Tag Archives: Fourteenth Amendment

Debt Ceiling Stopgaps and a Weak Legal Challenge

07 Sunday May 2023

Posted by in Federal Budget, Public debt

≈ Leave a comment

Tags

, , , , , , , , , , , , , , , , , , , , , ,

Long-awaited developments in the federal debt limit standoff shook loose in late April when Republicans passed a debt limit bill in the House of Representatives. Were it signed into law, the bill would extend the debt ceiling by about $1.5 trillion while incorporating elements of spending restraint. That approach is highly unpopular with democrats, but the zero-hour looms: Treasury Secretary Janet Yellen says the Treasury will run out of funds to pay all of the government’s obligations in early June. Soon we’ll have a better fix on President Biden’s response to the republicans, as he’s invited congressional leaders to the White House this Tuesday, May 8th to discuss the issue.

Biden wants a “clean” debt limit bill without changes impacting the budget path or existing appropriations. Senate Majority Leader Chuck Schumer would like to see a “clean” suspension of the debt limit. Republicans would like to use a debt limit extension to impose some spending restraint. They’ve focused only on the discretionary side of the budget, however, while much-needed reforms of mandatory programs like Social Security and Medicare were left aside. In fairness, both political parties have made massive contributions over the years to the burgeoning public debt, so not many are free of blame. But any time is a good time to try to enforce some fiscal discipline.

The Extraordinary Has Its Limits

Three months ago I wrote that the Treasury’s “extraordinary measures” to avoid breaching the debt limit would probably allow adequate time to break the impasse. In other words, accounting maneuvers allowed spending to continue without the sale of new debt. That bought some time, but perhaps not as much as hoped … tax filing season has revealed that revenue is coming in short of expectations, probably because weak asset markets have not generated anticipated levels of taxable capital gains income. In any case, very little progress was made over the past three months on settling the debt limit issue until the House passed the plan pushed by McCarthy. So we await the results of the pow-wow at the White House this week.

A Legislative Trick?

There’s been talk that House democrats will try to push through a “clean” debt limit bill of one sort or another by using a so-called discharge petition. They conveniently snuck this measure into an unrelated piece of legislation back in January. The upshot is that a bill meeting certain conditions must go to the floor for a vote if the discharge petition on the issue has at least 218 signatures. That means at least five republicans must join the democrats to force a vote and then join them again to pass a clean debt limit bill. That’s a long shot for democrats. Given the odds, will Biden deign to negotiate with House Speaker Kevin McCarthy? Even if he does, Biden will probably stall a while longer to extend the game of chicken. His hope would be for a few House republicans to lose their resolve for budget discipline in the face of looming default.

An Aside On Some Falsehoods

There’s a good measure of jingoistic BS surrounding the public debt. For example, you’ve probably heard from prominent voices in the debate that the U.S. has never defaulted on its debt and dad-gummit, it won’t start now! But the federal government has defaulted on its debt four times in the past! In three of those cases, the government reneged on commitments to convert bills or certificates into precious metals. The first default occurred during the Civil War, however, when the Union was unable to pay its war costs and subsequently went on a money printing binge. Unfortunately, we’re now engaged in a civil war of public versus private claims on resources, but the government can’t pay its bills without piling on debt. The statist forces now in control of the executive branch continue to insist that every American should demand more federal borrowing.

Here’s more BS in the form of linguistics that seemingly pervade all budget discussions these days: the House bill includes modest spending restraints, but mostly these are reductions in the growth of spending. Yet these are routinely described by democrats and the media as spending cuts. We could use another bill in the House demanding clear language that abides by the commonly accepted meaning of words. Fat chance!

The Trillion Dollar Coin

In my earlier debt limit post, I discussed two unconventional solutions to the Treasury’s financing dilemma. Both are conceived as short-term workarounds.

One is the minting of a $1 trillion platinum coin by the Treasury, which would deposit the coin at the Federal Reserve. The Fed would then sell back to the public (banks) existing Treasury bonds out of its massive holdings (> $8 trillion). The Treasury could then use the proceeds to pay the government’s bills. Thus, the Fed would do what the Treasury is prohibited from doing under the debt ceiling: selling debt.

When the debt ceiling is ultimately lifted, the “coin” process would be reversed (and the coin melted) without any impact on the money supply. As described, this is wholly different from earlier proposals to mint coins that would feed growth in the stock of money. Those were the brainchildren of so-called Modern Monetary Theorists and a few left-wing members of Congress.

There hasn’t been much discussion of “the coin” in recent months. In any case, the Fed would not be obligated to cooperate with the Treasury on this kind of workaround. The Fed has urged fiscal discipline, and it could simply refuse to take the coin if it felt that debt limit negotiations should be settled between Congress and the President.

Premium Bonds

The other workaround I discussed earlier is the sale by the Treasury of premium bonds or even perpetuities. This involves a little definitional trickery, as the debt limit is expressed in terms of the par value of debt. An example of premium bonds is given at the link above. High interest, low par bonds could be issued by the Treasury with the proceeds used to pay off older discounted bonds and pay the government’s bills. Perpetuities are an extreme case of premium bonds because they have zero par value and would not count against the debt limit at all. They simply pay interest forever with no return of principle. Paradoxically, perpetuities might also be less controversial because they would not involve payments to retire older debt.

