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Published on Leave a comment on College Admissions in Michigan, Again and Again

Supreme Court Justice Sonia Sotomayor's dissent in the Schuette v. Coalition to Defend Affirmative Action case is puzzling to me. She accuses her colleagues in the 6-2 majority of "trying to wish away racial inequality." They do nothing of the kind. It seems very hard to believe that there is anything in the Constitution or judicial precedent that would deny the citizens of Michigan the prerogative to affirm that a public university they support will be constrained to not treat applicants differently based on their race. This says nothing about whether the Michigan policy is a good one -- only that it is within the purview of the citizens to make this requirement. It does not say that every state must affirm such a policy. Is Sotomayor really saying that there is a Constitutional requirement that public universities must treat applicants differently based on race?

In the context of figuring out what is an equitable policy, we often hear questions about non-racial preferences in admissions, like athletes and legacies. Given the racial composition of profit-sport athletes relative to the student body, I don't expect the coalition that is pushing for Sotomayor's worldview to challenge those preferences. But it would not surprise me to see, and I think the day is coming when we will see, a legal challenge to legacy preferences at public institutions based on the claim that they discriminate against racial minorities. Legacy preferences perpetuate a legacy of discriminatory admissions standards (or simply unequal college preparation) that may have existed years ago. I doubt it would be too hard to show that the potential pool of legacy applications to any flagship state university is tilted away from racial minorities relative to the potential pool of applicants statewide. It would also not surprise me if Michigan was once again the battleground for this challenge.

Published on Leave a comment on If the Constitution Is a Living Document

Then we should expect it to be imperfect, like all other living things.  I think we could do a world of good for our mental health if we simply recognized that in a very small number of cases, the Constitution is simply not crystal clear on what is permissible and what is not.  A subset of those cases make their way to the Supreme Court, and the Supreme Court basically acts as a super-legislature.  And, along two dimensions, this week's ruling on the Affordable Care Act is a fine piece of super-legislating by Chief Justice Roberts.

The first is the question of a mandate to engage in commerce taken separately from the way it is enforced.  There is no way that I want the federal government to have that power.  That is a very different power from the power to regulate commerce conditional on an individual choosing to engage in commerce.  The question of law has nothing to do with the pigsty that is our method of delivering and financing health care to individuals at the margins of the system.  Regulating and requiring commerce are two different things.  I applaud Chief Justice Roberts for the decision to keep them distinct.

The second is the question of whether what is being legislated in the ACA with regard to enforcement of the mandate is something out of the ordinary that should be forbidden.  As I have written before, if paying higher taxes in the absence of favored behavior is not permissible, then the tax preference for IRAs and 401(k) contributions is not permissible.  Neither is the home mortgage interest deduction.  The so-called mandate is no more of a mandate than the mandate to contribute to a pension plan.  If you do it, you pay lower taxes.  If you don't do it, you pay higher taxes.  I applaud Chief Justice Roberts for simply calling it what it is and acknowledging the difference between mandating behavior and simply taxing the opposite behavior.

So where are we today?  Basically, the same place as we were after the Senate passed the bill in late 2009.  Here are my reactions at the time.  Going forward, Governor Romney would be a fool to expend political capital on trying to repeal the main pieces of the law if he should become President.  He won't have the votes in the Senate to make any progress, and there are welfare-improving elements of the law (particularly with regard to pre-existing conditions).  Should he have the opportunity as president, he should focus on the cost of the additional health care that the federal government is now obligated to support.  It won't take him long to figure that out, regardless of how the campaign plays out.

Published on Leave a comment on Handicapping Obamacare at the Supreme Court

This Opinionator blog post by Linda Greenhouse takes issue with the claim by the opponents of the Affordable Care Act that it is "unprecedented."  She describes the opponents' case as weak and wonders what all the attention -- six schedule hours of the Court's time -- is all about.

If I had to guess, I would say that the law will be upheld with 6 or more justices concurring and that the majority opinion written by Chief Justice Roberts will work very hard to narrow the legal scope of the ruling -- this law is okay but no others like it.  The extended hearings are to gather enough testimony to do that as well as possible.  Just my conjecture.

I am not a constitutional lawyer or any kind of lawyer.  I find myself in the position of thinking that there should be universal coverage but not through this law.  Even opponents of the law who have prosecuted these cases acknowledge that the government could have used its budgetary powers to obtain universal coverage.  My own suggestions were expressed in this post from December 2009 after the Senate passed its bill:

Specifically, I'd like to see everyone enrolled in Medicaid via the tax return as the default, unless they can prove that they had alternative coverage. They could then be charged an income-related premium for Medicaid on the tax return. I think this gets us to universal coverage more directly -- there is no need to separately impose penalties for those who violate the individual mandate and no need to provide a complicated system of incentives for those of modest means to be able to afford coverage through traditional markets.

That arrangement is no less constitutional than giving a tax deduction for a contribution to a 401(k) plan.  With a sufficiently steep income-sensitivity for the premium, it wouldn't cost much either.  The trouble is that the Congress didn't pass and the President didn't sign this bill.  They passed and signed one that relies on the government's regulatory powers to achieve universal coverage.  And that seems to me to be the reason why this case has gotten to the Supreme Court.