Government agency makes rational decision; whining ensues.

From Gothamist, “NYCHA Trying To Force 91-Yr-Old WWII Vet To Move Into Smaller Apartment“:

“NYCHA’s downsizing (or as they call it, “right-sizing”) plan was put in place to accommodate families on the waiting list; as of last summer, the number of people on the waiting list was up to 270,000 people, while the total amount of public housing units in NYC was at 178,900.”

This is what a well-run public agency is supposed to do – allocate scarce resources based on where they can do the most good. If Calinda is taking up an apartment that could be a home for three or four or more people on that waiting list (the story neglects to say how big an apartment he’s living in now), while NYCHA has another apartment that would be adequate for him, that should be the scandal – “NYCHA keeps families on streets by favoring long-time residents!”

Calinda’s tenure – the fact that he’s lived in public housing for 60 years – does not give him a property right in that apartment.* The city has a responsibilty to use its housing developments for the benefit of everyone who’s supposed to be eligible for the program, not just those lucky enough to make it in decades ago.

That said, there can still be compassionate reasons not to move very old people away from their communities – I could imagine that losing his connection to his friends and home could make Mr. Calinda’s life a lot worse, and even have negative health effects. But if that’s true for any reasonably large number of people, it suggests that NYCHA should look into other ways of dealing with elderly long-time NYCHA residents so they’re not a barrier to providing housing to others who need it. And in the meantime, if there’s an interim accomodation for special cases, the right place to make that argument is an impartial administrative process, not by spewing sentimental nonsense in the press. (This is a good time to link to Bryan Caplan’s smart post on demagoguery, which he calls “the politics of Social Desirability Bias.”)


*Note that this is somehow an area of pretty fundamental disagreement in most conversations about housing policy & gentrification.

Six Unworthy Amendments

Six Amendments is a disappointment.

I took issue with Justice Stevens’s proposed amendments in my first post on the book, before it was released. I stand by my criticisms of the campaign finance, gun control, and death penalty amendments – they are poorly written, and for the most part would not provide the clarity judges need to make consistent, predictable rulings. (I actually have more of a problem with his campaign finance amendment after reading the book – any reasonable reading seems to allow the government to prohibit publishing books, if it so chooses, so long as the book is plausibly connected to an election.)

The other three (gerrymandering, sovereign immunity, and commandeering) have more distinct problems: I’m not convinced that the anti-commandeering rule is as harmful as Stevens claims, and he made no effort to present the arguments against his position, so I don’t fell informed enough to make a decision. Most importantly, I’m not clear what effect (if any) his amendment would have on the scope of Congress’s ability to act outside its enumerated powers.

The argument against states’ sovereign immunity (unrelated to qualified immunity, as it turns out) has basically the same problem as the commandeering argument: there’s no analysis of the policy value of sovereign immunity. That said, it’s probably one of the strongest of his proposals.

The gerrymandering proposal is likely the strongest proposal – my only serious objection is that it is inelegantly drafted. By explicitly stating that strengthening one party’s control is not a valid, neutral purpose, he leaves a huge number of equally poisonous angles (i.e. the protection of incumbents) open to litigation, if not acceptance.

Predictably, since the amendments are sloppily drafted, there’s no redeeming the rest of the book. Stevens goes into some depth on the history of how the law reached its current state (arguing, in each case, that dissents he wrote or joined would have prevented this outcome), but as I noted, he spends little or no time discussing the wide variety of possible solutions to each problem, and the arguments for or against each one. Even worse, he spends no time arguing for his phrasing by addressing different ways his proposed text might be interpreted by judges in the future. Even for a rank purposivist such as Stevens, the flaws and ambiguities in his text should be clear and important.

Overall, the book is unambitious, and unworthy of its premise. When one promises to explain “How and Why We Should Change the Constitution,” especially when the promisor is a former Supreme Court Justice with a broad-ranging knowledge of the legal issues facing the country, it seems reasonable to assume the pool of possible topics is wider than “dissents I’m still mad weren’t majority opinions.” Stevens didn’t follow through on that at all.

In which I contradict a Supreme Court Justice (ret), without having been able to read his complete argument.

As the title suggests, this post is entirely speculative, and will probably be wrong on several counts. But that’s never stopped me before.

Former Supreme Court Justice John Paul Stevens has a new book coming out in April: “Six Amendments: How and Why We Should Change the Constitution.” I wasn’t particularly impressed with Stevens’s last book (Five Chiefs), but I’m intrigued by this one – it should benefit from having a narrower focus, rather than reflecting on a long judicial career.

Author Josh Blackman has a review copy of the book and posted the six proposed amendments here. He hasn’t posted a response to the actual arguments in the book yet, since he wants to read it first.

