Judicial Review As Legitimation In Action!

One of my favorite arguments that's presented in my grandfather's book The People and the Court, which is a defense of the legitimacy of judicial constitutional review in a democracy, is about the way courts can serve a legitimating function. That is, if there's a law whose constitutionality, and thus legitimacy, is in controversy, having it subjected to rigorous judicial review and then get upheld can settle a lot of doubts about its constitutionality and thus legitimacy. The institution of judicial review, then, should significantly increase the confidence of the people that those laws which are being implemented are in fact constitutional and legitimate. It's a really cool theory. It's also the kind of thing you can imagine not happening in practice. (For example, I don't think very many Republicans were convinced by NFIB that the Affordable Care Act is in fact constitutional, although I know of only one Republican type who has anything particularly clever to say about why John Roberts' tax argument is wrong.)

Well, here's an example of it happening in practice. From Kevin Drum's latest piece about how using the Authorization for the Use of Military Force from just after 9/11 as the legal justification for various War on Terror-related activities isn't really okay anymore:

If Congress wants to give the president that power [of targeted killings of American citizens like al-Awlaki], it should debate and pass a law and the courts should rule on its constitutionality. That's the rule of law. And regardless of whether I liked the law, I'd accept it if Congress passed it, the president signed it, and the Supreme Court declared it constitutional.

Just like that! That's exactly what's supposed to happen. The Court declares it unconstitutional, and people accept it as legitimate. Even if they don't like it, they accept it. Just so!

Of Course Delegation Is Necessary

For the work I'm doing I've been skimming through The Constitution of Empire: Territorial Expansion and American Legal History, by Gary Lawson and Guy Seidman. In particular I'm interested in the discussions, scattered throughout the book, of the Necessary and Proper Clause, which the authors consistently refer to as the "Sweeping Clause." (This is interesting, because Lawson has written a different article in which he argues at great length that the Necessary and Proper Clause is not sweeping, that it in fact borrows certain very specific standards from agency law. Anyway.) In the course of this skimming I came across this passage:

There is no express "Nondelegation Clause" in the Constitution that forbids Congress from delegating legislative power. Neither, however, is there an express "Delegation Clause" that permits Congress to delegate legislative power. The latter conclusion is more important under the principle of enumerated powers. The President and courts generally cannot exercise legislative powers on their own initiative because they are not granted any such powers by the Constitution; they are granted only the "executive Power" and the "judicial Power," respectively. But what if Congress passes a statute that says, in essence, "the President shall exercise legislative power with respect to X." If the President obeys that command, isn't the President simply executing the law in fine Article II fashion? That would be true if the Constitution authorized Congress to pass the relevant law. Congress, however, generally cannot delegate legislative power for the simple reason that the Constitution does not affirmatively authorize such delegations. The only possible source for a general power to delegate would be the Sweeping Clause, but delegations of legislative power are not "necessary and proper for carrying into Execution" federal powers and therefore are not authorized by the Sweeping Clause.

That's a very interesting theory of the Non-Delegation Doctrine, and probably a more plausible one than I've heard before. Except it has a problem, which is the last clause of the paragraph. Who says delegation isn't necessary and proper for carrying the federal powers into execution? Gary Lawson and Guy Seidman, apparently. Now, it's possible that they have some quasi-tautological argument in mind here, that delegation can never be necessary because Congress could've just made the relevant laws itself. If so, well, that's quasi-tautological so there's a limit to how much I can argue with it. But, look, in the modern world, and arguably in any world ever, delegation absolutely is necessary. There's a reason why literally every single modern government, including democracies both presidential and parliamentary, feature massive bureaucracies which exercise considerable delegated lawmaking power. You just can't have the actual national legislature making every tiny little rule. Life is too damn complex and (with good reason) the processes for passing acts of Congress/Parliament are too onerous to be used for that purpose. In practice the only viable alternative to actual legislative delegation is de facto delegation; that is, the adoption of the routine practice of having things that aren't Congress write up laws and have Congress pass them as a matter of course, waiving all the usual procedural hurdles that make that difficult. That's not really very different. One way or another, lots of laws are going to be made through something other than what we think of as the main legislative process. That seems to be, as a matter of practical experience, as absolutely necessary for carrying the powers of government into execution as anything else.

