Month: December 2022

So Long As Their Goal Is To Maximize Revenue, Colleges Will Never Be Truly Affordable

A college education is expensive, and that expense far exceeds the rate of inflation.((See, for example, footnote 1 of Economics 303: Demand-Side Subsidies and Higher Education: “Between 1978 (the first year in which college tuition had its own CPI category) and the third quarter of 2017, the price of tuition and fees increased by 1,335 percent. This rate of growth exceeded that of medical costs (704 percent), new home construction (511 percent) and the Consumer Price Index for all items (293 percent). [citation and footnotes omitted]”)) Student loans do not make a college education affordable; they merely defer and spread out the pain over time. We should all be more concerned about the actual sticker price and avoid feel-good subsidy programs that merely push it up. As I said before: “Imagine a carrot on a stick attached to a horse, but out of reach. Any effort to address the affordability of higher education solely or primarily by giving money to its consumers to pay whatever the sellers (that is, colleges and universities) choose to charge, is rather like expecting the horse to be able to run fast enough to get the carrot.”

In his recent USA Today article, “What happened to Biden’s free college plan? Cutting cost of higher ed out of feds’ reach,” Chris Quintana says: “The way the U.S. pays for higher education is not working. “After mentioning a few examples of federal student loan relief, the author concludes “None of these measures addresses the upfront cost of college that students, and in some cases their families, confront, in part because the federal government has limited ability to push prices down.”

That is key. A college education will only be affordable if the sticker price is realistic.((Quintana seems to agree that price is the problem: “States typically provide the majority of funding for public institutions, but in recent decades, state lawmakers have cut higher education appropriations to help balance budgets. And private universities can set tuition at whatever they think people are willing to pay for smaller classes, social connections and prestige.”)) As I have previously asserted, government subsidies only encourage schools to increase their prices.((I believe that teaching is not the primary goal of most universities, but it is rather research or some other prestige. Professors who are only good teachers are less likely to be rewarded than those who make news (or money) with research and other activities.))

The federal government conditions receipt of federal funds by colleges on many policies and actions by the school. One of these should be an affordable price. If a school equates its tuition level with prestige, it is free to do so, but taxpayers should not be asked to subsidize it.

Jay Bohn

December 29, 2022

“Temp Worker” Editorial Seeks to Mandate Health Benefits for All Employees

On December 21, 2022, the Star-Ledger published an editorial “End the abuse of temp worker and New Jersey taxpayers.”((The editorial was also published on NJ.com, under the title “Temp agencies exploit taxpayers, too.” I don’t see the value to the reader of having different titles for the same content.)) The ostensible position is that temporary workers are exploited and the Legislature should pass what the editorial calls a “a Temp Workers Bill of Rights.”((The editorial declares that temporary workers “are often subject to unpaid wages, unsafe conditions, overtime violations, and illegal deductions from their paychecks.” Such conduct is already illegal, so why a specific “bill of rights” for temporary workers is needed is not clear to me.))

The real position, however, seems to be mandating that temporary workers be paid the same, and receive the same benefits, as permanent employees.((Part of the reason that employers seek temporary workers, leased from staffing agencies, is that government-mandated benefits for traditional employees have become too expensive. Employers hire fewer employees and expect their current staffs to do more.)) Indeed, the editorial goes so far as to assert that the fact many temporary workers qualify for Medicaid means that the taxpayers are subsidizing((If an employer is paying an employee and providing benefits for a job function that is not worth the total cost of employment to the employer, who is doing the subsidizing?)) their employers.1 So here we have the real point, all employers (at least those, unlike newspapers presumably, that can afford to do so) should be required “to meet their employees’ healthcare needs.”

It’s easy to editorialize in favor of greater benefits so long as “someone else is paying.”

Jay Bohn

December 26, 2022

  1. I wonder if the Star-Ledger walks the walk as well as talks the talk. Do all of its employees, temporary or permanent, receive the same benefits, including health insurance? I have previously posted how the Star-Ledger‘s policies with regard to delivery persons does not match its editorial position on the minimum wage: What’s Good for the Goose I: Practice What You Preach and about its attempt to secure special labor rules for newspapers: Importance of Newspapers Does Not Justify Special Exemption From Labor Laws; Newspaper Industry Must Find Way to Improve ABC Test For all Industries, Not Just Seek Exemption for Itself; and Special Treatment for Newspapers Would Impair Their ‘Watchdog’ Role. [↩]

Not Every Court Challenge to Certified Results Is “Election Denial.”