I don’t have that kind of sense, so here are my quick reactions to the text as presented in Blackman’s post:

  1. “Commandeering” of state officials: Apparently a reference to Printz v. US, which I’m not familiar with, so no comments.
  2. Gerrymandering: Protecting elections is an appealing (and predicted) target, and I guess this would probably do some good. Complaints: I’d like to see some explicit requirement that districts be created by a body with no stake in their composition, and the “enhancing or preserving the political power of the party in control of the state government” language is probably too narrow; the necessity of including it suggests weakness in the rest of the proposed text.
  3. Campaign finance: Another obvious target. I like this avenue better than trying to insert clarifying text directly into the First Amendment, and Stevens (thankfully) doesn’t fall into the trap of only focusing on corporate spending. But the language here is ambiguous, and seems either entirely too broad (broad enough to limit protected political speech to standing on a soapbox in the park), or to re-create exactly the hard money/soft money distinction that used to exist, where only speech that explicitly endorsed or opposed a particular candidate in a particular election was regulated. That might not be a bad regime to have, compared to our other options, but I’m not sure it would really change the importance of fundraising in elections, and the speech costs (depending on where Congress sets limits) might be substantial.
  4. Sovereign immunity: Not an area I know well, but I’d be curious about whether this has any effect on determinations of qualified immunity. I’d love to see an amendment that clarified and expanded the opportunities for Bivens suits (suits for damages against state employees for violations of an individual’s constitutional rights).
  5. The death penalty: Again, the topic was predicted – Five Chiefs includes substantial discussion of Stevens’s personal journey on the death penalty. Inserting this into the 8th Amendment is the wrong way to go, though – as worded, this basically inserts a factual finding that capital punishment is cruel and unusual – which may be true, but isn’t really the kind of thing that should be inserted into the constitution. It could(?) also drive judges to a particular interpretation of “unusual” – perhaps one which takes more account of international norms, since the death penalty is not unusual in the US. Would be cleaner & better practice to insert a separate amendment, “Neither the federal government, nor any state or subsidiary government of a state, shall execute any person in punishment for any crime, including Treason.”
  6. The Second Amendment: Obviously any change is DOA, but more importantly, this phrasing is stupid. Placing gun rights in the context of militias is outdated, and accomplishes nothing except perpetuating the confusion caused by associating gun rights with militias.More importantly, I don’t think tying gun rights to service in a militia clears up any interpretive ambiguity. What defines service in a militia? If Wyoming wants to create a volunteer militia that anyone can join by just signing up online, may it do so? If it does, can the Feds then regulate the weapons available to such a militia? Aren’t militias traditionally a matter for state regulation?Seems like a better phrasing would be to delete the militia entirely, and insert text that recognizes some sort of individual right to bear arms (in line with Heller and McDonald) – but which explicitly allows for rational-basis regulation: “The right of persons to keep and bear arms, in accordance with such rational laws and regulations as Congress and the States may create, shall not be infringed.” (Basically, if I’ve written that coherently, people who choose to carry weapons in accordance with the law should be protected from arbitrary government interference with their activities on that basis alone.)

Other notes: I’m disappointed not to see something dealing with executive powers, especially in wartime. If there’s any chance that we will continue in a state of perpetual semi-declared war (and there is), and if Presidents will be tempted to use that war to disregard the basic rights and liberties of citizens and noncitizens alike (they will), we ought to have clearer constitutional boundaries on the conduct of those wars.

I also would have liked to see Stevens address how the Fourth Amendment might be changed or clarified, to respond to the possibility of perpetual, suspicionless surveillance. The Court has muddled through, to a certain extent, but technological advances seem to have so broadened the realm of the possible that an explicit protection from generalized surveillance, even in “public,” would be worth including.

Escaping “clannism”

Mark Weiner’s peice in this month’s Cato Unbound is important and insightful. Basically, he points out that the project of modern society is, in essence, the escape from tribalism (what he calls “the rule of the clan”). From that emerges all of the social progress, by which I mostly mean increased individual autonomy (including the establishment of rights for women and minorities)) that Western liberal societies have achieved since the Dark Ages.

The crucial context for that idea is that the strong nation-state is a necessary replacement for the clan as a source of social organization and cohesion. A key quote from the end of the piece:

“Equally, to maintain its legitimacy, government must seek to address the needs that the rule of the clan meets far more directly. It must pursue policies that moderate economic inequality; it must provide a space for the flourishing of voluntary civil society organizations that provide opportunities for solidarity; and it must ensure that individuals have fair opportunities to exercise their autonomy within the marketplace and that they can effectively navigate the host of bureaucratic state institutions that provide the conditions of modern life.”

It’s good to hear from a libertarian who recognizes that maintaining the basic structure of modern society is far more fundamental to human welfare and human freedom than protecting low marginal tax rates and the freedom to not bake wedding cakes for gays. There’s a certain baseline level of agreement about “yes, we should have a society” that’s useful for carrying on meaningful policy conversations, and remembering the real alternative to modern liberal democracy is a good way to maintain that agreement.

