are likely to increase prices to compensate for a higher mandated wage, which hurts all consumers, but especially the poor.
  2. Some low-skilled job losses or lost hours are assured, and they will hit the very least-skilled the hardest. No matter the legal minimum, the real minimum wage is always zero.
  3. Such job losses have long-term consequences: lost job experience that the least-skilled desperately need to get ahead.
  4. The harms will have a disparate impact on minorities.
  5. Large employers can substitute capital for low-skilled labor: automated kiosks to take orders and increasingly sophisticated robots to perform tasks. Again, the real minimum wage is always zero. As I’ve said before on this blog, automate no job before its time. But that’s what Prop B will encourage.
  6. Employers can make other compensatory changes. That includes reduced fringe benefits and break times, increased production quotas, and less desirable shifts for minimum wage workers.
  7. A large share of the presumed beneficiaries of a higher minimum wage are not impoverished. Many are teenagers or young adults living with their parents.
  8. All of the preceding points argue that an increase in the minimum wage is not an effective method of targeting poverty reduction. In fact, the harm it inflicts is targeted at the most needy. 
  9. Small employers have less flexibility than large employers, and Prop B would place them at a competitive disadvantage. To that extent, a higher wage floor is most damaging to “mom & pop”, locally-owned businesses, and their employees. Again, the real minimum wage is always zero.

At least 24 earlier posts appear on this blog covering the topic of minimum wages. You can see most of them here. The points above are explored in more detail in those posts.

William Evan and David MacPherson of the Show-Me Institute have estimated the magnitude of the harms that are likely to result if Prop B is approved by voters on November 6, and they are significant. The voters of Missouri should not be seeking ways to make the state’s business environment less competitive.

Voters should keep in mind that wages in an unfettered market reflect the realities of labor demand and labor supply. Wages and other forms of compensation reflect the actual quantity, quality and productivity of available labor supplies. And for unskilled labor, which is often supplied by those who lack experience, a wage that matches their marginal productivity is one that provides that valuable experience. The last thing they need is for tasks requiring little skill to be performed by more experienced employees, or by machines. We cannot wish away these realities, and we cannot declare them suspended by law. Such efforts will have winners and losers, of course, though the former might not ever recognize the ephemeral nature of their gains. And as long as there is freedom of private decision-making, the consequences of such legal efforts will cause harm to those least able to withstand it.

Economic Freedom and Mobility Reduce Poverty; Alms Are Impotent

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It’s very difficult to lift people out of poverty via redistribution or philanthropy. Small gains in income can be expected at best, but there are far more powerful ways to improve well being. These have to do with expanding the fundamental freedoms, rights and rewards available to private individuals. Harvard’s Lant Pritchard divides these efforts into two broad categories: policies that improve labor mobility, and those that lead to gains in-place via economic growth. His working paper, “Alleviating Global Poverty: Labor Mobility, Direct Assistance, and Economic Growth”, is available here.

Economic Benefits of Migration 

Pritchard first explains that the freedom to migrate across borders in pursuit of economic opportunity allows workers from low-productivity countries to contribute much greater output in high productivity countries. In so doing, the workers gain far more than can be practically accomplished via direct aid, and according to Pritchard, at zero or little cost. So granting this freedom is a much more effective anti-poverty measure than aid payments.

Pritchard seems to imply that this is a persuasive economic argument for open borders. On that question, I take the position that countries are sovereign entities and that their citizens possess the right to determine the extent of immigration flows. And in fact, there are real costs of immigration flows that must be considered. Pritchard’s paper offers a powerful rationale for liberalizing immigration quotas, but here again, he dismisses certain issues that limit even that more narrow argument.

The prospective economic gains of the immigrants themselves are important, of course, but the economic needs of the destination country matter too. In the U.S., employers in many markets face a shortage of low-skilled labor, so immigration quotas bind on those markets. Making them less binding would certainly encourage economic growth. A greater influx of younger workers from abroad would also help America weather its demographic crisis, narrowing the shortfall in funding entitlement programs like Social Security and Medicare. Unfortunately, to those who do not already recognize these needs, Pritchard’s contribution is likely to carry little weight.

