The Cruelest Cut Of All: Punjabis Are Not White

In 1921, a certain John Mohammed Ali became a naturalized citizen of the US. In 1925, this grant of citizenship was contested (United States v. Ali 7 F.2d 728 (1925) by Martin J. Kilsdonk, a United States naturalization examiner. His affidavit:

[A]lleges in substance that said defendant was born in Karpurthala, in the province of Punjab, India, on January 10, 1875, arrived in the United States on June 2, 1900, and has resided in the state of Michigan, in this district, since April 1, 1911; that when the said certificate was issued to him he was not a free white person nor a person of African nativity or descent; that such certificate was illegally procured, within the meaning of section 15 of the Naturalization Act, as decided by the United States Supreme Court in the case of United States v. Bhagat Singh Thind, 261 U. S. 204, 43 S. Ct. 338, 67 L. Ed. 616, on February 19, 1923; and that, therefore, good and sufficient grounds exist for the cancellation of said certificate.

In United States v. Bhagat Singh Thind the Supreme Court had ruled that Thind, an Indian asking for naturalization on the grounds he was a Caucasian, and therefore eligible, was instead ineligible on the grounds he was not ‘white.’ The Supreme Court rejected the ‘scientific’ classifications of ‘race’ that ran together ‘White’ and ‘Caucasian’ and instead relied on the ‘common knowledge’ that Asian Indians, ‘Hindoos’, were not ‘Whites.’

Ali, for his part, had attempted to circumvent the impact of this ruling by claiming that he was of Arabian descent and therefore not Indian, not-not-White:

[H]e is not a “Hindu” of full Indian blood, but is an Arabian of full Arabian blood. While admitting that he is a native of India, as his ancestors for several centuries have also been, he contends that originally his ancestors were Arabians, who invaded the territory now known as India, and settled and remained there, but have been careful not to intermarry with “the native stock of India,” and have “kept their Arabian blood line clear and pure by intermarriage within the family.”

The court rejected this line of reasoning:

I am unable to follow the argument thus sought to be made. No reason has been suggested, and I can discover none, why the mere fact that the early ancestors of the defendant came to India from Arabia, where they had been called Arabians, renders the defendant a white person. His skin is certainly not white, but unmistakably dark, like that of the other members of his race.

The court ruled for the plaintiff, and stripped Ali of his citizenship, concluding:

He is a native of the continent of Asia, specifically of the country of India, and more specifically of the province of Punjab, the place of the nativity of the alien held, in the case of United States v. Bhagat Singh Thind, supra, not to be a white person. Clearly, all of the conclusions of the Supreme Court in that case, as well as the reasons on which they are based, are equally applicable to this defendant.

The court also noted:

He admits that his ancestry, like that of other races residing in India, originally sprang from Caspian Mediterranean stock. It would seem that the most that could be claimed by him, by reason of Arabian ancestry, would be membership in the Caucasian race.

And so we have it folks, the official holding: Punjabis (whether Hindu or Arabian) are not White. We just can’t seem to catch a break.

The Trials Of Muhammad Ali

We all know the story:

In 1967, three years after winning the heavyweight title, [Muhammad] Ali refused to be conscripted into the U.S. military, citing his religious beliefs and opposition to American involvement in the Vietnam War. The U.S. government declined to recognize him as a conscientious objector, however, because Ali declared that he would fight in a war if directed to do so by Allah or his messenger (Elijah Muhammad). He was eventually arrested and found guilty on draft evasion charges and stripped of his boxing title. He did not fight again for nearly four years—losing a time of peak performance in an athlete’s career. Ali’s appeal worked its way up to the U.S. Supreme Court, where in 1971 his conviction was overturned. The Supreme Court held that, since the appeals board gave no reason for the denial of a conscientious objector exemption to petitioner, it was impossible to determine on which of the three grounds offered in the Justice Department’s letter that board had relied. Ali’s actions as a conscientious objector to the war made him an icon for the larger counterculture generation.

But even if you do, or think you do, you should still go see Bill Siegel‘s The Trials of Muhammad Ali. Because it is almost inconceivable, in this day and age, to think that a professional sportsman at the prime of his career, would take on, and steadfastly stay true to, a political and moral stance that was quite as unpopular as Ali’s was in his time.

Muhammad Ali was not just a black man in 1960s America; he was a black Muslim. But he was not just a black Muslim, he was a vocal and visible one, who made it clear his faith was not just a matter of personal spirituality but a political statement too. He did not keep his allegiance to the Nation of Islam and its radical theoretical commitments and pronouncements a secret, and he insisted that he be called by his adopted name, punishing those, like Ernie Terrell, who refused to respect this new identity.

