SCOTUS Follow-Up

As predicted, it begins:

Following Friday’s Supreme Court decision, two of Texas’ top officials, Gov. Greg Abbott and state Attorney General Ken Paxton, issued opinions directing state agencies to “respect and preserve Texans’ religious liberties,” in essence encouraging county clerks to refuse to issue licenses to gay couples if it conflicts with their religious beliefs.

While the comments don’t quite say what the USA Today says they mean, let’s assume that some states will permit certain government officials to refuse to perform certain acts on behalf of the government due to their religious objections. How does this shake out?

Practically, it’s easily avoidable. The state has an obligation to comply with the law, so as long as a clerk’s office performs marriage, someone in that office must be available to perform same sex marriages. If that’s the accommodation, that’s fine with me and not particularly intrusive.

The legal question is a bit thornier than it appears. The hypothesized clerk isn’t acting on his own behalf; he’s an agent of the state. The state is obligated to perform this task. By giving the clerk an out (and not providing an immediately available alternative) the state can effectively opt out from complying with the law. That’s ultimately untenable. Further, agents of the government, as a general rule, must be able to perform those actions that the state must perform. It’s an essential requirement of employment. If I had to pick the next legal battle in the culture war, I may well pick a clerk refusing to perform same sex marriages, being fired, and suing for infringement of his religious freedoms under the First Amendment and the various Religious Freedom Restoration Acts.

Commentary on SCOTUS

I’ve mostly ignored the commentary on the Supreme Court’s blockbuster cases the past couple of days (most of it is not interesting, legally speaking) but I suppose I should offer my thoughts, having followed the court more intensely than ever before this term. (I’m serious. My pump-up mix contains the Scalia dissent from Maryland v. King.) I’ll comment in general, though you’ll see a theme.

King v. Burwell (The Obamacare subsidies case)

The outcome was predictable, of course, and I can’t get too worked up about the result. A few million people get subsidies, which is a rounding error for the bloated federal budget, so whatever; it’s not like forcing the Democrats back to the legislative table would have taken us very far. (Yay politics.)

The real disaster, and there’s really no other way to phrase this, is the precedent this sets for the future. It encourages sloppy legislation at the very least, with the understanding that courts will give you a break if you get it wrong. It will probably encourage intentionally vague drafting with the hope that a court will give you more than you could have gotten in the political process. (Lawyers will sometimes leave a contractual provision vague for the same reason. …I hear.) This has been a trend in legislative interpretation for decades, with doctrines of “saving constructions” and “constitutional avoidance” going out of their way to invalidate or otherwise restrict bad laws. (Bond v. US and Canning v. NLRB are recent examples of this.)

Also, on a personal note, I hate the idea that “established by the State” can also refer to things “not established by the State.” Words have meanings. Please stick with them.

Obergefell v. Hodges (The Same Sex Marriage case)

This wasn’t exactly a stunner, since Kennedy has been telegraphing his desire to be the one to address this issue, but I admit I was surprised by the reasoning of his majority opinion. It’s perhaps the least useful opinion written in the last few years, worse than this year’s Elonis v. US (which passed up an easy chance to pick a mental state requirement rather than saying “the lowest one isn’t it.”). While he can count on being quoted at weddings for the next few decades, the opinion offers very little in terms of legal reasoning that can be translated to any other context. Equivocating between Substantive Due Process and the Equal Protection Clause, Kennedy ultimately concludes that the constitution requires all states and territories to recognize same sex marriages mostly because it would be a good thing to do.

In many ways, Obergefell could be similar to Brown v. Board of Education, another important opinion that suffers from the same legal infirmities but has obviously had a tremendous legal impact. (I would argue, however, that all the hard work for Brown had been done by Justice Harlan’s famous dissent in Plessy v. Ferguson, as tremendous a piece of legal writing as you’ll ever see.)

The four dissents don’t offer much in terms of rebuttal, although I imagine they didn’t really bother to. Thomas and Alito do provide a decent constitutional analysis that makes me think this should have gone the other way, but this was not anyone’s finest writing hour.

I should say, I’m very happy about the outcome, and I definitely think it’s the correct social policy. I’ve voted in favor of SSM in all elections I’ve participated in, and I would have liked to see it go national this way, rather than through a very dodgy legal ruling that could undermine the rule of law and trust in the court as an institution. That said, if I were denied a right, I know I couldn’t care less about those other things if the court ruled my way. So this decision is a good thing.

That said, be worried. Burwell and Obergefell have made the Supreme Court more important than ever. Control of the court will become essential, and it’ll make presidential and senate politics even worse than it is now. (Yes, it’s possible.) It opens the doors to constitutional rulings on religious freedom or gun laws, for example, that should have been left to the states and people. In fact, some early analyses wonder if the court’s reasoning in Obergefell translates to the rights under the Second Amendment. Watch for that fight in the near future.

