The Minimum Coverage Provision and Constitutional Limits

Neil Siegel

Opponents of the minimum coverage provision in the Patient Protection and Affordable Care Act argue that if Congress can require most people to obtain a certain level of health insurance coverage or pay a certain amount of money each year, then there is little or nothing left of the constitutional principle of a national government of limited, enumerated powers. Depending on the aggressiveness of the particular opponent, the claim is that upholding the minimum coverage provision would mean either that (1) Congress can impose whatever regulations it wants using its commerce power, or that (2) Congress can impose whatever mandates it wants using its commerce power, or that (3) Congress can impose whatever economic mandates it wants using its commerce power.

In a new paper available here, I argue that each of these claims is false. Specifically, I show that a principled jurist can conclude that the minimum coverage provision is within the scope of federal power while also embracing—or leaving for another day—some or all of the following principles regarding Congress’s use of the Commerce Clause:

(1) Congress may not regulate noneconomic subject matter, whether the regulation is a mandate or not, and whether the subject matter is deemed “inactivity” or “activity.” For example, Congress may not ban or require the possession of firearms in schools or in the home, nor may Congress force people to render aid to stop the commission of ordinary crimes like assault.

(2) Congress may not impose any regulation (including a mandate) that violates constitutional rights, including the right to bodily integrity. For example, Congress may not force people to eat certain foods or exercise a certain amount.

(3) In order to regulate at all, Congress must have a reasonable basis to believe that the regulation will ameliorate a significant problem of collective action among the states. For example, all ordinary crime falls in this category regardless of whether the victim of the crime is a commercial enterprise.

(4) Congress may not impose an economic mandate unless it has a reasonable basis to believe that the regulatory alternatives would be less effective or more coercive. For example, Congress may not require individuals to purchase a product if Congress can accomplish its regulatory objectives in a less coercive way, such as by restricting production of the product or by using tax incentives to encourage purchases.

I endorse the first three of these limits. The fourth—an appropriately restrained judicial inquiry into the coerciveness and efficacy of the regulatory alternatives available to Congress—I do not endorse. But the imposition of such a limit would have a sounder constitutional basis than the interpretive mistake of invalidating the minimum coverage provision on the broad ground that Congress may never regulate “inactivity” using its commerce power, either alone or in combination with the Necessary and Proper Clause. From McCulloch v. Maryland to United States v. Comstock, the Court has understood Congress to possess ample means to effectively pursue its constitutionally enumerated ends. Therefore, any concerns about the coerciveness of regulating “inactivity” should be balanced against the relative efficacy and coerciveness of regulating through other means.

Accordingly, I conclude that there is good reason to reject the view of opponents of the ACA that this litigation is analogous to United States v. Lopez, in which opponents of federal power persuaded the Court that if Congress can regulate the possession of guns in schools, then Congress can regulate anything. But I do agree with the apparent premise of critics of the ACA that persuasively applying current doctrine concerning the Commere Clause, the Necessary and Proper Clause, and the tax power likely will not suffice to save the minimimum coverage provision when the merits of the ACA litigation is before the Supreme Court. Rather, the Court must be persuaded that it can uphold the provision without abandoning the principle of a national government of limited, enumerated powers.
Posted 6:52 PM by Neil Siegel [link]

To Hear or Not to Hear

Gerard N. Magliocca

Next week we will learn the Justice Department's position on the certiorari petition now pending before the Supreme Court on the constitutionality of the individual mandate. I want to pose the basic question--Should the Justices exercise their discretion and set this case down for argument during the 2011 Term, or should they wait to do so until after the 2012 election?

Here are some arguments for granting certiorari now. First, the normal practice when there is a circuit split on an important issue of federal law is to take the case. Why should this one be treated any differently? Second, the uncertainty surrounding the health care statute could be partly responsible for our lackluster economy and therefore should be resolved as soon as possible. Third, a decision next year would allow the country to consider the Court's judgment as part of the presidential campaign. (The last two points also weigh in favor of rejecting the Fourth Circuit's holding that the Anti-Tax Injunction Act bars constitutional review of the individual mandate until at least 2014.)

Here are some arguments against taking the case now. First, more circuit court opinions could be helpful to the Justices. Second, the split could be resolved if the Eleventh Circuit grants en banc review and reverses the panel opinion striking down the mandate. Third, a decision taken in an election year may look like a political act that will damage the Court's reputation. Finally, the question might become moot if the Republicans win in 2012 and repeal the individual mandate.

What do you think?
Posted 4:27 PM by Gerard N. Magliocca [link] (2) comments

Sobering Numbers: Law Graduates Who Do Not Become Lawyers

Brian Tamanaha

It goes without saying that people enroll in law school expecting to become lawyers. They might attend law school because they always wanted to become a lawyer, or because the economy is poor and they have no other opportunities. But when they plunk down $150,000 or more in tuition and living expenses for a degree, they do so with the reasonable assumption that they will obtain jobs as lawyers when they get out.

This obvious point bears repeating because members of the legal academy frequently assert that a law degree is a plus for all kinds of careers. Setting aside the plausibility of this assertion--it is dubious at these prices--students expect that at the very least they will become lawyers.