Many found Ali’s commitment to the Nation of Islam problematic, and indeed, some of his echoing of that group’s most polarizing statements are still discomfiting. But it is precisely his unapologetic statement of those beliefs that provides The Trials of Muhammad Ali one of its strongest moments. In a television interview–on the David Frost show–Ali is asked for reassurance that he does not really believe that ‘the white man is the devil’ as Elijah Muhammad says (“That’s not really true, is it?”). Much to Frost’s surprise, Ali does not back down. Instead, he passionately affirms his beliefs all over again; he believes in every word Elijah preaches.  As he points out to Frost, he’s given up his title, he’s ready to go to jail, he’s given up many dollars of earnings; these actions which made him, a black man, even more unpopular, and also cost him his livelihood were made possible by the strength of his faith in a man who he considered to have shown him the light. Given that, why would Frost expect Ali to disown him on national television?

Ali’s words can be viewed as evidence of an unintelligent bullheadedness. but they are also admirable. He could have thrown Elijah under the bus for the sake of an easy and cheap popularity with a mainstream national audience, and then, when questioned about his turncoat words by his friends and other followers of the Nation of Islam, he could have performed another backpedal, claiming his words had been ‘taken out of context.’ A slither here, a slide there, and Ali could have deftly wiggled between the cracks, keeping everyone happy.

But Ali kept it simple. He was standing on his feet, and he didn’t intend to sink to his knees again.

Richard Epstein’s Overdetermined Critique of the Roberts Ruling

Richard Epstein offers an interesting critique–based on the alleged inseparability of the power to regulate commerce and the power to tax–of John Roberts’ ruling in the ACA case. If it’s not an activity the government can regulate, then it’s not something the government can tax either. Thus, Justice Roberts should have struck down the individual mandate:

As a matter of constitutional text, legal history and logic, the power to regulate commerce and the power to tax should not be separated. It is not good for the court or the country that the chief justice’s position in such an important case is confused at its core.

Epstein finds ample precedent for his understanding of the inseparability of the power to regulate and the power to tax:

In the Child Labor Tax case of 1922, the Supreme Court refused to uphold a tax equal to 10 percent of the net profits of any firm that shipped goods into interstate commerce if the firm used child labor anywhere in its plants. Chief Justice William Howard Taft noted that…Hammer v. Dagenhart (1918) forbade Congress to use its commerce power to prohibit outright the shipment of ordinary goods across state lines because they were made in factories that used child labor. A heavy tax…could not be used to mount an end run around this constitutional obstacle to its own power.

The same point was reinforced in 1936 in United States v. Butler, which struck down a tax on agricultural commodities because it sought to achieve the then unconstitutional regulatory aim of reducing the total acreage in agricultural production. After the 1942 case Wickard v. Filburn, when the Commerce Clause was held to permit such regulation, the tax became just as permissible as direct regulation. Wickard expanded the scope of federal power, but it did nothing to upset the constitutional parity between the taxing and commerce powers.

So Epstein only needs the inseparability doctrine for his argument to work. For having found the activity in question–non-participation in the healthcare market–was not something the government could regulate via the Commerce clause, then it failed to be an activity the government could tax either.

But Epstein seems to also think that the tax argument fails on its own merits. For he offers us an ‘originalist’ reading of the relevant Constitutional clause:

By giving Congress independent powers over taxation and other revenue sources, the Constitution ended that dependency. But as a quid pro quo, the Constitution also restricted the use of these revenues to classical public goods — benefits that must be given to all citizens, if given to any — like paying off national debts and paying for the nation’s defense. General welfare, mentioned in parallel with these two phrases, is best read as covering only matters that advance the welfare of the United States as a whole. The redistribution of income, or “transfer payments” among citizens, like those mandated under the Affordable Care Act, doesn’t qualify for taxation in this originalist reading of the Constitution.

This is a curious business now. Remember, this supposedly optimal reading is not required for Epstein’s argument to work. It does however, let him deploy some additional ideological machinery.  It suggests that ‘healthcare’ is not a ‘classical public good’ like the payment of national debts or the budgetary requirements of national defense.  It suggests that ‘healthcare’ cannot thus, be understood as ‘general welfare,’ which rather is to be understood in more abstract terms as that which might benefit the nation–but presumably, not its people–‘as a whole.’ (Note that provisions for healthcare are defined as ‘redistribution of income’–the horror!)

