TUESDAY, SEPTEMBER 7, 2021
Baker City, Oregon
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EDITORIAL
New tax
kicker
might get
the boot
In almost the same breath that state of-
fi cials announced that an average Oregon
taxpayer may get an $850 kicker tax
rebate, they were hinting at changing the
kicker.
Oregonians are in for a record kicker
rebate because nobody could very well
predict the pandemic’s economic impact.
The kicker law requires very good guesses
about revenues by state government or it
kicks.
The kicker kicks “if actual state rev-
enues exceed forecasted revenues by 2% or
more over the two-year budget cycle. The
excess, including the 2% trigger amount, is
returned to taxpayers through a credit on
their following year’s tax return.”
Oregon is the only state with this kind
of law. It is one way, not the most artful
way, of keeping a lid on government spend-
ing. And voters approved it.
It gets criticized because people who are
wealthier tend to benefi t more.
You get money kicked back to you
based on the taxes you paid. Lower-income
people may need a big kicker rebate more,
but they get less.
That is an interesting argument
because Oregon’s income tax system is
progressive. So people who earn more pay
more in taxes.
So if Oregon were to change the kicker
so lower-income people would benefi t more,
that would be a doubly progressive tax
system? That may make sense to some.
There also have been proposals to chan-
nel kicker money instead to important
matters Oregonians need, such as provid-
ing more child care or helping to create
more affordable housing.
Those are great causes. But we’d rather
see the money go directly into people’s
hands and let them decide how it is spent,
instead of having the government decide
for them.
Treasure your kicker, if you are fortu-
nate enough to get one for the 2021 tax
year. It may be the last of its kind.
Unsigned editorials are the opinion of the Baker
City Herald. Columns, letters and cartoons on this
page express the opinions of the authors and not nec-
essarily that of the Baker City Herald.
Is the Supreme Court ready to
overturn Roe? We don’t know
By NOAH FELDMAN
A day after the Constitution-fl outing
Texas anti-abortion law went into effect, a
divided Supreme Court ruled on Wednes-
day that it won’t block the law before it can
grapple with a concrete case that tests it in
practice. The fi ve most conservative justices
agreed to an unsigned, one-and-a-half-page
opinion that said the law might or might
not be unconstitutional, but that given its
unusual form, which delegates enforcement
to private citizens instead of state authori-
ties, it was too legally complicated to issue
an emergency injunction blocking the law.
In four separate dissents, the three liberals
plus Chief Justice John Roberts said the
law should have been blocked anyway.
Every nonlawyer on the planet — and
no doubt a few lawyers, too — is likely to
read this outcome as prefi guring a 5-to-4
vote to overturn Roe v. Wade, the 1973 prec-
edent that made abortion a constitutional
right. Later this year, the court will ad-
dress a Mississippi anti-abortion law that
lacks the cleverly diabolical enforcement
mechanism of the Texas law but is equally
unconstitutional. Indeed, the day after the
law went into effect and before the Su-
preme Court ruled, many non-lawyers who
were so unfamiliar with court procedures
that they didn’t know it would eventually
issue a ruling on the Texas law had already
concluded that they knew how the upcom-
ing Mississippi case would come out.
That’s a possible interpretation of the
latest opinion, to be sure. But the opinion
for the fi ve conservatives explicitly denied
it. “We stress,” said the justices, “that we
do not purport to resolve defi nitively any
jurisdictional or substantive claim in the
applicants’ lawsuit.” That’s lawyer-speak
for saying both that the law could still be
unconstitutional and that there might
still be some procedural way to block its
operation. For good measure, the opinion
said the challengers “have raised serious
questions regarding the constitutionality of
the Texas law.”
These formulations indicate that at least
some of the fi ve conservatives who joined it
wanted to take pains not to send the mes-
sage that Roe v. Wade is sure to be over-
turned. What is less clear is whether anyone
on the political battlefi eld wants to hear that
message. The pro-choice camp will doubt-
less spend the months until the court term
ends in June whipping up public sentiment,
either in the hopes of changing the outcome
or turning any decision overturning Roe into
the impetus for packing the court or produc-
ing a heavy Democratic turnout in the 2022
midterm elections. The pro-life camp has an
equal interest in making the overturning of
Roe seem inevitable.
Consequently, neither side cares much for
dispassionate analysis. But the fact remains
that the majority in the Texas ruling did not
address the underlying issues, so it would
be premature to predict the outcome in the
Mississippi case based on it.
Taken strictly on its own terms, the
opinion made a point that is incorrect in
my view, but that is legally plausible. That
is that there’s no clear precedent for courts
to block in advance the operation of a law
that creates a civil penalty — not a crimi-
nal violation — to be applied by the courts
after private lawsuits by private parties.
Ordinarily, when a criminal law is obviously
unconstitutional, the courts issue an order
to the state attorney general not to enforce
it. Such an order would not have any effect
in this case, since the Texas attorney general
isn’t empowered to enforce the law.