Still, Pritchard’s assertion that the cost of liberalized immigration is zero needs further examination. First, there are the very real costs of vetting and processing new immigrants. Second, unless all immigrants and employers are matched ex ante, which is virtually impossible, there will be adjustment costs that continue at least until the matching is complete. In the interim, and even post-employment, new immigrants might well require public aid to support themselves and their families. It is also quite likely that new tax revenue generated by immigrants will be insufficient to pay the full incremental costs of public resources consumed in providing marginal infrastructure, education, and other public subsidies.

Pritchard employs static calculations of the net benefits to be gained through greater labor mobility “at the margin”, but as the absorption of new immigrants into the workforce takes place, excess demands for low-skilled workers may turn into excess supplies, creating downward pressure on wages. In the presence of a minimum wage, that implies unemployment and a probable drain on public resources. So the source of the benefits discussed by Pritchard should not be viewed as limitless. He offers some mild rebuttals of this point and references one of his own papers in so doing, but the possibility cannot and should not be dismissed.

Economic Benefits of Economic Freedom

Pritchard’ second major point of emphasis involves the effectiveness of different kinds of private and public direct assistance, or “treatments”, in producing income gains over time. He offers evidence that the gains are relatively weak. He contrasts this with the potential gains from “growth accelerations” stemming from a variety of causes. The upside of a normal business cycle is one form, but that doesn’t really count if the gains are lost on the downside.

The most profound form of growth acceleration occurs upon the advent of a liberalized social order. This may accompany the downfall of an authoritarian government, the stabilization of a formerly unsound monetary regime, or as more sophisticated market institutions take hold in a formerly primitive economy. The main point is that there are fundamental social underpinnings of growth. These are the many dimensions of economic freedom: secure property rights, freedom of contract, minimal regulatory interference, low taxes, and competitive markets for goods and capital. These conditions are so straightforward that in developed economies we take many of them for granted, through they are threatened even there. But these conditions are sadly lacking in much of the under-developed world.

Conclusion

Allowing workers to migrate freely in search of the best opportunities is undoubtedly more powerful in improving their welfare than any form of direct assistance. That is a fundamental truth put forward by Lant Pritchard. However, in-migration can come with significant costs for the destination country. Therefore, immigration laws should allow sufficient flexibility with respect to flows to enable the capture of economic gains from immigration when they exist. Pritchard also emphasizes that economic freedom and the growth acceleration it makes possible do far more to reduce poverty than massive private and public efforts at direct assistance, however well-intentioned. Several earlier posts on Sacred Cow Chips have highlighted the impotency of redistribution for eliminating poverty. The Left has a tendency to dismiss such views as mere ideological assertion, but it is much more than that: it is the difference between penury and prosperity.

Climbing Up: Economic Mobility In the U.S.

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One of the great sacred cows of current economic discourse is that U.S. living standards have been stagnant for decades, coincident with a severe lack of economic mobility (I know, those are goats!). These assertions have been made by people with the training to know better, and by members of the commentariat who certainly would not know better. But Russ Roberts has a great article on the proper measurement of these trends and how poorly that case stacks up. I have made some of the same points in the past (and here), but Roberts’ synthesis is excellent.

Those who insist that income growth has languished or even declined in real terms over the past 40 years have erred in several ways. They usually ignore non-wage benefits (for which workers often receive favorable tax treatment) and other forms of income. Roberts notes that income tax returns leave about 40% of income unreported, and a lot of it goes to individuals in lower income strata. In addition, the studies often use flawed inflation gauges, fail to adjust correctly for various demographic trends in the identification of “households”, and most importantly, fail to follow the same individuals over time. The practice of taking “snapshots” of the income distribution at two different points in time, and then comparing the same percentiles from those snapshots, is inappropriate for addressing the question of income mobility. Instead, the question is how specific individuals or cohorts have migrated across time. Generally incomes grow as people age through their working lives.

Roberts discusses some studies that follow individuals over time, rather than percentiles, to see how they have fared:

From a study comparing the 1960s and the early 2000s:

“… 84% earned more than their parents, corrected for inflation. But 93% of the children in the poorest households, the bottom 20% surpassed their parents. Only 70% of those raised in the top quintile exceeded their parent’s income.”

 In another study compared children born in 1980:

… 70% of children born in 1980 into the bottom decile exceed their parents’ income in 2014. For those born in the top 10%, only 33% exceed their parents’ income.”

