an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
As the government shutdown grinds on, it affects some people a lot more than others. For many upper-middle-class Americans, who are not federal workers, are not currently trying to buy a home, have not planned any vacations or weddings this month involving national parks, and so on, the direct personal impact of the shutdown is zero. Basically all of the functions of the federal government that are the most immediately essential to avoid disruptions of upper-middle-class life—for instance, keeping the airplanes running by paying the air traffic controllers—are deemed essential and thus exempted from the shutdown. This leads to the inevitable jokes about whether we even need a federal government because we seem to do fine without it. The shutdown might as well be happening in another country.
For people living in that other country, things look quite different. For instance if you are one of the half-million elderly people living on very meager incomes who depend, for basic nutrition, on weekly deliveries of surplus food from the USDA’s Commodity Supplemental Food Program (CSFP), the situation is gradually drifting from disruptive to dire. A journalist reported from Michigan yesterday that “food [is] sitting at the warehouse, but moving it would defy USDA orders.... Community Action Agency of Kent County is recommending its seniors stretch the food they already have by watering down milk and soup.” The story centers on an interview with Bill and June Anderson, 81 and 83, whose small income from Social Security “provides enough money to pay the utilities and insurance, but they turn to the government food program for meals.” They have been without a reliable source of nutritious food since the program shut down on October 3rd; the local food pantry helps, but not much because most of its food comes from CSFP too.
The situation at Head Start centers in six states got similarly serious last week: they ran out of funding and had to close immediately. This left tens of thousands of children without any safe place to be during the day and in many cases without any nutritious meals (yes, Head Start is also a child nutrition program); it forced some parents to choose between leaving small children home alone or skipping work and risking their jobs. A young billionaire couple from Houston, John and Laura Arnold, have since stepped in with a very timely gift of up to $10 million in emergency funding to reopen the centers for the next several weeks, so for now, all those children can be fed and cared for and their parents can go back to work and school. However, other Head Start centers around the country face a rolling wave of closures in the coming weeks (depending on vagaries of the timing of their grants and payroll) unless the government reopens sooner.
The people who run our country are plainly not young single mothers sending their children to Head Start so they can try to finish high school. Our leaders are not people who eat “government cheese,” at least not in the CSFP sense. Nobody is giving them or anyone they know advice about watering down their soup. Indeed, many of our leaders, in all the branches of the federal government, now live in and among sufficiently rarefied socioeconomic strata that they might grouse, as Rep. Phil Gingrey did the other day, that “I’m stuck here making $172,000 a year” while those who cash out and work in lobbying firms make three times as much. To be fair to Rep. Gingrey, if his entire comparison set consists exclusively of Members of Congress, lobbyists, staffers who will soon become lobbyists, and other people who are wealthy enough to donate significant amounts to his campaigns, then by comparison Gingrey is indeed relatively poor, even though he makes between three and four times the median household income in his district.
This sort of perspective cannot help but shape a person’s assessment of the urgency of a situation in which airplanes are running on schedule but CSFP deliveries are not.
I was thinking about the airplanes because of a remarkable video interview that Judge Richard Posner gave to Mike Sacks at HuffPost Live this week (h/t Rick Hasen). Judge Posner, who is out promoting his 40th book, reflected in the interview [see around 8:45-10:45] on his opinion in Crawford v. Marion County, the Indiana voter ID case from 2007. At the time that he decided that case, Judge Posner did not think much of claims that photo ID laws would disenfranchise voters. “[I]t is exceedingly difficult to maneuver in today’s America without a photo ID,” he wrote, “try flying, or even entering a tall building such as the courthouse in which we sit, without one.” Today Judge Posner says he thinks his decision “absolutely” was wrong (even though the Court, in an opinion by Justice Stevens, upheld it). He explains why in the interview with admirable forthrightness. I think he’s right that he was wrong. But I’m not sure he’s entirely right about why he was wrong.
Judge Posner frames the problem as a lack of information, but I think it may be more of a failure of empathy—one brought on by the increasingly deep divide in this country between the experiences of people who routinely fly and enter skyscrapers, and people who do neither of those things and cannot even legally drive. A society with such deep divides faces many types of challenges. One is simply the challenge of how get the rulers to understand the lives of the ruled. This requires knowledge, but it also requires empathy.
Judge Posner says, basically, that he and the other judge in the majority on the panel in Crawford got the case wrong because they “weren’t really given strong indications that requiring additional voter identification would actually disfranchise people entitled to vote.” “I think we…did not have enough information,” he says. “We judges and lawyers, we don’t know enough about the subject matters that we regulate…. if the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case would have been decided differently.” I have some degree of sympathy for this assessment. Although more facts were in front of Judge Posner than he acknowledges (and there was enough material there for the third judge on the panel, Judge Evans, to dissent), the case was litigated as a facial challenge, so there were no actual individual plaintiffs who had been disenfranchised. Perhaps those individual stories would have concentrated the mind of a judge on the constraints the individuals faced. Judges, after all, are people who spend their days hearing cases that are mostly full of specific facts about individuals.