Constitutional Challenge

The Biden Administration has pondered another way out of the jam, one that is perhaps more radical than either premium bonds or minting a big coin: challenge the debt ceiling on constitutional grounds. The idea is based on a clause in the Fourteenth Amendment stating that the: “validity of the public debt of the United States… shall not be questioned.” That’s an extremely vague provision. Presumably, as an amendment to the Constitution, this “rule” applies to the federal government itself, not to anyone dumping Treasury debt because its value is at risk. Any fair interpretation would dictate that the government should do nothing to undermine the value of outstanding public debt.

Let’s put aside the significant degree to which the real value of the public debt has been eroded historically by inflationary fiscal and monetary policy. That leaves us with the following questions:

  • Does a legislated debt limit (in and of itself) undermine the value of the public debt? Why would restraining the growth of debt or setting a limit on its quantity do such a thing?
  • Would a refusal to legislate an increase in the debt limit undermine or “question” the debt’s value? No, because belt-tightening is always a valid alternative to default. The Fourteenth Amendment is not a rationale for fiscal over-extension.
  • If we frame this as a question of default vs. fiscal restraint, only the former undermines the value of the debt.

From here, it looks like the blame for bringing the value of the public debt into question is squarely on the spendthrifts. Profligacy undermines the value of one’s commitments, so one can hardly blame those wishing to use the debt ceiling to promote fiscal responsibility. Any challenge to the debt ceiling based on the Fourteenth Amendment is likely to be guffawed out of court.

The Market’s Likely Rebuke

The market will probably react harshly if the debt ceiling impasse continues. That would bring higher yields on outstanding Treasury debt and a sharp worsening of the liquidity crisis for banks holding devalued Treasury debt. Naturally, Biden will attempt to blame the GOP for any bad outcome. His Treasury could attempt to buy more time by announcing the minting of a large coin or the sale of premium bonds, including perpetuities. Ultimately, neither of those moves would do much to stem the damage. The real problem is fiscal incontinence.

Observations on the Dobbs Decision

27 Monday Jun 2022

Posted by in Uncategorized, Federalism, Abortion

≈ Leave a comment

Tags

, , , , , , , , , , ,

The reaction to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization was not short on outrageous assertions and even outright lies about the legal issues at stake. I wrote the article below a few weeks after the unfortunate leak of Justice Samuel Alito’s draft decision. But first, with the actual decision in hand, here are a few additional observations:

  • The most vocal pro-abortionists have a remarkably weak grip on the legal issues at play. Or do they take their supporters for idiots? More informed pro-choice advocates should be embarrassed.
  • There is not and never was an explicit right to abortion in the U.S. Constitution. This was a “right” conjured entirely by the judiciary.
  • Abortion has not been banned nationwide. The decision leaves the matter to state legislatures (and voters) and subsequent court challenges, which are sure to come. This is the very essence of federalism.
  • The decision has no implication for travel across state lines to obtain an abortion.
  • Stare decisis does not mean that the Court must always uphold precedent. Certainly not if, in the view of the Court, the precedent is egregiously bad. Precedents have been reversed in the past in a variety of contexts.
  • None of the justices “lied” to anyone in the Senate during pre-confirmation interviews. A prospective justice cannot and should not pronounce how they would rule on a specific issue, particularly outside the context of a specific case and its facts. Respecting precedent does not mean that precedent must be the only consideration.
  • The Supreme Court is independent and “undemocratic” by design. It cannot make law, as it did in Roe. Instead, it serves as a check on constitutional abuses by the other branches of government. In doing so, it must be insulated from the whims of popular opinion.
  • The Court agrees that the legality of abortion should never have been decided by “nine unelected men in robes”!
  • The Court rejected the claim that had been relied upon in Roe v. Wade, namely that the Fourteenth Amendment due process right to privacy covers the decision to abort a child. Ruth Bader Ginsberg also rejected that claim (see below), as have many other legal scholars on both sides of the debate. No, Ruth didn’t send you!
  • Roe relied on so-called “substantive due process”, which in the past has been used by the Court to extend the concept of due process under the law to protection of certain unenumerated (and contested) “rights”. Justice Thomas noted in his separate concurrence that a guarantee of “process” cannot itself establish a substantive right.
  • There is a possibility of federal legislation now, or after January with the new Congress, but an outright federal ban is unlikely, especially one without exceptions or one applicable at all stages of pregnancy.
  • Future court challenges to state or federal abortion laws are likely to be based on the Equal Protection Clause of the Fourteenth Amendment, which Ginsberg felt was the correct basis on which to establish a woman’s “right” to abort a child.
  • The U.S. Constitution protects unenumerated rights from infringement by the federal government, but it does not apply to actions taken by states because the Ninth Amendment has never been “incorporated” as applicable to infringements by state governments. Whether it should be incorporated is another matter.
  • Treating abortion as an unenumerated right of a woman is questionable at best because an unborn child is vested with competing rights. We may disagree on the stages at which vesting occur, but if you don’t believe it occurs, you are an extreme outlier (see below).
  • A pregnant woman cannot have complete bodily autonomy because she has another person’s life on board.
  • No women’s lives are threatened by the Dobbs decision. Even states with so-called “trigger laws” that now ban abortion have emergency exceptions for the life of the mother.
  • Expansive claims conflating a potential change in a woman’s life with “loss of life” are grotesque when it is almost always the child’s life at stake.
  • Pro-abortionists who give specific reference to family members and acquaintances born with disabilities, seemingly as a rationale for their position, are on dangerous ground. Their’s is a grotesque expression of regret for the birth of those individuals. It borders on suggesting that babies with Downs Syndrome should be murdered — post-birth! However, this is in keeping with the eugenicistic roots of abortion advocacy (see below).
  • The decision has no implication for the legality of contraceptives.
  • Democrats and Planned Parenthood have seemingly resisted efforts to legalize over-the-counter contraception. They should get on-board asap.
  • Post-Dobbs, abortion law in the U.S. is most assuredly not an outlier among developed nations. See the handy comparison with nations in the EU above.
  • Abortion proponents are having difficulty controlling their brethren’s use of the “N-word”, particularly when targeted at Justice Thomas. And apparently, advocating for the assassination of Thomas has been normalized among pro-abortionists.
  • The violence and histrionics of certain pro-arbortionists will not get them much sympathy. Jane’s Revenge terrorism is a good way to ruin their cause.
  • In a bit of great news, all sides now seem to agree that pregnancy and abortion are women’s issues. Breakthrough moment!

