Month: July 2022

Are We Done with Democracy?

In West Virginia v. EPA, one of the last opinions issued during its current Term, the United States Supreme Court ruled that Congress did not grant EPA the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan.

Predictably, the mainstream media was appalled and condemned the opinion, not because of any in-depth analysis of the statutory language, but because the overturned regulation was perceived as the better public policy choice. The hypothetical reader of this blog would recognize this logic– it is what supported many of the executive orders during the rule-by-decree phase of the COVID-19 pandemic: “the governor should have the power because the governor makes better choices than the legislature” (or something like that).((See, for example, my earlier post: COVID-19 and Emergency Powers.))

In an opinion piece published on NJ.com on July 24, 2022 (2 former EPA officials: The Supreme Court has dealt a blow to our planet), the authors attack the decision from the perspective that (at least as it relates to complex matters) democracy, the Major Questions Doctrine articulated in West Virginia v. EPA should serve as a limit on administrative power, is bad.

Under the Major Questions Doctrine, never before cited by a majority opinion of the Supreme Court, there must be a clear statement from Congress from which an agency can draw the conclusion that it has been given the authority to regulate a fundamental sector of the economy. Since there was no such clear congressional authorization, the Court held that the EPA did not have the authority to implement a generation-shifting program.

Instead, citing a “consensus” developed in the 1930s, the authors assert that because the two houses of Congress “possess [neither] the expertise nor the available time,” regulatory authority should properly be vested in administrative agencies “staffed by experts.” Congressional oversight would prevent abuse of power, even though “[i]n the absence of specific statutory language to the contrary, deference would be given to each agency in defining the scope and limitation of its power, its range of activity, and the interpretation of the statutes it administers.” Wow.

This proposition is no less than the wholesale transfer of legislative power to so-called “experts.” Who decides who are the experts who get all this power? The executive of course.((One can also question whether these “experts” take their marching orders from the political folks above them.))

If Congress has neither the expertise nor he time to decide the regulatory framework in the first place, how can it effectively oversee agency actions?((The answer, I suspect, is that it cannot and isn’t really supposed to. The “oversight” exercise just camouflages the effective transfer of power.))

Jay Bohn

July 28, 2022

Another insidious political reason for opposition to charter schools

For two weeks in a row, I am surprised to find myself in large part in agreement with the editorial position of NJ.com (the on-line version of the Star-Ledger newspaper). Last week it was Tom Moran’s editorial pointing out that the biggest reason that the market is not providing enough housing is the existence of municipal zoning restrictions. This week it’s the Star-Ledger Editorial Board’s opinion regarding the Murphy administration’s “sabotage” [their word] of top performing charter schools. (Murphy’s sabotage of top Newark charters reeks of politics, unfortunately, behind the paywall.)

This editorial’s explanation for the Murphy administration rejection of the expansion of a high performing Newark charter school is no doubt correct, as far as it goes:

But the truth is, beyond this rhetoric, the governor is actively sabotaging the best charter schools in New Jersey. He is influenced by the state’s powerful teachers’ union, the biggest spender on his campaigns, which seeks to block charters because the teachers at most of them are non-union.

I suggest, however, that there is at least one other insidious political reason: charter schools deprive local politicos of spoils, in the form of lucrative jobs and contracts, to lavish upon their friends and supporters.

Jay Bohn

July 25, 2022

Post script

Recently the Star-Ledger Editorial Board published another editorial along the same lines, saying of Governor Phil Murphy: “He’s dancing for the teacher’s union, which opposes charters because they are not unionized, and is finally getting its way.” The story concludes:

The facts speak for themselves: By strangling the growth of top-performing charters, Murphy is allowing an ideological position to overrule the will of parents, paying no mind to the human toll of these decisions on kids.

J.B.B.

September 11, 2022

Lack of Supply Key to Unaffordable Housing

I don’t usually agree with Tom Moran, but he’s right about this: the extraordinary cost of housing is a question of supply and demand1 and the biggest bottleneck to supply is municipal zoning.2 Indeed, I said much the same thing almost a year ago.

The problem is home rule. Municipalities use their power to adopt land use regulations to implement standards that unduly restrict the ability of the market to provide housing. Often these regulations are justified by appeals to environmental concerns or “good planning,” but the biggest incentive is economic: housing equals schoolchildren equals higher property taxes.3 Therefore, the theory goes, if residential development there must be, the best kind is expensive housing that will at least pay for the increased cost of local services by its taxes.

Jay Bohn

July 21, 2022

  1. Moran also says “the crisis brought on by the shortage of housing is a blessing [for those who already own a home.] Aside from my belief that people should buy a house to live in it, not to make a profit, the inflated cost of housing blesses only those sellers who do not need a replacement purchase and perhaps downsizers, not growing families. ↩︎
  2. Moran, however, undercuts the seriousness of his argument by hurling insults; if editorialists believe that increasing polarization is bad for the country, they shouldn’t contribute to it by use of invective. ↩︎
  3. I am not so naive to think that social, racial or “prestige” concerns have or had absolutely no role in the development and continuance of exclusionary zoning, but I do think we’d have the problem without them. ↩︎

Comments on the Parade of Horribles Said to Arise from “Independent” State Legislatures

In my last post I noted that many in the mainstream media are panicking over the prospect that the Supreme Court could decide that the Constitution means what it says when it delegates certain authority over federal elections not to the States in general but to their Legislatures. The post dealt briefly with the relevant text of the Elections and Electors clauses. and I stated an intent to address concerns about the evils the commentators believe State legislators (at least the Republican ones) will be able to accomplish in a later post. This is that post. 

Remember that the Constitution gives State Legislatures the power to regulate the “Times, Places and Manner” of Congressional elections, subject to Congressional supremacy. A state legislature may be “independent” of the State constitution, but not of federal law.

NJ.com posits: “Politicians could pass laws to purposely make it harder for people to cast ballots, unchecked by state constitutions – which are more robust than the US Constitution when it comes to protecting the fundamental right to vote.” And then, mixing two horribles together: “And this would liberate the worst gerrymanders, a practice in which state legislators redraw the boundaries of electoral districts to give their own party an unfair advantage. The popular will would be irrelevant; state Legislatures would be picking our presidents.”

CNN seems mostly concerned about gerrymandering. FiveThirtyEight, while strongly concerned about gerrymandering as well, quotes an official of the Brennan Center that acceptance of the independent state legislature doctrine “would be a voter suppressor’s fever dream.”

First, it occurs to me that the language in these comments tends toward hyperbole. Indeed, in general it is all about the evils of Republicans. I doubt there would be the same fever pitch of concern if a majority of state legislatures were in control of the Democrats.

Second, the articulated concerns about gerrymandering do no more than identify the natural desire to advantage one’s group as evil without suggesting what should replace it. As I said more than a year ago:

[T]he remedy for political gerrymandering is not simply to ban or limit the practice, but to articulate and adopt a comprehensive and coherent set of principles for how districts (if there are to be districts) should be drawn. Only then can there be manageable objective standards by which to evaluate any particular redistricting scheme.

Some Weaknesses in Current Arguments Against Gerrymandering

Third, I guess I’m getting tired of election regulations and deadlines being treated as mere suggestions by the executive and judicial branches. Certainly, the idea behind democracy is for those eligible to do so to be able to vote, but that doesn’t mean that all inconveniences must be removed. As I’ve said before, “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 also allow for absentee voting, but I would prefer that there be a good reason. In-person voting allows for vigilance against fraud; removing an election official from the process eliminates this safeguard.((I know that there are those who will say that there is little to no vote fraud, so raising its prevention is merely an excuse for vote suppression. But then again, do you remember that in 2020 a Mercer County freeholder (title since changed to commissioner) delivered an absentee ballot for a friend who died before the ballot was delivered? I never did hear how the “investigation” turned out.)) But when “voting by mail” becomes the norm, concerns arise about the timely receipt of the ballot. Election law may require the ballot actually be received by the time the polls close, but judges find excuses to extend that deadline in a purely arbitrary fashion. (What is the legal basis for adding three as opposed to two or four days?((Indeed, it brings to mind the biblical story of Abraham’s bargaining with God to save Sodom and Gomorrah. Genesis 18:20-32.))) The postmark takes on a legal significance beyond its station.((Most alternative voting systems still require that the vote be cast no later than election day. If the postmark becomes the deciding factor in whether a vote is counted, the postal clerk gains the power to allow otherwise ineligible votes to be counted. As the postal service is a federal agency, I foresee difficulties in prosecuting the clerk who offers to “pre-date” the postmark for money for election fraud.))

