28 January 2011

Affirmative Action: States versus Feds

Stephen Kershnar
Affirmative-Action Hydra: Cut It Off and It Reappears Elsewhere
Dunkirk-Fredonia Observer
January 23, 2011

In this last November’s election, Arizona voters overwhelmingly banned government affirmative action. Specifically, 60% of the voters approved a law that prohibits the government from discriminating on the basis of race, ethnicity, or sex. Arizona became the 5th state to do so, joining California, Washington, Michigan, and Nebraska. Everywhere statewide voters have been given a choice on affirmative action, they vote it down.

President Obama and the Congressional Democrats have quietly but energetically pushed for more affirmative action. ObamaCare is loaded up with language that requires affirmative action for medical schools and other medical programs. The Dodd-Frank finance bill contains many new offices to monitor race and gender, which inevitably leads to more affirmative action as businesses use preferences to avoid being investigated. The country is thus moving in two directions. The states are slowly walking away from affirmative action; the federal government is sprinting toward it.

Affirmative action, in the sense used in this article, refers to preference for less qualified applicants. It is done for a variety of reasons, among them: it promotes diversity, helps to create role-models, reduces discrimination, compensates for past wrongs, combats stereotypes, promotes equal opportunity, and so on.

A 2008 analysis by Edward Rubinstein of the National Policy Institute and 1993 analysis by Peter Brimelow and Leslie Spencer, writing in Forbes, found that affirmative action costs a lot. Brimelow and Spencer estimated that the cost of these programs was equal to 4% of the economy (specifically, GDP). Rubinstein claimed that the current percentage is higher.

Affirmative action imposes three types of costs. First, there are the direct costs of federal, state, and local agencies to monitor and sue businesses. At the federal level, examples include the Equal Employment Opportunity Commission and Office of Federal Contract Compliance Programs. There are many similar institutions in the states and school systems.

Second, as Rubinstein points out, these programs are expensive. Businesses must comply with the regulations, respond to government inquiries, defend against lawsuits, and so on. The Center for the Study of American Business found that for every dollar spent on regulation, about 20 dollars is spent by the private sector to comply with them. Hence, the money spent on government regulation multiplies as businesses try to stay clear of the regulators’ crosshairs.

Third, and most significant, many people pay more or receive substandard goods and services because less capable people have replaced more capable ones. This is not a knock on racial or ethnic minorities or women, both contain many highly talented people. Rather, this results from a system that cares more about race-and-gender bean-counting more than ability. Here are just a few examples of how the system produces victims.

One 1994 study in the Journal of American Medical Association found that only 49% of black and 66% of Hispanic medical students passed their medical boards for the first time (versus 88% for whites and 84% for Asians). This is unsurprising given that the board scores tend to correlate with MCAT scores and affirmative action beneficiaries are let in with much lower scores. Poor performance is a serious matter given that physicians inadvertently cause hundreds of thousands of deaths a year and that medical errors are a significant portion of these cases. A 1998 study in the Journal of American Medical Association found that 71% of newly licensed physicians prescribed potentially inappropriate medication to elderly patients and drug-related illness is the 6th leading cause of death in the U.S. Graduating substandard physicians ratchets up these risks.

Professor Steven Farron argues that one of the biggest predictors of K-12 students’ performance in is teachers’ scores on competence examinations. For example, he claims that the data show that it has a larger effect than class size or their degrees. To the extent affirmative-action hiring lowers the scores of a district’s teachers, it likely results in children learning less.

A study by economist John Lott found a similar pattern. He claims that between 1987 and 1990, in the 189 cities he studied, the decrease in the number of white male police officers by 6,912 (6%) increased the number of murders by 1,145 and the increase in the number of black male officers by 950 (5%) increased the number of rapes by 300. If correct, police-related affirmative action is a tragedy.

Even if affirmative action did have desirable effects by promoting diversity, generating role-models, combating discrimination, and so on, there is no evidence that I am aware of that these benefits outweigh the above costs. This is unsurprising given the size of the costs. In the absence of such evidence, the same sort of reasoning that leads most people to want the best surgeon and teacher for their child should lead them to want to get rid of affirmative action.

This issue will reappear. The American electorate is getting increasingly polarized on racial grounds. In the last election, Ronald Brownstein writing in the National Journal noted that in the 2010 election for the House of Representatives. 60% of the white vote was for the GOP, whereas 73% of the minority vote was for the Democrats. Among blue-collar whites and college-educated white males, Brownstein points out, the preference was nearly 2-to-1. Even college-educated white women, who gave a majority of their vote for Obama, went 55-43 for the GOP. Brownstein notes that the groups differ ideologically. In 2010, he points out, 63% of whites thought that the government was doing too much, 60% of minorities thought that it was doing too little.

Vdare.com writer Steve Sailer notes that the increasing racial polarization and whites’ distaste for affirmative action opens up an opportunity for the GOP to use affirmative action to win elections. He allows that Obama could preempt the issue by reducing or eliminating them. Given Obama’s world view and political base, this is unlikely. To see Sailer’s point, imagine the GOP landslide that would occur were the remaining 45 states to vote on laws like Arizona’s. This effect will intensify if unemployment stays high.

Because the states and the federal government are moving in different directions on affirmative action and because it is likely something that can motivate the base of both parties, this issue is likely to reappear in the near future. The parties and the mainstream media fearful of the issue’s ugliness and the inconvenient facts that surrounding it will do their best to ignore it, much as they initially did for the recent President Bush’s attempt to ram through amnesty for illegal immigrants. They’ll fail and the issue will flare up again.

