Commentary from a practical perspective
page includes posts from the site's thirteenth week, March 31- April 6, 2002 in the usual
reverse order. Each week's postings are perma-linked to these pages.
Time for spring training--for my golf game, that is.
Four brothers invite their friends to join them each spring for a four-day golf trip to the Myrtle Beach, South Carolina area. I believe this is my eleventh year as a guest, and it's a great time, even if our collective golf skills are quite a bit short of professional standards.
My buddy and I have the farthest to travel, so we're leaving tonight to make the 1 p.m. tee time on Saturday.
While I'm not writing any essays for this site, please browse around at your leasure.
You can also click here for this week's golf column, if you'd like.
April 4, 2002
The Man Without Qualities argued that the Warren Courts Olympian pronouncements on this issue could not stand up to the type of analysis suggested in studies of the mathematics of voting authored by Charles L. Dodgson and Duncan Black. He also suggested the following:
I share Musils misgivings about some aspects of this area of the law. The redistricting and Voting Rights Act decisions since the Warren Courts heyday tend to focus on allegedly precise percentages and other arcane elements, without seeming to appreciate fully the other, less noble features of some of the approved plans.
There are parallels here with the false hopes generated by campaign finance reform legislation, in that in legislative redistricting, incumbents will use every means possible to preserve their electoral advantages.
To some extent, its a matter of keeping the uglier parts of politics down to a dull roar, and otherwise hoping for the best.
On the other hand, Im not convinced courts must consider regional disparities in either voter turnout or residential concentrations of the legally disenfranchised in order to determine if the Equal Protection Clause is violated.
First, I dont read the Reynolds v. Sims decision as attempting to justify its result by reference to any fully fleshed out model of virtual representation of those citizens who either cannot or do not vote. Its justification was far more simply stated:
Second, in the companion case of Roman v. Sincock, 377 U.S. 695 (1964), in which the Delaware reapportionment scheme was found wanting, the Court stressed its understanding that strict adherence to mathematical modeling would not be necessary. The Court noted that their affirmance of the District Court should not be taken as an agreement with one aspect of the lower courts opinion, as described in Footnote 21:
Instead, the Court avoided that kind of specificity:
The evil allegedly addressed by Reynolds and Roman, after all, was the legislative emphasis on geography over the general population distribution.
Virtual representation in the American electoral system is a given, whether by reference to current norms or the more sordid "three-fifths" history of the original U.S. Constitution.
Those too young to vote have always been represented by their elders. Other adults similarly represent the mentally or physically infirm.
In fact, its hard to read these decisions and conclude that Equal Protection analysis would or should require states to ignore these commonly accepted understandings.
I also think theres no real violation of fundamental principles by ignoring the fact that some population areas may include more of those who choose not to vote, or those whose other choices led to their disenfranchisement, such as felons.
If others decide not to vote, which is an additional personal right, the state legislatures can hardly be held to have violated anyone elses constitutional rights by failing to guess when or where those choices would be made.
Furthermore, the fact that there may be current racial disparities based upon felony convictions and subsequent disenfranchisement cannot be taken as a permanent feature of the American electoral landscape. This too, shall pass, and in any event, the issue presents a near-impossible task of accurate determination and apportionment.
The Supreme Court in the Warren era often made use of sweeping phrases in its opinions, with the messy details intentionally left for others to handle. Musil is correct to call them on it, but the practical realities of redistricting do not compel a slavish adherence to the full scope of less than precise language.
Besides, if you dont like it, you can always vote with your feet.
April 3, 2002
I grew up reading comic books.
A six-mile bike ride to the Newark Newstand and back home again would be no big deal, because I could always find the newest editions of Metal Men, The Creeper, and other favorites on the shelves along its crowded aisle.
I would also make sure I bought the special Superman editions whenever they featured the Bizarro World.
The Bizarros could be counted on to do and say the opposite of what would be expected in the normal world. As a short Amazon review of a Bizarro comic book collection put it in part,
Todays Reuters story about Islamic ministers and terrorism made me think that the Bizarro worldview has now infected a large part of the planet.
And its not where I live.
Here are some examples, with commentary:
Interesting. I therefore assume that any past resistance by the Northern Alliance against the foreign-born Taliban occupiers of Afghanistan would not have qualified as terrorism.
Somehow I doubt thats what these Bizarros really meant.
Oh, now I understand. Any acts by the Palestinians cannot qualify as terrorism in the Bizarro World.
Silly ol me.
But wait a minute. I thought Jerusalem was within Israels borders. So exactly why wouldnt the Israeli response to the Palestinian suicide bombers be considered as heroic "resistance" to attempts at "foreign occupation"?
I forgot. Were talking about the Bizarro World here, and not Earth.
In the Bizzaro World, that statement makes perfect sense. After all, on their planet, pure evil is pure good, and terrorism is not terrorism.
Well, we all know that the Bizzaro OIC foreign ministers condemn any double standard of any kind.
Of course they do.
Wouldnt want any of those Bizarro non-double standards to impede the efforts to attack the real enemy, I suppose.
For one brief moment, it almost appeared that this OIC meeting took place on Earth, rather than the Bizzaro World:
However, the article quickly corrected my initial impression:
Those who seek to do evil work hardest at disguising their intent. For those who seek to do good, the effort is unnecessary.
Those wacky OIC ministers just proved the point.
Eighty billion reasons to uphold an agencys legal interpretation
Unlike its other decisions last week, the Supreme Courts 9-0 decision in Barnhart v. Walton did not generate much media interest. On the other hand, it provided some helpful reminders for those of us who practice administrative law, or as its sometimes called, the law of bureaucracy.