Here is the earlier post I mentioned above:

DOBBS, ROE, AND THE FREAKOUT OVER FEDERALISM

The leak of a Supreme Court draft opinion in Dobbs v. Jackson Women’s Health Organization has created uproars on several fronts. The opinion, written by Justice Samuel Alito, represented a 5-4 majority at the time of its writing, but it is a draft opinion, and the substance and the positions of other justices might change before a final decision is handed down by the Court by the end of June. The draft would essentially uphold a Mississippi law restricting abortions after the first 15 weeks of pregnancy. This would overturn the Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) decisions. The former established that states could regulate abortion only beyond a certain stage of pregnancy (originally the first trimester), while the latter allowed states to regulate once a pregnancy reached the stage of fetal viability. While 24 weeks is often cited as the lower limit of viability, it is considered to be as early as 20 weeks by the World Health Organization, an estimate that could decline with future advances in prenatal and neonatal care (such as artificial wombs). In any case, viability would no longer be the standard if the draft opinion stands. Indeed, it would once again be up to states as to how they wish to regulate abortion.

Here is an update on where things stood on May 11th. Reportedly, the 5-4 majority still stood, and no other draft opinions existed in the case at that time. No news since.

Due Process and Privacy Rights

Was Roe v. Wade a good legal decision? Ruth Bader Ginsburg did not hold the opinion in high regard as a matter of the jurisprudence. Apparently, she felt that the Court should have simply struck down the restrictive Texas law in question without imposing a set of rules, which amounted to an aggressive infringement on the legislative function and the evolution of law, and case law, at the state level. Her words were:

“Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade.”

She also felt the Court should not have leaned on the Due Process Clause of Fourteenth Amendment, which prohibits the denial of “life, liberty or property, without due process of law”. And she believed that relying on due process and the privacy rights of a woman and her physician made Roe vulnerable to challenge. She was probably right.

Yale Law School professor Akhil Amar, who is pro-choice, also believes the Roe decision was misguided and calls its reliance on due process “textual gibberish”. The objection to substantive due process is based on the absence of any principle establishing which “rights” not found explicitly in the Bill of Rights are valid, and which are not.

Equal Protection

In fact, Amar defends Justice Alito’s draft opinion and believes, as Ginsberg did, that the Equal Protection Clause of the Fourteenth Amendment is a better defense of abortion rights. The contention is that unless a woman possesses the right to terminate a pregnancy, she is not on an equal footing with similarly situated men in terms of self-determination and life opportunities. Of course, none of this weighs the interests of the unborn child.

Establishment Clause

Josh Blackman has an interesting series of comments about whether the Establishment Clause of the First Amendment may be a valid defense of abortion rights. That seemingly preposterous claim relies on abortion as a right, in some cases, protected by the free exercise of religion. As Blackman sums up in his sixth point:

“… abortion rights groups should be careful what they wish for. If the Court recognizes a Free Exercise right to perform or receive an abortion, then conservatives can cook up even more aggressive religious liberty strategies. I’ll bring the bagels for the next meeting of the Temple of Automatic Weapons.”

Eugene Volokh makes several interesting points on attempts to use the Establishment Clause “to obtain exemptions from generally applicable laws”. A separate, misguided take at the Establishment Clause is that a law must be unconstitutional if it was based on religious beliefs. Volokh handily disposes of that contention here.

Judicially-Prescribed Rights vs. Constitutional Rights

Blackman has written that the Alito draft is a tour de force, addressing many constitutional principles and concerns expressed by other justices. In another post, Blackman explains a very basic rationale for a decision to overturn Roe. It is related to the objections expressed by Ginsberg and Amar, and to the many “lamentations” expressed in the Court’s abortion opinions over the years since Roe. Namely, that rule and establishment of new rights by court decision was not a mechanism intended by the framers of the Constitution, but self-government and federalist principles were:

“It is a mistake to argue that Dobbs extinguishes a right, without also acknowledging that the decision would restore another right. Overruling Roe would extinguish a judicially-created right to abortion, but it would restore a very different right: the right of the people to govern themselves.”

