September 2021 – From the Peanut Gallery

COVID-19 and Emergency Powers III – Still Not Much Has Changed

Two weeks ago I revisited the topic of an early April post regarding emergency powers. The impetus for the recent post was ABCNews.com’s article on a decision of the Kentucky Supreme Court regarding legislation which had limited that governor’s emergency powers. Inspired a an article entitled, “Most States have cut back public health powers,” on the front page of yesterday’s Express-Times, have much the same to say.

The article, sourced from Kaiser Health News, reports that 26 states with Republican legislatures “[took] away that powers that state and local officials use to protect the public against infectious diseases.”

The federal and state constitutions all provide for some form of separation of the legislative and executive powers. In this post I am going to consider state emergency declarations. By constitutional provision or legislation, the governor is often given the authority to declare an “emergency” and to exercise some degree of the legislature’s powers. There is no doubt that in March 2020 the new and rapidly spreading COVID-19 pandemic was an emergency. While it is still a crisis and we cannot go back to normal, I no longer consider it an emergency that requires (or even permits) legislators to sit back and accept whatever the governor decrees. The legislature is not prevented from meeting and has had ample time to assess the pandemic and consider the policies that the state should adopt to address it. Allowing the governor to rule by decree under the guise of a continuing emergency is a threat to democracy.((Let me be clear: My objection is to the process, not the substance. For example, I do not oppose, indeed I encourage, a legislatively-imposed mask mandate enforceable under the state’s criminal law (and not making store-owners the primary enforcers) and a widespread vaccine mandate, without a testing opt-out.))

While each limitation on executive emergency authority should be examined on its own merits (and there is insufficient detail in the article to do so with regard to any particular limitation), the real objection that the traditional news media has to limitation on emergency powers is that they believe that the particular policy choices made by governors are wiser (after all, they are “guided by science”) than those made by legislators.

In recent years the media have pushed as a guiding principle of political decision-making that the process must be transparent.((There is a quote, often but possibly not accurately attributed to Otto von Bismark along these lines: “No one should see how laws or sausages are made.”)) The legislative process is (or certainly should be) significantly more transparent than the executive decision-making process.

In New Jersey the governor has repeatedly tightened and loosened various restrictions, all in the name of science, but never explaining how the particular restriction (e.g., public gatherings limited to ten or to twenty-five) was related to a specific fact about the current state of the pandemic.

There is some information available about Pennsylvania’s initial lock-down order and Governor Wolf’s order that all non “life-sustaining” businesses be closed because there was a lawsuit challenging that restriction and the governor’s staff had to provide discovery on the process by which the orders were drafted. As the federal district court found:

The record shows that Defendants never had a set definition in writing for what constituted a “life-sustaining” business. Rather, their view of what was, or was not, “life-sustaining”
remained in flux. [citation omitted] Finally, the record shows that the definition of “life-sustaining” continued to change, even after the waiver process closed.
County of Butler v. Wolf, Civil Action No. 2:20-cv-677, opinion issued 9/14/20, p.49.

In the near future I intend to comment upon the amazing fact that we seem not to have learned any lessons from early COVID experiences.

Jay Bohn
September 20, 2021

Rethinking Flood Prevention II: Local Stormwater Utilities Not That Useful

A few days ago I posted about a Star-Ledger article “Towns must rethink flood prevention, experts say.”((I have since found the same article behind NJ.com’s paywall under the title: “N.J. wasn’t built to handle the storms it’s now facing. How can it protect itself?“)) That post suggested that the people mentioned in the article were experts because they supported the editorial point that the author wished to make, which seemed to be in support of local stormwater¹ “utilities,” which would allow local government to tax (by another name) existing development. In this post I want to address the merits of that scheme.

Here is the article’s explanation of stormwater utilities:

Put simply, a stormwater utility would be able to collect money from properties in town based on the amount of runoff they contribute to fund stormwater improvement projects.

It almost sounds reasonable, doesn’t it?((One wonders if the owner of a large, mostly pervious property that absorbs more precipitation than falls on it would be paid for the property’s contribution to flood control.))

This is New Jersey and here is the problem that immediately comes to mind: home rule. We have 565 municipalities, none of which is willing to cede local control or have locally-generated revenues spent elsewhere (or at least by someone else). If there are to be stormwater utilities, each municipality will want its own, and most of which will use a significant portion of the revenue to pay professionals (lawyers and engineers) and a hire a few friends for high paying positions.

The Star-Ledger article itself refers to a related problem. The downstream town can do everything right, but if the upstream communities do nothing, well, water flows down hill as they say. Any effective solution cannot be hostage to municipal parochialism. Even though there may be some understanding that upstream improvements benefit everyone downstream, there are likely multiple upstream sources so downstream’s problems will not all be solved by any one project. It’s going to be hard to send locally generated fees far away when flooding will still occur.

Jay Bohn
September 16, 2021

“Stormwater” is precipitation (rain or snow melt) that is not absorbed into the ground where it falls but runs off, usually ultimately to rivers and streams. A significant factor in preventing the local infiltration of stormwater is whether the ground is “pervious” (e.g., grass) or “impervious” (roofs and pavement). [↩]

Rethinking Flood Prevention I: Getting Started

On the front page of yesterday’s Star-Ledger there was a story entitled “Towns must rethink flood prevention, experts say.” There’s a lot to write about this piece, and this opening salvo will be brief.