However, we inevitably understand those facts in light of other, more general facts that make up our overall worldviews. In some ways I think the most revealing part of Judge Posner’s opinion was not “try flying”—it was the inimitably Posnerian passage that followed about people who “will not bother” to vote, or people who “will say what the hell and not vote,” if voting has any costs. In essence, Judge Posner imagined the difficulty of obtaining an ID and voting and he viewed it as very minor—as indeed it is for most people (who, after all, drive and have licenses already). And so he concluded that nobody would really be disenfranchised. Some might “disfranchise themselves rather than go to the bother,” he wrote, but if so, that’s their problem. Six years on, he regrets the decision and says: “maybe we should have been more imaginative.” I think that when he says it that way, he comes closest to the mark.
The imagination that we are really talking about here is empathy. It is an ability to understand enough about another person’s situation, the challenges they face, and the internal and external resources they have for surmounting those challenges, to make the best judgment about questions of law and policy that affect them.
Empathy does not mean biasing one’s decisions toward the disadvantaged. That is the caricature that animated the most durable, although completely unsuccessful, line of attack against Justice Sotomayor during her Supreme Court confirmation hearings. But empathy does mean understanding people and their situations even if those situations differ in every material respect, externally and internally, from your own situation and those of everyone you know. We often talk about judicial empathy, but it is equally important for legislators. They, too, need to understand the situations of the people who will interact with the decisions they make.
This brings me back to where I began. The uneven effects of the shutdown do not, of course, fall perfectly along class lines. They fall along some odd lines: I’m sure there are plenty of middle-class business owners and employees with the bad luck of being located in certain parts of Northern Virginia—or even worse, next to a shuttered national park—who are feeling the pinch in an extreme way. But most of us don’t feel it at all. This shapes our understanding of the situation. It is the background fact that undergirds the whole Republican strategy of trying to use a shutdown to push for political concessions on policy issues like the ACA. If the airplanes were grounded, the shutdown would be over within 24 hours.
In its unevenness, the effects of the shutdown are reminiscent of another comparably large, even more destructive force that has been with us for much longer: the slow-moving disaster that was the pre-ACA health insurance regime in America. That regime left some Americans in situations akin to slow torture: serious chronic illness, inadequate treatment, periodic stabilization of symptoms in an emergency room, impossible expense, and the negative medical consequences over time of not getting proper care. Even for those with insurance, if they had the bad luck to have sufficiently expensive illnesses to blow through their lifetime maximums, or if they lost their jobs and became “uninsurable” due to “preexisting conditions,” the situation sometimes lurched into dangerous, and occasionally Kafkaseque, territory (for instance, for all the couples who were told that their best strategy for a sick child’s survival was to divorce and give the lower-earning spouse complete custody of the child, so that part of the family could become poor enough to gain access to Medicaid). But although one could fill an endless number of blog posts with crazy horror stories of the old regime (the pre-ACA regime), the fact remains that under the old regime most people basically made out all right. Most people had employer-provided large-group coverage in their working years and Medicare at 65. Many had a worrying gap in between, but prior reforms such as COBRA often patched it. In other words, for most of us, the system seemed to be working fine. For others it was a horror show, but their numbers were small. Also, most of them did not have a lot of money. Rules about things like continuous coverage rewarded those with the money to paper over gaps with strategies such as COBRA—and punished those who allowed gaps in coverage to appear. People with more money were more likely to be married and thus for one spouse or the other to have employer-based coverage offering a family option. And so on. As with the shutdown, the incidence of who was hit hardest did not fall neatly along class lines, but it was skewed that way. This led predictably to an elite conversation that often ignored those most affected, because our elites lacked the empathy to understand or even to seek out information about what our health insurance regime was doing to people.
Today, we are on the cusp of a new era in health insurance policy, which will begin in earnest on January 1st. Despite technical problems, and despite Republican state legislators’ resistance to the Medicaid expansion, the expansion and the exchanges will be a lifeline for enormous numbers of people, as are some of the changes that have already gone into effect.
And so I want to end by reviewing the bidding in our current political standoff. At the moment, Republicans are internally divided over which hostage they meant to take (the threat to keep the government shut, or the threat to default on our debts). At the same time, they are internally divided over which ransom they want to demand. Some, led by Senator Ted Cruz, say the point of the hostage-taking is to demand repeal, delay, defunding, or anyway somehow to take a pound of flesh out of the ACA. Others, like Rep. Paul Ryan, seem to think the goal should be totally different: forget the ACA, we should demand fiscal policy changes including “entitlement reform” (which probably will mean, in plain English, that we should agree today that the modest future shortfalls in Social Security in the out-years must be fixed entirely through cuts to Social Security benefits, rather than tax increases). It is a confused mix of political goals that are also altogether unrealistic. Yet for this—for Republicans to gain “leverage” for some as-yet-undetermined combination of watered-down versions of these goals or possibly others—we as a society have now determined that Bill and June Anderson and their neighbors should not get their CSFP deliveries, and instead should make do with Dickensian strategies such as watering down soup. That is how much empathy we have for them. That is how seriously we are taking their situation and the government shutdown. I am not sure what else can be said. Posted
by Joey Fishkin [link]