The better view is that the court should
have been creative and found a way to block
the law anyway. In his brief dissent, joined
by Justices Stephen Breyer and Elena
Kagan, Roberts said that he would have
issued a preliminary injunction “to preserve
the status quo ante” — without the law in
force — and then allow the lower courts to
address with more leisure the question of
whether there is a legal way for the courts
to block the operation of law like the Texas
one. Roberts’s dissent was written so that
one of the conservative justices might have
been tempted to join it. Obviously, it did not
work.
The other dissents each chose a slightly
different emphasis. Breyer focused on the
principle that under the 1803 Marbury v.
Madison landmark ruling that established
the court’s power to rule on a law’s constitu-
tionality, there is supposed to be a remedy to
defend every right — a point with which I
wholeheartedly agree, having made it myself
in a column on the topic in May. The idea is
that it shouldn’t matter who is enforcing the
law; if the underlying law is unconstitutional
and injures basic rights, the courts must
have the power to block its operation.
Kagan said that the court was rewarding
Texas for its scheme, and she criticized the
way the court’s so-called “shadow docket”
— cases responding to requests for emer-
gency action — was becoming increasingly
important despite the opinions being issued
quickly and without oral argument or time
for consideration.
Justice Sonia Sotomayor, the only liberal
who didn’t join Roberts’s opinion, went fur-
ther. She denounced the law as a “breathtak-
ing act of defi ance” by Texas and made sure
to be clear that the law itself is unconstitu-
tional, which it surely is under the court’s
abortion precedents. Presumably she chose
not to join the Roberts opinion because she
did not like the implicit suggestion that the
court should spend some time actually con-
sidering the question of constitutionality.
The upshot is that we know the three
liberals plus Roberts will eventually vote to
strike down the Texas law. But we still don’t
know how all the conservative justices will
vote in the Mississippi case. And we won’t
know before the end of June 2022, when the
decision will probably come down.
Noah Feldman is a Bloomberg Opinion
columnist and host of the podcast “Deep
Background.” He is a professor of law at
Harvard University and was a clerk to U.S.
Supreme Court Justice David Souter.
OTHER VIEWS
Biden spins alternate reality on Afghanistan
Editorial from The Detroit
News:
President Joe Biden continues to
live in an alternate universe in re-
gard to the disastrous withdrawal
from Afghanistan. As someone put
it on Twitter, his message is: “The
mission was a complete success”
and “it’s all my predecessor’s fault.”
An angrier, more defensive
Biden spoke publicly Tuesday to
mark an end to the evacuation mis-
sion — and to the 20-year war in
Afghanistan.
As he noted, the airlift was a
tremendous feat, given the chaos
surrounding the exit — a condition
for which Biden bears much of the
blame.
But boasting about the success
of the mission was unseemly given
at least 250 American citizens were
left behind to face an uncertain
fate. Many more thousands of
Afghans who assisted our mission
were also abandoned, and are now
being tracked down and killed by
the country’s new Taliban rulers.
Biden Tuesday continued to con-
fl ate the decision to leave Afghani-
stan, which was widely supported,
with how he carried out the leaving.
Certainly, American support for
the U.S. presence in Afghanistan
had waned, though many experts
say a small force was necessary
to serve intelligence and counter-
terrorism purposes.
The issue Biden is skirting is
the bungling of the withdrawal. He
claimed Tuesday there was unani-
mous support for the plan among
his military and security advisers,
even though reports of vigorous
dissent continue to emerge from
the Pentagon and intelligence com-
munity.
Biden spoke of those Americans
remaining in Afghanistan as if
they were volunteers, saying he
would get them out “if they choose”
to leave.
Most wanted out, but couldn’t
get to evacuation zones and are
now in hiding. The president’s faith
in the Taliban to help collect them
and get them safely back home is
pollyannish.
Nothing in Biden’s remarks
should assure the families of those
Americans left behind that their
loved ones will be safely returned.
After all, Biden promised not to
end the withdrawal until every-
one of them was out, a vow he
didn’t keep.
While saying he accepts full
responsibility, Biden disingenuously
claimed his options were limited by
the withdrawal deal made by former
President Donald Trump. While
the decision to leave was made by
Trump, the execution belonged to
Biden.
It was Biden’s decision, not
Trump’s, to ask just 6,000 U.S. troops
to carry out the evacuation while
facing tens of thousands of hostile
Taliban fi ghters. It was also his call
to close the Bagram Air Base, which
could have served as a second evacu-
ation site, before the airlift began.
Biden said America’s vital inter-
est in Afghanistan is to assure it
“can never again be used for an
attack on our homeland.”
How does he propose to guaran-
tee that, with the Taliban in control
and now armed with the weapons
we left behind, and without Ameri-
can eyes and ears in the country?
The departure from Afghanistan
was a total failure, whether or not
Biden accepts that reality, and sets
up the Taliban for future attacks on
American interests.
Accountability is demanded. Con-
gress must investigate to determine
exactly what went wrong, and who
is responsible for the decisions.
Biden had help in making this
mess. Top lieutenants such as
Secretary of State Antony Blinken
and Defense Secretary Lloyd Austin
should be required to explain their
roles as well.
This national humiliation should
not be allowed to give way to the
next crisis dominating the news
cycle until it is fully answered for.