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PaperclipPerfector  1yr ago (text post)   35217 thread views

Culture War Roundup for the week of June 26, 2023

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The question for the floor is: why the high degree of correlation? Is there an underlying principle at work here that explains both positions (opposition to AA plus opposition to debt relief) that doesn't just reduce to bare economic or racial interest?

In practice, I think things like party affiliation are the driving factors behind the correlation. But I also think there's a rather simple "underlying principle" that ties both decisions together.

Let's do a thought experiment. Imagine you find an intelligent person who's fluent in English but totally ignorant of American history and law. You hand this person a copy of the US Constitution and have him read it carefully. Then you ask him to answer two questions based on his understanding of the plain text of the document:

  1. Does the Constitution allow the government to treat people differently based on their race?

  2. Does the Constitution allow the president to spend money without congress's approval?

The answer to both questions is clearly "no" if you're just reading the text of the document without bringing any external knowledge or biases to bear. In order to answer anything other than "no" to both questions, you either need to come up with complicated interpretive arguments or you need to just not care about the text of the Constitution.

So I think a rather simple underlying principle unifying both decisions is: "the plain text of the Constitution is binding."

But the president isn't spending money in this case. He's just not collecting money back. Those are different. Moreover, Biden v. Nebraska wasn't ruled upon on constitutional grounds, and the affirmative action case involved Harvard, a private actor, where the Constitution only applied because of Title VI (and further, the probably incorrect precedent that the phrase in Title VI is just supposed to be a summary of the equal protection clause)

I would liked to have seen this argument made. I believe the executive does have the power to collect or not on debt. This was Bernie’s argument when he was running for President. That said, the Biden camp did not make this argument. I think it’s likely the argument would have lost anyway, but I think it’s still the better argument.

But the president isn't spending money in this case. He's just not collecting money back.

Your accountant is now giving you the stink eye. Forgiving debt is spending unless you're talking strictly about cash flow, and the government does not operate on a pure cash flow basis.

Indeed as far as the IRS is concerned if someone forgives my debt I have income (except for certain exceptions).

Oh, the effect is of course the same.

the affirmative action case involved Harvard, a private actor

It's not the Constitution that's being read based on its actual text, it's the rest of the antidiscrimination laws.

It's also true that literally, the text of the Constitution allows private discrimination, but it's a "your rules, fairly" sort of thing. Forbidding private discrimination, but fairly, doesn't really follow the Constitution, but it's closer than forbidding private discrimination with an exception for Asians.

It's not the Constitution that's being read based on its actual text, it's the rest of the antidiscrimination laws.

Well, mostly. Except for Gorsuch's opinion (and Thomas's agreement), they were ruling under the presumption that part of the antidiscrimination laws were a summary for the equal protection clause. That is, they were ruling as if title VI said "Yeah, those things that the states can't do under the 14th amendment? Federally funded universities can't do those either." I think Gorsuch and Thomas are correct that that reading is incorrect, but the opinion of the court doesn't challenge that precedent.

But yes, I agree on your overall point that these cases are not really about the constitution (although I imagine that this, involving an interpretation of the equal protection clause, will have constitutional repercussions), that was why I'd said that in the first place.

It's not the Constitution that's being read based on its actual text, it's the rest of the antidiscrimination laws.

Man, I now want to go back and frame Title VI as being a "public accommodations law". Sotomayor spent basically the entire 303 dissent just cheerleading "public accommodations laws" and how they're the best things ever, rather than engaging with the First Amendment arguments. Would be funny to port all those blessings onto the other case. "Yeah, Harvard, just like motels, has to be equally willing to provide accommodations, regardless of race. They can use other features, like whether they have enough money to pay, whether they're wearing shoes or a shirt... but they can't use race." I mean, universities aren't exactly motels, but neither are website designers.

So you do think it was obvious in the UNC case?

I am much more sympathetic to Gorsuch’s statutory argument though I would get rid of the statute he relied upon.

And federally funded universities under Title VI.

Title VI applies.

The equal protection clause is taken to apply because it is (probably wrongly) held that a portion of the Title VI is a summary of the equal protection clause, and universities must meet that standard if they want federal funds.

Here's the relevant bit of Title VI:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

I was responding to where you said "a purely textualist argument," without qualifying it to be referring only to the constitution. I should have made it clearer that you were correct if we were referring strictly to the constitution, not to a strictly textualist interpretation of the law in general. You're right that I didn't read the thread carefully enough, and the context should have made what you were saying clear.

Sotomayor did make a decent argument that it was an isolated demand for rigor. I don’t know that she convinced me, but it was plausible, at least.

I’m not sure if you get the UNC ruling without incorporation, which I would definitely describe as non-obvious.

It wasn't about incorporation, it was about federal funding and Title VI, I believe?

Right! My mistake.

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