Jan 18, 2014

Constitutional Places: Browder v. Gayle (1956) and Letter from Martin Luther King

On November 13, 1956, in Gayle v. Browder, the Supreme Court issued a one line per curiam affirmance from a judgment of a three judge panel in the Middle District of Alabama.

In Browder, the court found Montgomery’s segregated buses unconstitutional under Brown. The value of these per curiam opinions cannot under understated. When Brown concluded, “all deliberate speed,” nearly all lower court decisions enforcing Brown were affirmed unanimously without any argument.

Slate links to a remarkable letter that Dr. Martin Luther King, Jr. sent on behalf of the Montgomery Improvement Association, dated November 19, 1956 (6 days after the Supreme Court’s decision), offering advice to the African-American community about how to handle the desegregation order, and end the bus boycott.

The letter begins:

This is a historic week because segregation has now been declared unconstitutional. Within a few days the Supreme Court mandate will reach Montgomery and you will be re-boarding integrated busses.

Rehearing was denied on December 17, 1956. This report from Stanford says the mandate issued “three days later,” on December 20.

On 20 December 1956 King and the Montgomery Improvement Association voted to end the 381-day Montgomery bus boycott. In a statement that day, King said: ‘‘The year-old protest against city buses is officially called off, and the Negro citizens of Montgomery are urged to return to the busses tomorrow morning on a non-segregated basis’’ (Papers 3:486–487). The Montgomery buses were integrated the following day.

This letter is remarkable. The Supreme Court’s decision not to take cases in the 1950s had such a huge impact.



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Jan 18, 2014

The Winners and Losers of Obamacare: Only 11% of People Who Signed Up For Obamacare Were Previously Uninsured

On October 29, shortly after the launch of HealthCare.gov, I wrote an editorial titled “The forgotten man of Obamacare,” trying to draw attention to the winners and losers of Obamacare. I conceded that some people would be better off because of Obamacare (mostly the poor and the sick), but questioned what the impact of that improvement would be on everyone else. Since then, the study of the winners and losers has continued.

For example, see this graph compiled by Justice Wolfers based on Obamacare guru Jon Gruber’s research about the winners and losers of Obamacare.

It shows that 80% of people would be “unaffected” by Obamacare. There would be 14% who are “clear winners,” 3% with “no real consequences,” and *only* 3% “potential losers.” Is it worth it to make the lives of 14% of America better if only 3% are worse off, with 80% unaffected?

Gruber said, “The number of winners will vastly outweigh the number of losers but no one knows that yet because of this Web site,” says Gruber.”

Jonathan Crohn agreed the tradeoff was worth it.

But there’s no denying that some people will pay more, whether because rates go up or they have to buy more expensive plans. . . Is the tradeoff worth it? That’s obviously a matter of opinion. And a true accounting would include all of the law’s costs (like higher taxes on the wealthy, lower Medicare spending on various medical providers, etc.) as well as all the benefits (new incentives for quality care, more prescription drug coverage for seniors, etc.).  But the old system had its costs, too—costs that even people paying low premiums sometimes faced.

As did Ezra Klein, citing the trilemma of comprehensiveness, affordability, and accessibility.

So the bottom line is that Obamacare makes insurance more accessible and more comprehensive, which raises average premiums, but it adds subsidies and competitive markets, which lower premiums. Whether premiums are higher or lower for an individual person depends on their precise situation. But premiums are, in general, lower than was expected when Obamacare passed.

Ditto Paul Krugman.

So have these predictions held true? Does the number of winners dwarf the number of losers? We have one new metric to consider this question–how many of the people who have  signed up on the exchanges were previously uninsured. In other words, are the people who are now buying more “affordable” health care those that did not have it before (perhaps due to high cost or lack of availability)? Asides from the Medicaid expansion, how many people can now afford to buy health insurance that could not do so before?

Professor Seth Chandler blogs about what he calls a “stunning” report from McKinsey–“only 11% of those purchasing health insurance in the individual health insurance market were previously uninsured.”

The figures from McKinsey, coupled with the other survey data, are crucial to any evaluation of the success of the Affordable Care Act.  Its proponents like to brag that 10 million people have gained insurance as a result of the ACA.  As has already been pointed out by many, (see here and here) that figure is a grotesque exaggeration. But hitherto it had been assumed that at least a substantial portion of the individual Exchange purchasers were coming from the ranks of the uninsured. If the McKinsey report, which was based on a survey of over 4000 purchasers, holds up, it further reduces the number of people who have been helped in the most significant way by the ACA. …

And ACA proponents have been quick to point to the 2.1 million (at last count) of enrollees in the individual Exchanges as amongst those winners.  If, however, 70-90% of those enrollees aren’t genuine winners but merely people cutting their losses, that is a very disturbing fact that must be given considerable attention in future debates over this landmark program.

Seth makes an important point about the winners and losers–or as I like to call them, the forgotten men [and women]–of Obamacare. The implementation of the ACA impacted hundreds of millions of Americans in ways we can only barely begin to calculate–from coverage to job hours to layoffs to who-knows-what. If the net result of ACA is a small number of people added to the insurance rolls, then the question of the tradeoff becomes much, much clearer.

It is not enough that a few people have indeed been helped by the ACA. Billions of dollars of overhead have been spent on getting the individual Exchanges up and running.  Millions of people have been made to worry that their insurance coverage — imperfect as it may be — will be lost. Most likely, millions of individuals have already lost health insurance coverage as a result of the ACA. And, as I have discussed, millions of people dependent on small business as the source of their health insurance are likely to be further alarmed as those policies start to renew later this year. Many of them may lose advantageous coverage too.  There are many ways to improve people’s health with billions of dollars.   If the upside of Title I of the ACA — the part containing the elaborate individual Exchange mechanism is mostly a substitution of expensive ACA coverage — which, yes, has some additional benefits — for less expensive forms of coverage, then it those provisions are, to that extent, not making the sort of material improvement in people’s health that would constitute the only real justification for the expenditures.

If the President only wanted to help a small percentage of Americans, this could have been done with *much* less impact on the economy, our healthcare market, and the way our labor market operates. But, the President wanted to reform everything. And, as you will recall, it was sold on the promise that nothing would change, and that we could keep our plans. This was all malarkey from the outset. And they knew it. To the President, there were no losers to the ACA. Everyone is a winner!

As time progresses, it will become harder and harder to compare the ex ante predictions with the ex post reactions (Ezra Klein has “it’s like apples and oranges” on macro). We are now living in the age of Obamacare. And that will be the standard on which all things are judged.

Update: More from Avik Roy on how so few people benefiting makes repeal more likely.

I, along with most observers, have viewed as doubtful the likelihood that Obamacare ever gets repealed. Even if Republicans manage to regain the White House and the Senate by 2017, there will be tens of millions of people on Obamacare-based coverage by then. Prior to the website fiasco of October, the Congressional Budget Office projected that 34 million Americans would be enrolled in either the exchanges or the Medicaid expansion in 2017. It would be politically impossible to disrupt the coverage of 34 million people.

But what if the number is far less than 34 million? What if it’s only 5 million? Such an epic fail would seem far-fetched, but then again, so did the dismal performance of Obamacare to date. For 2014, the CBO has projected that 14 million previously uninsured Americans would gain coverage under the law. With about ten weeks left in this year’s enrollment period, we’re looking at a coverage expansion of less than a million.

Remember also that as many as 100 million previously insured Americans will endure higher premiums—and higher taxes—under Obamacare. The political constituency of the newly insured could be dwarfed by the political constituency of those harmed by the law. If that turns out to be the case, President Obama’s signature legislation may not be long for this world.



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Jan 18, 2014

Dan Kahan Reviews The Shooting Cycle – It’s “Really Cool”

I am flattered that Yale LawProf Dan Kahan called Shelby’s and my new article, “The Shooting Cycle,”Really cool new working paper . . . on the psychology of mass public opinion on guns.”

Dan describes our paper better than I could conceivably do:

Based on a disciplined synthesis of decades of survey data in relation to mass shooting events, plus a textured case study of popular reactions to the Newtown shooting, B&B construct an interesting & plausible model of the psychological dynamics that shape popular support for gun control.

The key pieces consist of [1] an aggregate societal demand for gun restrictions, which comprises a vectoring (essentially) of culturally grounded predispositions; [2] a collection of risk-perception heuristics that, interacting with cultural predispositions, regulate popular attention and reaction to information on gun risks and the efficacy of gun regulation; and[3] sporadic mass shooting events that, feeding on [2], ignite a conflagration of political activity that cools and abates in a recurring, predictable pattern (“the shooting cycle”), leaving no net effect on [1].

The political-economy take home is that mass opinion is that gun control supporters can’t expect to buy much with the currency of popular opinion. As a result of [2], we can expect the drama of gun control to remain stubbornly anchored to the center of the popular-political stage.  But once [1] and [3] are disentangled, B&B conclude, it becomes clear that the popular demand for gun control is relatively weakand growing progressively weaker over time, notwithstanding the predictably intense but temporary spikes generated by mass shootings.

Because of the psychology of gun risks, the prospect of scoring a decisive victory will thus continue to tantalize gun control supporters, who will respond with convulsive enthusiasm to the “opportunities” episodically furnished by mass shooting tragedies.  But according to B&B, they won’t get anywhere unless there is “a significant cultural shift” on guns–one of dimensions significant enough to alter [1].