Thus it is sobering to learn that, for the class of 2009 (nine months after graduation), at 30 law schools, only 50 percent or fewer of the graduates obtained jobs as lawyers. At nearly 90 law schools, one-third or more of graduates did not land jobs as lawyers nine months after graduation. 2009 was not a good year for legal employment, but 2010 was even worse (numbers are still unavailable), and 2011 will not be much better. Many of these schools, I should add, had poor success rates even before the current legal recession.

What happened to all those law graduates who failed to get jobs as lawyers? We like to imagine that they became consultants at McKinsey, or stockbrokers, or silicon valley entrepreneurs using their patent law knowledge, or FBI agents, or other success stories. Or they later became solo practitioners and are doing fine hustling up clients. Or they finally obtained a lawyer job a year after graduation. There is little evidence for any of this, of course.
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Posted 7:00 AM by Brian Tamanaha [link] (41) comments

The Liberation of Use-Them-Or-Lose-Them Frequent Flyer Miles

Ian Ayres

09/07/2011 | 10:33 amRead more »
Posted 11:44 PM by Ian Ayres [link]

Presidential Gerrymandering: The Problem and the Meta-Problem

Joey Fishkin

Following up on Gerard’s post, I agree that there is nothing wrong with states changing the way they allocate their electoral votes in presidential elections. But the problem of partisans switching the rules around for short-term political reasons is only the beginning of what is problematic about the plan now being floated in Pennsylvania to allocate electoral votes by Congressional district.

Thomas Jefferson wrote in a letter in 1800 that allocating electoral college votes by states would be fine, and doing it by congressional districts would be as good or better—“it is merely a question whether we will divide the United States into sixteen or one hundred and thirty-seven districts” (today, that’s 50 or 435)—but that a mix of the two would be a problem. It would “give a result very different from what would be the sentiment of the whole people of the United States, were they assembled together.” These comments reflect a complete innocence of the technologies of modern partisan gerrymandering. Today, presidential races conducted only in “swing” states are narrow and exclusive enough. Presidential races conducted only in the even narrower confines of “swing” Congressional districts would be even worse, particularly in races like 2012 that immediately follow a redistricting cycle, when Congressional districts are as gerrymandered as they will be for a decade. (Population shifts generally leave more districts competitive by the end of a decade than at the start.)

Even so, Jefferson was right that a hybrid electoral college mixing statewide-winner-take-all with congressional-district-based rules—i.e. what we would have as more states go the way of Maine and Nebraska—almost certainly increases the chances of an undemocratic result, defined in his terms (“a result very different from what would be the sentiment of the whole people of the United States”). Specifically it almost certainly increases the chances that even in a two-candidate race, most Americans could vote for one candidate, and the winner would be the other.

And this leads me to the more concerning meta-problem that this Pennsylvania initiative reflects. Before the 2000 election, there was a great deal of disagreement about whether the electoral college favored one party or the other, in comparison to the obvious democratic baseline, a national popular vote. In those more innocent days, some pundits theorized that Bush was likely to win the popular vote and lose the electoral college—the reverse of how things turned out. (Some suggested that Gore might not be a legitimate leader if he were to win under such circumstances; there were many questions.) Uncertainty about the direction, if any, of the partisan tilt of the electoral college allowed members of both parties, for a time, to agree with Jefferson that the point of a Presidential election, in the end, is to produce a result that reflects the sentiment of “the whole people of the United States.” Now we are living through a different and more partisan time. Regardless of the merits of the Pennsylvania plan, the very fact that the majority leader of the Pennsylvania state senate would propose it reflects a different configuration of political sentiments and democratic norms: no longer do we all agree that the national popular vote confers legitimacy. Instead, some openly propose moves to shore up their party’s chances of winning the electoral vote regardless of the popular vote. If this change is real, it suggests that the idea that the President is there to represent all the people of the United States may be in trouble. And that could make serious discussions about electoral college reform very difficult.
Posted 3:46 PM by Joey Fishkin [link] (7) comments

Presidential Gerrymandering

Gerard N. Magliocca

The Majority Leader of the Pennsylvania Senate wants to change the way that the state allocates its electoral votes in presidential elections. Instead of the typical "winner-take-all" approach, he would like to adopt the system used by Maine and Nebraska, where the winner of each congressional district gets the electoral vote of that district. If such a change were implemented, then it would probably shift about 10 electoral votes to the Republicans. No Republican has carried Pennsylvania since 1988 (George H.W. Bush), but the GOP always wins many congressional districts in the state. In a happy coincidence, both houses of the State Legislature are controlled by the Republicans. And the Governor is a Republican. So this change may well happen.

Now there is nothing wrong with changing the way that a state awards electoral votes. Moreover, there is a good argument that the Maine/Nebraska system is more equitable. The problem is that changing the rules when you know which party will benefit is not fair. Of course, it is possible that the Republican candidate will win Pennsylvania in 2012 and that any attempt by the state party to game the system will backfire. But this move could set off an effort in other states that reliably vote one way for President but a different way at the state level to change to a proportional electoral vote system. And then maybe they will change back a few years later when party control in the state changes. It's not a pretty picture.
Posted 8:15 AM by Gerard N. Magliocca [link] (16) comments

Teaching Our Children about American Exceptionalism

Jonathan Hafetz

I recently came across this passage from Joy Hakim’s From Colonies to Country, the textbook my fifth grade son uses in his history class:

“If ever you are arrested, the first thing to do is ask for a ‘writ of habeas corpus.’ Then you will be brought before a judge, and he will tell you why you are being held. If there is no good reason for your arrest, you can go home. This is a very important right! In many countries today, people still get thrown in jail for no good reason.”

