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The Countermajoritarian Difficulty and Congressional Ethics–Ending the Shutdown

by Linda Beale

The Countermajoritarian Difficulty and Congressional Ethics–Ending the Shutdown

[Edited to add Marcotte article on role of fundamentalism in Tea Party politics.]

We have seen congressional ethics probes of Congressmen for exacting quid pro quo bribes from businessmen or for conflicts of interest or apparent failure to pay personal taxes.  What about failing to perform their most fundamental duty–to protect the integrity of the U.S. democratic process and constitutional system?

It seems to me that people like Paul Ryan, Ted Cruz, Michele Bachmann, and the rest of the Tea Party acolytes in Congress are committing an ethical violation even more severe than money-corruption.  They are sacrificing the economic stability of the country and the individual lives of hundreds of thousands of its citizens to the altar of their own  personal  religio-political dogmas.   [For a discussion of the role of fundamentalist religious dogmas in Tea Party politics, see, e.g., Marcotte, Christian delusions are driving the GOP insane, (Oct. 10, 2013).]  They are willing, that is, to extort the vast majority of citizens of this country–anyone who doesn’t agree with them–in order to get their way on something in which they are a minority of a minority.

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The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race. (Except, that is, when the discrimination favors whites over racial minorities.)


The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race.

— Chief Justice John Roberts, Jun. 28, 2007, writing for a four-justice plurality in Parents Involved in Community Schools v. Seattle School District No. 1.

Given that statement of his own belief, and his concomitant pronouncement that discrimination by a state or local government on the basis of race necessarily violates the Fourteenth Amendment’s equal protection clause and that therefore the federal judicial branch is entitled to strike down as unconstitutional any law or policy that discriminates on the basis of race, I expect that the chief justice will vote to affirm a lower federal appellate court’s ruling in the high-profile affirmative action case that the Court will hear argument on tomorrow.

Let me explain.  Or, better, let me borrow part of the nicely succinct explanation in an editorial in today’s New York Times, which begins:

Can a state’s citizens amend the state constitution to ban affirmative action programs in public universities, even if the Supreme Court has approved those programs? That is the question the court is facing this week in the case of Schuette v. Coalition to Defend Affirmative Action.

Some background is in order.  In 2003 the Supreme Court upheld as constitutional the race-conscious admissions policy at the University of Michigan law school.  But at the same time, in a companion case, the court struck down a slightly different affirmative action policy for admissions to the University of Michigan’s first-year undergraduate class, as weighting racial minority status too heavily in order to attain more racial diversity.

In resolving these cases, the court applied its longstanding “strict scrutiny” test to evaluate the equal-protection constitutionality of these affirmative action programs, a test that originated in the 1940s as a constitutional protection under the equal protection clause for members of “suspect,” or “invidious” classifications.  Which did not include whites as a racial group, because, well, the purpose of the “strict,” or “heightened,” scrutiny under the equal protection clause was to protect politically powerless, stigmatized, possibly stereotyped, and historically discriminated-against groups.  Ordinary, everyday whites were the racial majority, not a minority, and clearly the most politically powerful racial group.

The strict-scrutiny standard, which is the highest level of what is now, at least formally, a three-tiered scrutiny hierarchy, requires that courts strike down laws or government policies that targeted suspect groups for negative consequences because of the invidious and immutable classification, initially concerning a fundamental constitutional right–the right to vote, for example–and then for any law or governmental policy, unless the law or policy serves a “compelling governmental interest”.  In which event the means chosen to accomplish the compelling governmental interest must be narrowly tailored so as to have no impact beyond what is minimally necessary.

Originally, the only other level of court scrutiny under the equal protection clause was “rational basis” scrutiny: as long as the government could state some conceivably rational, or legitimate, governmental purpose for the law or policy, the law or policy was fine.  “Rational basis” scrutiny, in other words, is another phrase for anything goes. Later, a middle tier was added–intermediate scrutiny–which applies to gender-based discrimination.

