The problem with "illegal" intentions

The NLRB is trying to prevent Boeing from opening a new factory in South Carolina. It claims that Boeing is retaliating against unions at its plants in Seattle, Washington.

Much has been said about possible economic consequences if this action against Boeing is successful. Nobody, however, is commenting on an even more disturbing aspect of this development. Even the NLRB does not claim that Boeing’s action of building a factory in South Carolina is illegal. Its decision rests instead on its claim that Boeing’s motivation or intent for doing this was illegal.

Personal liberty is extremely insecure if government can make an otherwise legal action illegal because of our motive for taking it. Intent is subjective and cannot be physically observed. If officials can decide what our intent was, and punish us if they decide our intent was bad, there is no limit to how highhandedly government can treat us.

By its very nature law must be general rules of action laid down in advance. Actions can be observed by people who can testify, thus minimizing subjectivity. And with genuine laws people can protect themselves from punishment by avoiding prohibited actions.

Rules punishing bad intent are pseudolaws, not laws.

The latest NLRB action represents another step in a trend to make an actor’s intent the key to whether it has acted illegally. This process got its start when the National Labor Relations Act was enacted in the 1930s. Employers were still free to fire employees, but if their motive was to discourage unionization firing was an “unfair labor practice” and was illegal. This unfortunate development, however, affected only a small part of American society at the time.

The big upswing in outlawing intentions came when the Civil Rights Act of 1964 outlawed racial discrimination in employment. Employers were still free to hire and to fire, to promote and demote, but if their intent in a particular case was based on race, it became illegal. Few people noticed that discrimination is not an action, but a reason for, motive, or intent in acting. As such, it suffers from all of the problems already noted.

It was easy to overlook the fact that a fundamental legal principle was being trashed—this time on a very broad scale-- because the intent or purpose of the Civil Rights Act of 1964 was so clearly proper!

The idea that intent can determine legality has constitutional roots. Courts must determine whether the federal or state governments have jurisdiction to make various laws. The concept that the purpose of legislation can determine who has jurisdiction to enact it (and thus, whether it is constitutional or unconstitutional) offers a tempting analogy to make the legality of actions in general depend on their purpose.

But we jumped the rails in extending the use of purpose from mere determinations of governmental jurisdiction to decisions like today’s NLRB attack on Boeing. Things have now gone too far, and we need to step back.

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This column has run in the Daily Telegram (Adrian, Michigan).

Why "fix" Social Security?

For years we have been bombarded with claims that Social Security is going “bankrupt” and needs to be “fixed.” So far, though, no politically acceptable fixes have been found.

There are problems with Social Security, but the most prominent claim about it is nonsense: that its trust fund, holding 2.6 trillion dollars in federal bonds, is a “fiction,” that the government has “robbed” it and spent all the money. The government has indeed spent the money, but it didn’t steal it. It borrowed it and owes it back to the trust fund (plus interest) just as much as it owes money to other people from whom it has borrowed money.

For more than 25 years Social Security FICA payroll taxes have exceeded benefit payments. The resulting surplus has accumulated in the trust fund. We will now be drawing down the trust fund in order to pay benefits that are more than FICA taxes currently collected. This can be done until 2036 without reducing benefits, without increasing payroll taxes, without cutting government’s operating expenses, and without increasing the national debt. Bonds can be sold to the public (individuals, banks, China, etc.) to get the needed money. For every additional billion borrowed from the public, a billion will be paid back to Social Security. This will reduce the money owed to the trust fund by the treasury by the same amount. Since the national debt is the sum of money owed to the public and money owed to the trust funds, the total federal debt will not increase as a result of these paybacks.

Our government needs to cut operating expenses and raise taxes, but Social Security did not create the problems making this necessary.

The situation will change in 2036. In that year, the trustees project that the trust fund will be all used up. Under existing law Social Security payments would then be reduced so they could be covered by FICA taxes currently being collected. The trustees estimate that people would still receive about 77% of the benefits they would be receiving before the trust fund was exhausted.

Republican leaders would avoid this future decrease in benefits by reducing them right away. Well, maybe not so soon as to antagonize today’s politically active geezers, but a lot sooner than 2036. Democratic leaders favor increasing the FICA payroll tax enough to solve the problem, which according to the trustees would be about 2.15 percentage points. Either of these approaches would do the job if they could be enacted.

But Congress is better at doing nothing than at doing something, and this might be a case where inactivity would be acceptable. People would have a quarter century warning that benefits will decrease 23% starting in 2036. Younger folks would have ample time to save more to prepare for that (and improved means to do so, since they won’t be paying the higher FICA tax starting tomorrow), whereas people who are already retired and not in a position to save more are unlikely to live that long.

Regretfully, similar Congressional inactivity cannot solve other major problems, one of which is Medicare. But that’s another story.

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This article has run in the (Adrian, Michigan) Daily Telegram.

Michael Scheuer: A man who speaks considerable sense about U.S. foreign policy

I just stumbled on to a talk on C-SPAN by one Michael Scheuer about U.S. foreign policy in the Middle East, and found myself agreeing with a very high percentage of his statements. He has come to many of the same conclusions that I have come to about the wars in Iraq, Afghanistan, and (now) Libya, namely that they rest on hopelessly naive assumptions about government and have been terrible ideas from the get-go in terms of cold-blooded cost-benefit analysis.