The real problem, it emerges, is not the separation of the powers to regulate and tax for which, in fact, there is a great deal of precedent; witness, for instance, the greater reliance on taxation, as opposed to direct regulation, of alcohol and tobacco consumption. The substantive issue for Epstein is that Roberts has suggested that ‘healthcare’ might have something to do with ‘public goods,’ with ‘general welfare.’ In short, it might be a business that government could concern itself with.

Justice Roberts is Playing a Long Game

Time now to tabulate the damage done by yesterday’s Supreme Court ruling in  National Federation of Independent Business et al. vs Sebelius, Secretary of Health and Human Services et al. While Justice Roberts has made himself look extremely distinguished, statesmanlike, non-partisan, and touchingly concerned about his place in posterity, an appraisal that I’m sure he was soaking up yesterday, he might be playing a long game, gutting the Commerce Clause as  a ‘fundamental lever of constitutional power for the left’–from Corey Robin, who I’m sure will hand out some contrarian commentary on this ruling pretty soon–, redefining  the relationship between Federal government and State administrations, and further problematizing the notion of judicial restraint. (I realize that Justice Roberts is only one of five who signed on to the majority ruling, but I suspect he had a great deal to do with its crafting.)

My unease was sparked by the first few comments I read on the SCOTUS live blog yesterday:

[T]he entire ACA is upheld, with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.

A reminder. Part of the majority opinion reads:

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.” (p. 55)

This is an interesting claim to make, for as Neal Katyal notes,

[U]ntil now, it had been understood that when the federal government gave money to a state in exchange for the state’s doing something, the federal government was free to do so as long as a reasonable relationship existed between the federal funds and the act the federal government wanted the state to perform.

In potentially ominous language, the decision says, for the first time, that such a threat is coercive and that the states cannot be penalized for not expanding their Medicaid coverage after receiving funds. And it does so in the context of Medicaid, which Congress created and can alter, amend or abolish at any time.

And in striking down the individual mandate under the commerce clause, especially by relying on the specious distinction between activity and inactivity in the healthcare market, the ruling is even more problematic.  (Pages 16-27 of the ruling are worth reading in their entirety.)

These aspects of the ruling have now been adequately commented on. Indeed, those opposed to the ACA see it as a strategic victory, one likely to have long-term repercussions, an especially significant factor given the long-term conservative bent this Court is likely to have. Randy Barnett, for instance, notes that,

Today, the Roberts Court reaffirmed the “first principle” announced by Chief Justice Rehnquist some 17 years ago in Lopez: the federal government is one of limited and enumerated powers. It accepted all of our arguments about why the individual insurance mandate exceeded the commerce power  “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” wrote Chief Justice Roberts. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”  Then the Court went farther to invalidate the withholding of existing Medicaid funding as coercive, thereby finding an enforceable limit on the Spending Power.

Lastly, and even more interestingly, the court reasoned its way to its conclusions in a way that is sure to raise questions about judicial restraint. Katyal again:

The court had to rewrite the statute to save it from a constitutional problem by eliminating the part of the law that permitted the federal government to withdraw Medicaid financing. The result, as Justice Anthony M. Kennedy warned, was effectively to leave in place a statute that Congress never enacted….[Thus] courts are given the power to rewrite legislation altogether, and leave legislation in place (like health care) in a form that Congress might never have approved and that would be difficult to ever repeal.

Of equal concern is the court’s analysis of the constitutionality of the individual mandate. While the court upheld the mandate, it did so by rejecting the federal government’s claim that it was regulating commerce. There is no judicial precedent or language in the Constitution that compelled that result; instead, the majority reasoned by constitutional inference.

The Supreme Court’s reliance on this ruling in other cases that require the relationship between the Center and states to be clarified will soon make clear what its true significance really is.

The End is Nigh: The ACA Is Upheld (Sort Of)

Today’s blog post writing hasn’t gone so well. I thought of writing a post on the correspondence between Voltaire and Rousseau, as a way of reminding ourselves of the 300th birth anniversary of the latter, then, perhaps commenting on the connections between Frankenstein and Romanticism, and then finally, noting Aquinas’ resolution of the theological problems caused by cannibalism. But nothing went anywhere. (Perhaps I’ll return to these fascinating topics at a future point in time.) I was distracted, as most people this morning were, by the impending news of the Supreme Court’s ruling on you-know-what (more precisely, National Federation of Independent Business et al. vs Sebelius, Secretary of Health and Human Services et al. ) So, the sheer force of circumstance have forced me to junk all those drafts and turn to noting this momentous decision.