Personhood

Of course, none of these points are really germane to the crux of the pro-life argument to which I subscribe. However, both Roe and Casey acknowledge the state’s interest in protecting the fetus beyond some point in a pregnancy. The closer to term, the greater the interest. The implication is that a fetus gradually takes on degrees of “personhood” through the course of gestation, and that rights attach to that nascent individual at some point. Both Roe and Casey, by allowing states to regulate abortion beyond some point, offer recognition that the closer an abortion occurs to full term, the stronger the case that it may be prohibited.

The law in most European nations carries the same implication, and if anything leans more heavily in favor of fetal rights than Roe. Furthermore, there are 38 states with fetal homicide laws, which treat the fetus as a person in the case of a murder of a pregnant woman. In 29 of those states, the law applies at the earliest stages of pregnancy. This suggests that in most states, sentiments may weigh in favor of treating the fetus as a person imbued with constitutional rights.

In the end, this is not an exclusively religious argument, as the pro-abortion Left always suggests. For me, it’s purely an ethical one. At what point beyond conception are pro-abortion activists willing to concede that a human life is at stake? Apparently a heartbeat is not enough to convince them. Neither does the appearance of small fingers and toes. Nor the ability to feel pain. These are all things that happen before the child is “viable”. But even viability is not enough for some of the more radical abortion activists, who are proposing choice right up to the moment of birth. Incredibly, and despite the real limitations imposed on mid- or late-term abortions in many states (in line with Roe and Casey), some pro-choice advocates are now acting as if overturning these cases causes women to lose such an unfettered right!

Practical Matters

Anyone can obtain a variety of birth control alternatives without a prescription (and often for free). This includes emergency contraception, or the “morning after pill”. Granted, sometimes birth control measures fail, which places the prospective mother (and perhaps an involved or conscientious father) in a difficult position. Nevertheless, careful use of birth control would minimize the abortion problem and obviate much of the debate, but people are often too impulsive or careless about sex.

Late term abortions are a fairly small percentage of all abortions. The CDC reported that in 2018, 50,000 (~8%) abortions occurred after the first trimester (14+ weeks), and 6,200 (1%) took place at or beyond the point of theoretical viability (21+ weeks). This study found that of abortions at 20+ weeks, mothers tended to be younger (20 -24), discovered their pregnancies somewhat later, faced logistical and financial delays in arranging the abortion, or faced other challenging life circumstances. However, the researchers rebut a common rationale for late-term abortion when they say:

“… most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.”

Eugenics and Classism

Pregnancies among black women are terminated at a disproportionately high rate. That’s consistent with the original, eugenicistic and racist goals of Planned Parenthood founder Margaret Sanger. This is an outcome to top all disparate impacts. I have witnessed pro-abortion activists counter that these aborted lives would have been miserable, impoverished, and without opportunity — essentially not worth living — but these are value judgements of the most monstrous kind. I’ve also heard the pathetic argument that fiscal conservatives should be happy that abortions will reduce spending on aid programs. Of course, the plight of the would-be mother is also emphasized by pro-abortion advocates, but we should not be so eager to accept the tradeoff here: abortion gets the mother is off the hook, but a child’s life is at stake. No matter the odds of success, human beings are all endowed with potential and opportunity, and it’s not necessary to be economically secure to be happy or pursue dreams.

It’s easy to be pessimistic that public policy can ever mitigate the economic burden on impoverished women who bring unexpected or unwanted pregnancies to term, or to brighten the economic future of their children. After all, over the decades since the Great Society program was conceived, the welfare state has proven no better than a dependency treadmill. Family structure has been decimated by those programs and the destructive consequences of the failed (but ongoing) war on drugs. Likewise, public education is a disaster. However, there are also alternatives such as adoption, and there are many private individuals and organizations working to encourage prospective mothers and ease those burdens.

The Leak

The leak of the draft opinion in Dobbs is unfortunate as it compromises the ongoing integrity of the Court’s internal debates and proceedings. In addition to this institutional damage, the impropriety of staging protests outside the homes of justices and inside places of worship should be roundly condemned by people with respect for judicial integrity, privacy and free exercise. These protests are partly attempts to intimidate, and they have even been accompanied by threats of violence. The belligerent posture of these activists is unconscionable.

Long Live Federalism

Again, the Court’s final decision in Dobbs might not be the opinion in the leaked draft. However, if the Court does indeed overturn Roe, it would not outlaw abortion. Rather, it would allow voters in each state to have a voice in aligning the law with public sentiment. Some states will have more restrictive abortion laws than others, but even the Mississippi law at issue in Dobbs allows abortion up through week 15, almost two weeks longer than the original Roe limitation.

The country is still deeply divided on the issue of abortion. Fundamentally, a broader acceptance of the life-and-death reality of abortion would help bring more consensus on the issue. One theory I have is that many who oppose overturning Roe would simply rather not think about that reality. In their minds, Roe keeps abortion compartmentalized, safely walled off from conscience and sometimes even spiritual convictions. They rationalize Roe based on their inability to observe the person whose life is at stake, and they accept justifications that minimize the value of that life.

