Tag Archives: government

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.


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.

Observations on gun culture and “self defense”

In the wake of the Newtown shooting, it looks like gun control is on the political agenda for the immediate future (at least, more than it has been in the recent past). Following each of the recent mass shootings, I’ve tended to spend some time in the days after looking at gun-related websites–everything from forums discussing the best home-defense calibers, to Guns & Ammo magazine, to the webpage for Colt’s .22 rimfire M-16 lookalike. In that time, I’ve noticed some things about the gun owners who comment on those sites–things that I thought would be useful for other people like myself to understand during the coming policy debate. This will not be a heavily data-driven post, other than my own observations, but I hope it will be useful.*

I feel some need to open with a quick statement on some of my biases.

I think it’s fair to say that my family has little use for guns. Not just my immediate family–I’m not aware of any gun owners in my entire (large) extended family. I may have missed one or two, but I doubt it. I also live in DC, and lived before that in New York City–not among the most gun-happy areas of the country. I have had little exposure to the culture of gun ownership.

But even with that background, I’m not totally ignorant about guns. I learned to shoot in Boy Scouts, and wasn’t god-awful at it–I shot .22s, shotguns, and once a percussion(?) muzzleloader. I have never shot a handgun, although I’m intrigued by the possibility. And I’ve had a lifelong fascination with weapons of all sorts, so I occasionally kill a few hours reading about guns on Wikipedia.

Finally, as a health policy guy, I need to admit that I see guns as an environmental health hazard. The evidence is pretty ambivalent on whether having more armed citizens around has much of an effect on crime, but with respect to suicide and accidental death, it’s pretty obvious that having more guns around leads to having more people dead from accidents and suicides. With that noted, my observations.

First, several beliefs that appear common among gun owners:

  1. Responsible gun owners don’t pose any threat to other people. Most of the comments I’ve seen attribute gun risk to individuals, not to guns–there are “responsible, law-abiding gun owners” and irresponsible or non-law-abiding gun owners, and the responsible ones don’t cause injuries or death. Rather, gun deaths are caused by irresponsible gun owners, the mentally ill, and criminals.That belief is true, to a certain extent–in any given year, or even over a lifetime, any given gun owner is unlikely to commit a crime or kill someone with a gun. But moving from that fact to the idea that legal guns pose no risk is obviously in conflict with the data and what I just got done saying about guns as a public health hazard. That conflict points out the deception inherent in the phrase, “Guns don’t kill–people do.” Because while it’s true that guns are not independent actors who choose to kill people with no human involvement, the fact remains that the presence of guns means more people end up dead. Because while responsible, law-abiding gun owners are unlikely to commit crimes, their guns can still be involved in accidents and suicides–and both of those risks remain, simply based on the presence of a gun.
  2. Violent crime is a common (or at least likely) occurrence. Gun forums are the only place I’ve ever seen someone use the term “gangbanger.” It’s common there, though, as a generic term for (as nearly as I can tell) people who actively are out to commit violent crimes against ordinary people. “Gangbangers” seem to be the boogeyman that will rob your house, or assault your wife or elderly grandparent in the street–if you’re not armed. Editorializing again, this seems contrary to reality. Violent crime (and particularly random street crime) is, by the standards of history and for most people in almost all areas of the US, very rare. Clearly there are areas where it’s more common, and people in particular occupations may be more likely to be targeted, but a belief in common violent crime seems necessary to make a general case that “I need to protect my family.”
  3. The police will not save you. When the gangbangers come, the police will either be (depending on which site you’re looking at) uninterested in helping you, or just not around when you need them. That means protecting yourself (and your family–these sites always invoke protecting the family, in what seems to me like a shoutout to hypertraditional family-first thinking) cannot be effectively outsourced to the power of the state.This belief is, in a certain respect, probably right. I’m not familiar with typical police response times, but there are at least some situations where criminals escape before the police show up. But I’m also not sure how much they would accomplish if they did frequently show up to, for example, a home invasion in progress. The idea that the police are supposed to provide armed protection to the citizens (but they just don’t) seems like a misunderstanding of the role of a modern police department: to deter, investigate, and prevent crime, promote public order, and catch criminals after the fact.
  4. Owning and using a gun is an effective way to protect yourself against violent crime. There are two ways that guns protect you against violent crime–by deterrence (both group and personal), and by responding to a threat. There are a couple ways this logic works. The deterrence case for widespread concealed carry is that criminals will be unlikely to attack people if they believe many of their potential victims or bystanders are armed, because they don’t want to get shot. Obviously, in this worldview, the more common concealed carry is, the better off everyone is–it’s a classic collective action problem. (This is also a relatively testable proposition–if criminals fear the general concept of an armed citizenry, there should be pretty solid evidence that overall crime goes down when more people carry concealed. The deterrence case for open carry is more direct, and harder to test–if you are openly carrying a weapon, criminals are presumably less likely to attack you, but that may simply mean they pick a softer target. In that case, there is no positive externality to more common open carry.)Finally, there’s the response case, i.e. the presumptive point of carrying a weapon (or at least a loaded one–deterrence could perhaps be accomplished without ammunition): a person who is armed can attempt to use their gun to remove the threat, either by killing the assailant, scaring them off, or maybe making a citizen’s arrest. (I may just have looked in the wrong places, but I remember seeing very little writing on what to do once you have a gangbanger/robber/rapist/whoever in your sights.)