Then, finally at 10:08 AM, the news. A 5-4 ruling (Roberts, Ginsburg, Breyer, Sotomayor, Kagan for; Kennedy, Scalia, Alito, Thomas against) that rules ‘ the entire ACA is upheld, with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.’ (from the SCOTUS live blog).

More: the individual mandate is a violation of the Commerce Clause, but survives as a tax:

Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

So, the individual mandate survives as a tax. Frank Pasquale has just pointed me to a remark made by Mark Weiner in 2010:

As a constitutional matter, the bottom line is that challenges to Congress’s power to tax and spend are never successful, and I think it would absolutely stun the tax community if this tax were held unconstitutional.

The SCOTUS live blog continues:

[A] majority of the Court holds that the Medicaid expansion is constitutional but that it w/b unconstitutional for the federal government to withhold Medicaid funds for non-compliance with the expansion provisions….the Constitution requires that states have a choice about whether to participate in the expansion of eligibility; if they decide not to, they can continue to receive funds for the rest of the program.

Part of the majority opinion reads:

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.” (p. 55)

Plenty more to come later. For the time being, in lieu of serious commentary on the ruling, I’ve been juvenile, sending off a series of Tweets and Facebook updates:

The stars and stripes have been morphed into the hammer and sickle

The hammer and the sickle are gleaming, because a crescent moon is shining on them

Starting today, turbans replace baseball caps as symbols of America

No more, “Wassup bro?” – from now on it’s “Greeting comrades!”

Alternatively, you could say “Salaam brothers!”

Lame, yes, I know, but come on, why so serious?

And with that, I’m going to wind up this morning’s ‘blogging,’ one spectacularly derailed by the Supreme Court, and the millions who decided to tune in to this piece of political theater.

That Scalia Sure Chopped the Individual Mandate Like Broccoli!

I’ve now taught Philosophy of Law twice: first, in Spring 2007, and then later, two sections in Spring 2011. An important section of the class syllabus, once we have completed a comparison and discussion of natural law, positivist, and legal realist theories of the law, is legal reasoning. And invariably, an important topic in legal reasoning is reasoning by analogy (which is often introduced as a part of the section on reasoning from precedents). This is introduced and highlighted as an important component of what it is that lawyers do; because many of my students aspire to go to law school, I point out to them that they will often be exposed to reasoning by analogy in many of the cases they study, that they should become good at it and that learning how to effectively reason by analogy is part of making you ‘think like a lawyer.’ My students and I read, for instance, Cass Sunstein’s “On Analogical Reasoning” (Harvard Law Review, v. 106, pp. 741 ff.), study standard examples and case studies where reasoning by analogy has been used–for instance Donoghue vs. Stevenson (1932 S.C. 31)–in a critical effort to evaluate the applicability and validity of this mode of reasoning. It is one of the most enjoyable sections of the semester; my students and I spend considerable time arguing about whether a particular analogy works or not and what role reasoning by analogy has in legal reasoning in general.

In the light of these considerations, I have one overriding reaction to the Scalia Broccoli-Is-Like-Broccoli Analogy. This is an embarrassment, or should be, to Scalia and his acolytes. (These shrieking hordes are found, most commonly, in the Federalist Society of any major law school; I have it on reliable authority that they all aspire to be Scalia when they grow up.) I wonder if Scalia realizes what a bad advertisement for legal reasoning he is. The man went to a top law school, had a long career in the law, serves on the Supreme Court, and this is the analogy he constructs? Of what use such expensive education? But this apparently was not an embarrassment enough for some folks. Predictably, Scalia’s reasoning was defended as a zinger, an awesome putdown that put the Obama Administration on the mat. With cheerleaders like that, anyone can be a Superbowl MVP.

Days after the analogy was made, I’m still wondering: How is broccoli like healthcare? Because you can buy both? Because both are ‘good’ for you? Perhaps Scalia could have said, “So the government could compel you to buy a round-the-world-ticket airfare because travel to foreign lands is good for you?” Wouldn’t his Federalist Society fans have found that even funnier? I’ve come to suspect that Federalist Society fans think of Scalia as the Joker on the Supreme Court, grinning away furiously, zapping one counsel after another with, “Why so serious? This is all just political shenanigans! Say whatever you want – we know which political outcome we’d like to get our hands on.”

Scalia reminds me of that Dana Carvey rockstar who brings in broccoli, because, well, he just wanted to: