Category Archives: Statehouse
Kriston Capps takes on the question of DC Statehood and state pre-emption:
Capps is essentially setting up a systems question. Why should states be allowed to pre-empt local legislation on the minimum wage, LGBTQ protections, and so on. These are all very interesting questions, though it’s quite apparent from his piece that Capps takes his preferred policy conclusions and works backwards.In Alabama, Governor Robert Bentley signed a bill into law blocking cities from passing local minimum-wage ordinances the day after the Birmingham City Council voted to raise its minimum wage. In Texas, the Denton City Council was forced to repeal its ban on fracking after the state issued a law prohibiting cities from passing fracking bans. Tennessee is mulling preemptive anti-transgender legislation; Mississippi has already gone there.
Paid sick leave, smoking bans, environmental controls, refugee relocation, transgender rights, plastic-bag fees, the minimum wage: All of these issues matter to voters. Residents make decisions about these matters by voting on them. But then lawmakers that residents usually did not elect make decisions about their lives, over their heads. That’s preemption—and that’s the way many things work in the District, except that instead of state legislators preempting city councilors, our laws are preempted by Utah Representative Jason Chaffetz.
Let’s take the minimum wage, for example. The question should not be as narrow as “Should Alabama pre-empt Birmingham’s desire for a higher minimum wage?” but rather “Who should set the minimum wage: local government, state government, or federal? To some degree, it’s going to be a combination of them and that’s fine. I further have no real problem with the status quo where federal standards, then state standards, then local standards are set and each must be higher than the other. In fact, that’s my preference. However, there is no systems or process reason why this must be the case. More to the point, if it is legitimate for California to set Bakersfield’s minimum wage higher than it otherwise would, it’s equally legitimate for Alabama to tell Birmingham to set its minimum wage lower than it otherwise would.
Everything else is just a preference for a higher minimum wage or a lower one. Which is to say, it’s a policy preference and not a process or a systems one.
As I say, my own preference is that for a ratchet-up option. Though the purist in me would love for all minimum wage issues to be handled at the state or local level, I’m not quite that pure. There ought to be a floor, at least for the states (pulling Puerto Rico on board may have been a mistake). However, the floor being the floor, it should be made with Mississippi in mind. If we’re only going to allow a ratchet-up, then it only makes sense to start from a low point. California and New York didn’t do that, making my response to their decisions entirely different from that of Seattle and San Francisco.
The other issues he presents are more complicated. LGBTQ rights are, or ought to be, more universal and not so much a response to local economic needs. And while patchwork laws on employment make a fair amount of sense, it makes less so when it comes to which bathroom which person can use (or which hotel which person is allowed to stay at, and so on). So from a process standpoint, it makes a lot more sense for it to be established at the state (or federal) level. Which I sort of hate, because man was I thrilled when Salt Lake County passed its anti-discrimination laws for gay folks. But from a process standpoint, I wouldn’t really be able to object to the state pre-empting that law. I’d just really hate it from a policy standpoint.
As far as Capps’ DC question goes, while I don’t support statehood I do support DC having all of the self-governing authority that the states have.
Over There, I left the following comment in reference to boycotts of North Carolina in response to their Bathroom Bill:
Not bothered by Apple and PayPal, and believe it is entirely appropriate for them to hold US states to a higher standard than foreign countries. For the most part.
The governors and state legislatures trying to get into the act with “unnecessary travel”, though, seem mostly to be preening and showboating.
Photo by Kristofher 
A couple months ago, I probably wouldn’t have thought much of it, but I thought this piece made some good points. Which in turn got me thinking about “unnecessary travel” and why states are supporting it to begin with. Would my wife have to skip a training conference in North Carolina? I… sort of doubt it. So what’s unnecessary? How much effort is going to have to go in to sorting it out? Have they really even thought about it? Maybe I’m being unfair and they have.
It’s not exactly a public/private distinction. If a governors’ association decided to hold their conference in Richmond instead of Raleigh, I would largely respond the way I do to PayPal. The tangibility of declining to do a particular thing in a particular state is pretty clear cut. There are a lot of good alternatives for places to hold a conference or build an office center. So I get what they’re doing, and why, and so it seems less showboatty. It’s tangible, the costs are easier to measure. On the other hand, I can imagine states quietly approving the vast majority of travel as “necessary” while retaining their headlines for Goodthink.