So the trick if you are challenging the equal-protection constitutionality of a law or government policy is to squeeze your discriminated-against class into the suspect-classification category. Which is hard to do when your discriminated-against class is the majority, and most politically potent, race.  But not so hard that it cannot be done, if you are 1980s-90s era Legal Movement conservatives at a time when 1980s-era Movement conservatives dominate the federal bench overall or at least hold a majority on the Supreme Court.  Madison Avenue-ishly marketed as reverse-racial-discrimination programs, race-based affirmative action programs were (and remain) on the Reagan-era-conservatives’ Legal Movement hit list.

So done, it was, initially in a 1986 case called Wygand v. Jackson, in which the court struck down as violating the equal protection clause a school board’s consideration of race in determining financially-necessitated teacher layoffs, holding that racial and national-origin diversity in the makeup of the teaching staff was not a compelling enough governmental interest to survive under the strict-scrutiny test, nor, the Powell opinion says, does the level of scrutiny “change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination.”

Nor, the court’s majority held in 1995, in a case called Adarand Constructors v. Pena, does the extent of the political power of the discriminated-against group change the level of scrutiny.  The white owners of Adarand Constructors, Inc., challenged an affirmative action program for federal contractors as violative of the Fifth Amendment, which has a due process clause that applies to the federal government, but the Supreme Court has interpreted that due process clause to implicitly require equal protection, in the same way as the Fourteenth Amendment’s explicit and separate equal protection clause applies to (and only to) the states.  White-owned companies vying for federal (or state or local) government contracts, the court held, cannot be disadvantaged in the competitive application process for government contracts by an affirmative-action program seeking to increase the very low number of racial-minority-owned government contractors.

The Koch Brothers could win a reverse-discrimination lawsuit, should they ever apply for any government contract or other special treatment for their businesses through a competitive application process.  Or should their lobbyists ever fall short, and the Kochs learn that racial minorities get more business subsidies than the oil and gas industries.

Or should hell freeze over. But I’m speaking in jurisprudential theory here., not in political theory.

So the suspect category for qualification for strict scrutiny, regarding race, is simply race.  Nothing else. Whites get to piggyback on the strict-scrutiny discrimination standard, instituted specifically and narrowly to protect racial and ethnic minorities, by simple virtue of the fact that white is a race.

Oddly enough, last spring there was a moment when it looked like the lack-of-political-power criterion was about to be restored as a prerequisite to strict-scrutiny classification.  Not the historically-discriminated-against criterion; just the lack-of-political-power criterion.  But it was notable because it was at least one Conservative Movement justice–Antonin Scalia, I believe, and one other, Roberts, I think–who invoked it.  During oral argument in at least one of the two same-sex-marriage cases (I can’t remember whether it was in both or only in one), Scalia and, I think, another justice noted that homosexuals are no longer without political power, as evidenced by their success in enacting same-sex marriage statutes in a sew states and obtaining favorable court rulings in a couple of other states. This, the justice (or justices) suggested, maybe should defeat the claim that anti-gay laws should be analyzed for muster under equal protection jurisprudence using the strict-scrutiny standard.

After all, Scalia said, strict scrutiny under equal protection jurisprudence requires a lack of political power to try to get the law changed; Adarand Constructors, be damned! For the moment, anyway. (Or it requires a violation of a “fundamental” constitutional right–a constitutional right expressly proclaimed by the court to be a fundamental one, and only certain select ones are–which is the only type of claim of denial of equal protection, other than one based upon membership in a particular group, that prompts strict-scrutiny analysis.)  And anyway, Scalia pointed out, the sole purpose of the Fourteenth Amendment, back when it was drafted and then ratified, was to protect people who had been slaves, or who were descended from slaves, or who were, or whose ancestors would have been, slaves had they lived in a state south of the Mason-Dixon line.