Another study finds:

The children from the poorest families ended up twice as well-off as their parents when they became adults. The children from the poorest families had the largest absolute gains as well. Children raised in the top quintile did no better or worse than their parents once those children became adults.”

The next study cited by Roberts compares adults at two stages of life:

The study looks at people who were 35–40 in 1987 and then looks at how they were doing 20 years later, when they are 55–60. The median income of the people in the top 20% in 1987 ended up 5% lower twenty years later. The people in the middle 20% ended up with median income that was 27% higher. And if you started in the bottom 20%, your income doubled. If you were in the top 1% in 1987, 20 years later, median income was 29% lower.”

And here’s one more:

… when you follow the same people, the biggest gains go to the poorest people. The richest people in 1980 actually ended up poorer, on average, in 2014. Like the top 20%, the top 1% in 1980 were also poorer on average 34 years later in 2014.”

These studies show impressive mobility across the income distribution, but is it still true that overall incomes have been flat? No, for reasons mentioned earlier: growth in benefits and unreported income have been dramatic, and inflation measures used to “deflate” nominal income income gains are notoriously poor. When the prices of many goods are expressed in terms of labor hours, there is no doubt that living standards have advanced tremendously. It is all the more impressive in view of the quality improvements that have occurred over the years.

The purported income stagnation and lack of mobility are also said to be associated with an increasingly unequal distribution of income. The OECD reports that the distribution of income in the U.S. is relatively unequal compared to other large, developed countries, but the definitions and accuracy of these comparisons are not without controversy. A more accurate accounting for incomes after redistribution via taxes and transfer payments would place the U.S. in the middle of the pack. And while measures of income inequality have trended upward, consumption inequality has not, which suggests that the income comparisons may be distorted.

Contrary to the oft-repeated narrative, U.S. living standards have not stagnated since the 1970s, nor have U.S. households been plagued by a lack of economic mobility. It’s easy to understand the confusion suffered by journalists on these points, but it’s horrifying to realize that such mistaken interpretations of data are actually issued by economists. Even more disappointing is that these misguided narratives are favorite talking points of class warriors and redistributionists, whose policy recommendations would bring-on real stagnation and immobility. That’s the subject of a future post, or posts. For now, I’ll let it suffice to say that it is the best guarantee of mobility is the preservation of economic freedom and opportunity by limiting the size and scope of government, creating a more neutral tax code, and encouraging markets to flourish.

The Non-Trend In Hurricane Activity

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People are unaccountably convinced that there is an upward trend in severe weather events due to global warming. But there is no upward trend in the data on either the frequency or severity of those events. Forget, for the moment, the ongoing debate about the true extent of climate warming. In fact, I’ll stipulate that warming has occurred over the past 40 years, though most of it was confined to the jump roughly coincident with two El Ninos in the 1990s; there’s been little if any discernible trend since. But what about the trend in severe weather? I’ve heard people insist that it is true, but a few strong hurricanes do not constitute a trend.

The two charts at the top of this post were created by hurricane expert Ryan N. Maue. I took them from an article by David Middleton., but visit Maue’s web site on tropical cyclone activity for more. The last month plotted is September 2018, so the charts do not account for Hurricane Michael and the 2018 totals are for a partial year. The first nine months of each year typically accounts for about 3/4 of annual tropical cyclones, so 2018 will be a fairly strong year. Nevertheless, the charts refute the contention that there has been an upward trend in tropical cyclone activity. In fact, in the lower chart, the years following the 1990s increase in global temperatures is shown to have been a time a lower cyclone energy. Roy Spencer weighs in on the negative trend in major landfalling hurricanes in the U.S. and Florida stretching over many decades.

Warren Meyer blames ‘”media selection bias” for the mistaken impression of dangerous trends that do not exist. That is, the news media are very likely to report extreme events, as they should, but they are very unlikely to report a paucity of extreme events, no matter how lengthy or unusual the dearth:

Does anyone doubt that if we were having a record-heavy tornado season, this would be leading every newscast?  [But] if a record-heavy year is newsworthy, shouldn’t a record-light year be newsworthy as well?  Apparently not.” 

It so happens that 2018, thus far, has seen very close to a record low number of tornadoes in the U.S.