Of course, one can expect only so much detail from an elementary school history book, and it is encouraging to see habeas corpus mentioned there at all. On the other hand, one wonders whether children will be asked to question the dominant narrative of American exceptionalism in light of America’s response to 9/11.

Will, for example, children be taught that not everyone imprisoned by the United States actually gets habeas corpus? That a person can languish in jail for years before he gets to see a judge? And that it’s not only in “other countries” that people are thrown in jail for no good reason?
Posted 10:37 PM by Jonathan Hafetz [link]

What is a Politician?

Gerard N. Magliocca

One of the emerging themes in my biography of John Bingham (the main drafter of Section One of the Fourteenth Amendment) is that he was a politician like everyone else. There is a tendency to look at leaders from long ago (particularly constitutional leaders) and think that they were more principled or less craven than ours, but that just isn't true. Shakespeare's Mark Antony was wrong in this respect: The good that men do lives after them; it's the evil that is oft interred with their bones.

When I say that Bingham was a politician, I mean that in its positive and negative sense. The critical connotation is easier to see. He made repeated compromises with slavery prior to the Civil War and often dodged, hedged, or made misleading statements on controversial issues to protect his seat in Congress. This behavior, though, could also be described as praiseworthy. He paid close attention to public opinion and attempted to build bridges between different constituencies, which sometimes required equivocal or ambiguous statements during the most polarized time in our nation's history.

The most glowing description of a politician comes from Richard Nixon's eulogy for Senator Everett Dirksen:

"A politician knows that more important than the bill that is proposed is the law that is passed. A politician knows that his friends are not always his allies, and that his adversaries are not his enemies. A politician knows how to make the process of democracy work, and loves the intricate workings of the democratic system. A politician knows not only how to count votes, but how to make his vote count. A politician knows that his words are his weapons, but that his word is his bond. A politician knows that only if he leaves room for discussion and room for concession can he gain room for maneuver. A politician knows that the best way to be a winner is to make the other side feel it does not have to be a loser."
Posted 3:24 PM by Gerard N. Magliocca [link] (1) comments

Conference at Duke on the Constitutionality of the ACA

Neil Siegel

This Friday, September 16, the Program in Public Law at Duke Law School will host an academic conference that will consider the ongoing constitutional litigation over the Patient Protection and Affordable Care Act. Participants will include Matthew Adler, Jack Balkin, Stuart Benjamin, James Boyle, Erwin Chemerinsky, Guy Charles, Robert Cooter, Mark Hall, Gillian Metzger, Abigail Moncrieff, Arti Rai, Barak Richman, Theodore Ruger, Stephen Sachs, Neil Siegel, Ilya Somin, and Ernest Young.

A description of the conference and a link to the conference agenda are available here.

The event is open to the public. All are warmly invited to attend. In addition, the proceedings will be webcast live. A link will be available on the Law School's website.

Most of the conference papers will be published in Law and Contemporary Problems later in the academic year.
Posted 12:01 PM by Neil Siegel [link]

Wanna Buy a Tony Award?

Ian Ayres

Crosspost from Freakonomics:

Imagine that you’re super-rich and considering endowing a chaired professorship, which will forever bear your name at your alma mater. If you went to Yale College, it will cost you at least $3 million.

People give to charities for all kinds of reasons – some more noble than others. But one important motivation is recognition. If Yale mandated that it would only accept anonymous donations, its fundraising would be decimated.

There are a lot of different ways to garner public recognition. If I had 3 million bucks to throw around, I’d think long and hard about trying instead to buy myself a Tony Award. For as little as $200,000, you might be able to purchase an 8% chance at winning a Tony.

Let me emphasize that this is at best a crude ballpark estimate. Over the last 5 years, 12.2 new plays have been produced on Broadway each year. For a play, which generally runs about $2.5 to 3 million these days, my friend Jack Thomas at Bulldog Theatrical tells me you can usually find yourself among those listed above the title for about $200,000. Some investors split this minimum ante and put up or raise just $100,000 each and get listed as Bulldog Theatrical / Cantab Theatrical.

The Broadway League, which runs the Tony Awards, has been cracking down on producer proliferation by limiting the number of producers who can rush the stage. But my memory from this year’s telecast is that the show let the larger gaggle of over-the-title producers stand together in a clump in the wings for a quick live shot before turning the cameras to the general partners who got to go up to the podium. So $200,000 doesn’t give you a chance of making an acceptance speech. But if you have over-the-title billing, you will receive the prize that evening. And there is nothing to stop you from shamelessly carrying the hardware around from party to party and later ostentatiously displaying it on your mantel until you shake off this mortal coil. (Note to universities: you should at least give chair donors an actual school chair, or better yet some garish object d’art that will generate inquiries from dinner guests).

If you invested $200,000 in 15 different plays each with an independent 8% chance of winning, the binomial distribution says you’d have about a 72% of winning at least one Tony. Of course, in any given year these probabilities are not independent. If you could buy producing credits on all of the plays that were produced in a year, then for about $2.4 million you could guarantee winning a Tony. This covering strategy is usually not feasible though. Some of the new plays each year are produced by non-profit theaters – like the Roundabout, Lincoln Center Theater, and the Manhattan Theatre Club – which generally aren’t looking for Tony-hungry commercial producing partners.

By the way, if you’re solely interested in winning an award, investing in a play is a lot cheaper lottery ticket than investing in a musical. There are about 10 new musicals a year, with a minimum buy-in more on the order of $1 million. A Tony for “Best Revival of a Play” might provide the best probabilistic bang for the buck. There have only been an average of 4.6 play revivals per year over the last five years, and these awards are generally easier to predict: the category is dominated by well-known vehicles, generally starring famous names (for example, Jude Law in Hamlet, and Al Pacino in The Merchant of Venice).

Again, I want to emphasize the lack of precision in my estimates. But for roughly the same amount of money you could buy either a university chair or a pretty fair chance of winning a Tony. This post cuts against interest, but I’m surprised that more of the well-heeled don’t prefer supporting the theater – and this is even before taking into account the slim possibility that your theatrical patronage will produce a positive return (or at least return some of your initial investment).

This “buy a Tony” strategy might be replicated to probabilistically purchase other awards. If you happen to know, please add a comment speculating on parallel numbers for an Oscar or an Emmy. Turns out that an EGOT might be for sale.

Posted 9:33 AM by Ian Ayres [link]

Racial Profiling & Surveillance

Frank Pasquale

You may have heard about "multiple passengers holed up in the bathroom" of a plane flying on Sunday, which "led to F-16s shadowing . . . it [as it] neared Detroit." Turns out that the false alarm was sparked by a "half-Arab and half-Jewish" woman who sat between two South Asian passengers:
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Posted 10:41 PM by Frank Pasquale [link]

Two Crises, One Response

Frank Pasquale

The US faced two great crises during the first decade of the 21st century: the attacks of September, 2001, and the meltdown of its financial system in September, 2008. In the case of 9/11, the country reluctantly concluded that it had made a category mistake about the threat posed by terrorism. The US had relied on cooperation among the Federal Aviation Administration, local law enforcement, and airlines to prevent hijacking. Assuming that, at most, a hijacked or bombed airplane would kill the passengers aboard the plane, government officials believed that national, local, and private authorities had adequate incentives to invest in an optimal level of deterrence. Until the attack occurred, no high official had deeply considered and acted on the possibility that an airplane itself could be weaponized, leading to the deaths of thousands of civilians.

After the attack, a new Department of Homeland Security took the lead in protecting the American people from internal threats, while existing intelligence agencies refocused their operations to better monitor internal threats to domestic order. The government massively upgraded its surveillance capabilities in the search for terrorists. DHS collaborated with local law enforcement officials and private critical infrastructure providers. Federal agencies, including the Department of Homeland Security, gather information in conjunction with state and local law enforcement officials in what Congress has deemed the “Information Sharing Environment” (ISE), held together by information "fusion centers" and other hubs. My co-blogger Danielle Citron and I wrote about some of the consequences in an article that recently appeared in the Hastings Law Journal:

In a speech at the Washington National Cathedral three days after 9/11, then-President George W. Bush proclaimed that America’s “responsibility to history is already clear[:] . . . [to] rid the world of evil.” For the next seven years, the Bush administration tried many innovations to keep that promise, ranging from preemptive war in Iraq to . . . changes in law enforcement and domestic intelligence . . . Fusion centers are a lasting legacy of the Administration’s aspiration to “eradicate evil,” a great leap forward in both technical capacity and institutional coordination. Their goal is to eliminate both the cancer of terror and lesser diseases of the body politic.

Yet evidence has accumulated that the cure may be worse than the disease. Even though the press, public, and advocacy groups have had only limited access to their operations, several violations of civil rights and liberties have been uncovered. Fusion centers are presently engaged in regulatory arbitrage that threatens to permit future infringements of civil liberties violations to remain undetected and to tilt the legal playing field unfairly against watchdogs and accountability organizations.

Though we started the article over two years ago, I've seen little occur to assuage the concerns we expressed in it. Rather, the remarkable work of Dana Priest and Bill Arkin continues to reveal troubling contours of a "Top Secret America." Among their many findings: an army of contractors makes profits too vast even to be estimated by the top officials ostensibly supervising them (and who often bide time till they too can join the hunt for lucrative contracts). As Glenn Greenwald notes, summarizing an L.A. Times expose, "[D]omestic "homeland security" projects [include things like] $75 billion per year [for a] . . . boat with side-scan sonar to respond to a potential attack on a lake in tiny Keith County, Nebraska, and hundreds of '9-ton . . . armored vehicles, complete with turret' to guard against things like an attack on DreamWorks in Los Angeles." Devices developed for foreign wars were brought back to the homeland, including no-notice iris scans. As local police see shifts slashed and pensions threatened, highly paid contractors pursue unreviewable and amorphous "security" assignments in the beltway.
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Posted 2:59 PM by Frank Pasquale [link]

