Business Insider wanted to get to the bottom of the public stance on the Amazon HQ2/NYC issue. If you don't know, Amazon chose NYC to host half of their second headquarters. They were set to receive approximately $3 billion dollars in tax incentives to locate there and add 25,000 jobs to Queens. City and state Democrats approved the deal, including the mayor and the governor, but after the announcement, some local Democrats, including the representative of the 14th District in New York, strongly objected.
One of their arguments was that the $3 billion dollars could be better spent elsewhere. "It's fair to ask why we don't invest the capital for public use, + why we don't give working people a tax break." Many jumped on these comments as illustrating ignorance of the mechanism involved. The statement is vague enough that it could be interpreted either way, but she could easily augment it to make it not sound idiotic.
So to determine whether people agreed with the Governor or Mayor or the local socialists, Business Insider conducted a poll. The poll found that a plurality of respondents thought $3 billion dollars would be better spent on tax breaks for residents.
This poll is completely divorced from the situation though, and ironically, it shows that still no one agrees with the socialists, because its result indicates most people want lower taxes. Even so, the poll does not make clear that the $3 billion dollars "given" to Amazon should be compared to the $27 billion dollar increase in tax receipts from Amazon's entry. So NYC made a deal to increase their tax revenues by $24 billion on net. What if the poll asked "Should NYC lower Amazon's tax bill over ten years to guarantee $27 billion dollars in new tax revenue or offer no tax break and receive no new tax revenues?" What if he poll asked "How much should NYC be willing to give up to guarantee $27 billion dollars in new tax revenue?"
The option chosen by the plurality, though I doubt the respondents considered the implication, might arrest the exodus of New Yorkers from the state or incentivize more work, but Democrats and Socialists don't believe that tax cuts improve the economy or that workers respond by increasing their labor, nor do they decry the loss of the people who are fleeing for lower tax states.
Also, it's pretty hard to believe that either of those would offer the nearly 900% return that the tax incentives were offering, which would only grow as time went on.
Wednesday, February 20, 2019
Fact-Checking an Entertainer's Exaggerations
On Fox News Sunday with Chris Wallace, Rush Limbaugh made some points regarding climate change that he often makes on his radio show and are not far off from arguments other climate skeptics make. Politifact took a look at them and rated them "False."
Given his role as a radio commentator, one should expect exaggeration, and Politifact should have investigated his claims not as whether they were true or false, but rather if there was a grain of truth that he was exaggerating and how much exaggeration there is.
I have zero confidence in the prominent newspapers when it comes to climate change coverage. Despite the fact that the climate is complex and there is variation, their coverage is fifty times stronger of the "up" variations than the "down" variations and they clearly exaggerate climate change.
For example, any time the average temperature increases even the tiniest amount, they provide the same 'sky is falling' coverage as when it goes up substantially. Recently, all the surface measurement entities said the same thing--the average global temperature for 2018 was lower than 2017, however, not a single press story mentioned that. Instead all coverage was that 2018 was one of the hottest years on record. And they would not say there was a two-year downward trend since 2016.
I'm not arguing that the trend will continue, and I'm not arguing that there hasn't been a trend upward, according to that data, since 2000. A reasonable person can admit both. I don't understand why the media, though, can't acknowledge that the temperature has declined since 2016. They could easily quote a scientist saying it's likely a temporary decline because of El Nino in 2016, but they'd rather just omit the inconvenient truth from their stories because they can't handle or they believe their readers can't handle any amount of nuance or complexity.
Turning back to Rush Limbaugh's comments, he said
Climate Change is Happening Now
Most data bears out that it's hotter now than it was ten or twenty years ago or more. However, the statement by climate scientist Kevin Trenberth that "The Earth is now hotter than it has ever been." Is factually inaccurate. As it was hotter two years ago than it is now. His point was probably the point that I made, not the narrow inference I made, but good science and good journalism (and good fact checking) should distinguish in the interest of clarity and accuracy. There is really no reason to let a general and technically incorrect statement like that stand on it's own. (As an aside, I doubt that the fact-checker even understands that the statement is not 100% accurate).
Predictions from the Past have Been Borne out
This is where Rush is on his firmest footing. The Politifact article uses one expert who conducted an analysis for a website, then cites a single model which overpredicted the temperature increase by 20%. They also refer to this analysis which shows that the models have been off by varying degrees but claim that they're basically right. After reviewing the models and evidence, the models do not consistently over-estimate like I originally believed, but they also don't seem especially accurate. The difference here might be the reporting, an interesting investigation may be to look at how these are reported. I suspect that the media tend to emphasize the highest estimates and that's what gives the impression that the models are always over-estimating.
Near-Term Projections Are Usually Correct
What terrible evidence. I should hope that they're usually correct. I can get pretty close to a good prediction just by saying the temperature will be exactly the same. There is no difficulty in guessing small changes, and furthermore they are pointless. What is important is the long-term projections. This defense should not be included.
Given his role as a radio commentator, one should expect exaggeration, and Politifact should have investigated his claims not as whether they were true or false, but rather if there was a grain of truth that he was exaggerating and how much exaggeration there is.
I have zero confidence in the prominent newspapers when it comes to climate change coverage. Despite the fact that the climate is complex and there is variation, their coverage is fifty times stronger of the "up" variations than the "down" variations and they clearly exaggerate climate change.
For example, any time the average temperature increases even the tiniest amount, they provide the same 'sky is falling' coverage as when it goes up substantially. Recently, all the surface measurement entities said the same thing--the average global temperature for 2018 was lower than 2017, however, not a single press story mentioned that. Instead all coverage was that 2018 was one of the hottest years on record. And they would not say there was a two-year downward trend since 2016.
I'm not arguing that the trend will continue, and I'm not arguing that there hasn't been a trend upward, according to that data, since 2000. A reasonable person can admit both. I don't understand why the media, though, can't acknowledge that the temperature has declined since 2016. They could easily quote a scientist saying it's likely a temporary decline because of El Nino in 2016, but they'd rather just omit the inconvenient truth from their stories because they can't handle or they believe their readers can't handle any amount of nuance or complexity.
Turning back to Rush Limbaugh's comments, he said
"Climate change is nothing but a bunch of computer models that attempt to tell us what's going to happen in 50 years or 30. Notice the predictions are never for next year or the next 10 years. They're always for way, way, way, way out there, when none of us are going to be around or alive to know whether or not they were true."Politifact's rebuttal is three-fold--climate change is happening now, predictions from the past have been borne out, and near-term projections have usually been correct.
Climate Change is Happening Now
Most data bears out that it's hotter now than it was ten or twenty years ago or more. However, the statement by climate scientist Kevin Trenberth that "The Earth is now hotter than it has ever been." Is factually inaccurate. As it was hotter two years ago than it is now. His point was probably the point that I made, not the narrow inference I made, but good science and good journalism (and good fact checking) should distinguish in the interest of clarity and accuracy. There is really no reason to let a general and technically incorrect statement like that stand on it's own. (As an aside, I doubt that the fact-checker even understands that the statement is not 100% accurate).
Predictions from the Past have Been Borne out
This is where Rush is on his firmest footing. The Politifact article uses one expert who conducted an analysis for a website, then cites a single model which overpredicted the temperature increase by 20%. They also refer to this analysis which shows that the models have been off by varying degrees but claim that they're basically right. After reviewing the models and evidence, the models do not consistently over-estimate like I originally believed, but they also don't seem especially accurate. The difference here might be the reporting, an interesting investigation may be to look at how these are reported. I suspect that the media tend to emphasize the highest estimates and that's what gives the impression that the models are always over-estimating.
Near-Term Projections Are Usually Correct
What terrible evidence. I should hope that they're usually correct. I can get pretty close to a good prediction just by saying the temperature will be exactly the same. There is no difficulty in guessing small changes, and furthermore they are pointless. What is important is the long-term projections. This defense should not be included.
Saturday, February 9, 2019
Doubling Down on Bad Programs
Democrats want to fix Social Security. Unfortunately, the way they want to go about it is to double-down on a poorly designed program. To summarize their plan, they want to raise the payroll taxes by almost 20% (from 12.4 to 14.8), increase benefits by 2%, and expand the program to income 400k and up (excluding income between 132.9k - 400k)
Social Security was designed over 75 years ago for a society much different from todays. It redistributes wealth from low income earners with low life expectancy to the affluent. It redistributise wealth from dual-earner couples to single-earner couples. Why do we want a system that does this?
Furthermore, as has been shown, Social Security is a terrible pension plan. Their own research shows that almost everyone would be better off investing their money in an index fund. The only people whose returns might rival an index fund are couples, with only one earner in the lowest income group. Every other income group, every other combination of earners performs relatively poorly.
Let's take an example to show how much better off most would be with an index fund.
A two-earner couple, born in 1985 is in their 30s now. They can expect a return of 2.45% on their Social Security "contributions." The S&P500's average annual return is 9.8% over the past 90 years. If each starts working at 25 with a salary of $30,000 and gets a 3% raise every year until they retire, at retirement, they'd have more than five times the savings from an index fund as from Social Security. (You can play with assumptions by copying this workbook)
This demonstrates how lousy a program Social Security is. I understand that one of the benefits of Social Security is that it can provide some security in case the market crashes. It would be intolerable to have saved your whole life, and then the market crashes. However, this is an extremely high price to pay to guarantee retirement security. Imagine there was no payroll tax as you worked, but Social Security was funded by taxing your retirement savings right as you turn 65. This example shows that it's an 80% tax of your potential savings.
Surely we can design a system that can guarantee retirement savings (even for single-earner couples) and not mal-distribute so much wealth for a fraction of the price.
Social Security was designed over 75 years ago for a society much different from todays. It redistributes wealth from low income earners with low life expectancy to the affluent. It redistributise wealth from dual-earner couples to single-earner couples. Why do we want a system that does this?
Furthermore, as has been shown, Social Security is a terrible pension plan. Their own research shows that almost everyone would be better off investing their money in an index fund. The only people whose returns might rival an index fund are couples, with only one earner in the lowest income group. Every other income group, every other combination of earners performs relatively poorly.
Let's take an example to show how much better off most would be with an index fund.
A two-earner couple, born in 1985 is in their 30s now. They can expect a return of 2.45% on their Social Security "contributions." The S&P500's average annual return is 9.8% over the past 90 years. If each starts working at 25 with a salary of $30,000 and gets a 3% raise every year until they retire, at retirement, they'd have more than five times the savings from an index fund as from Social Security. (You can play with assumptions by copying this workbook)
This demonstrates how lousy a program Social Security is. I understand that one of the benefits of Social Security is that it can provide some security in case the market crashes. It would be intolerable to have saved your whole life, and then the market crashes. However, this is an extremely high price to pay to guarantee retirement security. Imagine there was no payroll tax as you worked, but Social Security was funded by taxing your retirement savings right as you turn 65. This example shows that it's an 80% tax of your potential savings.
Surely we can design a system that can guarantee retirement savings (even for single-earner couples) and not mal-distribute so much wealth for a fraction of the price.
Thursday, January 31, 2019
Questions for All - Medicare for All Primer for Journalists
Now that Kamala Harris, a top-tier Democratic candidate for President has announced her support for Sanders's Medicare for All plan, it's time for journalists to start asking tough, informed question. Because we all know how hard that is for them, here is a primer to get them started. Hopefully, they might use this to actually inform the public unlike what happened with Obamacare, where I defy you to identify a single story in the New York Times or on cable news that included the fact that about 1/3 of the uninsured at the time were illegal immigrants and 1/3 were eligible for Medicaid but had not enrolled. Of the latter group, it is almost certainly the case (but we will never know since the media didn't report on it), that these uninsured were healthy individuals who were reasonably waiting until they needed healthcare before enrolling. If Americans had known this ahead of time, then they wouldn't be surprised to find out that Obamacare has reduced the uninsurance rate by only 40-50%. But of course, that fact is barely mentioned these days either, and if so, it is assuredly blamed on the states that did not expand Medicaid.
Which leads into the first set of questions. First, "What problem(s) is Medicare for All supposed to solve?" For this, I have a suspected answer: to reduce the uninsured rate to zero and lower the costs. Any knowledgeable journalist or citizen should immediately remember that Obamacare was advertised as a solution to both problems. In the run-up to Obamacare's passage, not a single news story caveated that Obamacare would only reduce the uninsurance rate to 5-10%, not a single news story (from traditional sources) warned that Obamacare would not reduce costs, they instead repeated the administration's claims that it would lower costs. Remember, "bend the cost curve down"? The fact that the Democrats now want to fix both of these problems should be a constant reminder that Obamacare failed to solve these problems and not a single serious journalist warned Americans about these predictable shortcomings.
For specific questions, first, I want to congratulate Jake Tapper for asking a terrific question of Harris--is she in favor of completely eliminating private insurance. This is a clear outcome of the Sanders Medicare for All plan, but then, he is an avowed socialist. To which, at the risk of an over-abundance of praise, we should laud Senator Harris for replying that yes, she does want to eliminate private insurance. Her team tried to backtrack, and then later stood by her original statement. It's currently a little unclear as to what she thinks about private insurance, but we can be confident that this issue will come up again. This is the first question that should be asked of every candidate, "Do you want to, as the Sanders plan does, completely eliminate private insurance?"
Some follow up questions:
"Do you know how many people are employed directly or indirectly through the private insurance marketplace? What will happen to them? Does your plan include paying their unemployment and helping them find new jobs?"
"Will your plan do anything to make investors in these companies whole? How much money will investors, pension plans, and retirees lose from your nationalization of insurance?"
The second set of questions involves Medicare Advantage. President Obama and the Democrats tried to mortally wound Medicare Advantage by reducing payments to MA plans through the ACA, but it, to the surprise of everyone, grew after the passage of the ACA. For those who don't know, Medicare Advantage offers Medicare recipients a private option to compete with traditional Medicare. Approximately one third of eligible seniors choose an MA plan in lieu of traditional Medicare. As far as I know, the Medicare for All plans do not mention Medicare Advantage, but I would assume they want to do away with it.
Questions:
"Will your plan, in addition to eliminating the current plans of the majority of working Americans also eliminate the plans of approximately 1/3 of seniors? If Medicare for All does not pass, do you still favor eliminating Medicare Advantage? Do you believe choice is good for consumers in general? What about the healthcare market makes choice a negative factor?"
These questions should be asked of the candidates, not because they're "gotcha" questions, because they aren't. They are serious and important questions that will matter to people. They impact a lot of people's lives and they show that the candidate has done her homework and is not just promising the moon. If journalists start doing their job and actually providing the public information, Americans can replace the epithets they currently hurl at each other with facts.
Which leads into the first set of questions. First, "What problem(s) is Medicare for All supposed to solve?" For this, I have a suspected answer: to reduce the uninsured rate to zero and lower the costs. Any knowledgeable journalist or citizen should immediately remember that Obamacare was advertised as a solution to both problems. In the run-up to Obamacare's passage, not a single news story caveated that Obamacare would only reduce the uninsurance rate to 5-10%, not a single news story (from traditional sources) warned that Obamacare would not reduce costs, they instead repeated the administration's claims that it would lower costs. Remember, "bend the cost curve down"? The fact that the Democrats now want to fix both of these problems should be a constant reminder that Obamacare failed to solve these problems and not a single serious journalist warned Americans about these predictable shortcomings.
For specific questions, first, I want to congratulate Jake Tapper for asking a terrific question of Harris--is she in favor of completely eliminating private insurance. This is a clear outcome of the Sanders Medicare for All plan, but then, he is an avowed socialist. To which, at the risk of an over-abundance of praise, we should laud Senator Harris for replying that yes, she does want to eliminate private insurance. Her team tried to backtrack, and then later stood by her original statement. It's currently a little unclear as to what she thinks about private insurance, but we can be confident that this issue will come up again. This is the first question that should be asked of every candidate, "Do you want to, as the Sanders plan does, completely eliminate private insurance?"
Some follow up questions:
"Do you know how many people are employed directly or indirectly through the private insurance marketplace? What will happen to them? Does your plan include paying their unemployment and helping them find new jobs?"
"Will your plan do anything to make investors in these companies whole? How much money will investors, pension plans, and retirees lose from your nationalization of insurance?"
The second set of questions involves Medicare Advantage. President Obama and the Democrats tried to mortally wound Medicare Advantage by reducing payments to MA plans through the ACA, but it, to the surprise of everyone, grew after the passage of the ACA. For those who don't know, Medicare Advantage offers Medicare recipients a private option to compete with traditional Medicare. Approximately one third of eligible seniors choose an MA plan in lieu of traditional Medicare. As far as I know, the Medicare for All plans do not mention Medicare Advantage, but I would assume they want to do away with it.
Questions:
"Will your plan, in addition to eliminating the current plans of the majority of working Americans also eliminate the plans of approximately 1/3 of seniors? If Medicare for All does not pass, do you still favor eliminating Medicare Advantage? Do you believe choice is good for consumers in general? What about the healthcare market makes choice a negative factor?"
These questions should be asked of the candidates, not because they're "gotcha" questions, because they aren't. They are serious and important questions that will matter to people. They impact a lot of people's lives and they show that the candidate has done her homework and is not just promising the moon. If journalists start doing their job and actually providing the public information, Americans can replace the epithets they currently hurl at each other with facts.
Sunday, January 27, 2019
Questions the Media should have asked about Buzzfeed Bombshell
For those who don't read or watch the news continuously, there was a 24-hour explosion in the Impeach Trump saga, that started with a bang on Thursday and ended with a whimper on Friday.
It began when BuzzFeed, the vaunted news source that brought us the as yet unverified Trump dossier, published a story, from anonymous sources no less, that Trump directed his lawyer to lie to Congress.
It ended when the Office of the Special Counsel disputed, in general terms, the thrust of the BuzzFeed story.
But this was not before it was reported by everyone CNN,
https://www.buzzfeednews.com/article/jasonleopold/trump-russia-cohen-moscow-tower-mueller-investigation
The core of the story can be summarized by three paragraphs:
"Now the two sources have told BuzzFeed News that Cohen also told the special counsel that after the election, the president personally instructed him to lie — by claiming that negotiations ended months earlier than they actually did — in order to obscure Trump’s involvement.
It began when BuzzFeed, the vaunted news source that brought us the as yet unverified Trump dossier, published a story, from anonymous sources no less, that Trump directed his lawyer to lie to Congress.
It ended when the Office of the Special Counsel disputed, in general terms, the thrust of the BuzzFeed story.
But this was not before it was reported by everyone CNN,
https://www.buzzfeednews.com/article/jasonleopold/trump-russia-cohen-moscow-tower-mueller-investigation
The core of the story can be summarized by three paragraphs:
"Now the two sources have told BuzzFeed News that Cohen also told the special counsel that after the election, the president personally instructed him to lie — by claiming that negotiations ended months earlier than they actually did — in order to obscure Trump’s involvement.
The special counsel’s office learned about Trump’s directive for Cohen to lie to Congress through interviews with multiple witnesses from the Trump Organization and internal company emails, text messages, and a cache of other documents. Cohen then acknowledged those instructions during his interviews with that office."
On Friday evening, before Mueller's team shot back, I started to ask some questions that I realized that the media should have been asking. Namely, 1) What was the motivation for leaking this story and 2) Why BuzzFeed and not the NY Times.
On Question 1, suppose you are on Mueller's team investigating this. You believe that Trump directed Cohen to lie to Congress and you believe you have the proof to back it up. Since the investigation already has what it needs, and it's still going through the normal investigative process to be followed up by the prosecutorial process, what reason do you have to tell the media? It will be given to the media in due course, as soon as Mueller finishes his report.
The most likely reason I could think of was that the sources must NOT have believed it was going to see the light of day for whatever reason. Most likely because the evidence was too weak. (This turns out to be even more likely considering the Mueller dispute).
The second question I asked was why these sources would talk to BuzzFeed instead of the New York Times or Washington Post, for example. Why not go to a much more credible and established news outlet. This information was absolutely enormous and consequential. If I thought it was important enough to get into the news, I'd go straight to the top, why didn't these sources? Again, the likely answer is that they did not want the scrutiny from those sources or they knew it would be called into question and did not want to sully either of those companies.
I admit that maybe there are good reasons I didn't think of, but my point is that these are important questions that the media should have asked, but they did not. Probably because they prefer to breathlessly report bad news for Trump than to actually do their jobs.
Update: I heard a viable reason to leak the news. The timing of the presidential election and the investigation will make it difficult to complete impeachment proceedings before election day if they wait until the investigation is complete. Leaking gives Congress a reason to begin immediately. This was suggested in the 18 hours between the initial story and the Mueller rebuttal, and so is now moot. Even if true, this shows that the leakers were trying to short-circuit the investigative process and does not explain why Buzzfeed.
Update: I heard a viable reason to leak the news. The timing of the presidential election and the investigation will make it difficult to complete impeachment proceedings before election day if they wait until the investigation is complete. Leaking gives Congress a reason to begin immediately. This was suggested in the 18 hours between the initial story and the Mueller rebuttal, and so is now moot. Even if true, this shows that the leakers were trying to short-circuit the investigative process and does not explain why Buzzfeed.
Sunday, December 2, 2018
Travel Ban Decision (Trump vs. Hawaii)
The Opinion
SCotUSBlog's Case Page
The majority's opinion seems to be that his statements not withstanding, the fact that the executive order has a reasonable, non-religious explanation supporting it, and the President has pretty broad powers to control entry into the United States, the executive order is constitutional.
The dissent's opinion seems to be that President Trump expressed a desire to implement a ban on a certain religion and therefore this order which mainly affects some countries with large numbers of that religion is based on religious animus and therefore unconstitutional.
If we go with the dissent for a moment, their position really is that if a person expresses an unconstitutional motivation at anytime, that bars him from enacting any law that would even partially fulfill that motivation despite it being constitutional when the motivation is ignored.
Am I wrong that this would open the door to litigation of any and all laws that have a disparate impact on a group? I suppose it would need to be a protected group. It's hard to imagine a different case. Every now and then a politician is caught saying something anti-Semitic. If they passed a law which had a negative impact on Jews, would that be unconstitutional? Another example might be tax policies that hurt different groups.
On the other hand, what if there actually existed a religion whose sole purpose was to destroy us? If a candidate said he was going to stop them, would he not be allowed to do so because of his religious animus?
Another question that the dissent generates would be at what point can you discern a legislator's or president's motivations? President/Candidate Trump actually said Muslim ban, but what if he had merely said he thought Muslims dangerous and then said we shouldn't allow dangerous people into the country, would that be clear enough? This would definitely create a whole new set of cases and judgments to define the line of motivation, and you can be assured that the left's interpretations of motivations are often stretched pretty far. Just think about the scant evidence they use to call someone misogynistic (because they think Judge Kavanaugh should be confirmed) or racist (because their middle name is Beauregard).
Another interesting tidbit about this decision. I think this is a case where the split wasn't caused by political ideology but judicial ideology. If the judges were polled as to whether they approved or disapproved of the law, I would bet that the disapprovers would outnumber the approvers. It might even be unanimous. I know that's how I feel. I disagree with the policy, but still think it's constitutional. Count this as an argument that the conservative justices aren't voting for political reasons. Are there any similar cases where the liberal justices vote against their political beliefs? J. Ginsburg has expressed an anti-Trump animus. Should her decisions be negated?
Furthermore, the dissent strongly believes that "a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus." I just don't know if that's true. I think reasonable people could fall on both sides, though a majority of them would probably agree. It really depends on how it is presented. If you said, "President Trump wanted a Muslim ban and the first thing he did in office was ban a bunch of Muslims from entering the US.", then yes. If you instead said, "President Trump said he wanted a Muslim ban, but keep in mind, President Trump is prone to exaggeration and doesn't really precisely what he means" (give numerous examples) "Upon entering office he issued a sloppy order that banned entry from the 7 mostly Muslim countries that President Obama's administration had placed restrictions on because of 'the growing threat from foreign terrorist fighters.' After legal challenges, President Trump cleaned up the order as it related to people who already had legal standing, added two countries with very few Muslims and removed Iraq. It also included explicit, non-religious reasons the countries were on the list providing them a way out. At most, it 'bans' 8% of world's Muslims." What would a reasonable person say to that? I don't really know.
SCotUSBlog's Case Page
Super brief summary of case:
Candidate Trump included on his webpage a statement about how he intended to stop all Muslim immigration temporarily. (Other than this, the clearest thing he seems to have said on the subject was that the US was "having problems with Muslims coming into the country.")- On his 8th day as president, Trump issued Executive Order 13769 among other things suspended entry of people from certain countries for 90 days.
- It was almost immediately subjected to legal challenges which delayed its enactment.
- It was replaced by Executive Order 13780, which removed Iraq from the list of countries banned and clarified that people with legal standing in the US were not subject to the ban.
- Chad, North Korea, and Venezuela were added to list
- Chad was removed from list
- Legal challenges began
The majority's opinion seems to be that his statements not withstanding, the fact that the executive order has a reasonable, non-religious explanation supporting it, and the President has pretty broad powers to control entry into the United States, the executive order is constitutional.
The dissent's opinion seems to be that President Trump expressed a desire to implement a ban on a certain religion and therefore this order which mainly affects some countries with large numbers of that religion is based on religious animus and therefore unconstitutional.
If we go with the dissent for a moment, their position really is that if a person expresses an unconstitutional motivation at anytime, that bars him from enacting any law that would even partially fulfill that motivation despite it being constitutional when the motivation is ignored.
Am I wrong that this would open the door to litigation of any and all laws that have a disparate impact on a group? I suppose it would need to be a protected group. It's hard to imagine a different case. Every now and then a politician is caught saying something anti-Semitic. If they passed a law which had a negative impact on Jews, would that be unconstitutional? Another example might be tax policies that hurt different groups.
On the other hand, what if there actually existed a religion whose sole purpose was to destroy us? If a candidate said he was going to stop them, would he not be allowed to do so because of his religious animus?
Another question that the dissent generates would be at what point can you discern a legislator's or president's motivations? President/Candidate Trump actually said Muslim ban, but what if he had merely said he thought Muslims dangerous and then said we shouldn't allow dangerous people into the country, would that be clear enough? This would definitely create a whole new set of cases and judgments to define the line of motivation, and you can be assured that the left's interpretations of motivations are often stretched pretty far. Just think about the scant evidence they use to call someone misogynistic (because they think Judge Kavanaugh should be confirmed) or racist (because their middle name is Beauregard).
Another interesting tidbit about this decision. I think this is a case where the split wasn't caused by political ideology but judicial ideology. If the judges were polled as to whether they approved or disapproved of the law, I would bet that the disapprovers would outnumber the approvers. It might even be unanimous. I know that's how I feel. I disagree with the policy, but still think it's constitutional. Count this as an argument that the conservative justices aren't voting for political reasons. Are there any similar cases where the liberal justices vote against their political beliefs? J. Ginsburg has expressed an anti-Trump animus. Should her decisions be negated?
Other Thoughts
There is a lot of back and forth about rational versus reasonable basis. The dissent claims that "if a reasonable observer would understand an executive action to be driven by discriminatory animus, the action be invalidated" (reasonable basis). The opinion believes that if the law has an underpinning for legitimate purposes, then it must be upheld (rational basis). The rational basis camp cites many precedents suggesting that this should be used on cases of national defense, foreign affairs, and entry of foreign nationals while the dissent's (single yet very clear) precedent pertains to "holiday displays and graduate ceremonies". If the dissent had won this argument, it would have expanded the use of the reasonable basis review.Furthermore, the dissent strongly believes that "a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus." I just don't know if that's true. I think reasonable people could fall on both sides, though a majority of them would probably agree. It really depends on how it is presented. If you said, "President Trump wanted a Muslim ban and the first thing he did in office was ban a bunch of Muslims from entering the US.", then yes. If you instead said, "President Trump said he wanted a Muslim ban, but keep in mind, President Trump is prone to exaggeration and doesn't really precisely what he means" (give numerous examples) "Upon entering office he issued a sloppy order that banned entry from the 7 mostly Muslim countries that President Obama's administration had placed restrictions on because of 'the growing threat from foreign terrorist fighters.' After legal challenges, President Trump cleaned up the order as it related to people who already had legal standing, added two countries with very few Muslims and removed Iraq. It also included explicit, non-religious reasons the countries were on the list providing them a way out. At most, it 'bans' 8% of world's Muslims." What would a reasonable person say to that? I don't really know.
- If a Candidate/President expresses a religious animus, and then actually has a change of heart, would the dissenters still prevent her from implementing a similar travel ban? Would she need to express her change of heart? If President Trump says he loves Muslims would he be in the clear?
- If one of those countries, or any Muslim majority country declares war on us, would President Trump be barred from fighting back? Would he have had to have said on the campaign that he didn't like Muslims?
- “The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals” - Is this a legal argument or a logical fallacy?
- In J. Sotomayor's dissent, footnote 7, "It is important to note 'using the term alien to refer to other human beings' to be 'offensive and demeaning'" I don't think it's important to note that at all.
- Why does the dissent cite Democrats who believe it to be bad policy? The quality of the policy should not affect whether it's constitutional.
- “the Proclamation has deleterious effects on our higher education system; national security; healthcare; artistic culture” - and? OH! That was your point. Everybody stop the travel ban! Let anyone who wants to come in come in, otherwise our artistic culture is doomed!
Good Writing
“Because that troubling result runs contrary to the Constitution and our precedent, I dissent.”Thursday, October 26, 2017
Media Arbitration
Here are some news articles regarding the recent change in the arbitration rule. (In ascending order of support for the change - liberal at the top; conservative at the bottom)
Bryce Covert - Slate
Renae Merle and Tory Newmyer - Washington Post
Jessica Silver-Greenberg - New York Times
Lisa Rickard and David Hirschmann - RealClearMarkets
Norbert Michel - Fortune
Just a little background first. Banks have been increasing their use of clauses that deny its customers the ability to join class-action lawsuits should they have complaints, instead forcing them into arbitration. This was done by adding an arbitration-only clause into that 50,000 page agreement you sign when you open an account. The Consumer Finance Protection Bureau, ostensibly charged with protecting US consumers from bad bank policies/behavior issued a rule to prevent banks et al. from any such restriction. Republicans last night undid that rule allowing banks to preclude class action lawsuits.
After reading many of these articles, I really can't say for sure whether class action lawsuits are better or worse than arbitration for consumers who have been (what's a nice word for) cheated by banks. The main arguments for arbitration seem to be that their faster and they have a higher payout per person (though it's hard to know what exactly that means when it's possible that fewer people try for arbitration). Also, any payout will go directly to the consumer and not go into the pockets of the lawyers. The main arguments for class action are that you're more likely to have an advocate (class-action lawyer) who will work to ensure a payout and conviction, they're more public, and they're more accessible. In addition, it's rarely consumer-friendly when companies are restricting your options to complain about them, so anyone should be immediately dubious of this policy.
All that being said, I think the CFPB's main duty here is to inform consumers. That's one of the most useful things government can do. In this case, it could inform consumers of their rights within arbitration, whether they can bring a lawyer, how consumers could initiate a complaint and go through the process, what are some issues that consumers should be aware of, what cases other people have brought and what their outcome was. There are many, many things that can help consumers.
My main point, however, is that those three paragraphs I wrote are not in any of the news articles on this topic. The first paragraph was basically in each, the second paragraph's separate arguments might be in one or the other depending on the source, and the third paragraph is unheard of.
I'd encourage each reader of this entry to read the Slate article and think about every sentence/paragraph and whether it's talking about whether the rule itself is pro- consumer or anti-. Some examples:
Scary. "Under cover of darkness...". An assertion that the rule was pro-consumer, let's read more!
More scaremongering: "pushed", "steeply stacked against them".
See, the people before 1925 knew what was good.
People are being tricked. Banks are trying to get away with this. Then the "why are these so long and complicated complaint."
Aha. Finally, the money paragraph. Notice that the lawyer point isn't necessarily good or bad as it doesn't deal directly with whether consumers benefited or lost out eventually. (As an aside, we should remember that the left is not aghast that school's deny lawyers to men accused of sexual assault on campus.) Then, the author cites a single instance where class action resulted in a better outcome for consumers.
After that, the author talks about recent issues at Wells Fargo and Equifax and how they relate to these arbitration clauses without discussing whether that resulted in lower payments for consumers or the lack of paid damages. Then about how Republicans like the financial industry.
So to sum up, in over 900 words on how the Republicans' change will harm consumers, there's a single, concrete claim with evidence related to actual damages, and that was an anecdote. On the other side, there was no mention about the benefits of arbitration, OR, importantly, the vital question of whether the arbitration process tends to result in more losses for consumers or what lawyers' cut is.
Is balanced news really that difficult?
Bryce Covert - Slate
Renae Merle and Tory Newmyer - Washington Post
Jessica Silver-Greenberg - New York Times
Lisa Rickard and David Hirschmann - RealClearMarkets
Norbert Michel - Fortune
Just a little background first. Banks have been increasing their use of clauses that deny its customers the ability to join class-action lawsuits should they have complaints, instead forcing them into arbitration. This was done by adding an arbitration-only clause into that 50,000 page agreement you sign when you open an account. The Consumer Finance Protection Bureau, ostensibly charged with protecting US consumers from bad bank policies/behavior issued a rule to prevent banks et al. from any such restriction. Republicans last night undid that rule allowing banks to preclude class action lawsuits.
After reading many of these articles, I really can't say for sure whether class action lawsuits are better or worse than arbitration for consumers who have been (what's a nice word for) cheated by banks. The main arguments for arbitration seem to be that their faster and they have a higher payout per person (though it's hard to know what exactly that means when it's possible that fewer people try for arbitration). Also, any payout will go directly to the consumer and not go into the pockets of the lawyers. The main arguments for class action are that you're more likely to have an advocate (class-action lawyer) who will work to ensure a payout and conviction, they're more public, and they're more accessible. In addition, it's rarely consumer-friendly when companies are restricting your options to complain about them, so anyone should be immediately dubious of this policy.
All that being said, I think the CFPB's main duty here is to inform consumers. That's one of the most useful things government can do. In this case, it could inform consumers of their rights within arbitration, whether they can bring a lawyer, how consumers could initiate a complaint and go through the process, what are some issues that consumers should be aware of, what cases other people have brought and what their outcome was. There are many, many things that can help consumers.
My main point, however, is that those three paragraphs I wrote are not in any of the news articles on this topic. The first paragraph was basically in each, the second paragraph's separate arguments might be in one or the other depending on the source, and the third paragraph is unheard of.
I'd encourage each reader of this entry to read the Slate article and think about every sentence/paragraph and whether it's talking about whether the rule itself is pro- consumer or anti-. Some examples:
First paragraph: "Under cover of darkness, the Senate voted Tuesday night, with a tie-breaker from Vice President Mike Pence, to undo a rule that had been a major win for consumers against banks."
Scary. "Under cover of darkness...". An assertion that the rule was pro-consumer, let's read more!
"Instead, consumers are pushed into a private arbitration process when they have a complaint, where the odds are steeply stacked against them."
More scaremongering: "pushed", "steeply stacked against them".
Historical context: "Forced arbitration wasn’t always legal: It was barred until 1925, when Congress passed a law allowing companies to use the clauses in disputes between themselves."
See, the people before 1925 knew what was good.
"But most people, understandably, don’t even realize that they’ve signed them. Who takes the time to fully read a product agreement, let alone understand the legalese that means they’re giving away the right to join a class-action lawsuit? The CFPB found that these clauses alone run about 1,100 words on average, with some as long-winded as 2,500 words, and that they are typically the most complexly written part of a contract."
People are being tricked. Banks are trying to get away with this. Then the "why are these so long and complicated complaint."
"Consumers stand little chance of getting relief when they’re pushed into arbitration: Companies have a lot of control over who will oversee and arbitrate the cases. Only about 60 percent of consumers go into arbitration with a lawyer at their side, but companies are always represented. And once an arbitration decision is made, there’s usually no recourse to change it. In one case study, debit cardholders who were able to join a class-action lawsuit got $1 billion via 18 settlements over their allegations of illegal overdraft fees. Those who went through arbitration because they either weren’t allowed to join, or opted out, got nothing at all."
Aha. Finally, the money paragraph. Notice that the lawyer point isn't necessarily good or bad as it doesn't deal directly with whether consumers benefited or lost out eventually. (As an aside, we should remember that the left is not aghast that school's deny lawyers to men accused of sexual assault on campus.) Then, the author cites a single instance where class action resulted in a better outcome for consumers.
After that, the author talks about recent issues at Wells Fargo and Equifax and how they relate to these arbitration clauses without discussing whether that resulted in lower payments for consumers or the lack of paid damages. Then about how Republicans like the financial industry.
So to sum up, in over 900 words on how the Republicans' change will harm consumers, there's a single, concrete claim with evidence related to actual damages, and that was an anecdote. On the other side, there was no mention about the benefits of arbitration, OR, importantly, the vital question of whether the arbitration process tends to result in more losses for consumers or what lawyers' cut is.
Is balanced news really that difficult?
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