Let me start with what should be obvious by now: While the 2020 presidential election was not perfect, and I have issues with courts remaking rules,((See Furor Over “Independent State Legislature” Ignores Constitutional Text.)) there is no evidence of sufficient illegal activity to support President Trump’s claims that Joseph Biden is not the legitimately elected President of the United States.1

One of the many unfortunate effects of President Trump’s inability to admit that he lost and his numerous unsupported lawsuits challenging election results is the public perception that every legal challenge to a certified result is election denialism. The fact is that, whether innocent, negligent, or malicious, sometimes (we hope rarely) election authorities certify an erroneous result. Therefore, the law provides a mean of challenging that decision in court.`

According to the Morristown Daily Record((“GOP file suit as residents demand Mendham Township deputy mayor concede election loss“)), such a challenge was filed on Tuesday. Two township committee members were to be elected and three votes (increased from two by a recount) separated the number two candidate, Lauren Spirig, who was therefore declared a winner, from the number three candidate, Thomas Baio. Baio’s challenge asserts that 33 people who did not meet residency requirements were permitted to vote. I have no idea if that allegation is true, but Baio should be allowed to present that evidence.((I am not well-versed in election law, so it is not entirely clear to me if it is relevant for whom these people voted such that they would have to be subpoenaed and ordered to disclose their vote. I do know that where a legal voter is prevented from voting that voter is not required to state how she would have voted if permitted to do so and the challenger only need prove that sufficient legal votes were rejected to have changed the outcome, not that those votes would have been cast for the challenger. Baio seeks to be declared the winner, but I think the more likely outcome, if unlawful voting by three or more persons occurred, is for there to be a special election.))

Jay Bohn

December 22, 2022

  1. See Lost, Not Stolen: The Conservative Case that Trump Lost and Biden won the 2020 Presidential Election. [↩]

Proponents of Immigration Reform Should be Explicit About What They Want

Yesterday the Star-Ledger published an editorial, “Politics get in the way of our pragmatism and humanity when it comes to immigration”((The editorial was entitled “America’s last chance at immigration reform. Watch who blocks it,” on NJ.com. I don’t understand why pieces are given different names in print and on-line.)) calling for the Senate to pass an immigration reform bill1 during the lame duck session.((The lame duck session is when politicians who have already lost, or at least will not have to face voters for another 2, 4, or 6 years, suddenly get the “courage” to do what is unpopular (what their constituents do not necessarily want). See my post Lame Duck Hunting Season.)) I’m not saying I’m against immigration reform; I want to know what the Star-Ledger Editorial Board means by it.

According to the editorial, the principal features of the bill are:

  •  $25 billion in funding to secure the border (more agents and complete walls already under construction
  • funding to accelerate the asylum process (new facilities and more immigration judges)
  • another year for Title 42
  • path to citizenship for Dreamers

Judging from the balance of the editorial, it appears that the last bit is the “reform” while the others are what reformers have to swallow to get there. If providing legal status for Dreamers((“Dreamers” has become a term used to describe people who entered the Unites States illegally when they were young, prototypically brought by their parents. They have little if any memory of their birth countries. It is a situation tailor-made to tug at our heartstrings. The Obama administration created the Deferred Action for Childhood Arrivals (DACA) program to “defer” their removal and give them certain benefits in the interim. The DACA program is currently subject to legal challenges. Although no court has upheld it, the Supreme Court held that the way in which the Trump administration sought to rescind it was procedurally improper. Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020). Most recently the Fifth Circuit affirmed a district court judgment vacating DACA and granted a limited nationwide injunction and remanded for consideration of subsequent regulatory developments. Texas v. United States)) is what the Star-Ledger Editorial Board means by “immigration reform,” please say so rather than using code.

But I don’t think this is all the Star-Ledger Editorial Board wants. The editorial’s reference to “[t]he agonizing sight of desperate migrants wading across the Rio Grande into El Paso last weekend – 2,460 per day, over three days,” suggests that the Star-Ledger Editorial Board believes that the United States should as a matter of policy allow unlimited (or at least much less limited) immigration. If that is their editorial position (and all the poetic references to the Statute of Liberty suggests to me that it is), please just say so.