Meyer also highlights the frequent use of misleading statistics on the real value of damage from natural disasters. That aggregate value has almost certainly grown over the years, but it had nothing to do with the number or severity of natural disasters. Meyer explains:

Think about places where there are large natural disasters in the US — two places that come to mind are California fires and coastal hurricanes. Do you really think that the total property value in California or on the US coastline has grown only at inflation? You not only have real estate price increases, but you have the value of new construction. The combination of these two is WAY over the 2-3% inflation rate.”

Recent experiences are always the most vivid in our minds. The same is true of broad impressions drawn from reports on the most recent natural disasters. The drama and tragedy of these events should never be minimized, and the fact that there is no upward trend in cyclone activity is no consolation to victims of those disasters. Still, the media can’t seem to resist the narrative that the threat of such events is increasing, even if it can’t be proven. Indeed, even if it’s not remotely correct. Reporters are human and generally not good at science, and they are not immune to the tendency to exaggerate the significance of events upon which they report. A dangerous, prospective trend is at once scary, exciting, and possibly career-enhancing. As for the public, sheer repetition is enough to convince most people that such a threat is undeniable… that everybody knows it… that the trend is already underway. The fact is that the upward trend in hurricane activity (and other kinds of severe weather) is speculative, not real.

Injecting Competition Into Health Care

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Competitive pressures in U.S. health care delivery are weak to nonexistent, and their absence is among the most important drivers of our country’s high medical costs. Effective competition requires multiple providers and/or substitutes, transparent prices, and budget-conscious buyers, but all three are missing or badly compromised in most markets for health care services. This was exacerbated by Obamacare, but even now there are developments in “retail” health care that show promise for the future of competition in health care markets. The situation is not irreversible, but some basic policy issues must be addressed.

John Cochrane maintains that the question of “who will pay” for health care, while important, has distracted us from the matter of fostering more competition among providers:

The discussion over health policy rages over who will pay — private insurance, companies, “single payer,” Obamacare, VA, Medicare, Medicaid, and so on — as if once that’s decided everything is all right — as if once we figure out who is paying the check, the provision of health care is as straightforward a service as the provision of restaurant food, tax advice, contracting services, airline travel, car repair, or any other reasonably functional market for complex services.”

We face a severe tradeoff in health care: how to provide for the needs of more patients (e.g., the uninsured, or a growing elderly population) without driving up the cost of care? As a policy matter, provider resources should not be viewed as fixed; their quantity and the efficiency with which those resources are utilized are responsive to forces that can be harnessed. Fixing the supply side of the health care market by improving the competitive environment is the one sure way to deliver more care at lower cost.

Fishy Hospital Contracts

Cochrane discusses some anti-competitive arrangements in health care delivery, quoting liberally from an article by Anna Wilde Mathews in The Wall Street Journal, “Behind Your Rising Health-Care Bills: Secret Hospital Deals That Squelch Competition“:

Dominant hospital systems use an array of secret contract terms to protect their turf and block efforts to curb health-care costs. As part of these deals, hospitals can demand insurers include them in every plan and discourage use of less-expensive rivals. Other terms allow hospitals to mask prices from consumers, limit audits of claims, add extra fees and block efforts to exclude health-care providers based on quality or cost.”

Mathews’ article is gated, but Cochrane quotes enough of its content to convey the dysfunction described there. Also of interest is Cochrane’s speculation that the hospital contract arrangements are driven largely by cross subsidies mandated by government:

The government mandates that hospitals cover indigent care, and medicare and medicaid below cost. The government doesn’t want to raise taxes to pay for it. So the government allows hospitals to overcharge insurance (i.e. you and me, eventually). But overcharges can’t withstand competition, so the government allows, encourages, and even requires strong limits on competition.”

The Role of Cross Subsidies

In this connection, Cochrane notes the perverse ways in which Medicare and Medicaid compensate providers, allowing large provider organizations to charge more than small  ones for the same services. Again, that helps the hospitals cover the costs of mandated care, regulatory costs, and the high administrative and physical costs of running large facilities. It also creates an obvious incentive to consolidate, reaping higher charges on an expanded flow of services and squelching potential competition. And of course the cross subsidies create incentives for large providers to lock-in business from insurers under restrictive contract agreements. Such acts restrain trade, pure and simple.