    The data seem to suggest that homicides are not substantially affected either way by concealed carry. My recollection is, however, that there are pretty strong data saying that guns kept in the home for protection are substantially more likely to injure a member of the household than be successfully used against an intruder. That’s plausible on its face, simply because intruders are rare (as noted above), family members are frequently home, and late-night accidents and miscues are all too common. My guess, though, is that gun owners are as aware of that data as the rest of us–they simply fall prey to the Lake Wobegon Effect, and assume that their superior equipment/skills/training/awareness in the middle of the night will make them more likely to use their gun effectively.

  5. Given 2, 3, and 4, owning a gun is the responsible thing to do, to protect yourself, your home, and your family. I haven’t and can’t address the deeper philosophical and psychological differences between people who own guns for protection and those who don’t. But if these beliefs above are true, the case seems pretty obvious. I see most of these as either inaccurate, misunderstandings of the evidence, or just not terribly relevant to whether or not owning a gun makes sense, but it’s at least possible to tell a rational story about why one might choose to do so.

For more on gun owners’ beliefs, read the excellent “Tactical Reality” at TPM and this Atlantic piece. (The latter is interesting for “Registration, confiscation, genocide,” but I don’t see any reason to believe that’s a common view–it’s got more in common with Stormfront than Guns & Ammo.)

Two final observations:

  • Gun owners are not a homogeneous bunch. (Duh.) Obviously, goldbug doomsday-preppers don’t necessarily have a lot in common with antique gun collectors, who may have nothing in common with deer hunters, who perhaps don’t agree with the home-defense types on much.  Writing this has made me realize that the “beliefs” I listed above are probably most reflective of  one particular group–the people who believe in owning guns for home defense. I would not be surprised, however, if these beliefs and the arguments that come from them (“Criminals will get guns anyway, so it doesn’t make sense to take guns from law-abiding citizens who aren’t a threat anyway”) will form the core of the opposition to additional gun control.
  • Last, gun & ammunition manufacturers are having a field day with zombies. I’m not going to read into this too much, because if I owned a gun I’m sure I would be all about blowing holes in some zombies. But in the end, tactics and equipment for killing zombies are pretty similar to tactics and equipment for killing people. That makes the extent of the fantasy mildly unsettling–it goes beyond targets and forum discussions to full-scale articles on Guns & Ammo on the best anti-zombie guns, “zombie ammunition” and specially-marketed “zombie guns.” And amid the rest, I can’t help but find this target’s resemblance to a caricature of  President Obama disturbing.

Please, if I’ve misrepresented anything, or gotten some important fact wrong, point it out. As I’ve said, these are merely observations, but I do hope they’re informative.

*Given my lack of extensive data, I will endeavor not to make unreasonable generalizations. However, the whole point of this post is to generalize some of what I’ve seen. Thus, this is my disclaimer that the points I make here may not be representative of all or even most gun owners, or even of participants in gun forums. They are simply my recollections from  looking around the web.

A simple fix(?) for the carried interest question

Dylan Matthews explains carried interest.