A single rule imposed by the Court has not and will not resolve these differences. Indeed, Roe and Casey were failed acts of judicial activism that should be reversed. While bad legislation is regrettable, it is always subject to review and challenge by the people. In a federalist system, a bad law is contained like a single experimental treatment in a large trial with multiple arms. However, in this case, unlike a trial with random selection of subjects, one treatment group may differ from others in important respects, and the objective is not to identify one single-best solution, but different solutions that work best for different groups. That is a closer approximation to real self-government than federal legislation and especially one-size-fits-all Court rule-making.

Dobbs, Roe, and the Freakout Over Federalism

25 Wednesday May 2022

Posted by in Abortion, Federalism, Uncategorized

≈ Leave a comment

Tags

, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

The leak of a Supreme Court draft opinion in Dobbs v. Jackson Women’s Health Organization has created uproars on several fronts. The opinion, written by Justice Samuel Alito, represented a 5-4 majority at the time of its writing, but it is a draft opinion, and the substance and the positions of other justices might change before a final decision is handed down by the Court by the end of June. The draft would essentially uphold a Mississippi law restricting abortions after the first 15 weeks of pregnancy. This would overturn the Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) decisions. The former established that states could regulate abortion only beyond a certain stage of pregnancy (originally the first trimester), while the latter allowed states to regulate once a pregnancy reached the stage of fetal viability. While 24 weeks is often cited as the lower limit of viability, it is considered to be as early as 20 weeks by the World Health Organization, an estimate that could decline with future advances in prenatal and neonatal care (such as artificial wombs). In any case, viability would no longer be the standard if the draft opinion stands. Indeed, it would once again be up to states as to how they wish to regulate abortion.

Here is an update on where things stood on May 11th. Reportedly, the 5-4 majority still stood, and no other draft opinions existed in the case at that time. No news since.

Due Process and Privacy Rights

Was Roe v. Wade a good legal decision? Ruth Bader Ginsburg did not hold the opinion in high regard as a matter of the jurisprudence. Apparently, she felt that the Court should have simply struck down the restrictive Texas law in question without imposing a set of rules, which amounted to an aggressive infringement on the legislative function and the evolution of law, and case law, at the state level. Her words were:

“Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade.”

She also felt the Court should not have leaned on the Due Process Clause of Fourteenth Amendment, which prohibits the denial of “life, liberty or property, without due process of law”. And she believed that relying on due process and the privacy rights of a woman and her physician made Roe vulnerable to challenge. She was probably right.

Yale Law School professor Akhil Amar, who is pro-choice, also believes the Roe decision was misguided and calls its reliance on due process “textual gibberish”. The objection to substantive due process is based on the absence of any principle establishing which “rights” not found explicitly in the Bill of Rights are valid, and which are not.

Equal Protection

In fact, Amar defends Justice Alito’s draft opinion and believes, as Ginsberg did, that the Equal Protection Clause of the Fourteenth Amendment is a better defense of abortion rights. The contention is that unless a woman possesses the right to terminate a pregnancy, she is not on an equal footing with similarly situated men in terms of self-determination and life opportunities. Of course, none of this weighs the interests of the unborn child.

Establishment Clause

Josh Blackman has an interesting series of comments about whether the Establishment Clause of the First Amendment may be a valid defense of abortion rights. That seemingly preposterous claim relies on abortion as a right, in some cases, protected by the free exercise of religion. As Blackman sums up in his sixth point:

“… abortion rights groups should be careful what they wish for. If the Court recognizes a Free Exercise right to perform or receive an abortion, then conservatives can cook up even more aggressive religious liberty strategies. I’ll bring the bagels for the next meeting of the Temple of Automatic Weapons.”

Eugene Volokh makes several interesting points on attempts to use the Establishment Clause “to obtain exemptions from generally applicable laws”. A separate, misguided take at the Establishment Clause is that a law must be unconstitutional if it was based on religious beliefs. Volokh handily disposes of that contention here.

Judicially-Prescribed Rights vs. Constitutional Rights

Blackman has written that the Alito draft is a tour de force, addressing many constitutional principles and concerns expressed by other justices. In another post, Blackman explains a very basic rationale for a decision to overturn Roe. It is related to the objections expressed by Ginsberg and Amar, and to the many “lamentations” expressed in the Court’s abortion opinions over the years since Roe. Namely, that rule and establishment of new rights by court decision was not a mechanism intended by the framers of the Constitution, but self-government and federalist principles were:

“It is a mistake to argue that Dobbs extinguishes a right, without also acknowledging that the decision would restore another right. Overruling Roe would extinguish a judicially-created right to abortion, but it would restore a very different right: the right of the people to govern themselves.”

Personhood

Of course, none of these points are really germane to the crux of the pro-life argument to which I subscribe. However, both Roe and Casey acknowledge the state’s interest in protecting the fetus beyond some point in a pregnancy. The closer to term, the greater the interest. The implication is that a fetus gradually takes on degrees of “personhood” through the course of gestation, and that rights attach to that nascent individual at some point. Both Roe and Casey, by allowing states to regulate abortion beyond some point, offer recognition that the closer an abortion occurs to full term, the stronger the case that it may be prohibited.