When I see reference to an “expert,” or multiple “experts,” I usually suspect that it’s going to be a disguised opinion piece. That’s certainly what this one seems to be. After the obligatory reference to climate change, a large portion of the story is devoted to (and supportive of) stormwater “utilities,” a relatively new option for local governments to impose taxes (only they don’t call them that) so that some portion of the money raised can be used to address stormwater runoff.

I plan to talk about stormwater utilities in more detail in an upcoming post.

Jay Bohn
September 13, 2021

Ruminations on Voting

The lifeblood of democracy is voting. Many politicians would not act the way they do if the faced an interested and informed electorate. That does not mean, however, that we should not expect voters to make an effort and put up with a degree of inconvenience in order to cast their ballots.

One of my gripes with many COVID emergency measures related to voting is that the pandemic was used as an excuse to put in place voting changes that had not been, and under normal circumstances would not have been, approved in the legislative process. Once in place, and justified by a once-in-a-lifetime emergency (which is now looking like it’s going to last significantly longer than any public official was willing to admit a year and a half ago), these measures become the new normal. Anyone who opposes making these temporary, emergency measures permanent is subject to the harshest criticism and accused of voter suppression.((There are any number of policy proposals that are like ratchets: once in place, by however narrow a majority or whatever other means, they can never be repealed, like the Affordable Care Act a/k/a Obamacare.))

An involved electorate must be an informed electorate. Despite the rise of the internet and social media (and largely (or entirely) unread blogs, like this one), the traditional media sources, like newspapers and television, still have the lion’s share of opportunity (and responsibility) to educate the people about the issues. This is serious stuff and they are failing. Part of the failure is the result of underestimating the capacity of the audience to understand the issues. Instead of providing details,((See my post from almost five months ago, The News Media Should Give Us More Details — Not Just Conclusions.)) we get sound bites. Judicial decisions are reported through the lens of partisan politics with little to no mention of the actual bases of the decisions. Many opinion pieces are labelled as “analysis.”

As to the mechanics of voting, I believe that the method for voting most likely to impress the voter with the significance of the act is the traditional one, showing up at a polling station on one specified day. I would prefer that to be the common means of voting (and it is the duty of election officials to make certain that polling places are reasonably convenient in location and sufficiently staffed and equipped to handle a turnout of 100%). That is not to say that there should never be provision for what used to be called “absentee voting” and is now (to make it sound better) called “voting by mail,” but that should not be the default method.

Jay Bohn
September 9, 2021

COVID-19 and Emergency Powers II – Not Much Has Changed

About four months ago I wrote a post entitled COVID-19 and Emergency Powers in which I commented on the tendency of the nation’s governors to seize upon the COVID-19 pandemic to exercise emergency powers. I said

attempts to rein in the use of emergency powers have been viewed through the prism of politics or the perceived merits of the action taken rather than process considerations or the constitutional separation of powers.

Nothing has changed.

In a recent article, Kentucky gov suffers legal defeat in combating COVID surge, ABCNews.com reported on a ruling of the Kentucky Supreme Court ordering the dissolution of an injunction against legislation which limited the governor’s emergency powers. The ABC News article seems to imply that only governors can aggressively and correctly decide what’s best for the rest of us to combat COVID.((Unless of course the governor wants to prohibit mask and vaccine mandates, in which case local control becomes more important.))

Governors, like the President, exercise executive authority.¹ State legislatures may have delegated to their respective governors some portion of their legislative power to exercise when necessitated by an emergency. In the absence of a specific state constitutional provision, why shouldn’t the same legislature be able to exercise its law-making power to act as a check on this delegation?

COVID has been with us for a year and a half. True, there always seem to be developments, but it is no longer something new that justifies allowing one person to be the sole decider of each state’s response. Every exercise of emergency power to avoid the inefficiencies of the legislative process makes it that much easier to see the next event as an emergency .

Jay Bohn
September 6, 2021

The extent to which they share this authority with other officials not subordinate to them is a matter of the constitutional law of the specific state. [↩]

Too Much Hyperbole in Public Discourse

On Monday LehighValleyLive.com (the on-line version of the Express-Times) reported (based upon a video on the candidate’s Facebook page) that Steve Lynch, the Republican candidate for Northampton County executive, told a rally

“I’m going in with 20 strong men. I’m going to speak in front of the school board and I’m going to give them an option: They can leave or they can be removed. And then after that, we’re going to replace them with nine parents and we’re going to vote down the mask mandates that evening. … This is how you get stuff done.”((A more detailed account of the comments in context and responses is carried in the Pennsylvania Capital-Star.))

While it is undoubtedly worse if he meant this threat (the only word that fits) literally, even if it was just “talk” it is irresponsible. Words matter.

The same article quotes Lynch’s opponent, Democratic incumbent Lamont McClure, in a less-shocking but still hyperbolic response, calling Lynch a “domestic terrorist” because he was present in Washington, D.C., on January 6, 2021, attending President Trump’s rally, but with no indication that he was at all involved in the storming of the Capitol.((While merely attending the rally does not make one a terrorist, I believe that all those who entered the Capitol building itself should be prosecuted even to the point of felony murder because a police officer was killed during the riot.))

Everybody, stop shouting and talk like grown-ups.

Jay Bohn
September 2, 2021