The C-SPAN talk obviously had been taped before the recent killing of Osama bin Laden, and I checked Scheuer's website to see what his take on this was. I found myself agreeing right down the line with him. He felt it was good that bin Laden was gone, that it was good that he was not captured, that the "triumphalism of the pathetic young children and addled adults who were this week in the streets to celebrate bin Laden’s death" was unseemly, and that the conflicting stories being put out by the administration and Congress on what actually happened would give many people reasons to doubt what really happened. He noted that it was ironic than it took the al Qaeda confirmation of bin Laden's death to shut up most of the skeptics.

Scheuer has been accused of anti-semitism, a charge which he denies, because he argues that the U.S. should not make defense of Israel such a high national priority. I do not know enough about him to give an opinion on this matter.

At the end of the question period Scheuer commented that all of the presidents of both parties since Ronald Reagan have not been worth "a pitcher of warm spit." This is an allusion to a comment by Franklin D. Roosevelt's first vice president, who said something similar (but apparently used a strong term than "spit") about the office of the vice presidency!

While I think that Reagan was one of our best presidents, it seems to me that much of U.S. foreign policy under Reagan was grounded in similar assumptions to today's lamentable policies. But it is true that Reagan did not get us involved in all these unnecessary and counterproductive wars that I am afraid that all of his successors--Bush I, Clinton, Bush II, and Obama--- have done. I include Bush I because increasingly I am thinking that even the original Persian Gulf War under his leadership was a bad mistake. (At least, though, it was executed extremely well, with the crushing force advocated by the "Powell Doctrine," avoiding overreaching by marching on to Baghdad, and getting our "friends" to pay for a lot of it.)

Outstanding article by George F. Will

This morning's Oregonian includes an outstanding article by George F. Will about the death of Osama bin Laden and current U.S. foreign policy. The "conservative" George concludes with a withering analysis of our current misadventures in Libya and a suggestion we consider getting rid of NATO. There is hardly a word in this piece that I would change if I were writing it, and I think it needs to be widely read and thought about.

Read Will's article by clicking here.

I think I'll submit this to the "progressive" website CommonDreams, which has occasionally published my articles, even though they almost certainly will not use it since Will is a conservative. However I think there is hardly a word in this article that CDs editors wouldn't publish if it had been written by somebody else . . . . say Noam Chomsky!

Today's Cathedrals: Universities and Medical Buildings

In recent months my wife has been treated for a foot problem by some excellent doctors and therapists at the Slocum Center in Eugene. Walking up to the third floor one notices the large number of steps between each floor. The floors must be fifteen or twenty feet apart. The building is elegant, with high ceilings, wide halls, and expensive furnishings. But Slocum is not unusually extravagant when compared with other recently constructed medical facilities we have seen.

These buildings, of course, are financed with fees largely paid by insurance companies or Medicare. The enactment of Medicare may account for no small part of the huge increase (way beyond inflation) in the cost of medical treatment during the last 40 years.

When our daughter was born in 1969 our hospital bill in Adrian, Michigan (for six days due to some complications) was $471.22. We paid $47.50 and insurance paid the rest. The daily room rate back then was $33.64, which would be $202.42 in 2011 dollars. The daily rate at the Corvallis hospital, in 2009, was $1,357, about seven times as much.

Elegant facilities probably do little to improve the efficiency with which medical services are provided. Facilities in former strip malls vacated by stores which cannot compete with Amazon.com could probably work equally well at much lower cost. But we cannot blame medical administrators for opting for nicer, more expensive facilities when they know they can pay for it by raising their charges.

A similar situation can be found in universities. When I was an undergraduate at Willamette University in the late 1950s, annual tuition was about $600. This would be $4,529 in 2011 dollars, but today’s tuition at Willamette This is eight and a half times as much as I paid fifty years ago. is $38,800.

When I was at Willamette the facilities were adequate, but spartan. There was no student union, though there was a small, dark, and shabby coffee shop in the basement of Waller Hall. Facilities were even less extravagant when I joined the faculty at Adrian College in Michigan in 1964. Today the new buildings at Willamette are spectacular and the newest buildings at Adrian are also much nicer than in 1964. Students can get an excellent education at both of these colleges, but I am not sure they are learning more than we were 50 years ago. Certainly they are not learning 8.5 times as much!

As in the case of medicine, there is a lot more money available now for higher education than there was fifty years ago, and a good part of this may be due to the availability of Pell grants and loans for college students. Borrowing for college was unheard of fifty years ago and was just beginning to be discussed while I was in graduate school. (One of my undergraduate students at Johns Hopkins University feared in a paper that such loans would undermine the “martial attractiveness” of young women seeking husbands. I think he meant “marital” but reassured him that indebtedness would be no obstacle to women seeking to join the army.)

Experience in medicine and education suggests that throwing more money into worthy purposes may not always be a good idea. I have no idea how to deal with the problems this extra money has created, but we may be about to find out whether reducing the flow of such money, while painful, could have unexpected benefits.

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This article has run in the Daily Telegram (Adrian, Michigan), CommonDreams, and the Gazette-Times (Corvallis, Oregon).