Cross subsidies, or building subsidies into the prices that buyers must pay, are thus an impediment to competition in health care, beyond the poor incentives they create for subsidized and non-subsidized buyers. So the “who pays” question rears it’s head after all. When subsidies are necessary to provide for those truly unable to pay for care, it is far better to compensate those individuals directly without distorting prices. That represents a huge policy change, but it would also help restore competition.

Competitive Sprouts

John C. Goodman provides a number of examples of how well competition in health care delivery can work. Most of them are about “retail medicine”, as it’s been called. This includes providers like MinuteClinic (CVS), LASIK and cosmetic surgery, concierge doctors, and “retail” surgical services. Goodman also mentions MediBid, a platform on which doctors bid to provide services for patients, and Ameriflex, which matches employers with concierge doctors. These services, which either bypass third-party payers or connect employer-payers with competitive providers, are having a real impact on the ability of patients to obtain care at a lower cost. Goodman says:

I am often asked if the free market can work in health care. My quick reply is: That is the only thing that works. At least, it is the only thing that works well.”

Conclusion

Some of the most pernicious Obamacare cross subsidies have been dismantled via elimination of the individual mandate and allowing individuals to purchase short-term insurance. Nonetheless, U.S. health care delivery is still riddled with cross subsidies and excessive regulation of providers, including all the distortions caused by third-party payments and the tax code. Many buyers lack an incentive for price sensitivity. They face restrictions on their choice of providers, they don’t know the prices being charged, and they often don’t care because at the margin, someone else is paying. Fostering competition in health care delivery does not necessarily require an end to third-party payments, but the cross subsidies must go, employers should actively seek competitive solutions to controlling health care costs, price transparency must improve, and consumers must face incentives that encourage economies.

School Discipline, Disparate Impact, and Disparate Justice

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Sad to say, there are racial disparities in victimization by misbehavior in schools, and African American children are the most victimized in terms of their safety and academic environment. Yet since 2014, the Department of Education (DOE) has been enforcing rules against “disparate impact” in school disciplinary policies, often aggravating that victimization. In a paper entitled “The Department of Education’s Obama-Era Initiative on Racial Disparities in School Discipline: Wrong For Students and Teachers, Wrong on the Law“, authors Gail Heriot and Alison Somin expose these unfortunate policies and the distortion of actual law they represent. These policies and actions are presumed by the DOE and the Office of Civil Rights (OCR) to be authorized under Title VI of the Civil Rights Act of 1964, but Heriot and Somin show that Title VI is not a disparate impact law and that enforcement of strictures against disparate impacts exceed the authority of the OCR.

When are disciplinary policies discriminatory? Disparate treatment occurs when a student from a “protected class” is punished more severely than other students for an identical misdeed. That is obviously discriminatory and unfair. A disparate impact, however, is a statistical difference in the punishments meted out to a protected class relative to others, which is not prima facie evidence of discrimination. Given consistent application of disciplinary policies — identical treatment for all classes under those policies — disparate impact is possible only when there are differences in the actual behavior of students across classes. Of course, such a difference does not mean that the protected class is “less worthy” in any absolute sense; instead, it probably indicates that those students face disadvantages that manifest in misbehavior in greater proportion within a school environment. The consequences of refusing to punish that behavior are bad for everyone, including and perhaps especially the miscreants themselves.

Disparate impact enforcement rules are fundamentally flawed, as Heriot and Somin explain. Almost any decision rule applied in business or other social interaction has a disparate impact on some parties. Defining qualifications for many jobs will almost always involve a disparate impact when protected classes lack those skills in greater proportion than unprotected classes. In schools, such rules lead to more lenient disciplinary policies or a lack of enforcement, either of which are likely to bring even greater disciplinary problems.

In schools with large minority populations, these perverse effects penalize the very minority students that the DOE hopes to protect. And they often have harsh consequences for minority teachers as well. Walter Williams bemoans the difficulties faced by many teachers:

For example, after the public school district in Oklahoma City was investigated by the OCR, there was a 42.5 percent decrease in the number of suspensions. According to an article in The Oklahoman, one teacher said, ‘Students are yelling, cursing, hitting and screaming at teachers, and nothing is being done, but teachers are being told to teach and ignore the behaviors.’ According to Chalkbeat, new high school teachers left one school because they didn’t feel safe. There have been cases in which students have assaulted teachers and returned to school the next day. …

An article in Education Week earlier this year, titled ‘When Students Assault Teachers, Effects Can Be Lasting,’ discusses the widespread assaults of teachers across the country: ‘In the 2015-16 school year, 5.8 percent of the nation’s 3.8 million teachers were physically attacked by a student. Almost 10 percent were threatened with injury, according to federal education data.'”

To state the obvious, this undermines the ability of teachers do their jobs, let alone enjoy teaching. For many, quitting is an increasingly tempting option. And Williams, an African American, goes on to say “… when black students are not held accountable for misbehaving, they are set up for failure in life.”

When it comes to misbehavior, equalizing discipline by subgroup is almost certain to be unjust. And disparate impacts are almost certain to be a byproduct of a just disciplinary system when other social forces lead to differences in preparation for schooling. When the focus is placed on a by-product of Justice, rather than justice itself, as when disparate impacts are penalized or prohibited, everyone loses. It obviously harms unprotected classes, but ultimately it harms protected classes even more harshly by subjecting them to degraded school environments, less educational opportunity, and fewer rewards in life.

The “Judicial Temperament” Ruse

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“Judicial temperament” applies to situations in which an impartial third party is or would be acting as a judge, weighing evidence that might support one side of a case or the other. It cannot apply to one of the parties to a dispute or allegation of wrongdoing, nor can it reasonably be inferred in other matters from the attitude or statements of one of the first two parties with respect to the accusation. Of course, an individual accused of a misdeed for which they KNOW they are innocent can be expected to react angrily. That would be natural and understandable, and it has nothing to do with the individual’s judgement in other realms. Any victim of wrongdoing has a right to be angry, and a false accusation is no exception.

Christine Blasey Ford has accused Brett Kavanaugh of a sexual assault that she says took place 36 years ago when the two were in high school, but without corroboration of any kind. The Left has characterized Kavanaugh’s righteous indignation as a “temper tantrum” unbefitting a Supreme Court Justice. “Oh, but why are you so angry?”, they ask. Really.

Assuming that he is indeed innocent of the charge, and there are many reasons to doubt its veracity, Kavanaugh’s reaction was well-justified. The allegation was unveiled by the minority on the Senate Judiciary Committee at the eleventh hour as they prepared to vote on bringing his name to the floor of the Senate for confirmation. A much earlier disclosure was possible and would have permitted an investigation weeks before the Committee hearings. Not only that, the minority presumed his guilt, he was called “evil” by one senator, he received death threats against his family, and he was forced to field a host of probative questions about his teenage scribblings in a high school yearbook. Only a Vulcan would greet such sabotage of character with equanimity, and I’ll gladly give Kavanaugh a pass on it. I mostly enjoyed his fire and emotional at the hearing last Friday.

Another dimension of judicial temperament is impartiality. The meaning of that term can be manipulated, of course. For example, one’s views on constitutional interpretation are at the very root of many political disagreements, yet when convenient, some pretend that the two are mutually exclusive. Shall we disqualify anyone with a specific constitutional philosophy? Does it somehow depend on which seat is open? Of course not.

On the other hand, Kavanaugh voiced what many knew to be true at the hearing last Friday: the Leftist minority on the Committee had prepared an ambush to destroy him. He also noted the possibility of lingering resentment for his role on Ken Starr’s staff investigating the Clintons in the 1990s. Perhaps Kavanaugh was unchaste to express what was obvious, and the Left has seized on those statements as evidence of a disqualifying political bias. But again, he stated what he knows to be true.

Kavanaugh’s is widely viewed as an impartial jurist, and he has a history of collegiality with judicial peers from across the political spectrum. As Randy Barnett states at the link above:

His 300 opinions have been thoughtful and well reasoned. His reasoning has repeatedly been adopted by majorities of the Supreme Court. He gets high marks from, well, from everyone for his intelligence, decency, and judicial temperament.”

It is my conviction that Kavanaugh would rely on his legal scholarship and constitutional philosophy, as he has in the past, in deciding his positions on issues that come before the Court, rather than hearing cases with a view toward malice against particular individuals or one end of the political spectrum. I also believe he is wise enough to know that he should recuse himself in cases of obvious personal conflict. The charge that he lacks judicial temperament is an additional attack based on his judicial philosophy, and it is an opportunistic attempt to discredit him on the basis of his strong and understandable response to a smear campaign.