Finally, this piece interacts interestingly with two posts by Noah Smith – one from a while ago on libertarianism and the “liberty of local bullies,” and one from today that notes the importance of firearms in creating precisely the centralized nation-states that backstopped the development of individualistic societies.

Brad DeLong on economists in the public square

Great article by Brad DeLong – go read it.

My only comment: I think #3 is incomplete. Markets can reinforce incentives to exploit power, but they also create powerful incentives & mechanisms for changing the distribution of power. The rise of the middle class & the flattening of social status are market-era phenomena, reinforced by the incentive to look past whatever social differences you have with other market participants & use them to make money.

EDIT: Chris Hayes, Adam Ozimek, & Matt Bruenig had a Twitter conversation that ties in to this: markets have the potential to displace social norms, which in specific instances can be a net positive or net negative, but I argue has been, on net, a large positive over the last roughly 250 years.

Is a one-year Obamacare delay acceptable?

As part of an ongoing conversation about the government shutdown, my dad emailed me this morning to ask if a one-year delay in Obamacare would be an acceptable concession to give in exchange for the House Republicans agreeing to repeal the debt ceiling forever. This post is edited from my response.

Like anyone who is paying attention, I find the debt ceiling pointless and terrifying, and I want it dead yesterday. I was and still am a big fan of #mintthecoin, I’m a recent devotee of Matt Levine’s idea of selling high-interest Treasuries at a premium to fund the government at the limit, and I’ve argued that Obama should negotiate to kill the debt ceiling forever (but not over just raising the debt ceiling), and that there exist policy concessions that would be well worth making to eliminate the possibility of repeated hostage crises.

But is delaying Obamacare, even for just a year, an acceptable price?

Not a chance.  Even a one-year delay in Obamacare is  morally unacceptable when the President has other tools to avoid default.

NOTE: By a “one-year delay,” I assume we’re referring  to delaying the individual mandate, the exchanges opening, and Medicaid expanding, and not changing  the other administrative rules/delivery system reforms/parts of the law that have already gone into effect. Maybe it also includes a delay of the device tax, and pushes back IPAB’s spending review, although that looks to be irrelevant this year regardless. That may not be what the Republicans are asking for – I’m not sure.

What that means, though, is preventing ~20 million people from becoming insured, in exchange for avoiding an already-preventable default. On top of that, the exchanges are already operating (as of Tuesday) – so we’d not only have to deny people insurance, we’d have to revoke insurance they already thought they had purchased. It would be terribly cruel. And it would kill people.

If negotiation truly was the only means of preventing default on our debts, you could make a plausible argument that the overall pain of a default would be even worse than taking health insurance away from millions of people. Being uninsured is bad, but  global economic crises are bad for people, too. But that argument is shaky, and it doesn’t hold up when (as noted) the President has several ways to avoid default unilaterally if it becomes necessary.

So, what would be an acceptable policy compromises in a deal to repeal the debt ceiling?

  • One thing that should be included is a repeal of the platinum coin option, by setting a maximum face value for commemorative coins. Creating money and depositing it at the Treasury is not a power any President should have – but until the debt ceiling is gone, no President should be willing to give it up, either.
  • Repeal of medical device tax.
  • A one-year delay in the individual mandate, or alternatively a total rewrite of the mandate to use some non-mandate way of encouraging people to register, e.g. “If you decline insurance, you’re ineligible for subsidies on the exchanges for five years thereafter.”
    NOTE: The mandate penalty this year is small ($95), so I don’t think this would have a huge effect on insurance enrollment or cause a death spiral, but it includes the risk of pretty bad outcomes in the private insurance market (and it’s sure to royally tick off private insurers, who were promised a supply of young, healthy, cheap new customers).
  • A political compromise, rather than policy compromise: ~20 House Dems (enough to replace any Tea Partiers who defect after the deal) agree to support Boehner for Speaker for the rest of this Congress
  • Are there other ideas? Probably – I haven’t been paying that close of attention to what the GOP demands. But even if I had, it’s not easy to respond to delusional talking points with actual policy concessions.

My first policy paper!

While at the New America Foundation, I wrote a paper on the health care workforce with Shannon Brownlee and Thom Walsh. That paper has finally been released, and I think it has the potential to be a useful contribution to how people think about health care workforce planning.

The tl;dr: The health care workforce pays a lot of highly-skilled people to do jobs that they don’t need to be doing, either because their tasks could be done more cheaply by someone less highly trained, or because the work they’re doing doesn’t need to happen at all (since it doesn’t benefit patients). There are examples scattered across the country of health care systems that do a better job of using their workforce effectively, and it allows them to provide good care with much lower spending. We need to focus workforce development efforts on emulating those more efficient systems.

I hope you’ll read it!


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