Scalia is an originalist, after all.  And he apparently when he said that, he had forgotten that Abigail Fisher, the unsuccessful white University of Texas/Austin applicant who challenged the constitutionality of Texas’s mild affirmative action freshman-admissions system for its state universities, and whose case had been argued to the court last October and was still pending last spring, was white and a resident of an upscale Houston suburb. In his dissent in Grutter, Scalia had written, “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception”.  He reiterated that sentence in a one-paragraph concurrence when Fisher was decided in late June, the same week as the same-sex-marriage cases were decided. Fisher went as far as it could to kill affirmative-action programs at state colleges and universities without overruling Grutter.  The petitioner, Abigail Fisher, Anthony Kennedy and Scalia both noted, had not actually asked the court to overrule Grutter, but instead had argued that Texas’s program went beyond what Grutter allowed.  And, since Fisher was not a campaign-finance-law case, the court decided not to go beyond what the petitioner to the court had asked it to rule.

And anyway, there was that pesky problem of arguing the narrowness of the application of the strict-scrutiny equal protection standard in Fisher and then, for Scalia, Roberts, Clarence Thomas and SamuelAlito, blithely reversing course two days later in dissents in one of the same-sex-marriage cases, United States v. Windsor, which struck down the federal Defense of Marriage Act.  Section 1 of the Fourteenth Amendment, the section that contains the equal protection clause, does not specifically state that it applies to gays.  But neither does it say that its protections are limited to African Americans, or, for that matter, to racial discrimination. It says it pertains to all persons. Gays are persons.

But even if Scalia’s originalist view is accepted and the court suddenly reverts back to before the era of modern equal protection jurisdiction began in the early 1940s, and a majority of justices state that the equal protection clause prohibits only discrimination on the basis of race because that was how the amendment was understood when it was drafted and ratified–and that whites are decendants of American slaves, in the South and in Michigan–this would require them to uphold the Sixth Circuit Court of Appeals’ ruling in Coalition to Defend Affirmative Action v. Schuette that the Michigan voter initiative that passed in 2006 amending the state constitution to ban affirmative action programs in the state’s public universities itself violates the equal protection clause.

Here again I’ll borrow from the New York Times editorial:

Advocates of affirmative action sued the state on grounds that the amendment violates the United States Constitution’s guarantee of equal protection. They argued that it impermissibly altered the political process that determines admissions policies in a way that places special burdens on racial minorities.

For instance, an applicant who wants alumni connections to be considered in admissions could ask the admissions committee to adopt that policy, or she could lobby the university administration or its popularly elected governing board. But an applicant who wants the university to consider race as a factor has only one path available: to work to pass a new amendment that repeals the anti-affirmative-action amendment — which a federal appeals court called “a lengthy, expensive and arduous process.”

Michigan, in response, argues that the amendment does not violate equal protection because it treats all races the same. But the Sixth Circuit opinion said the denial of equal protection is not in treating races differently in the university admissions process but instead in treating racial-minority interest groups differently from other non-racial-minority minority interest groups, in effectively changing the very nature of the political system itself only for those racial-minority groups.  Every other minority interest group can try to change a law or a government policy through the normal political process of lobbying or trying to defeat or elect certain candidates, including for the state’s universities’ publicly elected boards of regents or trustees. It certainly seems to me that this is pretty much what Section 1 of the Fourteenth Amendment prohibits, in its equal protection clause as well as its (admittedly moribund) privileges and immunities clause.

Last year, the United States Court of Appeals for the Sixth Circuit rejected that claim, striking down the amendment because it especially harms racial minorities — the primary beneficiaries of affirmative-action programs — by prohibiting them from asking a public university to consider their race.

The Times editorial also notes the Sixth Circuit’s recitation of an appalling problem with this particular voter initiative–a problem to which I was witness. The editorial says:

This case is another reminder of the threat to minority rights posed by ballot initiatives, which can be prone to abuse. That was surely true in Michigan, where the process of gathering signatures to put the amendment on the ballot “was rife with fraud and deception,” according to the federal appeals court. In some cases, voters were tricked into believing that the measure actually supported affirmative action. The methods used by the amendment’s backers, the appeals court found, “undermine the integrity and fairness of our democratic processes.”

