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Wednesday, July 1, 2015

Inequality in California and the Nation

Luke Reidenbach writes at the California Budget and Policy Center:
Data for 2014 suggest that while wage erosion may have finally halted for some workers, this was not true for the worker at the middle of the wage distribution – the median earner – who continued to see an erosion in her hourly wage last year. What’s more, workers earning around the median wage – those at the 40th and 60th percentile – also are continuing to see a decline in the purchasing power of their wages. This continues a decades-long trend of the state’s economic growth not leading to broad-based wage growth for California workers.
Emanuel Saez writes at The Washington Center for Equitable Growth:
Income inequality in the United States grew more acute in 2014, yet the bottom 99 percent of income earners registered the best real income growth (after factoring in inflation) in 15 years. The latest data from the U.S. Internal Revenue Service show that incomes for the bottom 99 percent of families grew by 3.3 percent over 2013 levels, the best annual growth rate since 1999. But incomes for those families in the top 1 percent of earners grew even faster, by 10.8 percent, over the same period.
From a paper by Saez:

At AEI, James Pethokokas writes:
Hey, incomes rose a lot during the much-revered Clinton expansion. And income growth for the 1% was five time as great as for the 99%. Overall, income going to the top 1% rose to 21.5% in 2000 from 14.2% in 1993. (And for the richest of the rich, the top 0.01%, the top income share rose to 5.1% in 2000 from 2.3% in 1993.) A rising tide wasn’t lifting all boats equally, but they were all getting a pretty good lift nonetheless. During the Obama expansion, however, top incomes are again rising about five times as fast as for everyone else, but people seem to care a lot more since their income growth is tepid at best.

Tuesday, June 30, 2015

The Court Curbs the Executive

At The Hill, Professor Robert Shapiro argues that the Obamacare case may end up limiting executive power.
Some background is necessary. A 1984 Supreme Court case, Chevron U.S.A. v. Natural Resources Defense Council, established a two-step procedure for deciding when courts should yield to executive branch agencies in interpreting regulatory statutes. First, the court should decide whether the statute is clear. If it is, then the agency has no room for interpretation. If it is not clear, then the court should to defer to the agency as long as the "the agency's answer is based on a permissible construction of the statute."

Many people expected King v. Burwell to be decided on Chevron grounds. Either the court would decide that the statute was clear and would invalidate the Internal Revenue Service (IRS) interpretation of the statute as allowing subsidies for people getting health insurance from the federal exchange. Or it would say the statute was not clear and that the IRS had a permissible (or non-permissible) construction of the statute. Roberts took neither of these approaches. Instead, he wrote that Chevron did not apply because the issue was of "deep economic and political significance." Such issues are not to be decided by agencies such as the IRS; instead, they were the purview of the courts.
Why does this matter? Several noted scholars of administrative law (see here and here) have noted that Roberts has signaled a general movement away from Chevron and judicial deference to regulatory agencies. If courts do not defer to agencies, then it will be easier for those looking to overturn agency regulations to find a receptive ear in court. Industries looking to overturn future regulations will be sure to cite King v. Burwell in their briefs and argue that the issue they are contesting is of deep significance.
Breitbart reports:
In Michigan v. Environmental Protection Agency, the Court found 5-4 that the EPA could not exceed its regulatory authority by targeting certain emissions from coal plants. Justice Scalia, in his opinion, states that the authorization statute for the EPA in this case, the Clean Air Act, states that the EPA must consider whether regulation is “appropriate and necessary” – and that the language of the provision requires that the EPA consider cost when determining “appropriate and necessary.” The Agency, writes Scalia, did an analysis finding that power plants would have to absorb costs of $9.6 billion per year, and would generate benefits worth $4 to $6 million per year. Scalia concludes:
One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits…EPA’s interpretation precludes the Agency from consideringany type of cost – including, for instance, harms that regulation might do to human health or the environment.
Justice Thomas’ concurrence goes further: he suggests that the courts should not defer to executive agencies in terms of interpretation at all. Agencies, Thomas says, “are engaged in the ‘formulation of policy.’ Statutory ambiguity thus becomes an implicit delegation of rule-making authority, and that authority is used not to find the best meaning of the text, but to formulate legally binding rules to fill in gaps based on policy judgment made by the agency rather than Congress.” Justice Kagan, joining her leftist colleagues, wrote that the EPA had taken into account cost.

Monday, June 29, 2015

Majority Minority

The Census reports:
Millennials, or America’s youth born between 1982 and 2000, now number 83.1 million and represent more than one quarter of the nation’s population. Their size exceeds that of the 75.4 million baby boomers, according to new U.S. Census Bureau estimates released today. Overall, millennials are more diverse than the generations that preceded them, with 44.2 percent being part of a minority race or ethnic group (that is, a group other than non-Hispanic, single-race white).

These latest population estimates examine changes among groups by age, sex, race and Hispanic origin nationally, as well as in all states and counties, between April 1, 2010, and July 1, 2014.
Even more diverse than millennials are the youngest Americans: those younger than 5 years old. In 2014, this group became majority-minority for the first time, with 50.2 percent being part of a minority race or ethnic group.

Reflecting these younger age groups, the population as a whole has become more racially and ethnically diverse in just the last decade, with the percentage minority climbing from 32.9 percent in 2004 to 37.9 percent in 2014.

Five states or equivalents were majority-minority: Hawaii (77.0 percent), the District of Columbia (64.2 percent), California (61.5 percent), New Mexico (61.1 percent) and Texas (56.5 percent). Among the remaining states, Nevada is the closest to crossing this threshold, with a population 48.5 percent minority. More than 11 percent (364) of the nation’s 3,142 counties were majority-minority in 2014. Five reached this milestone during the year beginning July 1, 2013: Russell, Ala.; Newton, Ga.; Eddy, N.M.; Brazoria, Texas; and Suffolk city, Va.

Sunday, June 28, 2015

States' Rights and Marriage

Not so long ago, Democrats invoked states' rights in the marriage debate.

Family law, indeed, is the purview of the States. So, there’s no need for a constitutional amendment.

This proposed constitutional amendment strikes at the heart of States’ rights in the area of family law, and in doing so, actually undermines our Constitution.

Moreover, I believe that Americans believe that the States should deal with same-sex marriage as the States see fit. And so I do.
On June 17, 2009, President Obama said:
Among the steps we have not yet taken is to repeal the Defense of Marriage Act. I believe it's discriminatory, I think it interferes with States' rights, and we will work with Congress to overturn it.
On May 9, 2012, Governor Andrew Cuomo said:
I believe in states rights. I would like to see a place where this law is accepted all across the nation. I advocated as such.  I don’t know that the solution should be the federal government  telling states what to do.

Saturday, June 27, 2015

Obamacare: Still Unpopular

Despite the Supreme Court decision in favor of subsidies, Obamacare remains unpopular.  Politico explains:
For one, the public is frustrated with insurance premium increases that they view as directly related to Obamacare. A Kaiser Family Foundation analysis found that 2016 premiums are up by a greater percentage than in 2015. Benchmark silver-level plans are rising by an average of 4.4 percent in a select group of cities but could be much higher in parts of the country — with a Wellmark plan in South Dakota wanting to raise rates by 42.9 percent, CareFirst seeking a nearly 30 percent increase in Maryland and Health Care Service Corp. going after a 51.6 percent hike in New Mexico.
While premiums were on their way up before the law passed, the public faults Obamacare — and that’s something the White House hasn’t been able to shake.
Some people who have signed up have been shocked to discover the size of their deductibles or that they can’t go to the doctor they want because insurers have imposed narrow “in-network” care. Several states are trying, with mixed success, to respond by requiring that insurers include an adequate number and variety of providers in their networks.
The law’s future is also threatened by the potential repeal of a few elements that are particularly vulnerable to Democratic opposition.
Repeal of the medical device tax passed the House last week with nearly enough votes to override a presidential veto. A Medicare payment board that is tasked with controlling health care spending is unpopular with House Democrats, too, and likely to get a repeal vote soon.
The ruling “still doesn’t change what the law is doing,” said Rep. Phil Roe (R-Tenn.). “I just had lunch with some people looking at the 40 percent Cadillac tax. We’ve still got a lot to do.”
The “Cadillac tax” on high-cost employee health insurance plans, which goes into effect in 2018, is vehemently opposed by labor unions and some Democrats on Capitol Hill.

Friday, June 26, 2015

Supreme Court on Same-Sex Marriage

From Justice Kennedy's majority opinion in Obergefell v. Hodges:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become
something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
From Chief Justice Roberts's dissent:
 Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same sex marriage. Ante, at 19. That disclaimer is hard to
square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n]
or stigmatiz[e]” same-sex couples. Ante, at 19. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. Ante, at 17, 19, 22, 25. These apparent assaults on the character of fairminded people will have an effect, in society and in court. See post, at 6–7 (ALITO, J., dissenting). Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted. Ante, at 19. 
Chris Cillizza writes at The Washington Post:
What this ruling does then is take same-sex marriage off the table as a major talking point, debate issue or differentiator between the candidates during the coming Republican primary. Yes, Jindal, Mike Huckabee and Rick Santorum -- to name three -- will talk about this ruling as part of a broader indictment of the increasingly liberal culture. But for the likes of Bush, Marco Rubio and others, they will no longer have to walk a political minefield when responding. The I disagree but it's the law of the land line is difficult to argue against; it's the line most establishment Republican candidates now use when abortion is brought up as an issue in a Republican primary.

Thursday, June 25, 2015

King v. Burwell, Deliberation, and Legislative Language

The Supreme Court has upheld Obamacare subsidies. From Chief Justice Roberts's majority opinion:
The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Cf. Frankfurter,Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 545 (1947) (describing a cartoon “in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’”).
Anyway, we “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Utility Air Regulatory Group, 573 U. S., at ___ (slip op., at 15) (internal quotation marks omitted). After reading Section 36B along with other related provisions in the Act, we cannot conclude that the phrase “an Exchange established by the State under [Section 18031]” is unambiguous.
Justice Scalia dissented:
The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.
Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits
to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of
limiting credits to state Exchanges. “[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the
exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925) (internal
quotation marks omitted). Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.