Most of our lives are controlled far more by rules and regulations and by government agencies interpretations of their authority than by the direct operation of legislation. It is among the little-appreciated facts of life.
Its also true that most laws are products of significant compromise. As a result, its common for some interpretive spaces to be left in the laws, for eventual completion by the agencies charged with administering them. Otherwise, the legislators would themselves face two unpalatable political choices: (a) work out all the details first, or (b) lose any chance for a general agreement.
Pundits and others frequently complain about the resulting fog generated by new and imprecise legislation. In the meantime, administrative agency staff are responsible for carrying out what they can discern as the laws actual intent. Its not always an easy task.
One saving grace is that Congress or state legislators can always return to the subject if theyre not happy with the results.
Cleveland Walton is a former teacher who developed a severe mental illness. A history of schizophrenia and related depression eventually caused him to lose his teaching job in October 1994. By mid-1995, however, he was able to return to a different kind of gainful employment, as a part-time cashier. His status improved to the point that he could and did work as a full-time cashier by December 1995.
In 1996, Walton applied for Social Security benefits, under two separate Titlesthe disability income program and the supplemental security income program. Both parts of the Social Security law defined the critical term "disability" the same way, as an
As the Social Security Administration (SSA) saw it, Waltons application failed for two reasons. First, the agencys reading of the term "inability" meant that Walton had to show he could not undertake gainful employment for at least 12 months. That wasnt true in his case. Second, the agency refused to look backwards when interpreting the term "expected to last." Because Walton returned to work within 11 months, the SSA would not make a hypothetical decision that his inability could have been expected to last the full 12 months.
The Fourth Circuit Court of Appeals read the law differently, and overturned the SSA decision.
The Justice Department's appeal to the Supreme Court noted a few interesting facts:
That last point is not really a completely legal argument, of course. If Congress actually intended that result, then the legislature would have the additional interesting responsibility of finding the money to support it.
On the other hand, if the Fourth Circuits determination really reflected the true legislative intent instead of the long-standing SSA gloss on the federal law, then one would think Congress would have already noted a discrepancy worth billions of dollars long before Waltons unfortunate career change.
Justice Breyers opinion took careful note of the SSAs history of consistent interpretation of the disability statute. This history included a 1957 Insurance Letter, a 1965 Disability Manual, a 1982 Social Security Ruling, and a formal Regulation adopted into the CFR after publication and opportunity for public comment. The Court additionally found fault with the manner in which the Fourth Circuit attempted to divine the Congressional intent of this less than perfectly drafted definition.
In reversing the lower court, Breyer and his fellow Justices recalled the appropriate deference to be given to administrative agencies under these circumstances:
I respectfully submit that in addition to the fact that the SSA happened to be correct, there were about 80 billion additional reasons to predict this reasonable result.
April 1, 2002
On Easter Sunday we traveled from our hotel in Virginia to the District of Columbia. We had matinee tickets to the National Theatre to see Mama Mia, the musical based on the music of ABBA. (Dont laugh out loud immediately; it was really a lot of fun.)
As we headed into the city on Interstate 395, we could see the reconstruction work ongoing at the Pentagon, where the plane hit it. It had been a while since Id been in the area, and I forgot how massive that building is. Even so, the wound caused by that hijacking went deep, and I thought about the millions of travelers who have seen that side of the Pentagon since September 11.
We came straight in from I-395 onto 14th Street NW, past the beautiful cherry trees surrounding the Tidal Basin, gorgeous and in full bloom. We circled the 1300 block of Pennsylvania Avenue to go by the Theatre, and then went looking for a parking space. Fortunately, the underground parking garage at the Ronald Reagan Building across the street was open for the event.
As I stopped at the garage entrance, I received another reminder of September 11. The security officer checked my drivers license photo (and my DAG badge). I opened the trunk of my car for his inspection, as requested. He then ran a mirror along the bottom edge of the car all the way around, searching for anything stuck to the bottom. He then called out, "Hes clean," to his companion, and the gates opened.
We took an elevator to the main lobby, and saw that wed have to go through a similar security gauntlet ourselves when we returned after the performance.
The show started at 2 p.m., but it was only a little after 1 o'clock. We walked over to the Commerce Building and decided to look at the White House exhibit on its first floor. Again, we were required to walk through a highly sensitive metal detector before we could look at the silver Hiawatha centerpiece and other White House artifacts. The exhibit was well staged, but we always felt the heavy security presence.
We left there and walked the two blocks to the Theatre for the show. Its always hard to tell in Washington, but I had the impression that most of the audience for Mama Mia was far more local than our family.
There were no obvious security measures in place at the Theatre. Then again, sometimes the best security is not so visible.
As we traveled home today, I thought again about the people in DC who see daily reminders of September 11 as they go about their routines. It reminded me of something friends of mine in the Rehoboth Beach restaurant and bed & breakfast trade told me.
Ever since September 11, theres been a noticeable increase in weekend business at the beach from the DC-area crowd that usually does its part to fill the Rehoboth area primarily during the summer. It seems that many from the Capital region simply need to take a break from their weekday surroundings a bit more than they did before September 11.
Thats perfectly understandable. I wonder how much of a similar phenomenon is occurring among New Yorkers.
Those of us living elsewhere are not often confronted with the daily reminders of that awful day. Instead, we experience the occasional little shock of recognition of what happened, and what remains to be done about it.
Im sure there are times when some of our fellow citizens from New York, the DC area, and western Pennsylvania wouldnt mind trading places.
March 30, 2002
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There will be no essays posted here for a day or two. In the meantime, if you haven't visited in a while, or ever, click on over to the Table of Essays and browse around.
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That fact may become obvious later on, but it needs to be said here anyway.
© Frederick H. Schranck 2002