"As Much As They Can Afford"

I don't want to play "gotcha" here, but I think this statement by Mitt Romney is rather telling:

I think this is a land of opportunity for every single person, every single citizen of this great nation. And I want to make sure that we keep America a place of opportunity, where everyone has a fair shot. They get as much education as they can afford and with their time they’re able to get and if they have a willingness to work hard and the right values, they ought to be able to provide for their family and have a shot of realizing their dreams.

Here, watch for yourself:



Now, the annual cost for a college education has skyrocketed since the dimly remembered past when I attended; using the sums in "constant 2008-9 dollars", four year institutions (both private and public) have increased from an average of $ 8,672 per year in 1981-1982 (three years before I started) to $20,986 in 2009-2010. For private institutions alone, the cost increase is even more dramatic, from $13,861 in 1981-1982 to $32,475 in '09-'10. (Public institutions have jacked up the costs enormously, as well, although they started from a much lower initial price--from $6,320 to $14,870; not as bad, clearly, but a steeply ascending trend as well.)

Meanwhile, a 2011 Study from the Georgetown Center on Education and Workforcehas concluded that "over the past thirty years, the demand for college educated workers has outpaced supply, resulting in economic output below potential and growing economic inequality." Moreover, a related 2012 study found that while holders of bachelors degrees face an unemployment rate of 8.9%, those with only a high school degree face an unemployment rate of 22.9%, and high school drop-outs 31.5%. The new study contends that the prior study's findings hold, but that the tightening job market has reduced employability for students whose majors do not translate into usable career skills. One solution propounded by the new study: graduate school.

More cost, more debt.

Against this backdrop, Romney's statement that people should get "as much education as they can afford" reflects a complacency that is unjustified in a prospective President, however understandable it may be in a billionaire who was himself a child of privilege. Romney's invocations of the American Dream strike less as a call to action than as a narcotic anesthetizing the amputation of that dream.

Education really is the silver bullet. We deserve better.

Did You Evah?

So, in today's decision in National Federation of Business v. Sebelius, the Supreme Court managed to surprise most Court watchers. The Court upheld the Affordable Care Act 5-4, with Chief Justice John Roberts providing the fifth vote.

Go figure.

There actually was no single rationale on the part of the majority; Justices Ginsburg, Breyer, Kagan and Sotomayor found that the ACA was a valid exercise of congressional authority under the Commerce Clause, pretty much for the reasons I have previously discussed. Justices Kennedy, Scalia, Thomas and Alito strongly disagreed, essentially opting to overturn the New Deal.

Justice Roberts? Well, on this point he voted with the conservatives, sort of. He wrote that

To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the framers, who were practical statesmen, not metaphysical philosophers.

This reading takes a rather perverse reading of Wickard v. Filburn, which explicitly found that

It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated, and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process.

So, Bad day at Black Rock, right?

Well, in the sense that there is a nascent majority--the dissenters did not join the section of Justice Roberts' opinion effectively limiting Wickard to its facts, so I wouldn't go so far as to say there's a holding, yet--ready to draw a bright-line distinction between activity (which can be regulated) and inactivity (which cannot be), yes. Bad news, indeed for congressional power--albeit not the worst, as this sort of bright line could be legislated around, unlike some other formulations of the scope of the Clause the Court has adopted in the past.

But not bad news for the ACA. Because the taxing power argument made by the Department of Justice, and especially the oft-derided Solicitor General Donald Verrilli, was adopted by Chief Justice Roberts, and by the 4 more liberal members of the Court (sorry, folks; I met Brennan; these four ain't liberal). Game, set, and match.

Well, not entirely, the ability of the federal government to impose conditions on receipt of other funds to incentivize states to participate (here Medicaid funds which would be reduced to states declining to participate in the Medicaid expansion portion of the Act) has been torpedoed. Whether this becomes a principle of general applicability remains to be seen, but I should think it will.

Of course, I didn't get this constellation of facts right, so, what do I know?

Still, imagine the chaos in Washington society (assuming, contra Sally Quinn, that such a thing yet exists) at the spectacle of "swing vote" Kennedy moving hard and fast to the right, while Roberts saves President Obama's signature legislative accomplishment.