Preserve the Separation of Google and State

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Little did we suspect that Google’s collection of personal data and manipulation of search results was mere practice for the job of censoring, curating, and providing behavioral surveillance for repressive governments (more on search manipulation here and here). Actually, some of us have expressed trepidation that our own individual liberty might face such a vulnerability, with Google working in concert with our own government:

As a firm like Google attains the status of an arm of the state, or multiple states, it could provide a mechanism whereby those authorities could manipulate behavior and coerce their citizens, making the internet into a tool of tyranny rather than liberty. ‘Don’t be evil’ is not much of a guarantee.”

Now, however, the company is working with the government of mainland China to implement a version of its search engine that meets the needs of the Communist regime. J.D. Tuccille calls this “Privatized Authoritarianism”. Search results from Google’s Chinese utility might come back blank, or certain sites might be banned, or at least banned from the first page of results (e.g., Wikipedia, the BBC).

Not only that, the Chinese government is building a system of “social credit scores” for its citizens, essentially a one-number report card like the FICO credit score in the West. This one, however, is driven by more than financial transactions; it’s intended to account for a variety of behaviors including one’s record in criminal and civil matters, anything reflecting one’s “trustworthiness”, general comportment, and alignment with official doctrine. The country is building a gargantuan network of surveillance cameras with visual recognition technology and artificial intelligence that will be used to generate inputs to the social score. And Google’s Chinese search platform?

… users’ interest in pursuing forbidden paths of inquiry will certainly become part of their permanent record. That’s no joke in a country that’s rapidly modernizing the hoary old mechanisms of the police state with a modern ‘social credit’ system that can effectively place people under house arrest with nary a trench coat in sight.

‘A poor Chinese social credit score can lead to bans from travel, certain schools, luxury hotels, government positions, and even dating apps,’ notes the Brookings Institution. Liu Hu, an investigative journalist, incurred the Chinese government’s wrath for exposing corruption among Communist Party officials. He’s among millions who have been punished with a tanked social credit score that prevents him from easily working or even leaving his hometown.”

Political search activity is one thing. What happens if you search for information on foreign news sources? Certain medications or certain disfavored goods? Movies? Books? Sex? What are the consequences of actually clicking on a particular link in a search result? Could the governments place “honey pots” into search results? Could the system be used by the government to entrap citizens? You bet it could!

The Chinese government is everything a liberal should hate, classical or otherwise. But they do what they do. Google, which takes pride in its “do the right thing” mantra, is most certainly not doing the right thing by contributing to this intrusive effort. And it could happen here in the West. In fact, it is probably already happening here to some degree.

Google was fined $2.7 billion by the European Union in 2017 for biasing its search results in favor of its own services. That ruling was made on traditional antitrust grounds: the bias in search results was judged to have anti-competitive effects on the searched-for service markets. But apart from a direct connection to some other form of commerce, traditional antitrust arguments are difficult to make against a free search engine. The company has a high market share but by no means a monopoly over search results, at least in the U.S.

Still, a partnership between Google and government is potentially troublesome, and more so than run-of-the-mill corporatism, though there is that, too. Many individuals are blasé about managing their privacy on social media, while many others seek a level of anonymity to those outside of their social circle. The latter may be wise, but it won’t do them much good if the government gains access to their on-line behavior. The real issue is ownership of our personal information, and that is an unsettled area of the law. Google acquires that information for free in exchange for providing a free search engine. But can Google or any other company with an online platform legally use your personal data as it likes? No, at least not in principle, but that’s no guarantee that the data won’t be used in ways to which you’d object. If anyone should have rightful monopoly rights over the use of individual data, it’s the individual. But strict data privacy might mean we’ll have to pay to use the search engine.

Government has a monopoly on force, but one can hardly bring antitrust action against government, Google partnership or not. That monopoly on force is why our constitutional rights are so critical. Those rights are primarily unenumerated in the U.S. Constitution, while the powers of the federal government are explicitly limited and enumerated. Individual liberty, including the right to privacy, must be respected and protected by our institutions. That should include data privacy. As the reach of government social programs grows, however, participation requires that personal data is increasingly shared with the government. That’s another good reason to keep government small!