Here’s a simple criterion to determine whether managers are earning income or investment returns: If you own an asset (and are eligible to pay cap gains taxes on it), you must have symmetrical exposure to the downside and the upside. If hedge fundies want to take that risk they can do so–they are, in that circumstance, providing the socially valuable service of risk-taking and investment, and we encourage that with a lower tax rate. If your management contract only says you get X% of investment gains, though, that’s ordinary income and you get to pay the full tax rate on it.

It seems like the issue should be more complicated than this. Am I missing something, or is this a reasonable framework?

Note: If you insure against losses, I’m inclined to think that insurance payment ought to be taxed as ordinary income. That might end up being incredibly hard to do in practice, though, and I’m really not certain how to deal with risk mitigation in general.

The US is not Greece.

Nor are we on track to become Greece. We could make fiscal and monetary policy with a d20 for a decade, and still not be on track to become Greece.

This is not to say that we don’t have problems–we do. But they are very different from Greece’s problems, and they have a very different endgame.

First, for those who have been living under a rock for the last couple of years: Greece is in the middle of a sovereign debt crisis: the government has borrowed more money than it’s willing to repay. Greece was hit particularly hard by the 2008 recession, and its tax revenues aren’t sufficient to repay the debt without making drastic cuts to services and government salaries, increasing taxes, etc. As you may recall, Greece has had periodic riots over a series of austerity plans in the last few years. Meanwhile, as creditors began to worry more and more about whether the Greek government would continue paying its debts, their interest rates have climbed higher and higher–further increasing the problem.

At this point, it’s clear that all of Greece’s remaining creditors will take a haircut on the value of their bonds. That’s created some growing worries about banking systems in other countries–and by extension, those countries’ governments. I’m not going to go into the rest of the Euromess or the efforts to save it, though.

There are a couple of important points to note about how Greece reached its current state. Point 1: when the Euro became the sole Eurozone currency in 2002, markets started assuming that all Eurozone governments were pretty much equally creditworthy. Interest rates on all of their debt converged–not at the middle of the pack, but clustered around the previously-low rates afforded to Germany and France (the largest, richest Euro countries). For Greeks, both private citizens and the government, that meant borrowing got very cheap, very rapidly. That’s the first important piece of why Greece got in trouble.

Point 1.5: Obviously, those investors were very wrong about Greece’s creditworthiness. Part of the reason is that the Greek government (with help from Goldman Sachs, if I’m not mistaken,) essentially cooked the books to get into the Eurozone in the first place. There were some fiscal rules that all EZ countries were supposed to follow, and Greece flouted them. Let’s call that a big, collective “oops!” Moreover, the Greek government is not institutionally comparable to a major developed-world government like France or Germany–it just doesn’t work that well. Rather, the Greek government is a large political patronage machine. That means a huge number of workers are dependent on the government for their (unsustainably high) incomes. It also means that tax collectors are paid primarily not  to collect taxes. That strategy that works really well when you want to employ tax collectors without pissing off people who would theoretically be taxpayers, but it works rather badly when you suddenly need an effective taxation infrastructure to collect money so your government can make bond payments. In short, even if Greece had been following the EZ fiscal rules, it would have been stupid to lend to them at the same rate as you’d lend to Germany.

Point 2: We haven’t yet considered the effects of the common currency. it only gets nastier from here, for a couple reasons. First, if a country with an independent currency has too much debt denominated in their own independent currency, they can just inflate it away. Inflation sucks for bondholders and anyone in the country with savings; it raises future interest rates that the country will be charged to borrow; and it poses a risk of hyperinflation if the central bank does its job badly (or is too responsive to political pressure). But those risks can be less bad than the pain of tax increases or spending cuts necessary to pay down a large government debt. Greece doesn’t have that option: it doesn’t control the supply of Euros, and it can’t just start printing drachmas to pay off Euro-denominated debt. That’s been good for investors so far, since some of them have been able to get out before their bonds lost value, but it’s crappy for Greece.

