Month: November 2022

Christie’s Criticism of Trump Not New; Don’t Assume It’s in Preparation for 2024

Last Friday NJ.com published another unlabeled1 editorial displaying once again the Star-Ledger‘s disdain for former New Jersey governor Chris Christie. While critical of any Republican who expresses any support for former President Donald Trump, they now attribute Christie’s recent less than kind comments to preparation for another presidential run himself.

I have no idea if Christie is going to run again and nothing in the editorial (I’m sorry, article) suggests that the Star-Ledger has inside information to confirm that he will. While the Star-Ledger is quick to remind its readers that Christe was an early Trump supporter when he dropped out of the 2016 race, it is less quick to remind them (or perhaps tell them for the first time) that Christie was never an election denier in 2020 as he made very clear in his book Republican Rescue: Saving the Party From Truth Deniers, Conspiracy Theorists, and the Dangerous Policies of Joe Biden.

Jay Bohn

November 28, 2022

  1. In response to feedback on its decision to erect a paywall around certain content, NJ.com previously promised that it would “better label opinion pieces.” ↩︎

Will the Media Make 2024 Just Like 2016?

In 2016 there were seventeen major candidates seeking the Republican nomination, including eventual winner Donald Trump. We don’t get very good coverage of issues by the professional media most of the time, so it would have been fantasy to believe that there could have been extensive coverage of the positions of all of these candidates. In the end Trump got much more than his proportionate share of media attention, I believe, although based entirely on my own speculation, for two reasons: (1) his candidacy created the most “buzz” and therefore coverage of him would attract more “eyeballs” and thus benefit the media companies’ bottom lines and (2) as the mainstream media tend to be left of center, they wanted our first Black president to be succeeded by Hillary Clinton as the first woman President and they thought Donald Trump would not be a strong opponent.

Now that Trump has announced his candidacy for 2024, I fear history will repeat itself. Just as a fire can consume all the oxygen in a room, Trump will become the focus of press attention for the same reasons, preventing any other Republican candidate from gaining traction.

Jay Bohn

November 24, 2022

Biden Administration Trying to Run Out the Clock on Challenges to Student Loan Forgiveness

My prior posts on President Biden’s((Technically, the statute cited as authority for student loan forgiveness delegates authority to the secretary of education, but there is no doubt that the President is calling the shots here.)) student loan forgiveness plan discussed some concerns about the program and the arguments made for and against loan forgiveness and the standing ruling in a Texas federal judge’s decision invalidating it.

I don’t believe that I previously commented on the timing of the program’s announcement. While running for office President Biden campaigned for $10,000 in debt relief (the base amount included in the program). He took office on January 20, 2021, and it took his administration just over nineteen months to consider whether to implement that program. I do not believe that there was any “consideration” except exactly how to do it, that there would be some measure of executive-authorized loan forgiveness (unless congressional action made it unnecessary) was a given. For the answer to why it took so long one need only look at a calendar: the program was announced some two and one-half months before the mid-term elections,((Absent the challenges, actual loan forgiveness may well have started just before the election.)) timing no doubt intended to help Democratic candidates.

As I write this post the judicial challengers have two significant victories. The first is the Texas case, which I expect to be reversed for the reasons expressed in my earlier post, and the second is the Eighth Circuit’s grant of a temporary injunction pending appeal in Nebraska v. Biden, which I will discuss here.

In late September six states – Nebraska, Missouri, Arkansas, Iowa, Kansas and South Carolina – commenced an action in the United States District Court for the Eastern District of Missouri for declaratory and injunctive relief asserting the student debt relief plan violated the separation of powers and the Administrative Procedure Act because it exceeds the authority delegated by Congress. About three weeks later Judge Henry Edward Autrey denied an application for a preliminary injunction against the plan and dismissed the case because he concluded that none of the plaintiffs had standing((As I explained in my last post, “Under the U.S. constitution, federal judicial power is limited to ‘Cases’ and ‘Controversies.’ Federal courts will not give advisory opinions. They have, therefore, developed the requirement that the plaintiff have ‘standing’ in order to bring a case.”)) to bring it.

The plaintiffs have appealed Judge Autrey’s decision to the U.S. Court of Appeals for the Eighth Circuit, which gave them a victory (which may just be temporary) by granting the requested temporary injunction while it considers the appeal.

As widely reported, the Biden Administration has applied to the Supreme Court to vacate the injunction. In accordance with the generally accepted standard for injunctive relief, the brief in support of that application argues both that the Administration is likely to succeed on the merits and that the equities((The argument is not that forgiveness of student loans is the more equitable result, but to weigh the relative harms that the parties will suffer as a result of the temporary injunction; it is often said that a temporary injunction will not issue without “irreparable harm.”)) favor vacating the injunction. The ‘success on the merits’ argument is a detailed defense of the legality of the loan forgiveness programs, but I want to comment on the argument respecting the equities.

In line with its standing argument, the government’s brief asserts that plaintiffs have not suffered any injury, let alone an “irreparable” injury. The Eighth Circuit’s analysis of this issue was also brief; it found that “the equities strongly favor an injunction considering the irreversible impact the Secretary’s debt forgiveness action would have as compared to the lack of harm an injunction would presently impose.”

This is a key observation. Once the Administration actually starts to forgive the debt, it is becomes extremely unlikely, even if there is a ruling that the forgiveness program was unauthorized (a ruling we’re not likely to see because it will be a moot question), that the forgiveness can or will be reversed. No doubt this is a result that the proponents of student loan forgiveness would welcome.

Jay Bohn

November 21, 2022

Texas Federal Court’s Dash to Invalidation of Biden’s Student Loan Forgiveness Program Likely to be Called Back for False Start

Until recently the story of judicial attacks upon President Biden’s student loan forgiveness plan (which I previously discussed here) has been a tale of frustration for the plaintiffs as no one has been able to demonstrate the “standing” necessary to give federal courts jurisdiction to decide the challenge on the merits. Last week, however, Judge Mark T. Pittman of the United States District Court for the Northern District of Texas issued a ruling in Brown v. U.S. Department of Education in which he found not only that the plaintiffs in that case had standing, but that the loan forgiveness program was unlawful. While there is much merit in the opinion’s discussion of the second point, I am not convinced that Judge Pittman is correct about the first.

Let’s start with some basics. Under the U.S. constitution, federal judicial power is limited to “Cases” and “Controversies.” Federal courts will not give advisory opinions. They have, therefore, developed the requirement that the plaintiff have “standing” in order to bring a case. As the ruling recognizes, the requirement of standing imposes three requirements: “First, there must be a concrete injury in fact that is not conjectural or hypothetical. Second, there must be causation—a fairly traceable connection between a plaintiff’s injury and the complained-of conduct of the defendant. Third, there must be redressability—a likelihood that the requested relief will redress the alleged injury.” [citations omitted]

Until Brown, plaintiffs have foundered on the rock of standing. You see, no one has apparently suffered a concrete injury from the forgiveness of the debt of others and their arguments to establish standing generally appear contrived and, frankly, not a little ludicrous. (One would think that legislators, whose power is, at least arguably, being usurped, or taxpayers, who will certainly be required to cough up more when $400 billion in federal assets are given away, have such an injury, but apparently not.)

The Brown plaintiffs approached it a little differently. Both of them have outstanding student loans and their standing argument is that the program does not provide enough forgiveness. One plaintiff’s loans are owed to a private entity and so not covered by the program while the other did not receive a Pell grant and so is entitled to only $10,000 rather than $20,000 in forgiveness. The standing argument is that they had a procedural right to notice of the program and to comment upon it before it was formally promulgated. Because there was no opportunity for notice and comment, they argue that they have standing to assert their procedural rights so long as they have a concrete interest, here asserted to be a greater forgiveness of their debts.

The problem is that the HEROES Act, which is cited as the source of the executive’s authority to forgive the loans, does not require notice and comment. Therefore, the Brown plaintiffs have not in fact suffered a procedural violation, but the court asserts that it must assume this argument true as part of the standing inquiry.

Much as the issue of whether the President (okay, the secretary of education) has the authority to create the broad-based student loan forgiveness program under the Heroes Act should be amenable to a judicial resolution, I just don’t see how violation of a non-existent procedural right can confer standing. We’ll probably learn what the Court of Appeals thinks in relatively short order.

Jay Bohn

November 17, 2022

Gorsuch’s Buffington Dissent a Well-Written Critique of Chevron Deference

I believe that the separation of powers is essential to our liberty. This is why I have often criticized the routine declaration of states of emergency1 and a result-oriented analysis of whether this or that official has the power to take a certain action.((See The Misuse of Emergency Powers (“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.”)) I have, on occasion,((See Are We Done with Democracy? and Administrative Agency Should Not Be Lawgiver, Prosecutor, Judge, Jury, and Executioner.)) warned about giving too much power to administrative agencies. Usually, the grant of power is in the form of a delegation of legislative power to the executive, but the courts are also partially responsible as they will “defer” to administrative action, including the agency’s interpretation of the statute(s) it administers. On the national level this deference is based upon Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984).

While I do not assert that the interpretation of a statute is solely a judicial function (the agency administering a statute must certainly interpret it in order to function), I do not believe that an agency’s interpretation is entitled to significant, indeed possibly any, deference by the courts, if for no other reason than because a new administration may change the agency’s interpretation significantly. If courts defer to the interpretation de jour, then they have effectively allowed the executive to change the meaning of a statute.

Last week Justice Gorsuch issued an opinion dissenting for the denial of a petition for certiorari((The Supreme Court is not required to hear every case in which the losing party in the court of appeals seeks review. Most cases the Supreme Court hears are by way of a writ of certiorari, the grant of which requires the affirmative vote of four justices.)) in Buffington v. McDonough. The dissent makes a compelling case for the reconsideration of Chevron deference; it is well worth reading.

Jay Bohn

November 14, 2022

  1. COVID-19 and Emergency Powers, COVID-19 and Emergency Powers II – Not Much Has Changed, COVID-19 and Emergency Powers III – Still Not Much Has Changed, The Misuse of Emergency Powers, and Superstorm Sandy, Ten Years Later: The State of Emergency Continues [↩]

Lame Duck Hunting Season

Tuesday was election day, and as I compose this post we still don’t know which party is going to control each house of Congress. The winners will not take office for a couple of months. The present office holders, some of whom did not run for, and others who failed, re-reelection will remain in office until then, with no limitation on their power and without even the potential of having to face the voters to rein them in. This is called the “lame duck” period, which I believe should be shortened if not eliminated.

When the Constitution was adopted, it was even worse. The election was still held in November, but the winners (President and Congress) did not take office until the following March 4, a period of four months. Worse, the required annual session of Congress (imagine, Congress was not a full-time occupation) started in December (shortly after the election), meaning that a one-term representative could spend half his actual legislative time after he had already been defeated for re-election. The situation was somewhat improved by the adoption of the Twentieth Amendment to the United States Constitution in 1933 which directed that congressional terms would end on January 3rd and Presidential terms on January 20th, reducing the lame duck period to some two to two and one-half months.

I believe that is still too long. New Jersey has about the same lame duck period but look at how many laws are sped through in the last days of each legislative term. In the United Kingdom, except for the potential of an emergent situation, once the Parliament is dissolved in preparation for an election, that Parliament never meets again. In the last general election, in 2019, the election took place on December 12, results were announced on December 13 and the new Parliament met on December 17.

Of course, the U.S. would have to run its elections a lot more efficiently to get results so quickly. We should figure out how to do that.

Jay Bohn

November 10, 2022

Time to End Pretend Time

Daylight saving time (DST), which I call “pretend time,” ended early yesterday morning when clocks were turned back to return us to standard time. Maybe I just wasn’t paying attention, but I didn’t notice the usual number of articles about efforts to make DST permanent. Oh, there was mention of the Sunshine Protection Act of 2021, a bill that passed the U.S. Senate unanimously but has not progressed in the House of Representatives, Paul Mulshine’s column calls standard time “Daylight Wasting Time,” and a CNN article Permanent Daylight Saving Time will hurt our health, experts say.

Both the time change and the bill use misleading language. “Springing” clocks ahead in March does not save daylight nor will making the change permanent protect sunshine. Moving clocks does not change the amount of daylight in any given day, it just adjusts when in the day (as measured by the conventional hours of the day) the sunlight is experienced.

Do you remember that a few years ago there was a push to start schools an hour later because adolescents needed more sleep?((Here are some of the NJ.com articles on the subject: Early class times are bad for teenage students, British researcher finds (5/6/2014), Start school day later so teens can get more sleep, N.J. lawmaker says (10/8/2014), Poll: Should school days start later in N.J.?(10/10/2014), N.J. schools make teens wake up too early, CDC says (8/6/2015), Christie agrees to study later school start times (8/10/2015), Waking up teens too early is over for 5 N.J. high schools. The law says so. (8/10/2019), N.J. high schools would start later in the day under top Democrat’s bill. Murphy is open to it. (3/25/2022).)) The NJ Legislature commissioned a study that concluded that although chronic sleep deprivation was a serious endangerment to adolescents’ health, safety, well-being, and academic performance, found delaying school start times “fraught with obstacles and challenges, [including] student transportation; after-school activities, including athletics, and childcare.” Doesn’t DST make the problem worse?

I say, if you want more light at the end of your day, heed Ben Franklin’s advice: early to bed and early to rise.

Jay Bohn

November 7, 2022

Superstorm Sandy, Ten Years Later: The State of Emergency Continues

I have written several times about the abuse of emergency powers in connection with COVID-19.((COVID-19 and Emergency Powers, COVID-19 and Emergency Powers II – Not Much Has Changed, COVID-19 and Emergency Powers III – Still Not Much Has Changed, and The Misuse of Emergency Powers.)) I recently learned that the state of emergency declared in connection with Superstorm Sandy, whose tenth anniversary was marked last weekend, is still in effect.

This information was contained in a March 4, 2022, press release “Governor Murphy Signs Executive Order Lifting COVID-19 Public Health Emergency.” As the press release reports, although the public health emergency was terminated, the state of emergency declared by Executive Order 103, on March 9, 2020, “will remain in place to ensure that the State continues to have necessary resources as COVID-19 is managed on an endemic level.” It goes on to say:

It is common practice for states of emergency for major crises to remain in place to allow the State to receive and distribute federal funding without any unnecessary red tape or bureaucratic obstacles, as exemplified by Governor Christie’s State of Emergency declaration for Superstorm Sandy, which remains in effect to this day.

So unnecessary red tape or bureaucratic obstacles are okay at other times?

This is one of the sorts of misuse of an emergency declaration I have previously criticized, using the “emergency” as an excuse to enact policy positions that the legislature wouldn’t. As I have said before, “’Emergency’ does not mean the same thing as ‘urgent.’” The legislature needs to put restraints on the power to declare states of emergency.((I have some ideas that I may explore at some other time, but right now the how is less important than the whether.)) Exercising the power of the purse and oversight are two of the most important functions a legislature; the governor can now avoid the inconvenience by the simple expedient of declaring an emergency.

If the normal controls on the spending of money are inapposite to dealing with relief funds to recover from a hurricane or a pandemic, let the Legislature change them, but this should not be an excuse for the continuation of a state of emergency.

Jay Bohn

November 3, 2022