Yes. Make that, Yes! As it happened, in the ten weeks or so leading up to the November 2006 election, I was spending quite a bit of time on the University of Michigan campus in Ann Arbor, and also was reading the student newspaper, the Michigan Daily, almost daily.  And I remember the utter dismay, on campus and in Ann Arbor and elsewhere among many in the surrounding area, at the widespread campaign to mislead about the very nature of the proposed amendment.

So for me, in some sense, tomorrow’s argument at the court will be personal.

The court has delineated the parameters of permissible public-university admissions affirmative action programs under its current equal protection jurisprudence, which, for what in my opinion is not a legitimate reason, privileges the rights of whites over, say, the rights of high school seniors who don’t have a parent who is an alum of the school. As the Times editorial says, and applicant who wants alumni connections to be considered in admissions could ask the admissions committee to adopt that policy, or she could lobby the university administration or its popularly elected governing board. But at most universities, including public ones, they don’t have to lobby; alumni connections are considered in admissions. And though those who oppose that policy can lobby, and have lobbied, the university administration or its popularly elected governing board, at the University of Michigan and, probably at the University of Texas, it has been to no avail.  Not because those with alumni connections are a majority of the public, but because they have political and financial clout.

The Michigan state constitutional amendment is undeniably race-based discrimination in access to the normal political process.

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.  And the Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.

We have these statements right from two horses’ mouths.  Or keyboards.

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IMF Says Tax the Rich to Make Up the Deficits and Fight Income Inequity

Recent article by AFP cites an IMF report suggesting that countries fighting deficit spending should simply “Tax the Rich” in income more.

in its Fiscal Monitor report, subtitled “Taxing Times”, the Fund advanced the idea of taxing the highest-income people and their assets to reinforce the legitimacy of spending cuts and fight against growing income inequalities.

“Scope seems to exist in many advanced economies to raise more revenue from the top of the income distribution,” the IMF wrote, noting “steep cuts” in top rates since the early 1980s.

According to IMF estimates, taxing the rich even at the same rates during the 1980s would reap fiscal revenues equal to 0.25 percent of economic output in the developed countries.

“The gain could in some cases, such as that of the United States, be more significant,” around 1.5 percent of gross domestic product, said the IMF report, which also singled out deficient taxation of multinational companies.

In the US alone, legal loopholes deprive the Treasury of roughly $60 billion in receipts, the global lender said.

Hat Tip to Crooks and Liars

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The GOP Default Enthusiasts

Late posted, but still relevant:

by Linda Beale

The GOP Default Enthusiasts

The New York Times has a story today about those in the GOP who don’t think the government of the USA defaulting on its debt for the first time in history is a big deal.  Weisman, Many in G,O,P. Offer Theory: Default Wouldn’t be that Bad, New York Times (Oct. 8, 2013).  One of them likens the government to his large-animal veterinary clinic, stating that he was able to talk to his creditors and work out some delayed payment and implying that the government can do the same. Id. (Ted Yoho, R-FLA).

What are these guys (mostly–but also some ridiculous women like Michele Bachmann) smoking?

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Economic Terrorism: the Tea Party/GOP’s Hostage Taking Plan (Tom Tomorrow’s "Giant Killer Robots")

by Linda Beale

Economic Terrorism: the Tea Party/GOP’s Hostage Taking Plan (Tom Tomorrow’s “Giant Killer Robots”)

As the New York Times reported on Saturday:  Stohlberg, A Federal Budget Crisis Months in the Planning, New York Times (Oct. 5, 2013), the current fiscal and political crisis was planned as a manuver to get their way  by the inner operatives of the Tea Party/GOP coalition.  What the media has tended to report as a partisan dispute with both sides to blame is in reality a planned attack of economic terrorism on the United States government and its citizens from members of that very government–an artificially created economic crisis planned as a heavy ax over the President’s head that would force him to give away the ship in order to save hapless federal employees, their families and their communities from the economic havoc that would ensue with a government shutdown or, most especially, with a refusal to increase the federal debt limit.  And that attack has been supported by the likes of the Koch Bros (who’ve reaped a fortune from the oil-friendly laws they lobby for so successfully) and groups funded by them and similar interests,  like the Tea Party groups, Americans for Prosperity, the Heritage Action for America, and the Club for Growth.