Greece is also getting slammed by the shared currency because it’s holding the Greek economy back from recovering. If Greece had its own currency, devaluation would be a huge boon to the export sectors–many of which (e.g. tourism) are extremely important to the Greek economy, and have been hammered by the recession. If the Greek government could devalue the currency, vacations in Greece and other Greek exports would become super-cheap, and French people would start flocking to Greece. That would kick-start those sectors of the economy and help raise tax revenue, which would make it easier for Greece to keep interest rates manageable. (Admittedly, that debt stability would come at the expense of Greek workers, whose purchasing power would drop with the devaluation, but  it would be better in the long run for wages to adjust to competitive levels. Since wages and prices are sticky, that hasn’t happened much and Greece’s export sector hasn’t recovered as much as it could have otherwise.)

SO: What does all of this say about the US? Well, in short, we have none of those problems. Greece has skyrocketing interest rates, leading to an immediate-term inability to roll over its debt. The US is paying negative real interest rates to borrow for the next ten years. The Greek government has a first-world debt burden and an advanced third-world level of organization. The US, whatever the current state of our political branches, has an effective, professional executive branch with a power to actually collect taxes. Greece can’t inflate its way out of Euro-denominated debt. So long as we borrow in dollars (a practice that seems unlikely to change in the near future), we will always have that option. Greece can’t devalue its currency to kick-start exports. Again, since we control the supply of dollars, we can.

You will notice that I have not argued that the US doesn’t face any problems. As I’ve said before, we do–some of them are even related to long-term levels of government debt. If you look at those problems, though, they are almost 100% driven by increases in health care spending. (I consider fixing Social Security an uninteresting blip in our long-term fiscal picture. Compared to Medicare & Medicaid growth, it’s peanuts.) That spending will be a problem whether it’s in the public sector or the private. Beyond health care, we have serious challenges to face in improving education and remaking our energy infrastructure. None of those problems, though, has the basic structure of the Greek debt crisis–such a crisis is definitionally and practically impossible for the US. So if you’re going to make grand pronouncements predicting the fall of the American state, please choose a comparison that makes a small amount of sense.

(This post inspired by one of several Facebook conversations in which people have grossly misrepresented the Greek problem, usually by just using “we’ll turn into Greece!” as a placeholder for coherent thought about what problems the US faces.)

I love hard questions!

Via the wonderful and intelligent Meb Byrne: “Is access to healthy food a basic human right?”

My initial response:

“In my line of thinking, no. I don’t think any basic human rights make material claims on other people–human rights entitle you to protection from other people’s actions, but (the way I see it) they usually don’t require action from other people on your behalf.

I looked at the Universal Declaration of Human Rights while thinking about this. They do include food, along with housing, education, and various other social safety net-type things. Those aren’t the only parts of the UDHR that I disagree with, but they’re the point where I object most strongly. Will blog shortly on why, although I don’t know if I’ll make sense.

What do you think?”

The addendum to my response:

Human rights are, by definition, inalienable and inherent to our humanity. That means, to me, that they have been consistent throughout time: human rights are the same today as they were when the concept emerged during the Enlightenment, when they were the same as they had been for the Ancient Greeks, immutable since the dawn of civilization. (Of course, they haven’t always been honored, but we’ve gotten better at it over the years–especially the last 200 or so.) To assert that the definition of human rights changes to fit the feelings of the time would imply that (perhaps) the various bouts of enslavement over the millennia were not, in fact, violations of the enslaved’s human rights.

Given that the definition of human rights should be constant over time, I don’t think we can include any material rights in the definition–that includes food, water, housing, medical care, &c. Basically, I can get outraged over political/religious/ethnic repression & wanton violence throughout the years, and in each case I can find someone who was committing an affirmative violation of human rights. I can’t muster the same ire over the Irish potato famine–or, for that matter, the bubonic plague, or the Indonesian tsunami, or any other essentially natural condition. I don’t think it’s philosophically consistent to hold all of Medieval Europe responsible for the fact that the population periodically got out of control and people starved, any more than we can call it a human rights violation that they didn’t have access to doxycycline.

Obviously, I might be very wrong here. If I am, please tell me!


(None of this, of course, suggests that I oppose public provision of social services. Obviously, governments exist to do more than protect basic human rights. It’s worth acknowledging, thought, that we provide social services because 1) we like having other people around who aren’t starving and 2) we all benefit from having an informed, productive workforce to do stuff for each other and 3) we like knowing that if something goes wrong, we’ll have a safety net available, and lots of other reasons. None of those rises to the level of human rights, though, and we need to admit that in policy discussions.)