Tuesday, November 24, 2015

brief review of "The Dirty Dozen"

Here's Robert Levy and William Mellor's book on 21 SCOTUS cases that "radically expanded government and eroded freedom"-- "the dirty dozen" and nine "dishonorable mentions"...

Levy and Mellor (LM) use two criteria for choosing cases: weak constitutional foundations and profoundly negative social consequences-- both direct and indirect through the ripple effects of changed policies, going forward (xxvi). LM provide an overview of the cases in their Introduction (7-9). Most of the cases are (largely) unknown, except to policy nerds, with the exception of McConnell given its recency (1). (Richard Epstein shares his [interesting] thoughts on the topic in the Foreword.)

Broadly speaking, LM argue that the courts have been drawn toward whatever works (although oftentimes they have not worked as hoped), rather than what is constitutional (or even, what would be ethical).

They briefly discuss the loose and inconsistently-applied term "judicial activism" (10)-- before discussing it at length in an Afterword. In a word, one man's "judicial activism" is another man's conservatism, depending on whose ox is being gored. LM argue instead for "judicial engagement", but that seems like (mostly) semantics-- and isn't as helpful as their discussion of the broader topic. Along the same lines, they note the common inconsistencies among liberals and especially conservatives on the 9th and 10th Amendments (12, 13). Kentucky's Governor-Elect Matt Bevin is a welcome counter-example to conservative incoherence here-- at least in his position on "medical marijuana".

Key cases for me to cite/discuss: 

Chapter 1's Helvering v. Davis (1937) and U.S. v. Butler (1938) opened the door to mass redistribution through Social Security and Medicare. For LM's purposes, ignore whatever benefits obtained-- and ignore the brutal impact of Social Security and Medicare as poorly-designed programs with massive and direct social costs (particularly for the elderly, the working poor, and the middle class). But, ironically, given that they were sold as retirement programs, they were redistributive efforts that paved the way for all sorts of other efforts by the *Federal* government.  

Chapter 2's two cases on "interstate commerce" led to all sorts of shenanigans: Wickard v. Filburn (1942) and Gonzales v. Raich (2005). Filburn operated a small farm in Ohio, producing milk, poultry, eggs, and wheat. He grew wheat for his family, to feed his animals, and to sell at market. The Ag Dept. (under Wickard) had told Filburn he could grow 11.1 acres at a yield of 20.1 bushels per acre. Filburn planted 23 acres and was fined for his excess production. (41) The idea that government could/should regulate such things is crazy/outrageous enough. But Filburn wasn't even selling his wheat across state lines-- and yet, "interstate commerce" was invoked-- successfully!

What changed as a result? "Instead of serving as a shield against interference by the states, the commerce power became a sword wielded by the federal government in pursuit of a boundless array of regulations." (40) The SCOTUS pulled back on the reins slightly in 1995 with U.S. v. Lopez (45) and U.S. v. Morrison (46). But those small, technical victories were over-run with Gonzales v. Raich (46-47) staggering decision on medical marijuana. 

"In the aftermath of Raich, it is difficult to know what congressional action, if any, could ever exceed the scope of the Interstate Commerce Clause." (47) Clarence Thomas penned an eloquent dissent, noting the absurdity that the marijuana had not been bought or sold, not crossed state lines, and had no demonstrable effect on the national market (47-48). Thomas wrote: "If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothing drives, and potluck suppers throughout the 50 States." Simply brutal, especially for "conservatives". 

Chapter 7's Korematsu v. U.S. (1944) covers the internment of Japanese citizens, despite the 5th Amendment's call for due process. The case was decided 6-3) and is indicative of the popularity of using government force (with the Court's approval) to address a wide variety of goals. 

Chapter 11's U.S. vs. Carolene Products (1938) and Nebbia vs. NY (1934) were two more New Deal cases that are outrageous and had massive implications to this day. For example, they established the ability of government to mandate occupational licensing in a wide array of fields. Nebbia opened the can by regulating the price of milk and "the right to earn an honest living" (188). Carolene extended the political victories won through Nebbia by allowing the government to restrict competition as it (and its cronies) saw fit. To this day, although government is far more famous for anti-trust activity, it is (literally) 10,000 times more active in enhancing monopoly power. 

What about Roe v. Wade? LM cover it as the first of two postscripts. (The other is Bush v. Gore.) LM agree that the SCOTUS abortion decision was wrong-headed. But they note that many states had already legalized abortion-- and other states would have gone that path in the future. Thus, the impact of the decision and its ripple effects to other legislation is not enough (in the eyes of LM) to warrant inclusion. 

Finally, a point of miscellany on the cause/effect of the financial crisis in 2007 (xvi). LM point to the double taxation on dividends; the government's subsidy of deducted interest; the Fed's artificially low interest rates; political pressures on Congress and the Presidents to promote inefficient lending; and the inherent moral hazard problems with government subsidizing Fannie Mae, Freddie Mac, and (some) large banks as "too big to fail". (On this last point, they say, "not a bad deal for private financial institutions: heads, the banks win; tails, the taxpayer loses"). A good review/summary; interested parties are encouraged to read my blog post on John Allison's book here.


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