If your state legislators are going to destroy democracy without the watchful eye of judges interpreting robust constitutional protections, maybe you’re electing the wrong legislators.

Jay Bohn

July 18, 2022

Furor Over “Independent State Legislature” Ignores Constitutional Text

Recently I’ve been seeing many news articles/editorials/analyses((For example: This Supreme Court case could be the ultimate coup for Republicans – and the death of our democracy (NJ.com-clearly marked as an editorial); Why Republicans want to redefine one word in the Constitution (CNN-an analysis); Supreme Court case could reshape redistricting. What it means for Pa. elections (Morning Call-“Pennsylvania news”), How The Supreme Court Could Turbocharge Gerrymandering — Just In Time for 2024 (FiveThirtyEight, but with none of the usual statistics), and How an upcoming Supreme Court case could upend 2024 election laws, lawsuits (behind USA Today’s paywall; also appears on MSN.com). The intellectual inspiration for many of these articles may be an “explainer” published by the Brennan Center for Justice: “The ‘Independent State Legislature Theory,’ Explained.” )) in which the authors wring their hands over the Supreme Court’s grant of certiorari in Moore v. Harper and what they call the “independent state legislature” doctrine or theory.((I’m not sure it’s first use of the term, but the name “independent state legislature doctrine” was used by Michael T. Morley in his article The Intratextual Independent “Legislature” and the Elections Clause, 109 NW. U.L. REV. ONLINE 131, 147 (2015).)) These articles take strong positions on the merits of the theory, which they warn that this case could lead to the destruction of our democracy, without (for the most part) any consideration of the constitutional text. I expect a good deal of the concern is that some of the arguments asserted to challenge the validity of President Biden’s election were based upon this theory and the usurpation of the Legislature’s authority by governors and courts premised upon states of emergency declared in response to the COVID-19 pandemic.((See 167 Cong. Rec. H77-H78 (daily ed. Jan. 6, 2021) (statement of Rep. Scalise); 167 Cong. Rec. H79 (daily ed. Jan. 6, 2021) (statement of Rep. Jordan).))

The basic premise of the independent state legislature doctrine is that the United States Constitution confers certain authority upon State “Legislatures” which thereby act as agents of the federal government. Pursuant to the Constitution’s Supremacy Clause (Article VI, clause 2), the States cannot reallocate or limit this authority granted to the Legislature. Therefore, the Legislature’s exercise of this authority is not subject to substantive provisions of the State Constitution. This theory was hinted at, but I doubt had its genesis, in Chief Justice Rehnquist’s concurrence in Bush v. Gore, 531 U.S. 98 (2000).

The present argument involves two provisions of the Constitution. The first, called the “Elections Clause,” is in Article I, section 4:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The second is in Article II, section 1:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

(The text source for these quotations, including spelling and capitalization, is the National Archives.)

Proponents of the independent state legislature doctrine argue that these two provisions mean what they say, the Constitution gives State Legislatures the power to establish rules (subject to Congressional supremacy) to govern Congressional elections in the State and the absolute power to determine how the State’s presidential electors will be chosen, all subject to the provisions of the United States Constitution.((As an example of such a provision, section 1 of the Twenty-Fourth Amendment states: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”))

Opponents who consider the text at all read “Legislature” to involve a State’s entire law-making function, including not just the potential of a veto by the governor, but also popular initiative and referendum, and perhaps much else.((Most of the articles I cited in note 1 do not bother with the constitutional text; all of them are more concerned about the evils they believe State legislators (at least the Republican ones) will be able to accomplish. I plan to address those concerns in a later post.)) They do have some support from relevant precedent. In Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015), a 5-4 majority of the U.S. Supreme Court construed the Election Clause to countenance a voter initiative that had amended the State constitution to transfer the Legislature’s power over congressional redistricting to an independent commission.((The law review article cited in note 2 was published while this case was pending and substantively argued against the result the Court ultimately reached.))

Jay Bohn
July 14, 2022