Why Have a Congress?

I want to discuss a passage in James Joyner’s recent post:

I’ve only recently come to adopt the view that the courts, and certainly the Supreme Court, have to consider the policy implications of their rulings, not merely whether the question before them is technically legal.

Yes, the elected branches—Congress and the President—should make public policy and be granted wide latitude in doing so. In theory, if increasingly less in practice, the people can toss them out in the next election if they dislike the policy. But a justice system is supposed to ensure justice, not merely legality. Sending people who have done nothing wrong to die in countries they don’t know is not justice.

I think that answer deserves some reflection.

As I understand it our three branches of government are designed to operate as follows:

  • The legislative branch enacts laws, governing appropriations and other policies.
  • The chief executive executes the law and proposes policies.
  • The judicial branch interprets and applies the Constitution and the laws enacted by Congress, resolving disputes according to the law rather than according to its own policy preferences.

If the judicial branch determines the appropriate policies on its own, doesn’t that necessarily diminish the policy-making role assigned to Congress? If judges are to substitute their preferred policies whenever they believe justice requires it, what meaningful policy discretion remains for the legislative branch?

Furthermore, if judges are expected to reach the “correct” policy outcomes, by what standard are they to be evaluated? Lifetime tenure makes sense for judges whose duty is fidelity to law. It is much harder to justify if judges are expected to function as policymakers insulated from electoral accountability. That has not been the case historically. It would be a significant departure from our original structure as designed.

I agree with James that our current system is producing troubling results. Where we differ is in the diagnosis. My concern is that asking the judiciary to remedy policy failures created by the political branches ultimately erodes the constitutional division of responsibilities rather than repairing it. I think that members of Congress, the executive, and the judiciary are all acting in the directions in which their incentives, as they’ve evolved over the last 60 years, motivate them. I’ll have more on that in a later post.

The temptation to ask courts to correct failures by Congress and the executive is understandable. My concern is that every time one branch assumes the responsibilities of another, it changes the incentives under which all three branches operate.

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When Is a Ceasefire Not a Ceasefire?

The overnight news suggests that reports of the end of fighting with Iran have been greatly exaggerated. Jon Gambrell reports at the Associated Press:

DUBAI, United Arab Emirates (AP) — Iran launched a drone assault targeting Bahrain while a ship in the Strait of Hormuz separately came under attack Saturday, in Tehran’s likely response to overnight airstrikes by the United States.

The attacks in the Persian Gulf show the danger of the Iran war again spinning out of control, even after Iran and the U.S. reached an interim deal to try and agree on a final accord to end the conflict.

The U.S. had launched airstrikes overnight in response to an Iranian drone attack on a container ship trying to leave the strait on Thursday, continuing a string of attacks that have shaken the war’s uneasy ceasefire.

Meanwhile, a multinational maritime body overseen by the U.S. Navy said Saturday that it would expand a route near Oman in the strait to allow for both inbound and outbound traffic. That likely sets up a new flashpoint with Tehran, which sees the strait as a key source of leverage in ongoing talks with the U.S.

I have opposed this war from the outset on just war grounds. Nevertheless, once a nation commits itself to war, strategic incoherence is about the worst outcome imaginable. There is an old strategic maxim that still holds true: when you set out to take Vienna, take Vienna.

What are the objectives of this war? Whatever they are, the overnight events strongly suggest they have not yet been achieved.

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Question of the Day

Has anyone found a good analysis of the law surrounding the Supreme Court’s decisions in Mullin v. Al Otro Lado or Mullin v. Doe? The media opinions I have read seem to focus on the policy rather than the law.

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Missed By That Much

I almost agree with the editors of the Washington Post. In a recent editorial they say this in response to a proposal that FICA max be increased:

Even after all that pain, removing the cap would only close about half of Social Security’s funding shortfall. That’s because the fundamental problem with the program is not that it doesn’t tax enough. The problem is that its structure is based on demographic assumptions that no longer hold.

That’s almost correct. If they restated it “The problem is that its structure is based on demographic and income assumptions that no longer hold” I would agree completely. Notice the emphasis. Social Security was designed around two assumptions: the ratio of workers to retirees and the distribution of wages. The first has changed because Americans live longer and have fewer children. The second has changed because an increasing share of national income now goes to people earning above the FICA wage base.

The change is easy to see. Since 1980, incomes for the top 1 percent have grown at a dramatically faster rate than those of everyone else.

Note that the graph has two scales, one for incomes of the top 1% of income earners and the other for the bottom 99%. If the bottom 99% were shown on the same scale as the top 1%, the line for them would read as flat whereas it actually increased. Since earnings above the FICA wage base are exempt from the payroll tax, shifting more national income into those earnings automatically reduces the share of total wages subject to Social Security taxation.

I’m open to other suggestions for reforming Social Security than increasing FICA max. I know of several:

  1. Just abolish it.
  2. Supplement it with private accounts. Let individuals buy stocks or other investments. This was proposed during the Bush II Administration.
  3. Supplement it with national accounts. Let the Social Security Administration buys stocks or other investments.

but let’s not pretend that each of those wouldn’t have adverse side effects as well. If you’d prefer one of those alternatives, explain how you’d mitigate the problems it would create.

#1 and #2 assume that we’d be satisfied if some retirees became destitute in their old age. Nearly 40% of Americans rely solely on Social Security Retirement Income. The problem with #2 is that it shifts investment risk to individuals. Some retirees would inevitably reach retirement with inadequate savings.

The problem with #3 is that over time the federal government would come to own an increasing percentage of the U. S. economy. My experience has been that most proposing #3 are strongly opposed to that.