As a matter of policy I would prefer that the United States be more inviting to people who want what we like to call “the American dream.” And I do not doubt that historically and currently much anti-immigrant feeling is fueled by racism. But that does not mean that we should ignore laws that provide otherwise or just wink when they are violated. Why should adults who have entered this country in violation of its laws (or overstayed the welcome provided by a permitted entry) have an advantage over someone who applies to immigrate?

Jay Bohn

December 19, 2022

  1. I would prefer that when discussing particular pending legislation, the media would identify the bill so that readers, viewers, and listeners can look it up. [↩]

In New Jersey the Dead Merely Vote; In Pennsylvania They Apparently Hold Office

It has long been a joke((Former Governor Brendan Byrne is quoted as having said: “I want to be buried in Hudson County so that I can remain active in politics.”)) (with perhaps more than a little reality((See, e.g., N.J. investigating freeholder for allegedly delivering election ballot of dead man, source says; Can the dead vote in NJ? Sometimes; Among Voters In New Jersey, G.O.P. Sees Dead People))) that in New Jersey (especially Hudson County), the dead often vote. Pennsylvania may have us beat though; the Democratic leader in the Pennsylvania House of Representatives wants to count a candidate who passed away two weeks before the election to get her majority.

Here are the basics. The Pennsylvania House of Representatives is composed of members from 203 districts, so, if there are no vacancies, 102 is the magic number for a majority. The terms of members start on December 1 following the election, but the state constitution does not schedule the house to meet until noon on the first Tuesday of January.

Prior to the 2022 election Republicans held a majority; Republican Brian Cutler was the speaker and Democrat Joanna McClinton the minority floor leader. In the 2022 election Democratic candidates won in 102 districts and Republicans in 101. What makes the resulting Democratic majority questionable is the fact that long-time Democratic representative Tony DeLuca had died about two weeks before the election. As it was too late to replace him, his name remained on the ballot and received the most votes. On November 30, in one of his last acts as speaker, Cutler signed a writ of election for a special election on February 7 to fill the vacancy.

On December 1, however, McClinton held an unannounced ceremony in the House chamber in which she was sworn in (the accounts differ on whether it was just as a representative or as majority leader). She proceeded to claim that as majority leader she is acting speaker until the House chooses a speaker.((There is apparently a precedent where the majority leader served as acting speaker for a few weeks following the death of the incumbent speaker before the House met to fill the vacancy. I am unable to get enough facts to see what this “acting speaker” actually did; I have found no other basis for the claim.)) If DeLuca is not counted, neither party had a majority at that time. The same week (again, the accounts give insufficient detail to determine the date and whether it was before or after McClinton’s claiming power) two other Democrats who were elected in November resigned their seats because they had been elected to higher offices (lieutenant governor and as a member of the U.S. House of Representatives). McClinton then issued writs of election (for February 7) to fill three vacancies. (If you’re keeping score at home, the count is now 101 Republicans and 99 Democrats.)

Cutler has filed a lawsuit to seek a judicial ruling and has also held his own swearing in ceremony to claim the post of majority leader. (At least until the vacancies are filled, the math seems to be in his favor.)

Jay Bohn

December 15, 2022

Supreme Court’s “Free Ride” for Corruption Shows That Laws Are Poorly Written (or that Prosecutors Extending Them to Conduct Not Covered)

In a recent example of his unlabeled editorials,((Government corruption getting a free ride from U.S. Supreme Court, N.J. attorney general says, published as a “Subscriber Exclusive” on NJ.com on December 10, 2022, and in the Star-Ledger on December 11, 2022.)) Star-Ledger Washington correspondent Jonathan Salant covered a speech by New Jersey attorney general Matthew Platkin complaining that the U.S. Supreme Court has made it harder to bring federal charges against public officials. The editorial (um, article), citing three examples, one each from 2016, 2018, and 2020, says: “Federal courts have not been kind to federal efforts to prosecute state and local officials on corruption charges.”((I seem to remember that as U.S. attorney former Governor Chris Christie’s record on corruption prosecutions was 132 convictions, 0 acquittals.))