I’ll skip the other decisions of this term, although there have been some interesting ones, but I will note that the court has not impressed with clarity this year. I’d imagine the early October cases next year being tamer than usual to offset the acrimony of the last few weeks.

Better Financial Habits: A Project-Based Approach

Let’s say you incur an unexpected wasteful expense – perhaps you forget to cancel a hotel reservation and have to pay a fee, or your car is towed because you didn’t pay attention to the signs (hypothetically ). It’s a frustrating experience, and one that most people would rather forget and move on from. However, I’ve found that that sort of unforced error can be a great motivator to make permanent changes to your financial habits. [This works even if you already have excellent financial habits and helps you squeeze that last bit of savings from your daily and weekly routines.]

Let’s work through the hotel example: you pay $700 more than you had to because you didn’t cancel and book someplace cheaper in time. If you’re like most people, unless your finances are completely wrecked by this* you’ll probably cut back on something for a couple of days and then return to your regular life. This is a mistake.

*(and they shouldn’t be – your cash cushion should be able to pay a few months rent, let alone a weekend in Jersey)(…hypothetically speaking).

Here’s what you do: Write the number 700 down in a place you keep notes and access regularly. I use a spreadsheet, though in the past I’ve used a dry-erase board. Notebooks, smartphones, anything you normally use works. 700 is your starting point. The goal is to get that number to zero by cutting your spending in small ways until the savings add up to 700. A couple of guidelines:

1. Don’t cut out big items. If you have another big trip planned, don’t cancel it to offset the first mistake. Your finances should enable you to live a good life, not hold you back.

2. Don’t go crazy with austerity. You can stay home eating Ramen for a few weeks and get the job done, but that’s not sustainable.

3. Look for new habits. Instead of big things, look for savings in places where you have been meaning to make a change, or where you can develop a permanent new habit.  (It’s easier to make one change at a time, but don’t let me stop you from trying for more.)

Perhaps you get a $3 coffee every day on the way to work, or you get a couple of diet cokes at the vending machine, or you buy the $7.99 salad special at lunch, or you pay for an expensive garage instead of a cheaper one three blocks away. Start making coffee at home, buy a case of diet coke for your office, brown-bag your lunch, and park further away and walk a few minutes. Every time you do, note your savings and update your running total.

That seems straightforward, but it actually does a few things:

1. You feel better. You just do, when you get to erase a mistake.

2. You hold yourself accountable. It’s easy to feel you’ve “done enough” to offset the error. This way, you actually get your finances back where they need to be.

3. When it gets to zero, you can stop – but you don’t have to. If the process took long enough, your habit part of your new routine. You’ll instinctively put on a pot of coffee in the morning, refresh your diet coke stash weekly, pack a sandwich with carrots nightly, and routinely park down the street.

It won’t always work – it’s not magic – but some of these habits will stick with you. If they don’t, don’t worry. You’ll make another mistake soon.

The Long Run Catches Up With Minnesota

My streak of being right seems to be continuing. In 2013 I disputed Matt Yglesias’s argument that high local taxes are not an obstacle to economic growth, and that cutting taxes is not a good way to attract development to your jurisdiction. Among other things, I argued that a snapshot of laws and development at any given point don’t account for the destructive effects of bad policy over time – a rich jurisdiction will still look good for a while after adopting bad policy, even if the policy destroys opportunity in the long run. I argued that California and New York have bad policies that take advantage of their unique assets like Hollywood and New York City, and said

The counterpoint is Minnesota, a high-wage, high-tax jurisdiction without unique assets. Let’s see how they hold up in the long run.

It seems like the long run has been catching up with Minnesota:

The state has lost residents every year since 2002, with young adults most eager to leave. About 9,300 18- to 24-year-olds move out annually, according to the Minnesota State Demographic Center. …By 2020, the state is forecast to have a shortage of more than 100,000 workers.

It looks like Minnesota’s particular mix of policy is not that great at creating opportunities for its young people. This makes sense: raising taxes or other costs won’t drive all business away (as many have invested in their location and will profit more from staying than moving) but it is much more effective at preventing new business from being created. For example, raising the minimum wage won’t drive your fast food restaurants out of business, but it will give those who would open a restaurant an incentive to go to a lower cost jurisdiction. These opportunities are now being created outside of Minnesota, and the young people know it.

Who’s Confirming Me Now?

1. A while back I wrote:

Cats are widely acknowledged to have won the internet over dogs, which has prompted a lot of explanations as to why. This recent Australian piece argues that lower costs of producing and disseminating cat videos have resulted in a spike of such videos. … This cat lover invokes the cat lovers’ craving of community, humans’ innate tendency to like cats, and a jealousy of their lazy, independent lifestyles. … There are thousands of other articles, each presenting some version of the theories above. I’ve looked around a bit, but I haven’t seen my own theory:

Dog lovers are outside throwing sticks and frisbees. Cat lovers are at home, filming their cats.