Moreover, B&B view the prospects of that sort of development as constrained by [2] as well. Advocacy groups will predictably employ culturally partisan and divisive idioms to milk support from the members of groups that are culturally predisposed to see gun risks as high, thereby reinforcing the political motivation of opposing groups to resist gun regulation as an assault on their identities.

And Dan offers some high praise of the article, for which I am flattered.

There are lots of things to like about this paper. …

Another is the solid style of analysis.  B&B didn’t conduct an original observational study or conduct an experiment. But they did use valid empirical methods.  That is, they formulated a set of conjectures, identified sources of evidence that could be expected to support an inference as to whether the conjectures were likely true or not, and then collected the evidence and assessed it in a disciplined and transparent manner that admits of engagement by critically reasoning readers.

I am excited to continue with this important topic.

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Jan 18, 2014

Teddy Roosevelt on Executive Power and the Constitution

The Bully Pulpit has an interesting discussion on how  Teddy Roosevelt decided to mediate the Mine Workers strike, even though his Attorney General told him that the Presidency lacks such power. His answer, was to look to Lincoln and Jackson, and assert the broad executive power needed to deal with an emergency of the time.

Roosevelt himself was increasingly frustrated. “I am at my wit’s end how to proceed,” he admitted. “Of course, we have nothing whatever to do with this coal strike and no earthly responsibility for it,” he wrote to Hanna. “But the public at large will tend to visit upon our heads responsibility for the shortage in coal precisely as Kansas and Nebraska visited upon our heads their failure to raise good crops in the arid belt, eight, ten or a dozen years ago.”

In discussions with Attorney General Knox, Roosevelt was told that he had “no warrant” to intervene. The Constitution provided no precedent for a president to mediate disputes between labor and management. He was warned “that he would almost certainly fail if he tried; and that he would injure his prestige and perhaps sacrifice his political future if he essayed to step outside the role of his constitutional duties.” Roosevelt would not be confined by precedent or bound by fear of failure. He held to what he called “the Jackson-Lincoln theory of the Presidency; that is, that occasionally great national crises arise which call for immediate and vigorous executive action, and that in such cases it is the duty of the President to act upon the theory that he is the steward of the people, and that the proper attitude for him to take is that he is bound to assume that he has the legal right to do whatever the needs of the people demand, unless the Constitution or the laws explicitly forbid him to do it.”

Who needs to carry a big stick when you can just dispatch drones!?

When his efforts to negotiate with the coal operators and the union failed, he considered pulling a Truman, and nationalizing the coal mines, a la Youngstown Sheet & Tube!

His undisclosed strategy was to ready “a first-rate general” and 10,000 regular Army troops to enter the coal fields with instructions “to dispossess the operators and run the mines as a receiver” for the government until a settlement could be reached. He secured the agreement of his selected general, John M. Schofield, to pay “no heed to any authority, judicial or otherwise,” besides the president in his role as “Commander-in-Chief.” According to this stratagem, if “the operators went to court and had a writ served on him, he would do as was done under Lincoln, simply send the writ on to the President.” This intrepid plan illustrated one of Roosevelt’s favorite maxims: “Don’t hit till you have to; but, when you do hit, hit hard.”

Whether the president would have implemented this unorthodox design is not clear. “Theodore was a bit of a bluffer,” Elihu Root observed. But Mark Sullivan had discussed the measure with Roosevelt on a number of occasions and believed he was prepared to follow through: “The one condition Roosevelt’s spirit could not endure,” he remarked, “was any situation in which individuals or groups seemed able to defy or ignore the people as a whole and their representative in the White House.”

Fortunately it never came to that, and Secretary of War Elihu Root was able to work out a compromise with J.P. Morgan. But boy, Teddy was a serious unitary executive.

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Jan 18, 2014

The Chronology of Events Leading Up To Judge Martin’s Retirement

TPM has a report concerning the retirement of Judge Boyce M. Martin from the 6th Circuit, titled “Judicial Giant Quietly Retired Under Investigation For Travel Expenses.” Howard Bashman links to the ruling of the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States, and an earlier ruling from the Judicial Council of the Second Circuit.

In this post I will break down the chronology of events leading up to Judge Martin’s retirement.