The law in most European nations carries the same implication, and if anything leans more heavily in favor of fetal rights than Roe. Furthermore, there are 38 states with fetal homicide laws, which treat the fetus as a person in the case of a murder of a pregnant woman. In 29 of those states, the law applies at the earliest stages of pregnancy. This suggests that in most states, sentiments may weigh in favor of treating the fetus as a person imbued with constitutional rights.

In the end, this is not an exclusively religious argument, as the pro-abortion Left always suggests. For me, it’s purely an ethical one. At what point beyond conception are pro-abortion activists willing to concede that a human life is at stake? Apparently a heartbeat is not enough to convince them. Neither does the appearance of small fingers and toes. Nor the ability to feel pain. These are all things that happen before the child is “viable”. But even viability is not enough for some of the more radical abortion activists, who are proposing choice right up to the moment of birth. Incredibly, and despite the real limitations imposed on mid- or late-term abortions in many states (in line with Roe and Casey), some pro-choice advocates are now acting as if overturning these cases causes women to lose such an unfettered right!

Practical Matters

Anyone can obtain a variety of birth control alternatives without a prescription (and often for free). This includes emergency contraception, or the “morning after pill”. Granted, sometimes birth control measures fail, which places the prospective mother (and perhaps an involved or conscientious father) in a difficult position. Nevertheless, careful use of birth control would minimize the abortion problem and obviate much of the debate, but people are often too impulsive or careless about sex.

Late term abortions are a fairly small percentage of all abortions. The CDC reported that in 2018, 50,000 (~8%) abortions occurred after the first trimester (14+ weeks), and 6,200 (1%) took place at or beyond the point of theoretical viability (21+ weeks). This study found that of abortions at 20+ weeks, mothers tended to be younger (20 -24), discovered their pregnancies somewhat later, faced logistical and financial delays in arranging the abortion, or faced other challenging life circumstances. However, the researchers rebut a common rationale for late-term abortion when they say:

“… most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.”

Eugenics and Classism

Pregnancies among black women are terminated at a disproportionately high rate. That’s consistent with the original, eugenicistic and racist goals of Planned Parenthood founder Margaret Sanger. This is an outcome to top all disparate impacts. I have witnessed pro-abortion activists counter that these aborted lives would have been miserable, impoverished, and without opportunity — essentially not worth living — but these are value judgements of the most monstrous kind. I’ve also heard the pathetic argument that fiscal conservatives should be happy that abortions will reduce spending on aid programs. Of course, the plight of the would-be mother is also emphasized by pro-abortion advocates, but we should not be so eager to accept the tradeoff here: abortion gets the mother is off the hook, but a child’s life is at stake. No matter the odds of success, human beings are all endowed with potential and opportunity, and it’s not necessary to be economically secure to be happy or pursue dreams.

It’s easy to be pessimistic that public policy can ever mitigate the economic burden on impoverished women who bring unexpected or unwanted pregnancies to term, or to brighten the economic future of their children. After all, over the decades since the Great Society program was conceived, the welfare state has proven no better than a dependency treadmill. Family structure has been decimated by those programs and the destructive consequences of the failed (but ongoing) war on drugs. Likewise, public education is a disaster. However, there are also alternatives such as adoption, and there are many private individuals and organizations working to encourage prospective mothers and ease those burdens.

The Leak

The leak of the draft opinion in Dobbs is unfortunate as it compromises the ongoing integrity of the Court’s internal debates and proceedings. In addition to this institutional damage, the impropriety of staging protests outside the homes of justices and inside places of worship should be roundly condemned by people with respect for judicial integrity, privacy and free exercise. These protests are partly attempts to intimidate, and they have even been accompanied by threats of violence. The belligerent posture of these activists is unconscionable.

Long Live Federalism

Again, the Court’s final decision in Dobbs might not be the opinion in the leaked draft. However, if the Court does indeed overturn Roe, it would not outlaw abortion. Rather, it would allow voters in each state to have a voice in aligning the law with public sentiment. Some states will have more restrictive abortion laws than others, but even the Mississippi law at issue in Dobbs allows abortion up through week 15, almost two weeks longer than the original Roe limitation.

The country is still deeply divided on the issue of abortion. Fundamentally, a broader acceptance of the life-and-death reality of abortion would help bring more consensus on the issue. One theory I have is that many who oppose overturning Roe would simply rather not think about that reality. In their minds, Roe keeps abortion compartmentalized, safely walled off from conscience and sometimes even spiritual convictions. They rationalize Roe based on their inability to observe the person whose life is at stake, and they accept justifications that minimize the value of that life.

A single rule imposed by the Court has not and will not resolve these differences. Indeed, Roe and Casey were failed acts of judicial activism that should be reversed. While bad legislation is regrettable, it is always subject to review and challenge by the people. In a federalist system, a bad law is contained like a single experimental treatment in a large trial with multiple arms. However, in this case, unlike a trial with random selection of subjects, one treatment group may differ from others in important respects, and the objective is not to identify one single-best solution, but different solutions that work best for different groups. That is a closer approximation to real self-government than federal legislation and especially one-size-fits-all Court rule-making.