On CNN, they advance the same theory:

And that might be the ultimate explanation for why cats are so big on the Web. As enigmatic, homebound individuals with unconventional obsessions, unusual interests and limited social skills, “They have a lot in common with the people who spend the most time on the Internet,” says Joshua Green, vice president of digital strategy at Arnold Worldwide. “The centrality of cats to the digital world is because they have a cultural connection to the people who live there. The fact is, cats are just better nerd pets.”

2. I also wrote:

It is BECAUSE it’s sold that clean water is plentiful: someone makes money collecting dirty water, purifying it, bottling it, and delivering it to your local supermarket where you can pick up a refrigerated bottle for 99 cents. The only reason some people don’t have clean water is because they don’t have money to buy it. To fix the problem of access to clean water, the only workable solution is to make everyone rich enough to buy it at market prices.

Blog-favorite Megan McArdle, writing about the drought in California, agrees:

California’s proposal is far too heavy on top-down regulatory management, and far too light on pricing. … California’s problem is … that its population uses more water than it has to. And the reason people do this is that water in California is seriously underpriced.

Her piece is actually worth reading in its entirety, especially if you think water is the next scarce resource.

Allstate Defends Female Drivers By Showing Women Are Bad At Math

This Allstate commercial has been airing for a while and I’ve been meaning to call it out for being very stupid:

Rough transcript of the relevant part:

Woman: Remember when you said men are superior drivers?
Man: Yeah?
Woman: Yeah. Then how’d I get this Allstate safe driving bonus check? So weird, right?

Do you see the error? Of course you do. You read this blog. If not, try this instead:

Woman: Remember when you said men are taller than women?
Man: Yeah?
Woman: Yeah. Then how is it that I’m tall? So weird, right?

You see it now, right? Men can be better drivers EVEN IF this particular woman is also a good driver. Stats about populations are true on average, not literally true of every person in each population. It’s basic statistics and common sense, both of which this female character doesn’t seem to know or have.

(Re the underlying question: Freakonomics has a comprehensive review that shows that women get into more accidents per mile driven but men’s accidents tend to be more serious.)

Words Have (Politically Convenient) Meanings, Part 2

This Wednesday, the US Supreme Court heard oral arguments in the case of King v. Burwell, where the court must decide whether the words “Exchanges established by the State under Section 1311″ mean “Exchanges established by the State under Section 1311″ or not. I’m not going to get into the merits of the case (The Volokh Conspiracy does a fine job) but I will comment on the setup that got us here, and how stupid it is.

The reason that case is before the court, ultimately, is that Congress is just terrible at drafting law, even with two centuries of precedent. It’s not like we don’t know how to write exactly what we want into a law when we want to. Of course, Congress usually doesn’t want to be that clear, to the extent a group can even have a consensus. By saving statutes that are so terribly written – and the Obamacare statute is nonsensical under EITHER interpretation of the phrase above – courts are saving Congress from the consequences of being very bad at what it’s supposed to do.

The proper way for the court to resolve it is to say that Congress meant what it wrote and it needs to deal with that. Of course, politics get in the way – the Republican Congress wouldn’t be kind to Obamacare – but all that would happen if the court gives in is that we get to deal with something like this forevermore.

Words have meanings. Actions should have consequences.

Words Have (Politically Convenient) Meanings, Part 1

It gives me no small pleasure that in the past few weeks the headlines have included several separate nationwide discussions about what words mean. As I’ve always maintained, words have meanings and we need to keep those meanings clear and stable as much as possible.  A couple of related questions have recently arisen that bear that out:

1. Is the “Islamic State of Iraq and Syria” Islamic?
2. Is Barack Obama a Christian?

The answer to both questions, of course, is yes and no.

Is ISIS Islamic? No, in the sense that across the world of Islam, from Indonesia to West Africa, ISIS is a huge and clear outlier – hell, al-Qaeda found them too extreme! That said, ISIS considers themselves Islamic, and with enough creative interpretation of Islamic writings, they could probably find some legitimation. There’s obviously a limit to this – if ISIS claimed they were Islamic minus the part where “there is no god but Allah and Muhammad is his prophet,” it’d be difficult to still concede their claim.

Similarly, it’s likely that Obama believes himself to be a Christian, though he’s vastly more secular than the median person who so claims. And if you’re one of these less secular Christians who strongly disagrees that Obama’s actions are consistent with being a Christian, you would not consider him one.

Islam and Christianity are such broad terms encompassing a multitude of concepts that a variety of behaviors and beliefs are covered, and you’re not going to get a clear answer when you ask a yes-or-no question about them. What you’ll get is a politically convenient answer, as we usually do in the cases above.