My view on the bill is general, but not emphatic opposition. Attempts to portray the bathroom issue as clear-cut bigotry aside, it’s not an uncomplicated issue. Indeed, opponents of the bill themselves don’t always have their arguments straight. When Houston was going to pass the opposite bill (forbidding business from forcing people to go to the restroom in accordance with their genitalia) I read simultaneous arguments for the righteousness of the bill doing X and that X is a strawman argument that the bill doesn’t even do. The discussion has landed on the former, though, and thus far at least it doesn’t appear that there have been any problems. My current inclination is to let businesses do what they wish (with the possible requirement that they allow a unisex option).
Some have taken North Carolina to task for being anti-local government, but that argument doesn’t really stick with me. This does seem like the sort of thing that is appropriately (though perhaps not exclusively) dealt with at a state level. Since it deals with conflicting rights, I can understand why if you want it (whichever “it”) in Charlotte you would also want it in Podunk, and vice-versa, and given travel having different rules in every municipality are complicated.
John Winthrop believed inequality is a problem. In 1630, on board the ship Arbella, he made the case in the sermon “Model of Christian Charity.” Whatever one thinks of his purported explanation for why inequality exists or of his ideas for coping with the problem, he warns that the problem is real.
God, Winthrop says, has “so disposed of the condition of mankind, as in all times some must be rich, some poor, some high and eminent in power and dignity; others mean and in submission.” Among the reasons Winthrop cites:
[God] might have the more occasion to manifest the work of his Spirit: first upon the wicked in moderating and restraining them, so that the rich and mighty should not eat up the poor, nor the poor and despised rise up against and shake off their yoke. Secondly, in the regenerate, in exercising His graces in them, as in the great ones, their love, mercy, gentleness, temperance etc., and in the poor and inferior sort, their faith, patience, obedience etc.
That’s only one part of the sermon, but I’m going to dwell on it. I read it as saying social inequalities are justified because they’re “God’s will.”
But justified or not, inequality is a problem, Winthrop seems to also be saying. Whatever good he can see coming from inequality, its existence is a warning as well as a opportunity for providence to do what providence does. The rich could eat up the poor. The poor could rise up against the rich.
Our sensibilities here are not necessarily what we might think they are. About the poor rising up to “shake off their yoke,” we probably entertain the possibility that the uprising is or can be a good thing. Or we might be quick to point out that what Winthrop might call “rising up” is more an assertion of rights, or an attempt to survive, than anything nefarious. Still, I don’t know how far most of us would go to endorse the uprising or the collateral damage that might ensue.
To make it more personal, I’d resent it if someone mugged me even if I grant they did so only because they really needed the money or because they are a bread thief. Not that all redistribution or “rising up” is comparable to a mugging. But if ending someone else’s poverty requires me to surrender even a small portion of my wealth or occasions an inconvenience to me of some sort, and even if I agree that the redistribution is right and just, it can still hurt in the short term. (For what it’s worth, a goodly amount of so-called “liberal” reform in the US usually sold on the claim that only the very rich will be inconvenienced. See Obama’s 2008 promise to raise taxes only on those who earn more than $250,000.)
Most of us probably agree that the rich eating up the poor is a bad thing, for certain values of “eating.” (I don’t really want to do it, but (sigh) I guess I have to offer this link.) But I’m not so sure we don’t do it. Most of us who adhere to a given political orientation–liberal, conservative, libertarian, for example–concur that feeding off the poor is bad. We may differ in assessing how the poor are fed off of, who is to blame, and how to end the feeding. But most of them–most of us–at least claim to agree that it’s bad.
Still, we’ve got ours and intend to keep it. Very few of us are going to engage in a life dedicated to fixing those things. Even fewer will withdraw from society to avoid all complicity in the feeding, not that such withdrawal would be easy or helpful. Maybe we can endorse a “first do no harm” strategy: don’t actively do anything to make things worse but try to fix things when we can and when it’s convenient. That’s probably the best we can hope for unless we want to be (non-fallen) angels, and I don’t want to be an angel.
But, you might object, Winthrop’s inequality is a zero sum game. It ignores that we can increase the size of the pie so everybody gets more even if some get even more than others. You might be right. I for one am a bigger believer than I used to be that material wealth can be increased for all and that we should pause before assuming the fact of inequality is automatically a problem. The “inequality symposium” Over There a few years ago drove that point home for me. And maybe material wealth is conducive to moral or humanitarian or spiritual (or whatever you want to call it). Such seems to be one of Deirdre McCloskey’s arguments in Bourgeois Virtues. (I think. I’m only 100 pages into and am a bit unclear on what exactly she’s arguing.)
While important, that objection doesn’t address Winthrop’s point. As long as there’s inequality, some will have more than others. Those who lack will be tempted to envy and to deny the humanity of those who have. How often have I heard of a real hardship suffered by someone much better off than me and yet mocked the person because after all, they had more? I don’ t know, but I can think of at least one example (the context is a discussion of Anne Romney’s convention speech in 2012 where she disclosed she suffered from MS and had suffered from breast cancer.)
Those who have will be tempted to abuse their gifts against their weaker or less provisioned neighbors. As someone who enjoys almost the full complement of special advantages (formerly known as “privileges”) that make living in this country so much easier, I have doubtlessly engaged in enough careless or casual cruelty toward others who do not share my good fortune. If I chose to bore you with specific examples, they would probably just sound like good old fashioned white liberal guilt. Nevertheless, it’s true.
I was going to end with an admonition to question our own envy against those who have what we lack and to exercise restraint and compassion when dealing with those who lack what we have. Noble sentiments. But I suppose most people hold them anyway and my harangues probably just sound preachy.
I’ll leave you instead with this. Less inequality is probably better than more if only because it tempers the temptations to vengeance and casual cruelty. But I suspect we can never end it altogether, and I’m not sure we ought to if we could. And I agree with Wintrhop. It is a real problem.
1/Inspired by a conversation with @mtsw and @mattyglesias, I'd like to explain why I think successful urbanism must be radically anti-car.
— Evan Jenkins (@ejenk) March 22, 2016
2/Density is great. But there's a big problem with "just" increasing density. Let's say you manage to double the density of your city.
— Evan Jenkins (@ejenk) March 22, 2016
3/Even if you manage to halve automobile mode share (by no means a given!), you're still left with the same number of cars on the road.
— Evan Jenkins (@ejenk) March 22, 2016
Megan McArdle gets at what bothers me about attempts to move toward a “cashless” society. For all the advantages of going cashless, she says, a fully cashless society gives too much power to the government.
Consider the online gamblers who lost their money in overseas operations when the government froze their accounts. Now, what they were doing was indisputably illegal in these here United States, and I am not claiming that they were somehow deeply wronged. But consider how immense the power that was conferred upon the government by the electronic payments system; at a word, your money could simply vanish.
Now consider what might happen if the government made a mistake. When I was just starting out as a journalist, the State of New York swooped down and seized all the money out of one of my bank accounts. It turned out — much later, after a series of telephone calls — that they had lost my tax return for the year that I had resided in both Illinois and New York, discovered income on my federal tax return that had not appeared on my New York State tax return, sent some letters to that effect to an old address I hadn’t lived at for some time, and neatly lifted all the money out of my bank. It took months to get it back.
I didn’t starve, merely fretted. In our world of cash, friends and family can help out someone in a situation like that. In a cashless society, the government might intercept any transaction in which someone tried to lend money to the accused.
She’s not saying necessarily that we shouldn’t go cashless, just that we need to decide how to face this new power that cashlessness gives to the state.
I agree.
I do wonder why movement conservatism is collapsing in the GOP at this particular moment. Why not in '12, '08, or earlier?
— Daniel McCarthy (@ToryAnarchist) March 11, 2016
In the late '80s / early '90s there was a GOP civil war and what was called by R. Emmett Tyrrell, among others, the "conservative crack-up."
— Daniel McCarthy (@ToryAnarchist) March 11, 2016
In the GOP, the civil war was between moderates, some of them the old WASP elite, and Western/Southern/econ-social conservatives.
— Daniel McCarthy (@ToryAnarchist) March 11, 2016
It can be frustrating even when we win.
Recently in Sweden, vapers got a very favorable court reason for all of the wrong reasons:
A Swedish court on Wednesday overturned an earlier judicial decision banning the sale of e-cigarettes.
The Supreme Administrative Court ruled that e-cigarettes are not medical products, and therefore the National Drug Agency could not oppose its sale.
“To be a medical product, it must have the ability prevent or treat a disease and, therefore, provide a beneficial effect on human health,” the court’s ruling read.
The e-cigarettes “do not contain instructions on how they could be used to reduce the consumption of cigarettes or nicotine addiction,” according to the court.
In other words, something with tremendous potential benefit was un-banned for not having that potential benefit. Well, that’s only part of the case. But the irony has not been lost on vaping advocates:
The most sublime part of this ruling was the fact that [the Swedish Medicines Agency]’s case was built on their claim that since ecigs are effective cessation products, they should be brought under their juristiction in line with patches, gums, Chantix and other medicinal cessation products. The court ruled that after consideration of the available “evidence”, they didn’t consider ecigs to be effective cessation products.
So in their own special way, anti-vaping buffoon Glantz and the army of junk-science spouting “researchers” around the world have helped to prevent ecigs being banned as illegal/unlicensed medicines. It’s a delightful irony that a case whose central premise appeared to have been “These things are awesome cessation products, let’s ban them” has been rejected.
Of course, being who I am, I take a bit of the opposite view, which is that our argument, that it is a way to transition from a more harmful product to a less harmful one, was rejected in our victory.
Which does a good job of highlighting the absurdity of the current state of affairs.
Now, as not-great as the situation is in the USA, we’re at least not that far along. Or perhaps we’re further along, because the FDA tried to ban the product and failed, and so we have the product. But even when the government tried to ban it, they did so under the idea that the product is harmful and not that the product is helpful.
Even so, you can see trappings of the same conversation here in the debate about advertising. We allow ecigarette companies to advertise, but we do not let them even suggest that their product might be helpful for smoking cessation. We want smokers to vape and stop smoking, and we don’t want non-smokers to vape, but we’re forcing the ecigarette industry to advertise the product as a product in itself and not for the use we would prefer they advertise for.
There is a bit of logic here in that we don’t want them making false medical claims. We don’t want them saying that they’re completely safe because we don’t know that they are and they probably are not. We maybe don’t want them to say that they’re definitively safer than cigarettes because while that is almost certainly true, we don’t know. But saying that they are probably less risky than cigarettes is a true message worth conveying that legally cannot be conveyed by the people selling the product.
…I’m proud of my employer, the University of Sangamon at Big City. A certain very controversial presidential candidate from one of the major parties will soon be holding a rally at a campus event center, and the chancellor has declined to heed calls to forbid that candidate from appearing.
The chancellor has issued a statement that says in part, “Consistent with its role as a public university, the University of [redacted] is not endorsing, sponsoring or supporting any candidate for political office,” said the statement. “At the same time, it has been our standard practice for decades to rent available space on campus to any political candidate when requested. As a result, we have a long history of campaign events on campus, and no legal basis to exclude any candidate because of the views he or she expresses.”
Elsewhere, perhaps the same statement (I’m cut and pasting from a couple different articles), the chancellor says “”[the university]’s core values of freedom, equality and social justice for all, regardless of race, religion, national origin, disability status or sexual orientation, are deeply rooted in our diverse community and not endangered by the presence of any political candidate on campus,” [the Chancellor] wrote. “We encourage public and civic engagement by all members of our University and we endorse the idea that the answer to speech that one does not like or finds offensive is more speech and not censorship.”
Some faculty and staff have signed a petition claiming that university should cancel the rally for safety concerns. I hope they’re wrong. But even if they’re right, I wouldn’t want to forbid political speech just because of safety concerns. And this is political speech in the most obvious sense of the word. If a rally by the front runner for a major party’s nomination for president doesn’t count as “political” speech, I’m not sure what does. And for what it’s worth, the university is taking safety precautions (although I don’t know what kind).
I won’t be going to the rally. My biggest worry about it happening on campus–aside from the fact that I don’t support the candidate–is that it will probably make it hard to leave work on time this Friday by tying up buses and city trains.
I’m used to criticizing my university. It has in the past had a tendency to adopt the most weak-willed, tepid positions in defense of mediocrity. Its sister university–the University of Sangamon at Flagship City–recently had a controversy where it denied a job it had offered to someone seemingly because of that person’s extramural political speech. That was a closer case than this one, but from what I have heard, the chief negative consequence wouldn’t have been “safety” concerns, but some major donors discontinuing their support for the university.
So good on the university and the chancellor for doing the right thing. Here’s hoping everything goes off peaceably and that the candidate and the inevitable protesters enjoy the right to make their views heard.
Freddie de Boer on anti-Trumpism:
You can confront a monster like Trump in a few ways. You can play precisely to the narrative that he’s using by trying to manipulate his party’s primary, acting like exactly the meddling liberals he accuses you of being, and speaking with naked, classist contempt for several million people. Or you can try and peel off many of the people who have rallied under his banner by showing them that you take their economic distress seriously and that the fight for economic and social justice can help them too, if they are willing to join it.
Not a long blog post, but I think he’s (mostly) spot on. The only point I disagree is that in an open primary, it’s not a bad thing to cross the aisle to prevent someone winning who you think is bad for the country. And Freddie’s view of what exactly constitutes “economic and social justice” probably differs from mine in some particulars. But he understands some of Trump’s appeal and how anti-Trumpism can backfire.
I look at the state warily. I assume the state is necessary but dangerous. I support certain state-initiatives (like Obamacare or “for cause” termination policies) but still worry over the cost they enact in limiting individual autonomy, redistributing wealth the “wrong” way, or creating the wrong incentives. I believe that the more discretion one gives the state, the more control of the state becomes an ever higher stakes contest that risks empowering people who shouldn’t have power.
Timothy Snyder, in his conclusion to Black Earth: The Holocaust as History and Warning (2015), seems to provide a reason to embrace the state with less apprehension than I do. (Disclosure: I’ve read only the conclusion to Snyder’s book, not the book itself.) Snyder says Hitler’s destruction of state institutions in eastern Europe and the German-occupied parts of the Soviet Union made the Holocaust possible (p. 337):
The dominant stereotype of Nazi Germany is of an all-powerful state that catalogued, repressed, and then exterminated an entire class of its own citizens. This was not how the Nazis achieved the Holocaust, nor how they even thought about it….The Nazis knew they had to go abroad and lay waste to neighboring societies before they could hope to bring their revolution to their own….Not only the Holocaust, but all major German crimes took place in areas where state institutions had been destroyed, dismantled, or seriously compromised. The German murder of five and a half million Jews, more than three million Soviet prisoners of war, and about a million civilians in so-called anti-partisan operations all took place in stateless zones.
From the next paragraph (p. 337-338):
When the Holocaust is blamed on the modern state, the weakening of state authority appears salutary. On the political Right, the erosion of state power by international capitalism seems natural; on the political Left, rudderless revolutions portray themselves as virtuous. In the twenty-first century, anarchical protest movements join in a friendly tussle with global oligarchy, in which neither side can be hurt since both see the real enemy as the state. Both the Left and the Right tend to fear order rather than its destruction or absence. The common ideological reflex has been postmodernity: a preference for the small over the large, the fragment over the structure, the glimpse over the view, the feeling over the fact. On both the Left and Right, postmodern explanations of the HOlocaust tend to follow German [“Leftist,” per Snyder] and Austrian [“rightist,” per Snyder] traditions of the 1930s. As a result, they generate errors that can make future crimes more rather than less likely.
Snyder follows with what in my opinion is a heavy-handed, unconvincing, and strawman argument against freer markets and a somewhat more convincing, but still heavy-handed argument about the need for states to do something about global warming.* His fear is that if global ecology is not improved, some polities might adopt a zero-sum stance toward world resources reminiscent of Hitler’s quest for Lebensraum and engage in the same eliminationist policies that Hitler did.
That said, Snyder’s comments about the state are worth considering. I trust that the book (again, unread by me) documents pretty well the Nazis’ success at dismantling state institutions.
And what I’ve read of his argument seems to jive with what I know of the Holocaust. There were concentration camps and forced labor camps in “stated” areas, but the bulk of mass murders and actual extermination camps like Auschwitz and Treblinka were located in places whose state institutions had been destroyed. At one point in the conclusion, Snyder states that Jewish people who could escape the “stateless” areas, which in a previous book he called the “Bloodlands” of eastern Europe, to “stated” areas, like Germany proper, stood a much better chance of surviving because some semblance of the rule of law existed. And as Snyder also points out in the conclusion, people with official (or official-seeming) passports could bank on better treatment. Hence the efforts of some diplomats to save Jewish people by issuing passports to safe areas.
Elsewhere in the conclusion [p. 340-341], Snyder says
When states are absent, rights–by any definition–are impossible to sustain. States are not structures to be taken for granted, exploited, or discarded, but are fruits of long and quiet effort. It is tempting but dangerous to gleefullly fragment the state from the Right or knowingly gaze at the shards from the Left. Political thought is neither destruction nor critique, but rather the historically informed imagination of plural structures–a labor of the present that can preserve life and decency in the future. One plurality is between politics and science. A recognition of their distinct purposes makes possible thinking about rights and states; their conflation is a step toward a total ideology such as National Socialism. Another plurality is between order and freedom: each depends upon the other, although each is different from the other. The claim that order is freedom or that freedom is order ends in tyranny. The claim that freedom is the lack of order must end in anarchy–which is nothing more than tyranny of a special kind. The point of politics is to keep multiple and irreducible goods in play, rather than yielding to some dream, Nazi or otherwise, of totality.
In my opinion, Snyder’s distinction between “politics” and “science” is too neat. And perhaps the problem isn’t statelessness, but absence of governance. I’m aware there’s a distinction between government and governance, and I’m hard put to explain it but the former seems to have something to do with a state and its monopoly on legitimate coercion, and the latter to do with….well, I’ll have to do more reading on it, but it seems hard to imagine governance of densely and highly populated societies without something like a state structure.
Or maybe what’s missing isn’t “the state” or “government” or “governance,” but that nebulous thing(s) called “civil society.” That’s another term I’m not sure how to define, but I take it to mean the existence of autonomous groups and voluntary affiliations independent of the state, but not asserting a prerogative to coerce beyond, say, determining who can and cannot be members. Taken as a whole, perhaps “civil society” offers the “multiple and irreducible goods” that can help fend off totalitarianism.
My own understanding of prewar Nazi Germany seems to support this. Nazi rule was disastrous, but civil society in Germany seems to have endured enough after 1933 to successfully oppose some Nazi policies, such as the “euthanasia program” against people with disabilities.**
All in all, though, and with the caveats I’ve mentioned, I find what Snyder’s argument difficult to refute. I’m not sure I’m quite on board, but I don’t wish to dismiss it entirely.
*And to be clear, my objection isn’t that his argument is unconvincing, but that it’s wrong to conflate opposition to addressing AGW and AGW denialism (not necessarily the same things in themselves) with what Snyder seems to think is the self-evident argument for a specific policy he supports, which as I understand is taxing carbon-emitting companies for the excess carbon they produce.
**See this account: “…the ‘euthanasia’ program quickly become an open secret. In view of widespread public knowledge of the measure and in the wake of private and public protests concerning the killings, especially from members of the German clergy, Hitler ordered a halt to the euthanasia program in late August 1941.” I do not wish to make too much of this resistance. According to the site I linked to, the program had been going on for about two years, which means many, many were murdered under this program before it was discontinued.And however successful the protesters may have ultimately been in this case, they certainly didn’t prevent the Holocaust and were probably (most of them) silent. It’s also unclear if a similar protest movement could have been so successful in, say, a hypopthetical 1951 Germany that had won the war. But the protest against the program suggests a certain power that some elements of civil society (in this case the clergy) could exert even in a totalitarian regime.