Jost on a Drafting Error in the Affordable Care Act

Frank Pasquale

A few days ago, Timothy Jost offered insights on the Fourth Circuit's jurisdictional rulings on constitutional challenges to the Affordable Care Act. (That post was part of a terrific series he has done for the Health Affairs Blog.) Today, Jost offers a fascinating perspective on "an ACA drafting error that would seem to deprive millions of uninsured Americans of tax credits to purchase health insurance and invalidate regulations recently proposed by HHS and the Treasury Department:"

The mistake is found in section 1401 of the ACA, which creates a new section 36B of the IRC. Two subsections of 36B ((b)(2)(A) and (c)(2)(A)(i)) suggest that premium tax credit eligibility under the ACA depends on the applicant being enrolled in a qualified health plan “through an Exchange established by the State under section 1311.” This would in turn suggest that individuals enrolled in a qualified health plan through a federal exchange established under section 1321(c) would not be eligible for premium tax credits, contrary to the recent proposed regulations.

That this is a drafting error is obvious to anyone who understands the ACA. Section 1311 of the ACA requests the states to establish American Health Benefit Exchanges and sets out the duties of the exchanges. Section 1321 of the ACA, however, provides that if a state elects not to establish and exchange or fails to do so, HHS must “establish and operate” an exchange in such a state and “take such actions as are necessary to implement” the other requirements of title I of the ACA, which includes section 1401. There is no coherent policy reason why Congress would have refused premium tax credits to the citizens of states that ended up with a federal exchange. None of the CBO reports scoring the ACA suggest that premium tax credits would only be available though 1311 state exchanges and not through 1321 federal exchanges. It is, finally, highly unlikely that the House, whose bill included only a federal exchange, would have approved a bill that only provided tax credits through state exchanges but not through the federal exchange.

For the full argument, check out his post at the Health Reform Watch blog.

X-Posted: Concurring Opinions.
Posted 9:56 AM by Frank Pasquale [link]

Transfer Students are the New Normal (With Significant Implications for Law Schools)

Brian Tamanaha

Transfer students are sweeping across law schools, with about 5 percent of students moving annually. In 2008, the most recent year with publicly available records, every accredited law school in America but one saw transfers; at almost every law school, the transfer door swung in both directions: outgoing students departed for a better school, just as incoming students came in. It is an annual reshuffle of students up the law school chain.

Remarkably—a sign of how crazy things have gotten—even students at top fifteen schools transfer up to find a better perch in the law school hierarchy. In the four years on record (2005-2008), as many as 10 students have transferred up in a given year from Michigan, Duke, and Northwestern, and a greater number have left Cornell and Georgetown.

Law professors treat transfers as if a taboo. A recent article about transfers in the Journal of Legal Education supplies numbers, but redacts the identities of the law schools (declining to "name names"). This concealment is dubious for a scholarly article--especially considering that the information is openly published by the ABA--and it hides the full impact transfers are having on legal academia. (The fact that the editor of the preeminent journal on legal education allowed the author to artificially withhold this information is indicative of the transfer taboo.)

Transfer students are the new normal. When nearly every law school (that can) takes in transfers, and many do so in significant numbers, it is silly to treat it as a deviant or dirty practice. The scale of this phenomenon--the names and numbers--may surprise you.Read more »
Posted 7:00 AM by Brian Tamanaha [link] (18) comments

In the Eye of the Storm, Part II: “Not Being Governed Like This”

Bernard E. Harcourt

Thanks to Frank Pasquale for pushing the conversation in such interesting directions. What we need to theorize, I take it, is the emerging wellspring of organized, but chaotic, a-political, but political, violence-resistance-delinquency that is too easily dismissed today as hooliganism, but is obviously deeply political in nature and, I believe, tells us something important about our current political environment. We need to theorize it deeply, with the kind of subtlety that someone like E.P. Thompson exhibited in his analyses of the moral economy of the English crowd and 18th century food riots. You may recall, Thompson revealed the political nature of the food riots as resistance to economic liberalization in part by showing that the riots couldn’t merely have been about hunger, nor crime, nor chaos, because the rioters were targeting the very means of production of bread—the mills. We need to understand these emerging forms of protest in a similarly nuanced way.

Let me start, though, by pointing to five additional pieces to the puzzle that I neglected to put on the table last time. First, Frank Pasquale and Umair Haque brilliantly expose the ideological underbelly of our “post-ideological age.” As Pasquale writes, “finance and government elites have positioned themselves to gain from whatever risks they shift onto society at large, via bailouts, emergency powers, and the revolving door.” There is, without doubt, a double standard. In Haque’s penetrating words, discussing the London riots: “Blow up the financial system? Here's a state-subsidized bonus. Steal a video game? You're toast.”

Over at ArsTechnica.com, Jon Stokes has brought to my attention two other important developments that are deeply connected to this wellspring of “hell raising” that need to be theorized as well. First, the hacker group “Anonymous,” which Stokes refers to as “a perfect example of the kind of post-ideological hell-raising expressed in the London riots” and discussed in Ars Technica's coverage of the hacker collective; and second, Wikileaks and Julian Assange, who, according to some, such as Bruce Sterling, are more about raising hell than political ideology. We need to include these developments in our theorizing about the London riots.