State Compact Aims To Subvert Electoral College

09 Tuesday Apr 2019

Posted by in Constitution, Voting Rights

≈ Leave a comment

Tags

, , , , , , , , , , , , , , ,

The map shows the number of electoral votes by state, one vote per square. The states colored green are participants in a gambit that would, if successful, vitiate the Electoral College (EC). They hope to execute an end-run around Article V of the Constitution, which otherwise would require an amendment to replace the EC with the national popular vote. Such an amendment is highly unlikely to win approval, as I noted last week. The green states are members of the so-called National Popular Vote Interstate Compact (NPVC). This group of 13 states plus the District of Columbia would pledge their electors to the winner of the national popular vote, but only if and when enough states join the Compact to enable it to carry an election.

The big question is whether an electoral action by the NPVC would be constitutional. Article I, Section 10 of the Constitution prohibits states from entering treaties or compacts with other states without the approval of Congress. However, supporters of the NPV such as Justin Yang focus on an 1893 Supreme Court decision (Virginia v. Tennessee) that found congressional approval is unnecessary as long as a compact does not infringe on federal powers. NPVC advocates go on to assert that elsewhere, in Article II, Section 1, state legislatures are empowered to allocate electoral votes “in any way they want“, as Yang puts it.

There are strong reasons to doubt the NPVC’s interpretation, however. Carroll Andrew Morse raises a basic constitutional issue: the NPVC amounts to a denial of voting rights to the citizens of a Compact member-state. It is obviously true that a member-state’s voters would contribute to the national vote totals. Nevertheless, awarding state electors to the winner of the national vote, regardless of the in-state outcome, certainly could deprive state residents of their preference. The Fourteenth Amendment provides that a state’s denial of voting rights to any citizen or group of citizens would require the state to relinquish its representation in the legislature by a proportionate amount. That is a harsh remedy that the voters of any state should consider when weighing the benefits of membership in the NPVC.

This BYU Law Review article by Norman R. Williams covers some other areas of contention. It provides a review of some constitutional provisions bearing on the legality of interstate compacts as well as excellent background on the EC and its history. Some brief thoughts on the issue from Williams also appear in the Harvard Law Review here. According to Williams:

“… the states’ power to regulate the manner of presidential elections is far more limited than the proponents of the NPVC contend. In fact, just as the U.S. Supreme Court has narrowly interpreted the states’ power to regulate congressional elections to prevent states from destabilizing the constitutional structure, so too should it deny states the power to undermine the stability of the presidential election process.”

Williams cites a 1995 Supreme Court decision (U.S. Term Limits, Inc. v. Thornton) limiting state power over questions such as congressional term limits. The ruling stated that state-regulated limits create additional qualifications for holding office that are not authorized under the Elections Clause in Article I, Section 4. Williams contends that the process of choosing electors is analogous to other provisions regarding state powers, so it should be subject to the same limitations. He also says that if the Court followed the same method of reasoning as in Thornton, which focused on the founders intent as well as subsequent developments, it would reject the actions of the NPVC as unconstitutional.

Williams also argues that the NPVC may interfere with the rights of voters in other, non-Compact states. He says the history of Article II is inconsistent with an interpretation that the founders would have intended to allow states to exercise such broad, extra-state powers in electing a president:

“If a group of states can agree to pledge their presidential electors on the basis of the national vote, then they must likewise be able to agree to pledge their electors to a candidate only from those states, only from one political party, or only in accordance with the wishes of a designated committee of ‘presidential experts.’ In short, any interstate compact regarding the manner in which presidential electors are selected threatens to exclude the wishes of voters in nonsignatory states, and, therefore, it seems inconceivable that a Constitution that specifies how the President is to be elected and that lays out a process for amending its requirements would permit a group of states to alter so fundamental a part of our constitutional structure.”

Williams concludes with a quote from the Court’s decision in the Thornton case:

“As the Court admonished in Thornton, change, if it is to be undertaken, ‘must come not by legislation adopted either by Congress or by an individual State, but rather—as have other important changes in the electoral process—through the amendment procedures set forth in Article V.'”

Any legal challenge to the NPVC will have to wait until it is effective, that is, when and if it ever exercises 270 electoral votes. It now has a total of 189 electoral votes. The most recent addition was New Mexico, and a proposed ballot measure in Ohio could bring total Compact electors to 207. Fans of the NPVC hope that Michigan, Minnesota, and Wisconsin might join as well, though none of those is imminent. But if they did it would bring another 46 electoral votes to the Compact. Apparently Pennsylvania has rejected membership for now.

Almost all of the states already in the NPVC are solidly “blue”, having voted for the Democrat in presidential elections, at least over recent cycles. Of course, that means the Compact might quickly disintegrate if a Republican is expected to win the popular vote. Right now, however, Colorado and New Mexico are the only states that might qualify as swing states, and even those are a stretch. Some of the other states in which the NPVC is under debate are legitimate swing states, and legislation enabling the change will be risky for many lawmakers in those states. Ballot measures might be more preferable to the NPVC due to the possibility of limited turnout. We’ll see how it goes.

If states with 270 or more electors vote as a block, it diminishes the importance of each state’s voters, who might well disagree with the national popular vote in the future if not already. For example, members of the NPVC, including California, would have had to cast their electoral votes for George W. Bush in 2004, despite the desires expressed by their citizens at the polls. Voters at-large in any non-Compact state have more leverage over the outcome of a presidential election than if they follow the national popular vote. Alexander Hamilton would not have approved of the NPVC; he wrote that a state’s electors should not be influenced by parties outside the state. That was the intent of the founders.