12 January 2011

ObamaCare Lynchpin is Unconstitutional

Stephen Kershnar
Obama versus the Constitution: Interstate Commerce and ObamaCare
Dunkirk-Fredonia Observer
January 10, 2011

ObamaCare (2010 Patient Protection and Affordable Care Act) requires individuals to buy health insurance or pay a penalty. Specifically, in 2014 Americans will either buy federally approved health insurance or pay a fine of up to $695 per year.

The law has already been challenged in court. Before the federal law was passed, Virginia passed a law (Virginia Health Care Freedom Act) that prohibited any individual from being required to buy health insurance. In a case relating to Virginia’s law, U.S. District Judge Henry Hudson on December 13, 2010 ruled against the mandate. Also, the attorney generals of thirteen states have gone to court in opposition to it.

In court, the Obama Administration argued that the federal government may impose this mandate because it is authorized under three different parts of the Constitution: the Necessary and Proper Clause, the Tax and Spending Clause, and the Commerce Clause.

The first argument should be quickly dismissed. The Necessary and Proper Clause says that “Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution…” Both the language and precedent make it clear that the clause authorizes the implementation of other specifically listed powers. This clause, then, permits a law only if it comes under another specifically listed power.

The Tax and Spending Clause states that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.” This clause clearly does not authorize the mandate.

First, as the state of Virginia argued, the part of ObamaCare that sets out the mandate explicitly claims that it is authorized by the Commerce Clause. Second, as Judge Hudson points out, the mandate is a penalty rather than a tax. The statute itself labels the mandate as a penalty. In addition, it has the penalty-like structure in that if you don’t do what you’re told, you have to pay a fine.

Third, as George Mason law professor Ilya Somin points out, if this were a tax, then Congress could control pretty much everything people do through the use of penalty-like taxes. It could mandate that people run every day, avoid alcohol, or stay thin. Fourth, Somin further points out, the mandate allows that the insurance payment go to private insurance companies. This is not part of the common defense or general welfare as the clause requires. If it were, then the government could require people give their money to private parties, thereby gutting the part of the Constitution (The Taking Clause) that limits when property can be taken. For example, the Constitution would conflict with a law that required all citizens to give $500 directly to Goldman Sachs, J. P. Morgan, or AIG. Fifth, for roughly 75 years, the courts have repeatedly held that the taxing power must aid another specifically listed power, for example, interstate commerce.

The Obama administration argued that the federal government has imposed sanctions for failure to pay taxes, show up for military duty, or register for the draft and that this mandate is similar to those sanctions. However, these sanctions rest on specifically listed Constitutional powers and hence shed no light on the ObamaCare mandate.

The Commerce Clause asserts that “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” The purpose of this clause was to prevent states from passing tariffs and other protectionist measures against products sold made or sold by people in other states. Evidence for this comes in part from comments from the principal author of the Constitution, James Madison, in The Federalist Papers. Further evidence of this comes from the way that the Commerce Clause was designed to fit into the Constitution. Madison intended that the Constitution grant the federal government only a few and well-defined powers, in contrast the many other powers left to the states. On his account, the federal government was to be focused largely on international affairs, such as war, foreign affairs, and international commerce. Madison is clear that the objects on which people’s daily lives focus were to be left to the states.

Up until the 1930’s, the Supreme Court followed the language and structure of this clause and the Constitution and shot down President Roosevelt’s early attempts to extend federal control over every corner of the American economy. Starting in 1937, two Supreme Court Justices switched their interpretation of the Commerce Clause to allow the federal government to control vast portions of the economy. The changed Court rejected the view that interstate commerce meant the sales of goods between individuals in different states. On this earlier interpretation, which characterized most of American history, the clause didn’t cover production, manufacturing, mining, and so on.

The rewriting of the Commerce Clause was completed in Wickard v. Filburn, 317 U.S. 111 (1942). There the Supreme Court held that it applied to any activity that is part of a larger group of activities that substantially affect interstate commerce. In Wickard, the Supreme Court looked at whether the federal government could set a quota on wheat that a farmer grew and consumed on his own property. The farmer claimed that these activities were not interstate commerce. The Court held that the federal government could enforce the quota because wheat growing and consumption in general affected interstate commerce, regardless of whether the individual farmer’s wheat did so. This line of reasoning has been repeatedly upheld.

The ObamaCare mandate pushes this line to its absurd conclusion. As Somin points out, most purchases of health insurance are not interstate because a combination of state and federal laws makes it illegal to buy health insurance across state lines. Hence, buying health insurance is not interstate commerce.

In addition, the mandate focuses on people refraining from buying something. This is a refusal to engage in interstate commerce. Even if the government can regulate economic activity, it cannot force someone to engage in it. The government is in essence arguing that it may force people to buy various products by labeling their refusal to do so, “economic activity.” To use an analogy from University of Chicago law professor Richard Epstein, under this reasoning, your refusal to buy a bicycle or healthy food is economic activity and you can be forced to buy them.

The Obama administration responded by claiming that consuming health care without paying for it is an activity. The administration seems to think that refusing to buy insurance is similar to stealing food from Walmart. This is mistaken. People who pay for healthcare out of pocket don’t act like this, but would be made to buy insurance. Also, just because some people are forced to pay for others’ healthcare doesn’t transform a refusal to purchase insurance into stealing.

The fight over the mandate shows that Congress and President Obama have contempt for the Constitution. Let’s hope the Supreme Court doesn’t.