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I Can See!

As may be apparent I received my new prescription eyeglasses. They have improved my vision considerably. I’m taking things slowly. We’ll see how things work out.

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Do American Political Parties Limit Their Membership?

I think that Steven Taylor has got out over his skis in this post. Said another way, I think he’s exaggerating. Here’s the passage from the post I’m questioning:

Second, because our system (i.e., plurality elections in single-seat districts, the usage of primaries, and a number of other structures) funnels us into two parties, and because primaries open the door wide for anyone who wants to be one of the two collectives (providing that they win enough votes), this means both parties are coalitional in nature. Further, because of the porous nature of the nomination system and because centralized leadership of consequence does not exist in either party, it is nonsensical to say that a person who won a Democratic primary isn’t a Democrat.

The reason I question it is that Steven overstates his case. If he’s saying that American political parties are weak relative to, say, European political parties and parties in parliamentary systems, I agree completely. If he’s saying that American political parties don’t and can’t limit their membership, he’s wrong.

In 2014 the Arlington County Democratic Party in Virginia expelled a member for opposing a Democratic candidate in a general election. In Texas the Republican Party uses a censure mechanism, Rule 44, against state legislators for inadequate fidelity to party principle and priorities. In addition both political parties parties have denounced members with views outside the mainstream, e.g. David Duke and Lyndon LaRouche.

There are many other examples from further back in history. Franklin Roosevelt attempted a purge of members who didn’t support his policies. There was actually a loyalty test during the Civil War and Reconstruction.

Our political parties have other tools that Steven did not mention including:

  • They determine debate qualification rules.
  • They determine delegate allocation rules.
  • They determine convention rules.
  • They have, at various times, changed superdelegate rules, primary calendars, ballot access requirements, and candidate qualification standards.

Whether those tools will be exploited remains to be seen.

Rather than being “nonsensical,” what is happening within the Democratic Party is a debate over the boundaries of party identity, prompted by the New York elections. I understand James Carville’s despair, for example. Whether the solution to the problem is resigning from the party, I’m less confident. I do think that Democrats should decide what they believe and don’t believe and not be afraid to declare their beliefs.

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Don’t Bail Out New York

As is my custom I won’t comment on the results of the New York elections. Whom New York voters choose to represent them is none of my business.

I will comment on one thing. If New York City’s fiscal policies create a crisis, don’t ask taxpayers in the other forty-nine states to rescue it. New York voters are entitled to make their own choices but they’re also responsible for the consequences.

The same applies to New York State. Don’t bail it out, either. Money is fungible. A state bailout can become a city bailout by another name.

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The War With Iran

While I’m fumbling to post and expressing my opinions anyway, I thought I’d give four thoughts on the war with Iran.

First, as you should recall, I opposed going to war with Iran from the start. That doesn’t mean I think the Iranian regime are good guys—far from it. I think they’re awful. I simply think that wars should be fought only for just causes, as a last resort, conducted justly, and undertaken by a legitimate authority. That’s a very high standard and this war did not meet it.

Second and especially under the circumstances, we should all be happy for a conclusion to the war.

Third, I think those proclaiming that the Iranian regime won the war are exaggerating. By no reasonable measure did Iran win militarily. One can argue that the regime emerged from the negotiations in a stronger position than it deserved or than one would have preferred but that is not the same thing as winning the war.

Finally, neither did the United States. It may be too early for a definitive judgment but at this point it does not appear that we have achieved the objectives President Trump set out before the war.

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Social Security and Deficits

Given the conversation going on in comments I thought I’d contribute some thoughts about federal deficits and Social Security. The following graph illustrates the surpluses in Social Security (Revenues – Expenses) during the Clinton Administration:

and this graph illustrates shortfalls in Social Security:

As you can see, Social Security expenses have exceeded revenues since 2010, largely because the long-anticipated retirement of the Baby Boom generation increased the ratio of beneficiaries to workers.

In only one year of Bill Clinton’s presidency (2000) did the federal surplus exceed the Social Security surplus.

I think that Bill Clinton deserves credit for not increasing his spending faster. And he didn’t create the “unified budgeting” (it had been in place in one form or another since the 1960s) but he did benefit from it.

The retirement of the Baby Boom generation was one of the most predictable fiscal events in American history. Once Social Security shifted from generating annual surpluses to requiring redemption of Trust Fund securities, a source of financing that had helped mask the size of the underlying federal deficit disappeared. I think that the two political parties share the blame for the budgetary fix we are presently in. IMO the simplest fix would have been to maintain the taxable wage base at roughly the same share of national wage income that it covered in 1983. Better yet FICA max could have been removed entirely and applied to all wage income.

IMO the message to take from this is bite the bullet. Reforming Social Security is politically painful. Do what’s necessary as soon as you can.

There is a corollary to that: there are no mulligans in politics. Simply putting a policy in place has implications and creates new challenges that would not have existed but for the policy. We have been pretending that we could just finetune our policies for more than a century. Social Security illustrates this broader lesson: every policy creates future obligations and constraints. Political systems often behave as though policies can be adjusted indefinitely without consequence but eventually demographic, economic, and fiscal realities arrive and require choices.

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Waiting

I’m still waiting for my updated prescription eyeglasses. Until I receive them my activities including both reading and blogging are considerably constrained. For example, with my newly-operated on eyes I can read with some effort for about twenty minutes particularly if I keep my left eye closed. After twenty minutes I begin to experience eyestrain.

If I haven’t received an update on the availability of my new glasses from my optometrist be 3:00pm today, I will reach out to them. It will have been ten days since they received the prescription.

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