Did Kennedy Really Blunder?

A commenter, O.Shane, disagrees with my assessment.

In the comments to my previous post, he says:

Jonathan,

The two cases (a tax credit vs. a government donation) can be mathematically equivalent, but they are not qualitatively equivalent, because intent and the identity of actor matter in the law. To indulge a metaphor, the matrix of the law does not retain the commutative property.

But, your perspective that the outcomes are so closely related that the method by which we reach them shouldn’t matter offers a different question.

What right does the government have to force citizens to pay for its schools (public schools by taxation) in the first place? And even if the state government has a minimum right to enforce a minimum level of education, why shouldn’t the parents be able to choose where that education lies and to pay for that instead? The alternative is that property owners pay for education, and if they are parents who prefer to send their children elsewhere, they would be required to pay for services they aren’t using.

It is Elena Kagan whose argument is pure sophistry. By pointing out the mathematical equivalence of the transactions, she is attempting to reduce the philosophy of government to an argument to a mere order of operations. It is not, and every Justice recognizes this. This is not an opinion, really, about whether a tax credit is functionally identical to a government payment. It is about who gets to decide what about the raising and education of children. [emphasis added]

The Court (at least 5/9 of it) has rightly determined that the decision is a local one, not a federal one.

O.Shane: You seem to have 2 basic arguments: 1) (argument expressed in your 1st paragraph) that in fact a tax credit and a government expenditure are different things, and should be treated differently by the law. 2) (argument expressed in part I’ve bolded) the justices are being disingenuous by debating the issue of whether a tax credit should be treated the same by the law as a government expenditure — you seem to be saying that they are using this as a proxy argument for what they really disagree about: whether parents should be given freedom about where to send their children to school.

Below I respond to these arguments in order:

1. In your first paragraph, you say “The two cases (a tax credit vs. a government donation) can be mathematically equivalent, but they are not qualitatively equivalent, because intent and the identity of actor matter in the law.” Suppose that a different state, e.g. New Mexico, had a scholarship fund that was exactly equivalent to Arizona’s scholarship fund, except for one difference: in New Mexico, the state Treasury just donates money to scholarship funds, using a partial matching system similar to the system that England uses, which I described in my original post. So in new Mexico, people who donate to the scholarship fund do not get tax credits, but the New Mexico Treasury, each year, takes the total private donations given to the fund, and matches 30% of them. (or you could make it more elaborate in order to make it exactly equivalent to the Arizona case, by having the matching percentage be a function of the tax brackets of all of the private donors, etc.). This case would be essentially equivalent to the Arizona case. Would you think that the Supreme Court should rule differently in this hypothetical New Mexico case, just because the state has framed it as government donations rather than tax credits, even though the two cases have the exact same effect on the residents of the state?

2. It seems that you believe that Kennedy has made the following assessment:

a) I do not like a world where parents cannot choose where their children go to school without being financially punished (here he agrees with both you and me)
b) Unfortunately, based on an honest reading of the constitution, the plaintiffs in this case do have standing to challenge the Arizona law (which I like, because of my opinion in a) above)
c) I’ll just pretend that b) above is not true, and decide this case based on the world I’d like to see, as explained in a). I’ll pretend that b) is not true due to a technicality (namely whether a tax credit is different from a govt. expenditure)

If this is an accurate representation, then this is judicial activism, and his written opinion is misleading.

As I mentioned I do agree with you and Kennedy in that I would prefer that parents be allowed to decide where to send their children to school, without having to face associated financial hardships. But I do not agree with the way that Kennedy arrived at his conclusion in this case. I’d prefer that he either a) be upfront about why he believes that the Arizona law is consistent with the Constitution, or b) make a decision that is consistent with the Constitution, but inconsistent with his own personal preferences.