Court challenges would undoubtedly follow any exercise of votes through the NPVC. Presumably that would occur only in the event of another conflict between the national popular vote and the EC, as constituted prior to the adoption of the NPVC. That would occur only if at least one Compact state had an in-state popular vote conflicting with the national vote. There is almost no doubt that such a dispute would make its way to the Supreme Court. Thus, a presidential election might someday be undecided until a final ruling is passed down by the high court. I strongly suspect that the NPVC would be found unconstitutional.

 

Right-To-Work Prop A: Freedom of Speech, Association and Contract

30 Monday Jul 2018

Posted by in Labor Markets, Right to Work, Unions

≈ Leave a comment

Tags

, , , , , , , , , , , , , , ,

I’d be angry if my employer forced me to contribute to the company’s Political Action Committee (PAC), and that view is shared by many of my colleagues. It would be illegal, of course, at least as a condition of employment. I love my job, but I give nothing to the PAC because I do not trust it to properly represent my political preferences. That goes for political contributions and lobbying activity that might benefit the company and, by extension, my own economic interests. I simply do not believe the company will refrain from corporatist practices, and I do not under any circumstances want my contributions lavished on politicians with whom I have policy differences.

In my home state of Missouri, unions and their political allies insist that union dues payments should be a condition of employment in unionized workplaces. Like PACs, unions are major political contributors, and I’d be surprised if there weren’t a large number of union members who object to the use of their dues for political contributions and activism. Of course, most of that activism is broadly anti-capitalist. This, quite simply, constitutes compelled speech and is a violation of employees’ First Amendment free-speech rights. Forced membership is a violation of the worker’s freedom of association under the Fourteenth Amendment.

Unions are also presumed to represent the interests of workers in negotiating with management, but not everyone wants that representation, especially given the corruption that has often plagued unions over the years and the poor economic performance of unionized industries in general. That last statement applies to public employee unions no less than private sector unions. Prohibiting non-union workers from employment at a unionized firm violates their freedom of contract under the Fifth and Fourteenth Amendments. I agree, however, that an employee refusing to join a union should not automatically be entitled to the wages and benefits negotiated by the union in collective bargaining with the employer. That should be strictly between the non-union employee and the firm.

Missouri Proposition A, which is on the state’s August 7 ballot, is a referendum on a right-to-work (RtW) law already passed by the general assembly and signed by the governor last year. I’ve discussed reasons why some libertarians have expressed disagreement with this kind of legislation—primarily because it denies an employer the right to hire workers exclusively from a unionized pool of labor. As Daniel J. Mitchell has noted, right-to-work laws are a second-best, compensatory solution to other forms of government intervention in labor markets that essentially grant unions monopsony privileges. Furthermore, giving primacy to an employer’s right to deal exclusively with a union ignores the rights of non-union workers and the rights of union members who do not wish to contribute to a union’s political activities. Trampling on the latter stands in contrast to the established protection of my rights against coerced contributions to my employer’s PAC.

The standard economic argument in favor of RtW laws hinges on the favorability of a state’s business environment and its competitiveness with other states. Andrew Wilson explains how and why Prop A will create jobs in Missouri. He notes that over the ten years ending in 2014:

“…average job growth in the 22 states with RTW laws in place for most or all of that time was more than twice as fast (at 9.1 percent) as in the 28 forced-union states. The RTW states also had considerably faster growth in personal income (at 54.7 percent compared to 43.5 percent) and a much stronger economic growth (50.7 percent compared to 38.0 percent).”

Wilson also remarks on a historical phenomenon which pro-union forces refuse to acknowledge: unions have undermined the competitive position of the industries upon which their members rely. It’s a classic principal-agent problem. Workers appoint an agent for representation, but the agent acts independently to maximize its own gains, often at the expense of the workers. RtW applies discipline to the process, reinforcing the union’s incentive to put members’ interests above of its own. After all, nearly all employers have to compete for workers, and private employers have to compete in product markets. Union workers have been exempt from competition only to the extent that their wage demands have not undermined the business’ competitive position, but they frequently have.

The real rub, according to RtW opponents, is that business interests will simply “crush” unions under RtW and impose lower wages and poor work conditions on workers. But as I alluded above, there are employers that prefer to work with a union for a variety of reasons. Second, suppose that new employees of a unionized firm refuse to join the union, or that some union members opt out. That’s a pretty strong indication that union membership is an unattractive proposition. Whose fault is that?

I favor Proposition A because workers should not be forced to accept representation by any third party, firms should not be forced to hire exclusively from those willing to do so, and because workers should not be required to contribute to union political initiatives. But as Steve Spellman writes, unions could do much to enhance their value to both workers and firms, attracting membership and gaining advantages in bargaining with employers:

“If unions focused on providing helpful, outsourced H.R. functions to companies, such as worker recruitment, drug screening and taking care of all that labor-law-compliance paperwork, it would sure change their reputation. As would standing up for its members, while also taking necessary (and fair) disciplinary actions instead of covering up for the occasional bad apple (even if that is only one worker out of 1,000). … If we can dream a little here, unions could also be best positioned to stand up for workers who are discriminated against, for whatever reason, rather than waiting on the law to catch up with our evolving society.”