Month: October 2022

Whether a Hug or a Handshake, Christie’s Greeting of President Obama During Post-Sandy Visit Did Not “Change” American Politics

In a pretty good piece yesterday, NJ.com/the Star-Ledger((The Star-Ledger’s article was called “How ‘The Hug’ changed American politics.” NJ.com’s version was entitled “Unforgivable” and summarized by the following lines: “‘The Hug’ changed American politics. How a Chris Christie-Barack Obama greeting signaled the death of civility.”)) discussed that greeting between then President Obama and Governor Christie when the President arrived to view the damage caused by Superstorm Sandy ten years ago today.

According to the piece, “‘The Hug'((It uses this term despite very clearly stating that it was merely a handshake with some presidential shoulder pats, a characterization supported by video evidence.)) remains an inflection point that stained Christie’s political career, symbolized the death of bipartisan politics and foreshadowed the hyper-divisive Donald Trump((Donald Trump didn’t cause the polarization, but he has used it to his advantage.)) era of political incivility.”

I’m not so sure that this incident coincided with greater political polarization and it certainly did not cause it. Oh, I remember the complaints made by some when Governor Christie was courteous to the President, who was six days from his re-election. I thought the reaction overblown and the suggestion that Christie’s action affected the presidential election laughable. No way New Jersey was going to go for Romney and little chance that Christie’s influence would affect many voters elsewhere. Is the vitriol we see today markedly worse than the insults hurled at Ronald Reagan?

No, it probably didn’t help Christie politically, but if his there is one cause for the lack of success in running for President in 2016, it was Bridgegate.((Not that anyone ever presented any proof that he ordered the bridge lanes closed in an act of political spite, and I’m sure they looked, but because people who worked for him must have thought he would find that conduct acceptable; that they could have thought so means that he did not clearly communicate the proper ethical tone.))

Certainly, politics are now more polarized than before, and part of the blame belongs to the “mainstream” media. If a newspaper like the Star-Ledger wants to be widely read and respected, its articles must report news, not just thinly disguised opinion. It must be, and be seen to be, much more objective in its reporting.((The Star-Ledger, like this blog, is entitled to whatever viewpoint it wants to express in its labelled opinion pieces.)) Readers are forced to look elsewhere and truly objective reporting is pretty hard to find.

Jay Bohn

October 31, 2022.

Please pass the SALT

In his editorial last Sunday, What?? Did Republicans really say that?, Tom Moran expresses shock that Republican candidates for Congress are blaming Democrats for not eliminating the $10,0000 limitation on the deduction for State and local taxes (sometimes called “SALT”) contained in the Tax Cuts and Jobs Act of 2017, 115–97, 131 Stat. 2054.((This law did much more than limit the SALT deduction; it also increased the standard deduction and reduced the tax rate for many. I suspect that for many taxpayers those two items led to a reduction in tax owed even without the unlimited SALT deduction. You cannot just assume that the fact that a taxpayer’s SALT liability exceeds the $10,000 limit means that that taxpayer was detrimentally affected by the law.)) Moran presents opposition to the SALT limitation as protecting the middle class from New Jersey’s high (especially property) tax rates.

I think that argument is backwards. As I said before, “[the SALT deduction] is of course not a property tax break at all, but a federal income tax break.” The best way to protect the middle class against high property taxes is to reduce them (which won’t last long without controls on spending).

Over the years NJ.com has published numerous opinion pieces opposing the SALT limitation, very often in the guise of news articles. Moran’s piece is actually labelled as an opinion, and the basic opinion he is expressing is that voters should vote for Tom Malinowski rather than Tom Kean (which of course is a position he has every right to say).

Gun Laws Not Something for Excessive Police Discretion

In yesterday’s NJ.com/Star-Ledger column, Jersey Democrats’ gun-control bill is shot full of holes, Paul Mulshine reports on his conversation he had with Assemblyman Joe Danielsen regarding his bill restricting the locations where a handgun be carried. The conversation followed a debate on the bill in the Assembly Appropriations Committee in which Assemblyman Brian Bergen expressed concern about the extensive list of locations where the carrying of a handgun would be a crime and repeatedly asked Danielsen just where a handgun could be carried, with Bergen asking if an entry into private property to pick up dog poop while carrying a handgun could lead to a conviction and extensive jail term. In the conversation with Mulshine that followed, Danielsen said that he said he would expect police to use their discretion before arresting someone for technical violations of the law.

A vague law is not made less vague just because a police officer may choose to overlook some of its more unreasonable potential applications. The law should be clear, and a person is entitled to be able to know what is, and what is not, lawful. A person should not have to depend upon a police officer’s “discretion” to avoid prosecution for what should never have been illegal in the first place, and a police officer should not have discretion to ignore criminal actions because the officer deems the law unreasonable in its application.

The 1780 Constitution of the Commonwealth of Massachusetts provided for separation of the legislative, executive, and judicial powers of the Commonwealth “to the end it may be a government of laws, and not of men.”

Jay Bohn

October 24, 2022

To Avoid Statutory Interpretation Issues, Legislature Should Write Clearer Statutes

I’ve been seeing a lot of article-editorials recently attacking originalism as an approach to interpreting the Constitution. I plan to address constitutional interpretation at length someday, but not today. What I want to address in this post are interpretive questions (primarily of statutes) that could be avoided if the legislature were only clearer.

Early on in this blog I wrote about a Supreme Court case Yellen v. Confederated Tribes of Chehalis Reservation where the Supreme Court had to decide “[w]hether Alaska Native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act are ‘Indian Tribe[s]’ for purposes of the CARES Act.” I took no position on the outcome, but I was critical on Congress’s sloppy drafting that led to the question’s being unclear and its failure to settle the question by a clarifying amendment before the case got to the Court.

Recently a New Jersey statute was brought to my attention. It prescribes a certain rule unless a and b or c. Generally, the word and is conjunctive. If the statutory framework were a and b and c, then all three conditions would have to be true to invoke the “unless.” Conversely, or is disjunctive, so if the statutory framework were a or b or c, then the “unless” would apply if any one (or more) of the three conditions were true.

Use of parentheses helps show the two different interpretations:

  • (a and b) or c
  • a and (b or c)

Apparently, there is a sort of order of operations for logical expressions (and I read “logical” to refer to computer logic) whereby and is applied before or such that “(a and b) or c” would be the way to read this statute, but I am aware of no authority to apply (computer) logical rules to reading statutes.

But by mixing the conjunctions, the Legislature created confusion. Laws do not use parentheses to show the order of operations, but the statute would be clearer if the alternatives were more clearly outlined:

Provision applies, unless

1. a. a, and

b. b; or

2. c.

OR

Provision applies, unless

1. a, and

2. a. b or

b. c.

Jay Bohn

October 20, 2022

Administrative Agency Should Not Be Lawgiver, Prosecutor, Judge, Jury, and Executioner

A few months ago, I wrote about a Star-Ledger guest column in which two former EPA officials asserted that, because they are staffed by experts, administrative agencies should be given deference in defining the scope and limitation of their power, their range of activity, and the interpretation of the statutes they administer. In my view this argument results in the wholesale transfer of legislative power to the executive, likely to be supported by those who believe that the executive is more apt to enact their policy preferences.

But this isn’t all. Not only has the bureaucracy, through the power to make regulations, essentially assumed the legislative power, it also often enforces those regulations by bringing charges against those accused of violating them and then adjudicating those very charges, potentially imposing fines or other penalties. Instead of separation of powers, we have consolidation. While judicial review is theoretically available, it is a highly deferential standard, and the agency is rarely reversed.

Jay Bohn

October 17, 2022

“In the Dark” Power Customers Need Accurate Information, not PR-speak

Last week we lost power. The outage lasted just over four hours and was inconvenient rather than catastrophic, but it reminded me of the multi-day outages resulting from the October snowfall in 2011 and Superstorm Sandy in 2012. While customers must show patience, the frustration might be less if the power companies provided timely, accurate information about the cause of the outage, and, more importantly, the projected repair time.

Once the outage was reported to the power company, I received an e-mail (at 4:46 p.m.) advising that the estimated restoration time for the outage had been updated to 7:30 p.m. The three-hour estimate of time to repair seemed to me a bit arbitrary as the outage had only recently been reported to the company and, according to the e-mail the cause was “pending investigation,” and the crew status was “awaiting dispatch.” Two and one-half hours later, at 7:17 p.m., the estimated repair time was updated to 9:30 p.m. The cause remained “pending investigation,” and the crew was still “awaiting dispatch.” Power was actually restored at 8:00 p.m., and I was notified of that restoration by a final e-mail at 8:26 p.m.

If you’re trying to make a rational decision about what to do in the event of a power outage, you really need to have an idea but how long the outage will last. An hour or so you can ride out; days and days may require giving thought to temporary alternative living arrangements. In my case the question was whether to drag out the generator so the well pump would work and string extension cords to power a refrigerator or two. (I decided to let it go overnight but set an early alarm in case the power was still out in the morning.)

The power company may not have a to-the-minute answer to the question of when the lights will come back on, but I have to believe that it has better information than it was providing. If you call customer service, you are likely to get a person whose answer is scripted to sound sincere but is no more informative. Being told that they are working as fast as they can and that power will be restored “soon” is not helpful in making decisions.

I get that the customer service representatives probably don’t want to have to deal with angry customers who are told that no one will get to their neighborhood for days, but customers need this information.

Jay Bohn

October 13, 2022

Post script

Last night, the same day this post went live, we had another power outage which lasted from (approximately) 7:00 pm to 5:30 am today. Here are the estimated repair times.

e-mail timeestimated repair timecausecrew status
7:32 p.m.10:00 p.m.pending investigationawaiting dispatch
11:57 p.m.2: a.m.equipment damageadditional crews requested
2:06 a.m.4:00 a.m.equipment damageadditional crews requested

Again, my issue is not how long it actually took, but the lack of accurate information.

J.B.B.
October 14, 2022

The Supreme Court’s Decision in Pig Welfare Case Should Not be About Pigs

In yesterday’s paper (but not online) the Star-Ledger published an editorial “How much cruelty is a pork chop worth?” by Kathleen Parker of the Washington Post regarding National Pork Producers Council v. Ross, a case to be argued in the United States Supreme Court on Tuesday.

The case involves a challenge to a California law adopted by initiative to prohibit the in-state sale of pork products produced by livestock practices that the proponents of the initiative petition deemed to be inhumane. The challengers basically assert that the law seeks to regulate out-of-state conduct((Almost all pork consumed in California is produced elsewhere.)) and this violates a doctrine known as the “dormant” or “negative” commerce clause.((The “commerce clause” of the United States Constitution authorizes Congress to regulate commerce between the States (“interstate commerce”). The dormant commerce clause is an interpretation of the Constitution that equates lack of Congressional regulation with an affirmative choice by Congress that the area be unregulated. It essentially denied States the power to regulate conduct affecting interstate commerce. It is really more complicated than that, but this explanation provides the essential point.))

The Parker editorial does a good job of engendering ethical sympathy for the pigs, but that should not be the basis of the Court’s ultimate decision in the case. The Court must decide whether, under our Constitution, California and its voters have the power to pass the law, not whether the farm practices mandated by that law should be imposed as an ethical matter. Parker’s result-oriented argument is essentially the same as made by those senators who have urged President Biden to declare an emergency in order to take action on climate change that Congress will not. As I noted last month, “it is increasingly uncommon for those who feel strongly about an issue to separate the merits of a particular policy from the power of a supportive official to implement that policy.”

In closing, I want to note that Parker seems to assume that the liberal justices on the Court will vote the way she advocates when she writes that “the justices who make up the high court’s conservative majority have a rare opportunity to align themselves . . . with their liberal counterparts . . . .” While I am not going to predict how any justice will vote, I do point out that Justice Thomas is no friend of the dormant commerce clause. “The negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application.” Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564, 610 (1997) (Thomas, J., dissenting).

Jay Bohn

October 10, 2022

Special Treatment for Newspapers Would Impair Their ‘Watchdog’ Role

The Star-Ledger‘s efforts to exempt the newspaper industry from labor laws that apply to everyone else is the gift that just keeps on giving, at least in terms of materials about which to blog. First, I responded to an  opinion piece by Richard Vezza (the Star-Ledger‘s retired editor/publisher and current government affairs chairman for the New Jersey Press Association), entitled “Our state newspapers are on the brink,” which was published on September 22, 2022. Then just a few days ago I had this to say about the Star-Ledger Editorial Board’s editorial on NJ.com “This fresh blow to newspapers — and our democracy — must be stopped,” (subscriber exclusive).

For those who need a bit of catch-up, physical newspapers are delivered for the Star-Ledger (and apparently just about every other newspaper in New Jersey) by one company for home delivery and one other for retail. These companies classify the people who do the actual delivery as independent contractors, not as employees, which means that the workers get fewer benefits and they cost the delivery companies less money. Under New Jersey’s version of the ABC test, this classification is incorrect and the employers face the prospect of being forced to reclassify the workers as employees (and presumably pay fines or other penalties). The additional cost, it is said, will lead to the layoff of the few reporters remaining or even the closure of some newspapers.

This is the same issue faced by every other industry, but the Star-Ledger argues that newspapers are special: they are watchdogs, and the strict enforcement of the regulation will damage our democracy. I do in fact agree on the importance of a free press (even one I often criticize) for democracy. And it is precisely for that reason that I oppose special treatment for newspapers. If politicians do this favor for newspapers, they (the politicians) will undoubtedly expect something in return, or perhaps threaten to undo it. Last summer NJ.com called a bill that would have permitted the substitution of the sheriff’s website for a newspaper advertisement as notice for a foreclosure sale a ‘vendetta against newspapers.’ I replied that the proposal to provide notice by means other than newspaper advertising should be evaluated on its effectiveness as a tool for notice, not its economic impact on newspapers.

Assume that NJ.com was right that the purpose of that bill was to punish newspapers. I think that’s all the more reason why newspapers should not seek, or be given, special favors. They must be treated like every other business, so their coverage is not affected (or even seen to be effected) by fear or favor.

Jay Bohn

October 6, 2022

Newspaper Industry Must Find Way to Improve ABC Test For all Industries, Not Just Seek Exemption for Itself

Yesterday the Star-Ledger Editorial Board published an editorial on NJ.com “This fresh blow to newspapers — and our democracy — must be stopped,” (subscriber exclusive) which doubles down on the  opinion piece by Richard Vezza (the Star-Ledger‘s retired editor/publisher and current government affairs chairman for the New Jersey Press Association), entitled “Our state newspapers are on the brink,” which was published on September 22, 2022, and was the subject of last Monday’s post “Importance of Newspapers Does Not Justify Special Exemption From Labor Laws.” The recent editorial displays just a bit of discomfort at being a player rather than just an observer, but nonetheless seeks special accommodation to allow the newspaper industry (or the companies it hires to undertake the delivery of newspapers) to classify the delivery persons as “independent contractors” rather than “employees” and thus not have to pay unemployment and disability taxes. At least, as the editorial says, “The solution wouldn’t cost taxpayers a dime.” (Although its impact on the workers, for whom the the Star-Ledger is usually solicitous, would be something else.)

The editorial is on firmer footing in its criticism of some elements of the ABC test used to determine if workers are contractors or employees. The Star-Ledger should editorialize on changes to, or the replacement of, that test, which would apply to all industries and could be judged on their merits, rather than seeking special treatment only for theirs.

Jay Bohn

October 3, 2022