Well, did you ev-ah?

Scalia's Dissent in the Arizona Immigration Case

....as captured by Peter O'Toole:



End of term is tomorrow. What will befall?

See you in the morning...

Next to Last of the Summer Whine

Today turned out not to be GOPerdammerung at the Supreme Court; if anything, it was a bit of a respite. So, Miller v. Alabama, for example, found unconstitutional a statutory scheme which required the imposition of a mandatory sentence of life imprisonment without parole for juveniles found guilty of homicide. Southern Union Co. v. United States extended the right to a jury trial as to all acts which enhance punishment to encompass fines--a ruling in favor of big business, and so one which fits one narrative about the Roberts Court, but one can hardly cavil at anything that expands the right of the accused to trial by jury.

The bad news of today's rulings, American Tradition Partnership, Inc. v. Bullock, was hardly surprising; the Court refused to find that Citizens United did not bar state laws forbidding corporate expenditures on behalf of candidates, even where, as here, the state had a history of corporate corruption in elections (a fact not present in Citizens United). The result is deplorable--even more so that the original decision, in that the very entities that create corporations are unable to regulate them, but hardly surprising. (This might have been one of the few divergences between the First Amendment as written ("Congress shall... make no law abridging...") and as incorporated by the Fourteenth Amendment; on the other hand, I'm not sure opening a path to a federalism approach to the First Amendment is a good idea, especially with this lot).

Arizona v. United States found most of the Arizona immigration law sections challenged by the Obama Administration preempted by federal law; as Scotusblog helpfully summarizes:

The four provisions struck down include:

(1) Section 2(B), which requires state and local police to check the immigration status of persons about whom they have a reasonable suspicion of being undocumented;

(2) Section 3, which would have made it a crime not to complete or carry an “alien registration document” (and is directly contrary to the Court’s decision in Hines v. Davidowitz

(3) Section 5(C), which criminalizes the conduct of undocumented employees and goes well beyond the civil sanctions that U.S. immigration law allows to be imposed on employers of undocumented workers; and

(4) Section 6, which allows for a warrantless arrest if the “officer has probable cause to believe [that a person] has committed any public offense that makes the person removable from the United States” under federal immigration law.

The infamous "show me your papers" section, which "requires state law enforcement officials to determine the immigration status of anyone they stop or arrest if there is reason to suspect that the individual might be an illegal immigrant." That section was found not to be unconstitutional on its face--if it is subsequently demonstrated to be applied in a discriminatory fashion, the Court ruled, it too could fall. On balance, this case turned out better than expected, as far as I am concerned.

The bench statement of dissent by Justice Scalia in the Arizona case is epic; both comic and tragic at the same time. The comedy is that the Justice who has just this month published a learned text arguing that "[t]he descent into social rancor over judicial decisions is largely traceable to nontextual means of interpretation, which erode society's confidence in a rule of law that evidently has no agreed-on meaning," makes a stunningly nontextual argument for upholding Arizona's law in its entirely:

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so.

(Full text here.)

Scalia asks the rhetorical question, "Are the sovereign states at the mercy of the federal Executive's refusal to enforce the Nation's immigration laws?" Um, yah. Just like the other federal laws. That's why it's called preemption, Nino. Where did the states get the right to deputize themselves junior G-men and supersede the DOJ's exercise of prosecutorial and investigatory discretion? And no, that's not just a sneer. Let me put it more properly: Whether or not Arizona is a sovereign state in the Articles of Confederation sense (Really? Articles of Confederation? How did they survive the ratification of the Constitution? And I seem to remember some minor unpleasantness in the mid-Nineteenth Century that addressed the nature of state sovereignty, as well as the duty of the Executive to kill vampires), certainly the United States is a sovereign. And where, as here, Congress has occupied the field, the text--Article VI, sec. 2, provides the answer:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

So the comedy is that Mr. Textualist is riding his emotions and scrapping the text in a flow of anti-immigrant fervor. The tragedy is the very same fact. Scalia was once very, very much better than this. In flashes, he still can be. But now his emotionally-driven performances undermine the values he has articulated his whole career, and do so at a time when textualism should, this liberal agrees, be the lodestar of constitutional interpretation. But since Scalia doesn't apply his own rule when his personal passions are engaged--why, who should take him or his arguments for textualism seriously?

Get it out of your system...

After the Knox case, and with the ACA decision coming down any moment...



Yes, I think that covers it nicely.

Accountability in Philadelphia

I was, some years ago, a criminal defense attorney working at the Legal Aid Society in its Criminal Appeals Bureau. I have never taken pleasure in a conviction, because it's all too easy for me to imagine the pain of the defendant, whether guilty or not.

So I do not exult in the conviction of Msgr. William Lynn, of the Archdiocese of Philadelphia on one count of endangerment of children. The Monsignor is, no doubt, a man who sincerely dedicated his life to God and to the Church, and one who has, I am sure, done a great deal of good in his life. We are none of us reducible to our worst acts.

However, one of the functions of the criminal justice system is to set the baseline of what society will and what it will not accept as permissible behavior by its citizens, and Msgr. Lynn's conviction reflects secular society's re-affirmance that senior clergy have a duty to their fellow citizens as citizens, and not merely to the Church, in cases of abuse by their subordinates. The Roman Catholic Church has, since the Middle Ages, denied such a duty, and insisted upon the immunity from prosecution of the offending clergy, let alone his enablers. The verdict has brought home to the clergy that society at large deems acting upon that canon law concept as beyond the line of acceptable behavior. In my opinion, society is under an imperative duty to do so.

The Times notes that Msgr. Lynn is "the first senior official of the Roman Catholic Church in the United States to be convicted of covering up child sexual abuses by priests under his supervision." Msgr. Lynn was acquitted of one count of child endangerment, and of conspiracy, in addition to the count of child endangerment of which he stands convicted. The Philadelphia Inquirer explains the charge on which Lynn was convicted:

Lynn was accused of recommending that Brennan and another priest, Edward Avery, be allowed to live or work in parishes in the 1990s despite signs that they might abuse minors.

Defendant Brennan, 48, was accused of child endangerment and attempting to rape a 14-year-old boy in 1996. Avery pleaded guilty before the trial to sexually assaulting the 10-year-old altar boy in 1999 and is serving 2-1/2 to 5 years in state prison.

....

Both prosecutors and defense attorneys seized on what they called "a smoking gun" in the case: a list Lynn compiled in 1994 naming 37 archdiocesan priests, including some still working in parishes, who had been diagnosed as pedophiles, had admitted or were suspected of abusing children or teens. Some remained in active ministry for years after the list was drawn up.

One of the priests on the list was Avery, who had been classified as "guilty of sexual misconduct" in 1994 but was allowed to live and celebrate Mass at a Northeast Philadelphia parish where he later assaulted an altar boy.

Lynn had long acknowledged creating the list, but he and church lawyers said they didn't know where it was.

Prosecutors intimated that church leaders wanted the research because they were girding up for a wave of lawsuits by abuse victims.

Weeks before trial, a new team of church attorneys turned over a copy of the missing document, which they said had been locked in safe in church offices. They also gave prosecutors a handwritten memo from a now deceased church official that suggested Bevilacqua ordered the list shredded.

From the Times:

The prosecutors presented a flood of evidence, legal experts said, that the archdiocese had concealed abuse accusations and that Monsignor Lynn had not acted strongly to keep suspected molesters away from children, let alone to report them to law enforcement.

But the 13 days of jury deliberations and mixed verdict showed the difficulty of placing criminal blame on one church official when there was evidence that others, starting with the cardinal at the time, had worked to prevent bad publicity and lawsuits. The jurors also wrestled with the definition of conspiracy, at one point asking the judge to define “agree,” and with the question of criminal intent on the part of Monsignor Lynn, who presented himself as an affable man who tried his best.
.....
“The guilty verdict sends a strong and clear message that shielding and enabling predator priests is a heinous crime that threatens families, communities and children, and must be punished as such,” said Barbara Dorris, of Survivors Network of Those Abused by Priests.

Perhaps; statute of limitations questions have bedeviled many cases, and will continue to do so.

But this conviction signals that the players in the criminal justice system may no longer be willing to be quiescent in the face of obfuscation, and that enabling of criminal activity will meet the same response whether the perpetrator wears a tie or a clerical collar. Let us hope so, and let us hope that the harm done to victims of abuse can find some measure of healing in the recognition of the wrongs done to them.

Judicial Activism Redux

Yesterday's decision by the United States Supreme Court in Knox v. Service Employees International Union, Local 1000,567 U.S. __ (2012) is worrisome not so much for its resolution of the issue presented in the case, but for the Supreme Court yet again (as in Citizens United) reaching out to decide an issue not raised by the parties or the courts below, in their case, yet another ramification of the Roberts Court's valorization of the rule that payment of money should be the equivalent of pure speech under the First Amendment, and not activity with an expressive component (which can be regulated as long as the regulation is non-discriminatory, and not aimed at the expressive component). The giving of money achieved this talismanic status denied other expressive acts in Buckley v. Valeo (1976).

After deciding the issue raised by the parties--finding that under the First Amendment, when a union imposes a special assessment or dues increase levied to meet expenses that were not disclosed when the regular assessment was set, it must provide a fresh notice, and an adequate chance to opt out, which it clearly had not--the Court went on to find that the First Amendment also required that the union may not exact any funds from nonmembers without their affirmative consent. (Slip Op. at 22). In other words, the long-standing procedure of notice with an opportunity for nonmembers to "opt out"is unconstitutional; nonmembers must opt in.

As Justice Sotomayor wrote--while agreeing that the union failed to provide the necessary chance to opt out, under prior precedent--the objecting nonmembers "did not argue that the Constitution requires an opt-in system of fee collection in the context of special assessments of dues increases, or indeed, in any context. Not surprisingly, Respondents did not address such a prospect." (Sotomayor, J., concurring opinion at 3). Justice Sotomayor points out that this violates the Court's own rules, its precedents as to what issues are properly before the Court, and "the fundamental premise of our adversary system that appellate courts do not sit as self-directed boards of legal enquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them," a proposition which she quotes a 2011 opinion by Justice Alito, and cites two older opinions by Justice Scalia--the author of yesterday's majority opinion, and one of its 5 adherents. (Conc. at 3-4). She points out that the very evil warned against by those prior opinions--the unfairness of a party losing a case in a ground which it never had an opportunity to be heard on--is the result of this decision, which brushed aside a series of cases upholding "opt out" approaches in the compelled speech context. (Id; see also conc. at 1-2).

I remember when I was a law student, I assisted one of my mentors, Vivian Berger, in a death penalty case before the Rehnquist Court. A new case, on an issue never raised by the State, came out before oral argument, and became the basis for the Court's ruling, which reinstated the death penalty. Frustrating and unjust though that was--failure by the counsel of the defendant in such cases to raise an issue is virtually always deemed "procedural default" and insulates the sentence from even meritorious claims--at least the Court gave Vivian a chance to address the issue on which the case was decided in oral argument. That didn't happen here; as the transcript of oral argument shows, the only mention of "opt in" comes in a throwaway line from Justice Kennedy, disparaging an answer from union counsel as "so confusing that the Court should probably consider whether an opt-in requirement is--is preferable." (Tr. p. 47). Neither party, nor any member of the bench--including Justice Kennedy--takes the remark as a serious statement of policy; it's a one-liner, and everyone moves on, after counsel clarifies his answer which gave rise to Justice Kennedy's dissatisfaction. Such, in the Roberts Court, is how constitutional rules are born.

But there is worse to come. After setting out the "compelled speech" doctrine, the the majority (Alito, Roberts, Scalia, Thomas & Kennedy) writes:

When a State establishes an "agency shop" that exacts compulsory union fees as a condition of public employment, "[t]he dissenting employee is forced to support financially an organization with whose principles and demands he may disagree." Ellis, 466 U. S., at 455. Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, see Tr. of Oral Arg. 48–49, the compulsory fees constitute a form of compelled speech and association that imposes a “significant impingement on First Amendment rights.” Ellis, supra, at 455. Our cases to date have tolerated this "impingement," and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.

Slip Op at 10 (emphasis added).

Well, that sets up the next constitutional challenge for ALEC quite nicely doesn't it?

ETA: