The Chevron Doctrine And Public Health

http://view.sc.hks.harvard.edu/?qs=1082fe68ab2035ae196ba611a4d398b6e567fd248ea3b45e4662b93569df64250dfb81101923705bcfd451836e78a481503ca70e09762a9498367ca8bf67d126f64129f4c8e9147a997c8a65c751c8d6

https://www.propublica.org/article/supreme-court-chevron-deference-loper-bright-guns-abortion-pending-cases?emci=ee1dfe1a-de7c-ef11-8474-6045bda8aae9&emdi=4aeca557-e57c-ef11-8474-6045bda8aae9&ceid=81745

Let’s Talk About Choice

A reader of this blog recently asked me why Americans seem so confused about whether individual “choice” is an essential element of freedom. Why, for example, do many Americans see reproductive choice as a critical human right, but oppose school choice, or the individual’s choice to own lethal weapons? Why did people during a pandemic oppose rules requiring them to wear masks, claiming their right to choose? Can we make sense of these differences?

I think we can.

I have frequently alluded to the libertarian principle that underlies America’s constitutional system. Those who crafted America’s constituent documents were significantly influenced by the philosophy of the Enlightenment, and its then-new approach to the proper role of the state. They endorsed the principle that Individuals should be free to pursue their own ends–their own life goals–so long as they did not thereby harm the person or property of another, and so long as they were willing to accord an equal liberty to their fellow citizens.

The principle seems straightforward, but it requires a measure of consensus about the nature of harm to others.

To use a relatively recent example, lots of folks were enraged when local governments imposed smoking bans in public places. They insisted that the choice to smoke or not was an individual one. The bans, however, resulted from medical research documenting the harms done by passive smoke. The ordinances were based upon lawmakers’ agreement that individuals should retain the choice to smoke in their homes or cars or similar venues, but not where they would be polluting the air of non-consenting others.

Essentially, the libertarian premise asks: What is the nature of the “harm to others” that justifies government intervention? When may government disallow a seemingly personal choice? How certain does the harm have to be? Does harm to others include harms to non-persons (fetuses)?

Most sentient Americans understood that a rule requiring people to wear masks in public places during a pandemic was essential to preventing harm to unconsenting others, just as the ordinances against smoking in a local bar protected non-smokers from the hazards of passive smoke, and laws against speeding protect against potentially deadly accidents.

When we get to issues like gun ownership and educational vouchers, there is considerably less agreement–although survey research suggests that most Americans favor considerable tightening of the laws governing who can own weapons, given the daily evidence that lax regulation is responsible for considerable and often deadly harm to others.

What about allowing “parental choice” in the use of tax dollars to send one’s children to private and religious schools? Or, for that matter, “parental choice” to control what books the local library can include on its shelves?

The evidence strongly suggests that “educational choice” is harming both civic cohesion and the public school systems that serve some 90% of the nation’s children. (Given the large percentage of voucher users who choose religious schools, there is also a strong argument to be made that these programs violate the First Amendment’s Separation of Church and State.) There is also a significant difference between exercising choice with one’s own resources–which parents can absolutely do–and requiring taxpayers to fund those choices.

With respect to libraries, parents can certainly choose to prevent their own children from accessing books of which they disapprove, but efforts to keep libraries from offering those books to others is a clear violation of the portion of the libertarian principle that requires willingness to accord equal liberty to others.

Whether to impose on an individual’s right to choose a course of action will often depend upon a weighing of harms. With respect to a woman’s right to choose an abortion, even people who claim that a fertilized egg is a person should understand that an abortion ban demonstrably harms already-living women–physically, emotionally and economically. (It has become abundantly clear that very few of the “pro life” activists really believe that a fertilized egg is equivalent to a born child; they are far more likely to favor a return to a patriarchal time and a reversal of women’s rights. But even giving them the benefit of the doubt, a weighing of the harms clearly favors women’s autonomy.)

Bottom line: a free society will accord individuals the maximum degree of individual choice consistent with the prevention of harm to others. There will always be good-faith debates about the nature and extent of the harms justifying government prohibitions, but those debates should start with a decent respect for–and understanding of– the philosophical bases of our constitutional system and the relevant credible evidence.

A good society chooses wisely.

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Why Democracy Is At Risk

The punditry keeps telling us that democracy is at risk. There’s a reason why that is.

Yes, Donald J. Trump (aka “the former guy”) poses an existential risk to American democracy. But let’s be honest– crazy Donald and Project 2025 are only threats because of the actual, underlying reason for the erosion of our democratic processes: the systemic distortions that continue to promote minority rule.

I have used this platform to pontificate about several of those distortions, from the Electoral College (hugely undemocratic) to the current form of the filibuster (significantly undemocratic), but especially (and yes, repeatedly) gerrymandering.

In one of Heather Cox Richardson’s recent Letters from an American, she explained more eloquently than I have the degree to which partisan redistricting–aka gerrymandering–mutes the voice of the electorate. As a result, I’m quoting her explanation at length.

The difference between the Democrats and the Republicans in this election is stark, and it reflects a systemic problem that has been growing in the U.S. since the 1980s.

Democracy depends on at least two healthy political parties that can compete for voters on a level playing field. Although the men who wrote the Constitution hated the idea of political parties, they quickly figured out that parties tie voters to the mechanics of Congress and the presidency.

And they do far more than that. Before political thinkers legitimized the idea of political opposition to the king, disagreeing with the person in charge usually led to execution or banishment for treason. Parties allowed for the idea of loyal and legitimate opposition, which in turn allowed for the peaceful transition of power. That peaceful exchange enabled the people to choose their leaders and leaders to relinquish power safely. Parties also create a system for criticizing people in power, which helps to weed out corrupt or unfit leaders.

But those benefits of a party system depend on a level political playing field for everyone, so that a party must constantly compete for voters by testing which policies are most popular and getting rid of the corrupt or unstable leaders voters would reject.

In the 1980s, radical Republican leaders set out to dismantle the government that regulated business, provided a basic social safety net, promoted infrastructure, and protected civil rights. But that system was popular, and to overcome the majority who favored it, they began to tip the political playing field in their direction…. By the 1990s, extremists in the party were taking power by purging traditional Republicans from it.

And yet, voters still elected Democrats, and after they put President Barack Obama into the White House in 2008, the Republican State Leadership Committee in 2010 launched Operation REDMAP, or Redistricting Majority Project. The plan was to take over state legislatures so Republicans would control the new district maps drawn after the 2010 census, especially in swing states like Florida, Michigan, Ohio, Pennsylvania, and Wisconsin. It worked, and Republican legislatures in those states and elsewhere carved up state maps into dramatically gerrymandered districts.

In those districts, the Republican candidates were virtually guaranteed election, so they focused not on attracting voters with popular policies but on amplifying increasingly extreme talking points to excite the party’s base. That drove the party farther and farther to the right. By 2012, political scientists Thomas Mann and Norm Ornstein warned that the Republican Party had “become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition.”

At the same time, the skewed playing field meant that candidates who were corrupt or bonkers did not get removed from the political mix after opponents pounced on their misdeeds and misstatements, as they would have been in a healthy system.

There is much more, and I encourage you to click through and read Richardson’s letter in its entirety–or, for that matter, if you are not now a subscriber, to become one. As a historian, she provides an illuminating historical context to the problems we face.

One of those problems is that, in a democracy, many voters–perhaps most—fail to recognize the immense importance of the systems within which We the People operate. Only when those systems operate to facilitate fair play and to provide a level playing field are the people we elect incentivized to heed the will of their constituents.

Richardson says there are two possible outcomes to today’s corrupted system: the election of Republicans who will follow the Project 2025 playbook, or a voters’ revolt sufficient to dislodge its beneficiaries and prompt reform of the cult that has replaced the GOP.

In November, we’ll know which of those outcomes we’ve chosen.

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Connecting The Dots

A few evenings ago, I introduced a Zoom meeting sponsored by ReCenter Indiana. It was focused upon the very negative effects of our legislative super-majority. Democrats have identified four districts in Indiana that–should they all go Blue in November–would reduce the current super-majority to a simple majority. My job was to begin the session with an explanation of how a legislative super-majority advances extremism and stifles democratic deliberation.

Here are those introductory remarks.

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Let me begin this discussion by connecting some dots. Hoosier voters need to understand how partisan redistricting—usually referred to as gerrymandering–has given Indiana its legislative super-majority, and how that super-majority has given us increasingly extreme legislation: a virtually-complete abortion ban, education vouchers that are starving our public schools, gun laws that allow anyone who can fog a mirror to possess a lethal weapon– basically, a focus on culture war at the expense of attention to actual governance.

It’s a vicious circle, because in Indiana, the GOP’s legislative super-majority also allows the party to continue the extreme gerrymandering that has made Indiana one of the five most gerrymandered states in the country.

Gerrymandering has all sorts of undemocratic consequences, one of which is voter suppression. In districts perceived as “safe,” people who favor the “loser” party tend to stay home. That’s one reason why Indiana ranks 50th among the states in turnout. (Interestingly, due to Indiana’s population shifts, a number of those theoretically “safe” districts wouldn’t currently be safe if discouraged folks came out and voted. Those demographic shifts are one of the reasons there’s a chance this year to break the current GOP supermajority.)

Indiana is an excellent example of how the gerrymandering that leads to legislative super-majorities has a profound and very negative impact on policy.

We know that primaries attract the most ideologically extreme voters in either party. When the primary is, in effect, the general election, Republican incumbents protect their right flank, Democrats their left. In Indiana, which has been gerrymandered to produce more Republican districts, that reality has steadily moved us farther and farther Right. Today’s “culture warriors” win office in order to focus on issues like banning abortion, waging war on trans children, and removing common-sense restrictions on gun ownership. And it’s getting worse–there are indications that during the next session we’ll see the introduction of anti-vaccine measures that—if passed–would threaten public health. (For reasons I fail to understand, opposition to vaccination has become a preoccupation of what I’ll call the “Micah Beckwith wing” of the GOP.)

These are the pet issues of extremists, rather than the issues that most Hoosiers care about and that we traditionally consider governmental: roads and bridges and other infrastructure, crime and punishment, economic development.

Thanks to the gerrymandering that has given Republicans a super-majority, these extremist legislators face virtually no barriers to enacting measures that research tells us are deeply unpopular with most Hoosiers. Members of a super-majority don’t face pressure to negotiate, or to moderate the most extreme versions of their extreme positions.

A party with a super-majority also faces no obstacles to rewarding its donors and supporters; in Indiana, that has given us policies that almost uniformly favor the well-to-do. It has defeated even the most minimal efforts to protect renters. It has given us privatization programs like vouchers, in which our tax dollars are used almost exclusively by the well-to-do while impoverishing the public schools that serve poorer children, and it has given us what is arguably an unconstitutional effort to protect gun manufacturers from litigation.

That super-majority has also blocked more stringent ethics measures.

Any super-majority—Republican or Democrat—gives those in power the ability to ignore contending arguments, unpalatable data and the needs of Hoosiers likely to vote for the opposing party. They don’t need to negotiate or compromise. They don’t even need to look like they’re negotiating or compromising.

Indiana can’t get rid of the gerrymandering that makes our legislature’s extremism possible—we lack a referendum or initiative, mechanisms that have been used by other states to institute nonpartisan redistricting. In this state, only the legislature itself—only the people who benefit from the system—can change it. The only way Indiana will get rid of the gerrymandering that allows legislators to choose their voters rather than the other way around would be Congress passing the John Lewis act, which (among other very positive things) would make gerrymandering illegal nationally.

Since the GOP benefits from America’s gerrymandering far more than the Democrats do, passing the John Lewis Act would probably require a Democratic trifecta: a Democratic House and Senate to pass it and a Democratic President to sign it.
Until that happens, if it ever does, Indiana’s Republican gerrymandering is likely to continue giving Hoosiers a Republican legislative majority. But we do have a chance this year to defeat the super-majority, and to slow down our state’s march toward culture-war extremism. One reason is the shifting demography that I previously mentioned. Another is that the GOP has moved so far toward a very unconservative extremism that its candidates are turning off voters who previously voted Republican.

Those realities give four candidates in particular a better-than-usual chance to win their districts:
• Josh Lowry, District 24;
• Tiffany Stoner, District 25;
• Victoria Garcia Wilburn, District 32 (incumbent); and
• Matt McNally, District 39.

We’ll now hear from each of them.

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