Third, Al Jazeera points out perhaps the greatest weakness in Slavoj Zizek’s argument in “Shoplifters of the World Unite,” namely his prejudiced (in the exact meaning of that term—pre-judged) reading of the Arab Spring. There is really no reason to prejudge the political outcomes in Tunisia, Egypt, Libya, etc. “’The end of revolution?’” Al Jazeera asks. “So early? So early in the game and so utterly has the European philosopher lost all hope.” Those revolts were ideologically driven and we simply cannot yet say what they will give birth to—regardless of the Iranian experience.

Fourth, Brent Staples, in his fascinating review of Randy Kennedy’s new book, reveals how the notion of "post-racial" must be related to the idea of the "post-ideological"—and also revealingly shows, in his penetrating discussion of the Rev. Jeremiah Wright episode, how so many (African)-Americans could easily come to reject “the ‘secular scripture’ of fundamental American goodness.” This too is an important piece of the puzzle.

Fifth and last for now—but there are more, I am sure—Daragh Grant, always brilliant (and on the political science teaching market this year), has pointed me to the intriguing parallel between the London riots and PM David Cameron’s youthful membership in the notorious Bullingdon Club at Oxford University. I live on a university campus with frat houses—and of course, we have had our own president who was a former member of the Skull and Bones society—so, yes, of course, one has to compare the youthful indiscretions of our elites with the violence of young people. The Prime Minister insisted: “We all do stupid things when we are young and we should learn the lessons.” Some people get to learn those lessons in different ways than others.

So that’s a lot to put on the table—perhaps enough for one post itself. I will continue to theorize next time. But let me just begin to sketch a direction tonight.

I’d argue that we are by no means in a “post-ideological” age. Listen to Texas Governor Perry and you’ll see that ideology, in its strongest sense, lives on. What is missing—and this is why Zizek would experience the political moment as "post-ideological"—is a robust, organized, militancy on the far Left—the Maoists, Leninists, Trotskyists, etc., of the 1960s. That form of political militancy has vaporized. Alain Badiou, Zizek’s intellectual running partner, was a Maoist, as were many in the European Left in the 60s—great recent book by Richard Wolin here. In this country, there were cells like the Black Panthers—it’s those kind of leftist political organization that no longer play a role, such that a London riot can no longer be “claimed” by any revolutionary movement—or (as it so often happened, falsely) be “attributed” to a political extremist group. There is just no critical mass of far Left political ideology left to stamp meaning on the London riots.

But it does not mean we are in a “post-ideological” age. [A lot will turn on the definition of ideology here. Raymond Geuss offers the best multiple definitions of the term in The Idea of a Critical Theory—I am simply using the term here to mean a political program that is deduced from a set of political ideas].

Instead, what I see in the London riots, in the Paris banlieus, even in the flash mobs and elsewhere, is a common critical reaction best captured, as Michel Foucault suggested, by the impulse to “not be governed like this.” It is a virulent rejection of the forms of governance that feel so oppressive. That is the common thread: resistance against the form of being governed—a thread that I discuss in this essay on radical thought, "Radical Thought from Marx, Nietzsche, and Freud, Through Foucault, to the Present". But there is a unique temporality to this critical impulse today. It is unique because of the collapse of so many utopian visions. The utopian dystopias of the twentieth century have fundamentally restructured the realm of political possibilities today.

According to ArsTechnica.com, there is a post on the open-posting site AnonNews: "We laugh in the face of tragedy, we mock those in pain, we ruin the lives of other people simply because we can, these things we do for the lolz and we do them with no remorse, no caring, no love, and no sense of morality, we attack all things in this way, we can, we will, and we have destroyed countless that stand to harm Anonymous." This reminds me of other forms of political resistance that I have explored here. I called it back then a “politics of spleen”—drawing on Baudelairean and 19th century bohemian resistance to bourgeois society as the paradigm of a certain form of resistant--also reflected in the 1990s in radical queer politics in this country. For instance in this 1991 editorial by Johnny Noxema and Rex Boy, the editors of the Toronto zine BIMBOX: "You are entering a gay and lesbian-free zone. . . . BIMBOX hereby renounces its past use of the term lesbian and/or gay in a positive manner. This is a civil war against the ultimate evil, and consequently we must identify us and them in no uncertain terms. . . . So, dear lesbian woman or gay man to whom perhaps BIMBOX has been inappropriately posted . . . prepare to pay dearly for the way you and your kind have f**ked things up.” There's an echo, an echo that can be heard today in so many forms of "apolitical" resistance or violence.

I like Frank Pasquale’s last sentence: “to develop a Mt. Pelerin Society for those who actually believe there is such a thing as society.” Intriguing... To be sure, ideological movements are not born by themselves. They never have been. They are created. Deliberately. With funding and foresight. They are made.

More to come...
Posted 9:43 PM by Bernard E. Harcourt [link]

Labor Day Links

Frank Pasquale

Just a few points of interest on Labor Day:

1) Alan Hyde, The Idea of the Idea of Labour Law: A Parable.

2) Yves Smith, The Decline of Manufacturing in America: A Case Study.

3) Mark E. Anderson, $500 a Month Less.
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Posted 5:07 PM by Frank Pasquale [link]

When we say that 9/11 changed something, what are we saying?

Mary L. Dudziak

We are beginning a week of reflection on the events of September 11, 2001.  Some 10th anniversary events will be memorials, remembering those who perished that day.  Other events will seek to make sense of what 9/11 did – to New York, to the United States, to the world.  So often remembered as a day that “changed everything,” academic panels will be held and op-eds written about just what 9/11 changed, and what it didn’t.

But what does it mean to say that 9/11 changed something?  There is often a slipperiness in the causality.  It is sometimes assumed that the terrorist attacks set certain historical events into motion.  But if we see 9/11 as causing the politics, culture and military actions that followed, then we are giving the airplanes that slammed into buildings a powerful determinism.  We are assuming that al Qaeda did not just slaughter thousands, but drove American politics for the next decade.

The post-9/11 era has sometimes been compared with the Cold War era to understand the way security concerns can impact rights.  The Cold War era shares another feature with the post-9/11 years: a murkiness about causality.  Although library shelves are filled with studies about what the Cold War did, just how the Cold War acted in history is sometimes left to the imagination.  The Cold War is sometimes evoked as if it were a climate system – as in the “Cold War climate,” but this climate somehow nebulously drove politics and culture.  Sometimes the Cold War is treated like a “hot” war, but without attention to its different military characteristics.  Sometimes it is simply a time-span, but nevertheless retains its causal character.

Diplomatic historians devote themselves to running down the details and understanding how the domestic and global puzzle pieces fit together.  But legal scholars often employ the Cold War as a category without this precision.

Similarly, 9/11 is seen as setting into play a series of events, without attention to whether we need a causal stopping point.  This builds in an assumption that there was a direct and inevitable line from the terrorist attacks to the Global War on Terror, and to the way American domestic and military policies were formulated. This accords Osama bin Laden more power that he actually had.

The assumption that 9/11 directly caused post-9/11 American policy also obscures one of the experiences of September 11 itself: the profound confusion.  When the second plane hit the South Tower of the World Trade Center, the terrible shock was coupled with fear and anxiety, and the question of what on earth was going on.  President George W. Bush provided an answer:  the nation was at war.  The wartime frame provided the president with a powerful way to rally the nation.  Americans came to see 9/11 as the opening of a wartime, but this displaced competing arguments at the time about what 9/11 was, and how the nation should respond.

On this 10th anniversary, we should see 9/11 as a crisis that enabled a political moment.  In the face of this crisis, American leaders made choices.  The most important choice of all was how to frame the terrorist attacks – to call the crisis a war.

Al Qaeda succeeded in a devastating attack on September 11.  What the terrorists did not and could not do was to determine American policy and politics for the next decade.  Even if 9/11 changed the way Americans thought about the world, it could not determine the actions we would take in its aftermath.  It did not deprive American leaders of choices.
Posted 10:09 AM by Mary L. Dudziak [link]

Revolt of the Elites

Frank Pasquale

In his post below, Bernard Harcourt has analyzed new forms of radicalism adopted by the most and least privileged. Umair Haque at the Harvard Business Review has also identified dispositions shared by street looters and certain elites. As the chief political commentator at London's Daily Telegraph has observed, "The moral decay of our society is as bad at the top as the bottom." Yet there are very different consequences for each group's transgressions.

The more disruptive the disenfranchised become, the more they provoke harsh responses from authorities, thus worsening their already marginal position. By contrast, finance and government elites have positioned themselves to gain from whatever risks they shift onto society at large, via bailouts, emergency powers, and the revolving door. As Ross Douthat observed, "The economic crisis is producing consolidation rather than revolution, the entrenchment of authority rather than its diffusion, and the concentration of power in the hands of the same elite that presided over the disasters in the first place."
Read more »
Posted 10:05 AM by Frank Pasquale [link]

“This had nothing to do with politics, nothing at all”

John Mikhail

So says an unnamed White House official in today's Washington Post, referring to Friday’s decision to scrap a safer ozone standard that would have required states and local communities to reduce air pollution or face federal penalties.

Back in the real world, the editors of The Wall St. Journal appear downright giddy at the demise of the proposed rule, issued by EPA in January 2010 and subsequently targeted by Congressional Republicans and lobbyists for the energy sector. A “startling and welcome decision,” the editors observe, which came about because “someone on the re-election side of Mr. Obama’s universe must have taken a closer look” at the political consequences of the proposed rule.

My colleague Lisa Heinzerling, who recently returned to Georgetown after serving as the head of EPA’s Office of Policy, has a powerful criticism of the President’s announcement here. In addition to objecting to the decision on legal, scientific, and economic grounds, she calls on the White House to make public the EPA’s explanation of its own standard. An excerpt:

When rules like the ozone NAAQS go to the White House for review, they are accompanied by a detailed explanation of the agency's reasons for deciding the way it did; this is the document that, if the White House clears the rule, will appear in the Federal Register as the agency's explanation for its rule. The ozone NAAQS was sent to the White House for review in July. Thus there exists a full package from EPA containing the final rule and the explanation for it. The least the White House can do at this point is to release that package. Let the public know what EPA concluded in its final package about the harmful effects of ozone pollution. Let states and local governments take that information and decide whether to strengthen their own pollution standards in light of what EPA has found. Let citizens decide what actions to take in light of that evidence. As President Obama explained when he issued a memorandum directing agencies to adopt a presumption of disclosure under the Freedom of Information Act: "Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve." It is hard to see a public-regarding reason for not disclosing the EPA's explanation of the science on ozone and the public's health.

Posted 2:25 PM by John Mikhail [link]

In the Eye of the Storm: Sunny Skies with a Chance of Chaotic, Violent Outbreaks

Bernard E. Harcourt

These are interesting times. Within the span of a week, both Cornel West and Slavoj Zizek have called for revolution in respected reviews. With the Tea Party maintaining its momentum at the other end of the spectrum—perhaps gaining momentum with Texas governor Rick Perry—it’s beginning to feel that we are oddly in a calm period with a threat of storm.

Cornel West’s op-ed on contemporary race relations in the New York Times was remarkable, if nothing else for the fact that the Times decided to print it. “Dr. Martin Luther King Would Want a Revolution,” that’s a bold title. Dr. West had a blistering splash at the end about “life and death confrontations with the powers that be”—to be sure, mellowed in between with more sedate policy advice (like supporting “progressive politicians like Senator Bernard Sanders of Vermont”). But the ending was truly fiery: “King’s response to our crisis can be put in one word: revolution. . . . Like King, we need to put on our cemetery clothes and be coffin-ready for the next great democratic battle.”

A few days earlier, in the pages of the London Review of Books, Slavoj Zizek published a fascinating analysis of the London riots—and of the Spanish protests, of the Arab Spring, and of the Greek meltdown—in an article titled “Shoplifters of the World Unite.” Zizek interprets the London riots as a form of chaotic, self-destructive violence in a post-ideological age. Frustrated by the contemporary condition of Western liberty—“What is the point of our celebrated freedom of choice when the only choice is between playing by the rules and (self-)destructive violence?” he asks—Zizek too concluded the piece on a fiery note: “to impose a reorganisation of social life… one needs a strong body able to reach quick decisions and to implement them with all necessary harshness.”

Meanwhile, at the other end of the political spectrum, Governor Perry is having book signings for his “Fed Up!”, a radical book that condemns Social Security as “a crumbling monument to the failure of the New Deal” and attacks climate change as “all one contrived phony mess.”

We are indeed living through remarkable times, in the shadow or perhaps swirl (behind or ahead of us) of economic uncertainty surrounding the Great Recession. There is a feeling of calm mixed with sporadic threats—reflecting a constellation of seemingly new developments.

It’s a period, after all, marked firstly by a massive amount of surveillance, an unprecedented degree of monitoring that is aimed predominantly at African-Americans and Hispanics. For instance, in New York City, in a period of remarkably low street-crime, the NYPD is engaging in unparalleled numbers of stops-and-frisks. Just last year, in 2010, the NYPD reported a record 601,055 stops-and-frisks, 85% of which were of minority residents. The City is on pace to bat over 700,000 in 2011. Where I live, in Hyde Park, the enhanced levels of surveillance are felt mostly by the new positioning of more than a dozen private security guards on the Midway to ensure our safe passage from one side of campus to the other—and increased police patrols of the campus neighborhood.

At the same time, at least in policy circles, the authoritarian fist of the state seems to have achieved unparalleled legitimacy. I’ve argued that it’s the product, in part, of neoliberal ideas—of the dominant belief that the government is incompetent when it comes to economic matters, but legitimate and competent in the area of policing and punishing. But it also has something to do with the fact that so many police chiefs have managed to take credit for the massive, national crime drop--credit which has greatly enhanced the legitimacy of law enforcement.

Meanwhile, we experience occasional outbursts of organized/chaotic violence. There are “flash mobs” in Philadelphia—random acts of violence perpetrated, apparently, by groups of young men who use social media to locate each other. Those mobs are being met by equally violent language from city leaders, including the mayor, Michael Nutter. Then there are riots in London and in the Parisian banlieus—in both cases, instigated by excessive police force and the death of one or more civilians, but in both cases now associated with chaotic excess. As Zizek writes, “It is difficult to conceive of the UK rioters in Marxist terms, as an instance of the emergence of the revolutionary subject; they fit much better the Hegelian notion of the ‘rabble’, those outside organised social space, who can express their discontent only through ‘irrational’ outbursts of destructive violence – what Hegel called ‘abstract negativity.’”

In Spain, the indignados protest the political system, and, as Zizek emphasizes, do so in an oddly a-political way--again, post ideology. The manifesto of Spanish indignados reads: “Some of us consider ourselves progressive, others conservative. Some of us are believers, some not. Some of us have clearly defined ideologies, others are apolitical…” This is evidence, Zizek suggests, that “Opposition to the system can no longer articulate itself in the form of a realistic alternative, or even as a utopian project, but can only take the shape of a meaningless outburst.”

It feels as if we are entering a new political environment that calls for interpretation and better understanding. This is true at home here in the United States, but it seems to be true in other Western countries as well. I’m calling it here “in the eye of the storm”—it is this feeling of calm, but with the threat of storm. I’ve no idea what the future holds, I’m not suggesting that there is a storm brewing. It could be that we stay in the eye for a long time. But there is an uncanny feeling. Cemetery clothes and coffin-ready… these words demand some reflection.

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Posted 10:01 PM by Bernard E. Harcourt [link]