On the debt limit (sometimes called the “debt ceiling”), let’s review just what the issue is.

1. Congress has already approved certain spending measures.

2. Congress has already approved the legislation that determines the amount of tax revenues the government is currently bringing in.

3. The mathematical equation that shows the relationship between spending and revenues requires borrowing to make up the difference:  Spending MINUS TaxRevenues EQUALS RequiredBorrowing.

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Debt Ceiling Chicken and Trench Warfare

And from Naked Capitalism:

Debt Ceiling Chicken and Trench Warfare – Yves Smith  – In the US, despite all the media frenzy over the Federal shutdown, the attention of the insiders has already moved to the real cliffhanger: the debt ceiling impasse, which starts to bind on October 17. Treasury is already fulminating how putting the sanctity of payments on Treasury bonds in doubt is a seriously bad idea. We also have the curious spectacle of Grover Norquist making the rounds of Vichy Left outlets (see Ezra Klein and Huffington Post) to condition liberals as to where the political professionals see a budget deal shaking out.. Congress passes a continuing resolution to buy a couple of months to negotiate the prize sought by both parties, the middle class shellacking Grand Bargain that “reforms”, as in erodes, Medicare and Social Security.

The wee problem here is that the two sides wanted that last year.  But a deal never came together. Boehner could not deliver the House. Obama wanted some token tax increases on the rich and the Republicans would have none of it.

So what has happened since then? The Tea Partiers, in classic Mafia style, have lowered their bid as time goes on. They’ve added a delay to ObamaCare to their demands and appear unwilling to make other concessions.

In addition, Obama has been hoist on the petard of the sequester. He had hoped it would apply enough pressure to both his left flank and to the less doctrinaire Tea Party types to help him get his have old people die faster safety net cuts through. But the sequester didn’t inflict enough pain. Now the shutdown has upped the ante. But even though polls show that most Americans oppose using the shutdown as a way to force changed to Obamacare, the flip side is that those polls may not be germane to the block of intransigent Republicans in the House.

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Lifted from Robert’s Thoughts

Obviously the main chance is that Boehner is bluffing and that he will bring a clean debt ceiling increase bill to the floor of the House and it will pass mostly with the votes of Democrats.  He would then probably lose the gavel to some new Speaker which will make us cry thinking of Boehner.  The problem with hoping for this, other than hope not being a plan, is that Boehner won’t cave till the last minute (he has made that clear) and may not correctly judge exactly when the last minute arrives.  I will assume that the Republicans won’t just pass a clean debt limit increase — that they will demand at least a fig leaf.

Now if it is something which amounts to nothing like the last time when it was that the Senate doesn’t get paid till it passes a budget resolution, this might do the trick.  Obama might sign it.

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Why You Shouldn’t Expect a Compromise On the Government Shutdown Anytime Soon

From Policymic on the incremental re-instating government services:


Why You Shouldn’t Expect a Compromise On the Government Shutdown Anytime Soon
Don’t get your hopes up about a compromise on the government shutdown anytime soon. The Pentagon has decided to bring 350,000 employees back to work and the House has votedunanimously (no, I’m not kidding) to pay furloughed workers when they return. This is great news for government employees and the economy, but it also means Congress won’t feel much pressure to strike a deal on the budget. And to make matters worse, the leaders in Congress are sticking to their guns: House Speaker John Boehner says he won’t approve a budget or raise the debt ceiling unless Obama puts off his health care law.
The dirty secret of the government shutdown – it was in the works for months (NY Times).
Everything you need to know to get caught up on the government shutdown (WaPo).

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