In Which I Avenge Myself On A Nobel Prize Winner

I’ve mentioned this before, but former economist and current Democratic hack Paul Krugman once called my senior thesis “modest but not surprising.” As a result, I pick on him whenever I can. Fortunately, he makes it easy. After Wal-Mart announced raises for its employees, PK couldn’t contain his glee at what he considers vindication:

Walmart is ready to raise wages…. And its justification for the move echoes what critics of its low-wage policy have been saying for years: Paying workers better will lead to reduced turnover, better morale and higher productivity. What this means, in turn, is that engineering a significant pay raise for tens of millions of Americans would almost surely be much easier than conventional wisdom suggests. Raise minimum wages by a substantial amount; make it easier for workers to organize, increasing their bargaining power; direct monetary and fiscal policy toward full employment, as opposed to keeping the economy depressed out of fear that we’ll suddenly turn into Weimar Germany. It’s not a hard list to implement — and if we did these things we could make major strides back toward the kind of society most of us want to live in.

The emphasis is mine, because that’s where the error is. Krugman is correct that “paying workers better will lead to reduced turnover, better morale and higher productivity,” but only because Wal-Mart is doing it and most firms are not. If Wal-Mart pays more than comparable competitors, current employees will work harder to keep their jobs because losing a Wal-Mart job means settling for a lesser-paying job elsewhere. This reduces turnover (as fewer people leave), higher productivity (as employees get more experienced and also try harder), and better morale. Wal-Mart also gets to pick better candidates from the hiring pool because it pays better, giving them higher productivity still. However, if Wal-Mart’s competitors pay the same, all of these gains go away. You can slack a little more at work because if Wal-Mart lets you go, Kroger pays comparable wages – why try harder?

Basically, what’s a smart move for Wal-Mart isn’t necessarily a great move for the entire economy. What Krugman is really saying is that he’d really like for employers to pay low-skilled employees more. I do, too. But that’s not something you can dictate.

You’d think a Nobel Prize winner would know that.

Book Review: Wild Fire

Wild Fire, by Nelson DeMille

I read a page of this book on someone else’s Kindle on a flight a few weeks ago and was intrigued enough by the premise that I bought and read it fairly quickly. Ultimately, that intriguing premise is all the book has to offer, unless you read a book for unfunny dialogue, a grating protagonist, and a cartoonish villain. (Notice I didn’t say a plot, of which there is little.)

The novel, published in 2006, is set in 2002, just after 9/11. The premise – and I’m not giving away much here – involves a secret government protocol called Wild Fire established in the 1980s to deal with the nascent threat of Islamic terrorism. If a weapon of mass destruction is used on American soil by Islamic terrorists, an automated response rains down nuclear weapons on the major cities and other key sites of the Muslim world, killing hundreds of millions. The governments of those states are aware of the protocol and have kept their terror groups in check as a result. Enter Bain Madox, American oil billionaire and Bond villain, played in my mind by Sam Elliott. Madox, angered by 9/11, wants to activate Wild Fire by detonating nuclear weapons on American soil. Certain elements in the federal government have assured him that the government tacitly approves and wouldn’t stop the automated response if it came to that.

I’m not giving much away here – Madox tells this entire story to Harry Muller, a federal agent he captures on his property in the first 30 pages. (Exposition makes for awesome reading.) Harry’s disappearance triggers an investigation by the protagonist John Corey (apparently this is his fourth appearance in DeMille’s books) and his wife Kate Mansfield. Mansfield is just perfect enough to be boring – a FBI agent and a lawyer, she’s sexy, smart, and level-headed. Corey, a former NYPD cop now working for the Anti-Terrorism Task Force, is none of those things except boring. A classic “I don’t play by the rules” tough guy, Corey is a caricature who tells awful jokes every time he opens his mouth and resists authority for no good reason. I don’t need characters to be likable for a book to be good, but Corey is actively grating.

Corey and Mansfield investigate Muller’s disappearance and face off with Madox more than you’d think would happen in a criminal investigation. I really get the feeling that DeMille loved these characters* and thought it was thrilling to have them talk face-to-face a la the aforementioned Bond and his evil counterparts. Unfortunately, he ends up forcing one-dimensional stereotypes into mostly boring conversations. The characters also make some silly choices, and there is ultimately almost no tension in the book’s 519 pages (200 without Corey’s awful jokes). The plot is virtually non-existent – a hard feat given that nuclear war is imminent.

*In the preface, DeMille says he believes Madox is the “best villain” DeMille ever created, and “certainly … the smartest and most interesting bad guy to come out of some scary place” in DeMille’s psyche. If true, don’t read anything by DeMille.

A lazy and ultimately boring effort. Not recommended.

Thoughts on law, economics, sports, food, and pop culture. Not necessarily in that order.