Now, there's also that pesky word "proper." I suppose someone could try to say that delegation of legislative authority is "improper," because delegata potestas non potest delegari. But that doesn't feel like much more than a tautological ipse dixit: X is improper because X is improper. Delegation doesn't seem to violate any express prohibition in the Constitution, as the above quote notes, though I suppose in certain contexts one could try to make out a Due Process violation. Lawson himself has an interesting theory of what the "proper" means, again drawn from his agency theory of the Clause, where it basically means that things the agent (Congress) does must be in the interests of the principal (the people). Under that standard it seems obvious that lots and lots of delegation can be proper, if we accept the conclusion above that it's necessary for having a well-governed regime. Add it all up and I don't really see how, except by simply deciding to read the NDD into the word "proper," one can avoid the conclusion that the Necessary and Proper Clause authorizes a hell of a lot of delegation.

Baseball's Real Exclusion of Women Problem

Last week Bradley Woodrum wrote a very interesting article on The Hardball Times called The Physical Obstacle for Women in Baseball. Unsurprisingly, it's a well-researched and thorough analysis of why it's going to be very, very hard for there ever to be a woman playing in Major League Baseball, even though (as the author and I agree) it would be very, very awesome if one ever did. There is, of course, a lot to say on this subject, much of which he said and much of which other people have said. The main thought I had, however, wasn't about players at all, because the thing about players is that there really are physical limitations that mean that the pool of MLB players will never be any less than about 99.9% male, if it will ever be less than 100.0% male. But, uhhhh, not everyone in baseball is a player, and the people who aren't players are not being paid to take part in a physical competition against the world's best men at said competition. They're being paid to coach those people, or to assemble teams of those people. (Or to do various lower-level jobs within the organization, but let's focus on the coaches and front office people for now.) As to all of these people, there is no particular reason why having lesser physical strength should be a particularly strong disadvantage, or even any disadvantage whatsoever. So you'd think that women could maybe do these jobs. Nope. Or at least, they aren't doing these jobs. Thirty MLB teams, thirty male managers, thirty male general managers (actually a bit more; some teams have divided general manager positions), and to the best of my knowledge, zero female coaches.

This is inexcusable. Not the managers and coaches thing--that I'm skeptical of, but I wouldn't go so far as to call it "inexcusable," necessarily. There might be some genuine social problems with having female managers, although I'm not sure. Some of that might be the kind of thing the correct attitude toward which is just to trample over it and insist that it change, e.g. the resistance of a certain type of man to take orders from a woman. Get over it, guys. Other stuff about, like, locker room issues and the like might be a bit less repugnant on its own terms, but might also be the kind of thing that isn't or shouldn't ultimately be a big deal. But there might be some real problems, here in the all-too-terrible real world, problems that will also confront any woman who tries to play in MLB or in any other male professional baseball league but which should be less theoretically intractable than the basic physical differences.

But let's talk about general managers. They head the front office. That is to say, they do not travel with the team, they are not constantly in the clubhouse, they probably don't spend a lot of time in the locker rooms or the showers or slapping the players on their asses. Oh, and unlike the players' job, which is famously ninety-percent half-mental, the GM's job is one-hundred percent mental, full stop. At root a GM is a combination of an information processor and a merchant. There's sod all reason why a woman couldn't be exactly as good a GM as any man. I don't see how an ideal world wouldn't have 15 male and 15 female GMs, plus or minus some margin for random deviations any given year. We have none. It's obscene. Now, people will say that a GM should have experience in the game. Maybe, but Sandy Alderson, commonly considered one of the best front office-type baseball minds alive, never played professional baseball, while Ruben Amaro, Jr., commonly considered one of baseball's worst GMs, spent eight years in MLB. Of course, Billy Beane, another of the best GMs out there, did have a Major League career, while Dayton Moore, another of the worst, did not. It looks to me like there's not a whole lot of correlation there, that stuff other than whether you have experience as a baseball player determines who's a good GM. This might be particularly true given the whole trend toward statistically-inclined GMs: certain sexist beliefs to the contrary notwithstanding, women can actually do statistical analysis just about as well as men can. They can also probably hire equally good scouting directors, and utilize the information those scouting directors give them equally well.

So again, we're left with precisely zero reason why a woman shouldn't be the GM of some team. None whatsoever. And yet, "none whatsoever" is also the number of female MLB GMs. There's just no justification for this. We'll never change the fact that all or virtually all MLB players are gonna be men; that's basically a fact of life. The lack of female executives in baseball isn't. We can change that, and we should.

Regarding the Bechdel Test

(Don't read if you haven't seen Doctor Who at least through the episode "The Angels Take Manhattan.")

The Bechdel test has been in the news a lot recently. That's the supposed "test" for whether a movie (or, in principle, any other unit of moving-picture fiction, or any fiction I suppose) is adequately feminist/non-sexist. It has three requirements:

• That there be at least two female characters;
• That they talk, to each other; and
• That their conversation be about something other than a man.

 The test originates from this comic, by Alison Bechdel.

I like this test, basically. Certainly I agree with what I believe was the basic sentiment behind the original comic, that a world in which depictions of such conversations between two women are extremely rare or essentially nonexistent is in that regard a very bad world. And so I find very interesting this analysis from the newly relaunched FiveThirtyEight that found that movies made since 1990 which pass the test have received smaller budgets than those which fail it, and that passing movies have brought a greater return on investment than failing ones. As acknowledged by the article, the test has some problems, and can in a lot of cases break down. For instance, the movie Gravity "fails" the test, because it has precisely two real characters, one of whom, the protagonist, is female, and the other of whom is male. The female protagonist is a very strong character, but, y'know, she's up in space, all isolated and stuff. But for making broad-brush judgments against a whole bunch of movies in the aggregate, it works pretty well. We can anticipate that, on average, movies that fail the test will do a worse job of portraying good female character than ones that pass it, even if there are some exceptions on both sides.

Juan Lagares is Getting Victimized by the Mike Trout Phenomenon

Continuing on the same theme as my last post. Terry Collins gave the following explanation for why Juan Lagares is not in the lineup tonight:

"Juan is the center fielder," Collins said Friday afternoon. "We’ve got to somehow get his stroke back. He’s starting to expand the zone a little bit right now. When we get him back to where he’s taking some of those pitches, his defense is something we need, and we need very much. But we’re not scoring. So we’ve got to figure out how to get some runs."

The Mets Will Never Be Good As Long As Terry Collins Is Their Manager

Tonight the Mets play the Washington Nationals in the first game of a three-game series. They're two games behind the Nats for second place in the division (though they are themselves in fourth), so, say, sweeping the serious could be huge. Here's the lineup the team is going with tonight:

Eric Young, LF (S)
Daniel Murphy, 2B (L)
David Wright, 3B (R)
Curtis Granderson, CF (L)
Bobby Abreu, RF (L)
Lucas Duda, 1B (L)
Anthony Recker, C (R)
Ruben Tejada, SS (R)
Jon Niese, P (L)

They're lucky the guy they've got in the #9 spot is good at pitching, 'cause this is an awful lineup. It's not so much that it's awful offensively. Particularly the way Granderson hits away from Citi Field, it's more like mediocre, and could almost be good on a good day. But hooo boy the defense. I count two spots in the field, other than the one on the mound, where we've got good defensive players, and that's third base and left field. That latter is arguable, given the way Young's been misplaying balls of late. But you've then got Tejada and Murphy up the middle, who are solid enough if a bit lacking in range, Duda at first who's probably fine but nothing special, and, well, Curtis Granderson at this point in his career might be a good defensive right fielder. He might also be the third or fourth best defensive center fielder on the team. Abreu has basically no business playing the field.

Notable by their absence are Wilmer Flores and Juan Lagares. Flores was called up a few days ago to be the starting shortstop instead of Tejada. He was hitting .307/.360/.500 in AAA. Tejada is slugging .240 on the season. As for Lagares, well, he's perhaps the best defensive outfielder in all of baseball right now, and is also one of the three people on the roster right now with at least 10 plate appearances and a league-average wRC+ or better. Oh, and he's shown a minimal platoon split for his career. So he's not someone you'd want to take out of the lineup. Say, ever. Certainly you'd think he'd be in there on an essentially regular basis, with maybe the occasional day off against a really tough right-hander.

As it happens, today might be one of those days. Tanner Roark, the Nationals's starter tonight, has for his career allowed a .254/.315/.396 line to lefties, perfectly unimpressive for a pitcher, but a, well, .180/.215/.208 line to righties. He makes righties hit like a pitcher. So this would seem to be a good day to minimize the number of right-handed bats in the lineup. Sitting Chris Young, for instance, is an obvious call, since he has a huge platoon split. Both the catchers are right-handed so there's nothing you can do about that, and you're not gonna take David Wright out for anything. Arguably getting all three left-handed bats in your outfield is justifiable, although I'm honestly not sure I think, even with Roark's splits, that present-day Bobby Abreu will provide more value than Juan Lagares + not making Granderson play center. As for shortstop, well, they are both righties, but Tejada has a big platoon split and Flores a little one, so playing Tejada, who's a worse player overall, is just weird. He should only get the occasional start against a lefty, and probably not even then.

But the point isn't really today. It's that Lagares also sat out the last two days, also against right-handed pitching, in favor of an outfield of Young, Young, and Granderson. He also say out the first game at Yankee Stadium, and Flores sat out all four Subway Series games. Note that Chris Young is also right-handed. Note also that he is unambiguously a worse player than Lagares, probably on both sides of the ball right now. Note further that, had the amazing Lagares been patrolling center field last night when Alfonso Soriano doubled in the game's only run, he probably would've gotten to the ball an awful lot quicker and prevented Brian McCann from trying to score in the first place. So even with their offensive futility the Mets might not have lost the game in regulation, giving them a chance to outlast the Yankee bullpen and do something in extras.

Juan Lagares needs to play every day, or at least six days out of every seven. It's as simple as that. And yet, he keeps not playing. The only time he's been in the lineup in the last five baseball games was when the team was not only facing a left-handed starting pitcher but also had the DH spot available, allowing them to play four whole outfielders. The previous game, they also had the DH spot, but that went to Abreu, who went 0-3, and Lagares sat out while Young, Young, & Grandy got the call. This is ridiculous. So is the Flores thing. It's not even so much that lineup construction, in the sense of finding the best permutation of nine batters for nine batting order spots, has been a problem, it's that they've been picking the wrong nine guys on a daily basis. And it's been costing the team.

The bottom line is that I think well over half of the Mets losses this year have felt like they were in part on the manager. Certainly last night's was. Tonight's could well be again, depending on how Abreu and Granderson hold up in the field. And I haven't even mentioned all the shenanigans regarding his pitcher usage, which has been execrable. I think this could be a good team, honestly, if they would just deploy the players right. That shouldn't be the hard part. But it's been, jeez, like five years now, and Terry Collins has never once demonstrated that he is capable of doing that. I also don't see that much evidence that he's a great "leader of men" or whatever. For instance, right now David Wright is in a huge slump during the course of which he has started swinging at everything. You'd think a manager would be supposed to get him to stop doing that, and to be willing to take his walks if the pitchers don't want to pitch to him. That has yet to happen. And it looks like it's about attitude, because he's had a great eye at the plate his whole career.

By around the end of this season and certainly by the beginning of next one, this Mets team is going to have the talent to compete. It's gonna have a rotation featuring the likes of Matt Harvey, Noah Syndergaard, and Zack Wheeler, plus perhaps Jon Niese, Dillon Gee, Rafael Montero, or Jacob deGrom. The bullpen will feature power arms like Jenrry Mejia and Jeurys Familia, perhaps rejoined by Bobby Parnell. Cesar Puello may become a contributing outfielder. It's a team that will be loaded with promise. But if Terry Collins is still the manager, I betcha they're gonna have another disappointing, because he just won't use what he's been given right. He'll keep turning winnable games into losses. Not every one of those will be a true marginal loss, because you don't win every winnable game, but it doesn't take that many marginal losses to turn a playoff team into an also-ran.

They need someone new. (And from what I hear it shouldn't be Wally Backman either; he's been decidedly odd as their AAA manager.)

The Mets Are Overperforming. Good for Them!

Earlier today, the Mets beat the St. Louis Cardinals 4-1, finishing off a victory over the defending league champions in a four-game series, 3-1. The win improved their record for the young season to 12 wins, 10 losses. They're tied with the Washington Nationals, the consensus pick to win the division, for second place in the National League East. So far, they look... pretty good.

And yet, so far they look absolutely terrible. Including today's game, Fangraphs pegs the Mets' batters at 1.0 Wins Above Replacement on the year, 28th in baseball, ahead of only the Diamondbacks and the 220-losses-in-the-past-two-seasons Astros. Mets pitchers, meanwhile, they have at 0.6 WAR, 27th in the league, ahead of the D-Backs, the Pirates, and the Reds. Admittedly they think the pitching has been a little bit better by runs allowed rather than by fielding-independent pitching, at 1.4 WAR, 21st in baseball. But still, at best the team has been terrible on offense and bad at pitching. To put it another way, the offense is sporting a .218/.296/.316 batting line, "good" for a .276 wOBA (which is terrible for a middle infielder) and a 76 wRC+, way below league average. The pitching, meanwhile, has an ERA- of 110, a FIP- of 112, and an xFIP- of 104. That's 24 points below average on offense, and something between 4 and 12 points below average on pitching. That's a terrible team. It's not a team that's two games over .500 and looking, just on the basis of wins and losses, like a possible Cinderella contender.