Lawrence Summers as Fed Chair: The View From Climate Policy

Lawrence Summers: Does The Emperor Have Any Clothes?
Lawrence Summers: Does The Emperor Have Any Clothes?

Lots of debate in Blogistan and elsewhere about President Obama’s apparent desire to appoint Larry Summers as Fed Chair.  We know (or at least we think we know) that he is brilliant, but he has a strange tendency to get matters of judgment wrong.  He supported the abolition of Glass-Steagall, endorsed deregulation of the financial industry, and seems to have little desire to admit that he got these things wrong.  Plus, there are sexist overtones to the seeming refusal to want to appoint current Fed vice-chair Janet Yellen, an outstanding economist in her own right.

All right.  But what does this have to do with climate policy?

Interestingly, a few years ago, Summers participated in a Council on Foreign Relations task force regarding climate policy options.  Like all CFR task forces, this one was self-consciously centrist, chaired by former New York Governor George Pataki (relatively moderate Republican, especially on climate issues) and former Iowa Governor (and now Agriculture Secretary) Tom Vilsack (moderate Democrat).  Its report, Confronting Climate Change: A Strategy for US Foreign Policy, is a quite comprehensive view of the stakes of climate policy, at least as of June 2008, when it was written.  It recommends putting a price on carbon, reducing emissions to the Kyoto level, and several other policy options.  Summers signed it.

But interestingly, Summers also appended a very short “comment” to the report, which says something about potential behavior as Fed Chair (how much is up to the reader).

Here are the two key graphs of his comment:

I have signed this report because it makes the need for urgent action on climate change clear and presents a smart and thoughtful agenda for reducing U.S. emissions, building international consensus, and promoting international action, with which I broadly concur.

The Task Force rightly notes that the costs of addressing climate change are highly uncertain, but I remain concerned that many policymakers do not sufficiently appreciate how large these uncertainties are or the consequences of paying them insufficient attention. Environmental certainty enjoys much attention while uncertainty over the cost of cutting emissions receives too little. This balance is wrong, particularly in the short term, since emissions in any given year matter little, while high costs, even for a short period, can cause substantial economic harm, particularly to the most vulnerable.

A few things jump out here:

1)  Summers gets the politics of climate change exactly 100% wrong.  The gravamen of his argument, i.e. “we are hurtling toward overregulation in the climate sphere” was wrong at the time and has been proved to be completely inaccurate.  To the extent that a Fed Chair has to be cognizant of political trends, this is not a good sign.  Anyone can get political prognostication wrong: but to go out of your way to get it wrong is a black mark.

2)  Summers makes no real substantive contribution in his comment.  He seems simply to want to emphasize, “I am thinking about things that no one else is.”  This on a task force with some of the leading thinkers in the field.  This does not bode well for a position like Fed Chair, which requires building consensus.

3)  He was wrong about what other people are thinking about.  Scholars and policymakers have been thinking about uncertainty all the time and had done so for more than a decade.

4)  To the extent that his emphasis on short-term costs and long-term benefits is a sub silentio call for a carbon tax, he was also wrong about its salience: the carbon tax idea was being promoted literally by dozens of scholars and policymakers.

5)  To the extent that his emphasis on short-term costs and long-term benefits is a restatement of the need of a high discount rate, it is not backed up by any facts or reasoning.  It also is wrong on the absence of short-term costs.

I keep hearing that Summers is a very brilliant man, and would do a wonderful job as Fed Chair.  To the extent that his intervention in climate policy is any indication, there is absolutely no evidence of this, and in fact the evidence demonstrates the opposite.  I’m assuming for the time being that the Emperor has clothes: but it would be nice to see them eventually.

Will House Republicans Save Food Aid Reform?

Rep. Ed Royce (R - CA): the potential hero of food aid reform
Rep. Ed Royce (R – CA): the potential hero of food aid reform

These next 48 hours are critical for advancing reform of US international food aid, which I have blogged about previously.  Short version: because current rules essentially demand that we provide aid in food grown in the US via government subsidy, our current aid regime wastes money, delays delivery of aid by weeks, lines the pockets of agribusiness and big shipping, often undermines farmers in the Global South, and leaves 2-4 million people starving who could otherwise be helped.

The basic answer is to allow food to be procured locally; the Obama Administration’s budget proposal did just that, and was given the back of the hand by special interests in the Senate.  The Senate bill, which passed the Upper House, did add some extra money for local procurement, but fell far short of what was really needed.  The pathetic justifications offered by the agribusiness and shipping lobbies show just how weak their policy position is.

And now — maybe the House to the rescue.  The House? The current House?  You gotta be kidding, right?

Wrong.  The hero here is House International Relations Committee chair Ed Royce, a very conservative Republican from Orange County, who studied the way food aid rules work, and got outraged.  That’s hardly odd for a conservative, because farm policy represents about the clearest case of government waste we have.  It didn’t hurt, of course, that allowing for local procurement would also take much food aid from the Agriculture Committee and give it to the IR committee, but that really wasn’t what was happening here: this is an outrage and everyone who looks at it realizes it.

Originally, Royce teamed up with IR Global Affairs Subcommittee ranking member Karen Bass, a liberal African-American Democrat from Los Angeles, to introduce the Food Aid Reform Act, which would allow for local procurement as a general matter.  Before the House can vote on that, however, it needs to consider the Farm Bill, so Royce and IR Committee ranking member Eliot Engel (D – NY) have proposed an amendment to the House bill that essentially replicates the Food Aid Reform Act.  The House will consider that amendment as early as Wednesday.

Think about that for a second: “the House will consider that amendment as early as Wednesday.”  That says a lot.  Amendments don’t get considered on the floor of the House unless the Rules Committee allows them to be considered, and the Rules Committee doesn’t allow them to be considered unless it’s okay with the leadership.  That means that at least, there is substantial support in the Republican Conference for this measure.  GOP to the rescue!

Of course, they should support it.  Reforming food aid to allow for local procurement (as well as other crucial reforms) is such a no-brainer that it is perhaps the last genuinely bipartisan policy initiative out there.  Don’t believe me?  Even the Heritage Foundation favors this.  Does that make you as a liberal Democrat get nauseous?  Well, me too, sort of, but the same reforms are backed by the Center for American Progress.

So now — which is to say, right now, as soon as the business day starts in Washington DC — call your Congresscritter and ask them to support the Royce-Engel Amendment (#55) to the Farm Bill.  After the jump, I’m including the talking points prepared by the American Jewish World Service, which in conjunction with lots of other charities like Bread for the World, Oxfam, Catholic Relief Services, and many others, has spearheaded this campaign.  You should drop a dime for them, too, by the way.

But really: call. write.  E-mail.  This means life or death for people. Do it.

AJWS logo

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I’m writing, as a constituent and as a supporter of American Jewish World Service <http://www.ajws.org/>, to urge you to vote YES on the Royce-Engel Amendment (#55) when it comes up during the Farm Bill debate this week.

The bi-partisan Royce-Engel Amendment (#55) to the Farm Bill would make significant and urgently needed reforms to our international food aid system by creating more flexibility and ending the practice of monetization, while also saving taxpayer dollars by eliminating wasteful spending.

While U.S. food aid saves millions of lives, we know all too well that the system is flawed. Current law requires that our government ship the majority of our food aid from the U.S., which means that it can take many months to reach people who need it. And since we buy almost none of the food from farmers in the countries we’re helping, our aid often undercuts local prices and even puts local farms out of business.

As you may recall, President Obama made recommendations in his 2014 budget proposal to address some of these challenges. The Royce-Engel Amendment essentially codifies the president’s proposal into law by allowing 45% of U.S. food aid to be in the form of local purchase, cash or vouchers. This flexibility would enable us to reach at least 4 million more people, with the same dollar amount, and would eliminate delivery delays of 3-4 months that are often the difference between life and death.

The amendment also ends the requirement that some portion of food aid be ‘monetized’ – a system through which in-kind food aid is donated to international development organizations, which in turn sell the food in local markets overseas to raise money for their development projects. Ending monetization creates the flexibility to use cash instead of commodities for important development projects financed through the food aid program.

A large coalition of groups support this amendment including AJWS, Oxfam, Bread for the World, Save the Children, CARE, Catholic Relief Services and many others. Think tanks across the ideological spectrum have also endorsed food aid reform, from the Heritage Foundation to the Center for American Progress.

I believe ending global hunger is a moral imperative and a fiscal priority. I urge you to vote YES on this amendment and to help make history on this issue.

From the Language Police Blotter: Vosotros

Although most people on the east coast (and many people here) haven’t realized it yet, Eric Garcetti was elected Mayor of Los Angeles on Tuesday.  I’m pleased. I voted for him, and despite the fiscal and governance difficulties that he faces, I think he will do a good job as much any Los Angeles mayor can.

Much of the media has been taken up with Garcetti’s status as the City’s first Jewish mayor.  In fact, he is quite the hybrid, much like the city itself: his Mom is Jewish, his Dad (former LA County DA Gil Garcetti) is of Italian descent, but the family lived in Mexico for a couple of generations, making him also something of a Latino.  Perfect for a Los Angeles politician.

But he is going to have to do better than this if he wants to get real credibility among the Latino population (which he carried in the election).  Addressing an east side audience, Garcetti declared:

Soy uno de vosotros.

That literally means, “I am one of you,” and the notion is standard politician fare.  Notice something?  For “you”, Garcetti used vosotros, a form that is perfectly grammatically correct, but is basically only used in Spain.  It supposedly means something like “you guys” in my understanding: it is the plural form of tu.  But I have never heard it used in Latin America or among Latinos in the United States.

A colleague of mine learned how to speak Spanish in Spain, and then went to Argentina on an exchange.  He used vosotros, and, he says, “my hosts thought it was absolutely adorable, like speaking with an English accent.”  And that’s with Argentinians, who have their own series of strange words, and make every effort to dissociate themselves from the rest of Latin America.  (See Mario Vargas Llosa’s Aunt Julia and the Scriptwriter for more).  The closest comparison I could make would be something like, “Hey — I’m down with thee.”

In fact, this is such an obvious mistake I’m wondering whether it was reported correctly.  But I’ve now heard it from different places.  Anyone else have a different take — has anyone heard it used among Latinos in the United States?  We would love to hear from thee.

New York Nasty and Los Angeles Nice: A Structural Explanation

Tomorrow, Los Angeles voters go to the polls to elect a new Mayor.  (At least a few of them, anyway: current estimates predict onyl 25% turnout, about which more later).  In September, New Yorkers will do the same.  And depending upon the way things turn out, political and cultural reporters could have a field day.

If Christine Quinn and Wendy Greuel win in their respective cities, we will have female mayors of both cities for the first time.  And the press will have a lot of fun with it, because the two women seem to epitomize their cities’ personalities.  Quinn is famously nasty and vicious, character traits she is now trying to ameliorate at least publicly.  Much less famously, but just as truly, Greuel is quite nice: I’ve known her for nearly 20 years, and you can’t deny that she is personally a very nice person.

And if you think about it, that is true more broadly.  If Anthony Weiner runs for NYC mayor, we’ll get another jerk trying to get to Gracie Mansion.  Greuel’s rival, Eric Garcetti, whom I’ve also known for a long time, is likewise very friendly and nice.  Even the campaign by realistic standards has been pretty tame.

If you think about New York mayors, they are hardly aiming for Mr. Congeniality: Ed Koch, Rudy Giuliani, and even Michael Bloomberg aren’t necessarily the sort of person you’d want to hang out with.  But on the left coast, Tom Bradley almost epitomized mellow moderation; Antonio Villaraigosa is probably too personally charming for his own good; Jim Hahn might not have been the sharpest pencil in the cup but is a genuiunely nice guy; even Richard Riordan is pretty friendly and cordial.  David Dinkins, of course, was notably polite and courtly — and seemed out of his element because of it.

Why is this?  Is it just New York Nasty and Los Angeles Nice?  Maybe, but perhaps this is something bigger going on here.

New York mayors wield vast power.  They control huge departments, manage an enormous budget, and dominate the city politically.  New York City comprises five different county governments and thus contains the counties’ power.  The New York mayor’s problem is keeping control over the whole thing, not to mention corralling a notoriously-fractious urban political party (and sometimes more than that if they have the Liberal or Conservative endorsement).  The Mayor also plays a major role in appointing the Board of Education.  Hizzoner has to knock heads to get anything done.

In Los Angeles, on the other hand, the Mayor is relatively weak.  Los Angeles city government is dominated by civil service personnel, whom the Mayor can’t just order around.  Before 1992, this was even the case with the Police Department: I distinctly remember my east coast friends saying to me, “If Tom Bradley hates Daryl Gates so much, why doesn’t he just fire him?”  Answer: he couldn’t.  And he still can’t: the police chief has a five-year term.  Even with other departments, the Mayor can’t appoint dozens and dozens of officials: instead, he appoints usually five-member volunteer commissioners, who, because they are volunteers, are usually dominated by professional civil service staff.  That is not a recipe for strong executive leadership.

The Los Angeles mayor has no control over the school district or the Board of Education.  The Los Angeles City Council only has 15 members, making each councilmember the monarch of his or her district; in New York, there are so many councilmembers that they comparatively little power, although not negligible.  The City of Los Angeles has no control over the vastly bigger County of Los Angeles.  The Mayor of New York can call up the Brooklyn borough President to berate and threaten him: in Los Angeles, the only way the City get the County to what it wants is through a lawsuit.

Or persuasion.  The Mayor of Los Angeles has to persuade all these other constituencies to do what he or she wants: they can’t bully or force them.  Los Angeles elections are nonpartisan, and so the Mayor doesn’t even have a political organization to use.  The only way a Los Angeles Mayor will be effective will be through the patient and often-maddening business of assembling political coalitions, community groups, public sector unions, developers, etc.  A screamer in Los Angeles City Hall is someone who literally has no chance of success.

No wonder, then, that voters seem so uninterested: it’s not abundantly clear what precisely the Mayor is supposed to do, a condition that the early 20th century Progressives who framed the Los Angeles charter wanted.

The political scientist Kenneth Waltz, who died last week at the age of 88, made a similar point about the personalities of Presidents and Prime Ministers.  A President has to try to use the power of the bully pulpit and his dominance over the executive branch to get things done.  A Prime Minister, on the other hand, has to use persuasion to maintain his party coalition — if he doesn’t, he’ll get kicked out by his own caucus.  I think that that works here.

Whether Garcetti or Greuel wins tomorrow, the next Los Angeles mayor will be a pretty nice person.  Whether Quinn or Weiner or someone else wins in New York, the next New York mayor will probably be something of a jerk.  But the political structure will have as much to do with this as any tired cultural stereotypes.

Professor Ferguson, There’s This Thing Called “Google”….

Niall Ferguson, May 4th:

My disagreements with Keynes’s economic philosophy have never had anything to do with his sexual orientation. It is simply false to suggest, as I did, that his approach to economic policy was inspired by any aspect of his personal life.

Niall Ferguson, May 7th:

Not for one moment did I mean to suggest that Keynesian economics as a body of thought was simply a function of Keynes’ sexuality. But nor can it be true—as some of my critics apparently believe—that his sexuality is totally irrelevant to our historical understanding of the man. My very first book dealt with the German hyperinflation of 1923, a historical calamity in which Keynes played a minor but important role. In that particular context, Keynes’ sexual orientation did have historical significance. The strong attraction he felt for the German banker Carl Melchior undoubtedly played a part in shaping Keynes’ views on the Treaty of Versailles and its aftermath.

Leave Agribusiness Lobbyists ALOOOONE!!!!

Agribusiness is Very Sensitive
Agribusiness is Very Sensitive

A few weeks ago, I posted about the Obama Administration’s effort to change outrageous and wasteful food aid rules that line the pockets of agribusiness and shipping companies.  The more you look at the absurd policy preventing USAID from purchasing food locally for famine relief, the worse it looks: it wastes money, it prevents getting food to people that need it, it undermines local agriculture, and it despoils the environment.

I didn’t think it could get any worse.  But the lobbyists have outdone even themselves this time!  Reuters has the story today:

A White House plan to modernize the major U.S. food aid program, by donating cash rather than American-grown food, is in trouble after fierce lobbying by farm groups, food processors, shippers and others who set out to sink the idea months before it was unveiled in President Barack Obama’s fiscal 2014 budget…

In pressing the case to shift more aid to a cash system, the White House and the U.S. Agency for International Development have highlighted the potential ability to feed up to 4 million more needy people each year at a lower cost. Several major aid groups, including Oxfam America and CARE, favor such changes….

Commodities shipped under the Food for Peace program “currently account for less than two tenths of one percent of U.S. agricultural production and about one half of one percent of U.S. agricultural exports,” the White House estimated.

“Exports via food aid are a small drop in the market,” said Veronica Nigh, an economist with the American Farm Bureau Federation. “Our concern is less about decreasing an important revenue stream for U.S. agriculture. It’s more about the loss of a sense of pride.”

Well, how touching.  All these commodity groups, agribusinesses, shippers, and food processors don’t stand to lose much money, and they admit it.  But you see, they will lose their sense of pride.   Obviously, then, 4 million people should go hungry.

What’s more outrageous?  That we have such a policy; that those who support it can so blithely make these kinds of arguments; or that they might still win?  Inquiring minds want to know.  In the meantime, this is a no-brainer: the current system is about the purest form of special interest legislation conceivable.  In Kevin Drum’s words, “Call your congress critter today and tell them, for once in their benighted careers, to just suck it up and do the right thing.”

 

Are Filibusters of Executive Branch Nominees Constitutional?

President Obama’s announcement today making three nominations to the National Labor Relations Board should remind us that the GOP is the party of permanent constitutional crisis.  It has been quite clear from the beginning of the Obama Administration that the Republicans simply have no interest in allowing the NLRB to function.  That shouldn’t be much if a surprise: it’s what you believe if you are a plutocrat.  Besides, it’s nothing new: Republicans have explicitly stated that they will not allow any nominee to head the Consumer Financial Protection Bureau to come to a vote unless the statute is changed.

But it seems to me that this attitude has a constitutional dimension.

Article II of the Constitution not only vests “executive power” in the President, but it commands him to “take care that the laws be faithfully executed.”  The problem is that the President cannot do this if the Senate will not confirm any of his nominations.  And make no mistake: that’s the Republican goal here.  It does not want the CFPB or the NLRB to operate; it does not want the law to be faithfully executed.  But the Senate has the constitutional power to reject nominations.  So the clauses conflict — a quite common feature of the founding charter.  Does the Constitution contradict itself?  Very well, then it contradicts itself.  It is not large, but it contains multitudes.

Is there anything that the law can do about this?  On the most basic level, I think that the answer is no.  When it comes to the CFPB, the Republicans might be opening themselves up to criticism for violating the Constitution, but if anything would be a political question, it would be this.  I cannot imagine any court trying to review the intentions of Senators about why they vote against nominees: that would be the paradigmatic political question.

Nevertheless, I do believe that it makes the filibuster of executive branch nominations constitutionally suspect.  First, we should not read the Constitution to magnify opportunities for one branch to deny the other its core powers.  Second, we should not read the Constitution to enhance interbranch conflict: there is enough of it built into the document already.  Third, we should read the Constitution to enhance public accountability — one of the framers’ central goals — and the filibuster of executive branch nominations undermines it: the law isn’t being faithfully executed, and everyone is pointing fingers at everyone else.  Finally, the Constitution should not permit the empowerment of “false conflicts” between branches, and the filibustering of an executive branch nomination is not really an interbranch conflict at all: it represents a conflict between the President and a minority of one of the houses of Congress.
Continue reading “Are Filibusters of Executive Branch Nominees Constitutional?”

US Food Aid Rules: If You’re Not Outraged, You’re Not Paying Attention

enoughThe Obama Administration announced yesterday that it wants to change US food aid rules to allow for more “local procurement” of food aid in the countries that need it.  Predictably, the special interests are aghast.  But the administration is right: current food aid rules are among the most egregious special interest legislation in the world right now, preventing this country from stopping starvation, often helping it, wasting taxpayer money, increasing greenhouse gas emissions, and causing soil degradation in Africa.  I have been working on this issue for the last couple of years with the American Jewish World Service, one of the world’s best charities: ending the current rules is a win-win-win-win all around, which is why it will probably be a fight to accomplish it.  The most important source on this issue is Roger Thurow and Scott Kilman’s outstanding book Enough: Why the World’s Poorest Starve In An Age of Plenty.  Run, don’t walk, and go and read it.  But in the meantime, here is what you need to know.

In order to see how egregious current rules are, suppose that there is a famine in Ethiopia (I know, hard to do).  the quickest and most effective thing to do would be to find some farmer or group of farmers in other parts of the country, or in neighboring countries, buy their food and get it to the stricken area.  After all, one key cause of famine is the lack of money, not lack of crops.  But under current law, USAID is basically forbidden from doing that.  Instead, it must buy grain in the United States and ship it several thousand miles to the famine area.  You can imagine the amount of time that that takes; sometimes, several weeks.  it’s a logistic nightmare.  In the meantime, thousands die, usually the weakest such as children and the elderly.

But it’s worse than that.

If the food needs to be shipped, then that means that the shipping must be paid for.  And it sure is: according to a study done by AJWS and Oxfam, nearly 55% of the cost of American international food aid goes not to food, but to shipping costs.  That’s what your tax dollars are going to.

But it’s worse than that.

Just because a ship is flagged American, doesn’t mean that the sailors on it are American.  Hundreds of ships have been flagged under Liberian registry for years, and during much of that time, there was no “Liberia” to speak of.  So your tax dollars are not necessarily going to American jobs, and probably are not.

But it’s worse than that.

Recall, of course, that the food that will be shipped to the famine area is subsidized, so in fact, we are spending food aid money not on people who are starving, but on relatively wealthy American farmers.

But it’s worse than that!

Once the food finally makes its way to the country in question, not all of it gets to the famine area.  Free food from the United States is simply too attractive to smugglers, who siphon it off and then sell it in markets.  I personally have several instances of markets selling food in bags stating quite clearly: “GIFT OF THE PEOPLE OF THE UNITED STATES OF AMERICA: NOT FOR RESALE.”  You can it in markets throughout Africa.  And what that does is put local farmers out of business because they cannot compete with this illegally dumped food from the United States.  in other words, by this sort of dumping, in many instances, we are actually making the problem worse over the long term because we are undermining other countries’ ability to feed themselves.  Ikal Angelei, whom I blogged about several months ago, told me that in her village in Kenya, they used to have enough supplies to last for several months in the event of a famine.  Now, in no small part because of the dumping, the village only has a few days’ worth.  This is not-not-not to say that there should not be food aid, but rather that it needs to be done effectively and efficiently.

But it’s even worse than that!

The inability of local farmers to farm the land means that the topsoil begins to erode.  Native farming techniques were hardly environmentally perfect, and caused damage, but the failure to farm at all often mean environmental degradation.  So when we hear that “Africa Is Dying,” as I did back in 2010, we should know that we are part of the problem.

That’s pretty awful isn’t it?  And the really shocking thing is just how little it gets us.  James Caponiti, the executive director/lobbyist of the American Maritime Congress, claimed in the NYT article that moving to local procurement could cost the United States “hundreds of jobs.”  Hundreds?  That’s what he claims?  Hell, we could end the sequester and write a bigger transit bill and multiply that over several times.  And that’s taking his argument at face value.  One remembers Muhammed Ali’s famous taunt to George Foreman in Kinshasa:  “Is that all you got, George?  Is that it?”

My friend Timi Gerson, AJWS’ advocacy director, is quoted at the end of the article: “From a taxpayers’ and policy perspective, the food aid program is clearly in need of reform. The only thing getting in the way is politics and special interest.”  Absolutely, 1 million percent true.  Call your Congressmember and tell them how important it is to support the administration.

It will be very interesting to see what evangelicals and so-called fiscal conservatives do on this issue.  Very interesting indeed.

Conservative Morality In Action

Via Jared Bernstein, we learn about how the sequester has made us a stronger country:

At least two Indiana Head Start programs have resorted to a random drawing to determine which three-dozen preschool students will be removed from the education program for low-income families, a move officials said was necessary to limit the impact of mandatory across-the-board federal spending cuts…

Columbus resident Alice Miller told WTHR-TV that her 4-year-old son, Sage, was one of the children cut from the program. She spoke about how the program has helped her son advance academically and socially…“He loves school,” Miller said. “I don’t know how I’m going to tell him he’s not going back.”

To this, Bernstein responds, “If that doesn’t break your heart, you might want to get to the emergency room to see if it’s still there.”  I part company with him somewhat on this.  This story doesn’t make me heartbroken: it makes me angry.  I am sad for the little boy who now cannot go to school, which he loves.  But I am outraged at those who think that this bears any relationship to justice.  Sage Miller can’t go to school because Republicans think it is more important to protect the carried-interest loophole.  The supposedly religious Christians who think we need to bring God into public policy might want to review the story of Nathan the Prophet after they finish demonizing gays and lesbians.

It also outrages me as a taxpayer.  We are injuring these children, and that will injure our country in the future.  You don’t have to be a bleeding heart, or Nathan the Prophet, to object to this.  You just have to be a patriot.

 

Hidden Time Bomb in the DOMA Case?

The Orwellian “Defense of Marriage Act” seems to have had a bad day with the Supremes yesterday, which is a good thing.  Let’s assume that the Court strikes down section 3, which bans federal benefits for same-sex couples, and does what the plaintiff wants, namely, make one’s marital status depend upon which state the couple is in.  Since Edith Windsor and Thea Spyer were in New York, and New York recognizes same-sex couples, they are married for federal purposes.  (It’s a bit more complicated than that, but for our purposes here, it’s good enough.).

That might raise more questions than it answers.

Suppose Molly and Sarah get married in California.  Then, for reasons known only to themselves, they decide to move to Oklahoma, which of course does not recognize same-sex marriage.  Then Molly dies and Sarah wants Social Security survivors’ benefits.  Does she get them?  The answer is not obvious.  Molly and Sarah were legally married in California, but they lived in — and were thus citizens of — Oklahoma.  Which state is the federal government supposed to listen to?

At the argument yesterday, Chief Justice Roberts immediately grasped the problem.  (He’s conveniently obtuse when it comes to things that are politically inconvenient to him, and never resists making absurd legal claims, but he is no dummy).  Say Ms. Windsor and her spouse had moved to North Carolina, he asked Roberta Kaplan, her lawyer.  Would they qualify for federal benefits?  No, said Kaplan: it would turn on domicile, not state of marriage.  But her answer hardly carries the force of law.

One could see why that would be the answer — it is the state of citizenship — but one could also see why it wouldn’t: it might interfere with the right to interstate travel, which the Court has repeatedly held to be a fundamental right.  If the answer is that benefits eligibility turns on the state that approves the marriage, then one can imagine the development of a thriving marriage industry in states that approve same-sex marriage.  (That industry has already developed, but now it would mean even more).

There is actually a third possibility, which might avoid the extremes but make things more complicated.  The answer might turn on the interpretation of the statute in question.  After all, as was mentioned yesterday, more than 1,000 federal statutory provisions mention marriage, and it could be a matter of statutory interpretation as to whether the marriage definition applies to the state of domicile or place of marriage.

But if that is the case, then it gives the Obama Administration important new power.  As every lawyer knows, the 1984 Supreme Court ruling in Chevron v. NRDC holds that courts must defer to reasonable administrative (i.e. executive agency) constructions of a statute.  President Obama could (and should) make it very clear that he expects agencies charged with interpreting statutes in their jurisdiction that mention marriage should interpret it to mean “place of marriage”.

Of course, the Court could answer this question in its opinion.  But if Justice Kennedy is the deciding vote, his practice is not to clarify these things, and in any event, the four centrist justices (Ginsburg, Breyer, Sotomayor, Kagan) will probably not agree to make it the state of domicile (Kennedy’s likely preference).  So it most likely will not be answered.

Put another way, even if the Court strikes down Section 3, this one ain’t over, folks.