  • 7/31/12 – Chief Judge Batchelder of the 6th Circuit “identified a complaint” against Judge Martin concerning “questionable travel reimbursement requests.” The allegations concerned travel reimbursements from January 1, 2008 to August 2, 2012. “These dates bracketed the period of investigation ending with the date of the Chief Justice’s transfer of the proceeding.” In his petition for review, Judge Martin attributes the “travel reimbursement requests at issue” to “internal chambers administrative errors.” Martin further states that “he and his administrative staff had made several administrative mistakes,” although, he adds, “some expenses were contested,” including “reimbursements he maintained were permitted under a letter from the Administrative Office.”
  • 8/2/12 – Chief Justice Roberts transferred the proceeding to the Second Circuit Judicial Council.
  • 9/10/12 – Chief Judge Dennis Jacobs (2nd Circuit) “appointed a special committee to investigate the facts and allegations in the complaint.”
  • 4/23/13 – “The Special committee directed that Judge Martin testify under oath at a hearing on May 30, 2013.”
  • 5/6/13 – “The Special Committee sent Judge Martin a Notice of Potential Areas of Inquiry at the hearing.”
  • 5/14/13- Two weeks before the hearing date, Martin informed President Obama that “he would retire from office on August 16, 2013.” Note that he did not take Senior Status. He retired outright pursuant to 28 U.S.C s. 371(a). (Though, as I understand it, with his tenure of service, he would receive a full pension). In his petition, Martin  “claims that he was advised, through ‘informal contacts’ between his counsel and the special committee’s counsel, that this matter would remain confidential, with no ‘referral’ to the Department of Justice, if he resigned before the scheduled hearing and repaid his travel reimbursements.” The appeal noted, that “Judge Martin’s counsel executed an affidavit, attached to the petition, that describes ‘informal contacts’ with outside counsel for the special committee, in which, he declares, ‘[u]ndersigned counsel was advised that if Judge Martin elected to resign and repay all travel expenses from January 1, 2008 to August 2, 2012, notwithstanding Judge Martin’s position that many of them were authorized, those steps would conclude the matter and it would remain confidential.'”
  • “Shortly thereafter” 5/14/13 –  Judge Martin “agreed to repay the federal government all travel reimbursements he had received from January 1, 2008, to August 2, 2012, approximately $138,500.”Staff at the Administrative Office of the United States Courts were advised by Second Circuit staff to expect Judge Martin’s repayment in three equal installments, to be submitted on June 16, July 16, and August 16, 2013. Only the first two installments have been received. “Judge Martin maintains that he took voluntary and complete corrective action in this matter, and that the complaint proceeding should have been concluded on that basis.”
  • 6/20/13 – Judge Jacobs finds that “because Judge Martin has informed the President that he will retire from office, the Judicial Council has decided that it should “conclude the proceeding because . . . intervening events have made the proceeding unnecessary.'” Following the commentary to a rule, that provides that disclosure of the name of the judge “may be in the public interest–particularly if a judicial officer resigns int he course of an investigation,” the “Judicial Council has determined that it is in the public interest to disclose the name of the subject judge.” The complaint was dismissed, and the order “shall be referred to the Public Integrity of the Department of Justice for such action, if any, as may be appropriate.” This opinion was not published until 1/17/14.
  • 8/16/13 – Judge Martin retires.
  • 8/20/13 – Judge Martin filed a “petition for review” with the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States. “Judge Martin takes issue with two elements of the order: its statement that it would be referred to the Department of Justice, and its disclosure of Judge Martin’s name.” He seeks “an order preserving the confidentiality of these proceedings.” Further, he alleges that the Council “fails to credit what he describes as his voluntary corrective actions in this matter.”
  • 1/17/14 – The case was heard by a panel of  Judges Anthony J. Scirica, Chair (CA3), Sarah Evans Barker (S.D. In.), Edith Brown Clement (CA5), David M. Ebel (CA10), James E. Gritzner (D.IA). The panel released an opinion finding “no error in the Second Circuit Judicial Council’s disposition of this matter.” “Such disclosure is appropriate in this circumstance because Judge Martin resigned during the course of the special committee’s investigation.” Further, the Panel found that the “Second Circuit Judicial Council’s order contains no finding that ‘corrective action’ had occurred within the meaning of the Act and the JCD Rules.” In other words Judge Martin’s offer to repay the $140,000 (which he only seems to have repaid 2/3 of) would not correct the complaint.
  • The panel also dismissed any reliance given to Martin’s lawyer by the outside council for the special committee. “On review, this claim raises no issue because the statements attributed to outside counsel reflect only advice or suggestions on how Judge Martin might seek to improve his legal position outside the context of the judicial misconduct complaint process, and not a promise to conclude the investigation without referral and to maintain confidentiality. We note, as well, that Judge Martin evidently did not seek to have the alleged assurance reduced to writing even from a person lacking authority under statute or rule to extend it, and the Second Circuit Judicial Council’s order makes no mention of it. Nor is there any assertion that the Second Circuit Chief Judge or Judicial Council agreed to an informal resolution.”
  • Presumably, this matter is still under review by the Department of Justice Public Integrity Section.

For purposes of full disclosure, I clerked for Judge Danny J. Boggs on the 6th Circuit in Louisville from August 2011-August 2012. Judge Boggs and Judge Martin–whose chambers were next door to each other–had a well-documented, public disagreement. I should also note that I did not have knowledge of any of these allegations while clerking, and everything in this post is based on my analysis of the two reported decisions by the courts.

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