The first example was the Supreme Court’s unanimous ruling in McDonnell v. United States, 579 U.S. ___ (2016), which reined in an over-expansive reading of “official act” which the prosecution would have extended to merely setting up a meeting, calling another public official, or hosting an event. Based upon the statutory text, the Court ruled:

In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of “official act.”

Because the jury instructions permitted a guilty verdict based upon the former Virginia governor’s “merely setting up a meeting, calling another public official, or hosting an event” the conviction was reversed, and the district court ultimately dismissed the case on the Government’s motion.

The second example was the dismissal (the article incorrectly indicates that this was an acquittal) of some of the charges against Senator Robert Menendez.

The third example was the Supreme court’s (again unanimous) reversal of the Bridgegate convictions in Kelly v. United States, 590 U.S. ___ (2020), which ruled that the defendants could not have committed the fraud as charged because they did not obtain money or property.

True, the Supreme Court cases did make it harder to convict officials on federal charges, but that is because the laws at issue were not written to cover the conduct alleged. The Government has still been able to prosecute numerous officials successfully. If federal anti-corruption laws should cover additional conduct, they should be re-written to do so explicitly. (After all, a person must have fair notice that conduct is criminal before being prosecuted for it; if the statute could be read either way, to use the baseball adage, “the tie goes to the runner.”)

Platkin is quoted as saying that state attorneys general “really are the last bastion of defense against what I consider to be a pretty pervasive problem.” Maybe that’s as it should be. Why it should be solely (or even primarily) a federal responsibility to prosecute corrupt state or local officials?

Constitution Protects Free Speech, not Conduct Occurring While Speaking

The First Amendment to the Constitution of the United States reads, as pertinent here, “Congress shall make no law … abridging the freedom of speech ….” But speech is different from conduct, even if the conduct incidentally expresses an idea. The right to express ideas does not mean that you can engage in conduct the prohibition of which has nothing to do with speech. Thus, it is (and should) be no defense to a prosecution for obstructing traffic that it was done in connection with a protest.

LehighValleyLive.com (the on-line version of the Express-Times) recently ran an article entitled “PSU student from Lehigh Valley arrested protesting Proud Boys event faces criminal charges” (behind its paywall), which reports that a student who was arrested “during a protest against a Proud Boys event”((The article also reports that the Proud Boys event was sponsored by a student group and (reluctantly) permitted by the University, only to be “cancelled shortly before its start amid a threat of violence.” It does not say who threatened the violence, but it was the Proud Boys who were not permitted to speak. See my prior posts Free Speech is a Bitch, Free Speech, but Not for All Ideas, and Freedom of Religion, As Long As You Agree With Me for comments on how society’s support for First Amendment rights is dependent upon the views expressed.)) (emphasis mine) and who is scheduled to graduate on December 17 is facing not only criminal charges but also University discipline that could lead to his expulsion. The undercurrent is that because he was expressing “good” ideas his conduct should not be punished.

The way the article is written, it is difficult to discern exactly what the student is accused of doing.((It is probably worth emphasizing that I know nothing about the incident other than what is contained in the article. Therefore, I am not asserting that the student did anything wrong, merely that the conduct of which he appears to be accused is not “speech.”)) It does not seem that his anti-Proud Boys views (with which the University probably agrees) are at issue but rather his refusal to obey police orders to leave an area they were trying to clear.

The article suggests that one or more Proud Boys supporters sprayed something on the crowd (described by one quoted person as “an irritant”) and no one has been charged. Certainly, efforts should be made to identify and prosecute anyone who did such a thing, but the inability or failure to do so does not excuse other illegal conduct.

Jay Bohn

December 8, 2022

Hey Republicans, Please Nominate Someone Other than Donald Trump

The 2024 presidential election could be a race between someone with bad policies and someone who is just bad.

Donald Trump is a megalomaniac who has created a personality cult. I could argue that his polices are better than those of any likely Democratic candidate, but the only policy he truly believes in is self-worship. The events of January 6, 2021, were shameful. While I am not convinced that Trump’s conduct equates to that which disqualifies him from office under the 14th Amendment (a topic I hope to address in the future), it should make him unelectable. That it may not is both appalling and scary.

This weekend Trump doubled down on the position that it’s all about him. On his Truth Social account, he posted the following:

So, with the revelation of MASSIVE & WIDESPREAD FRAUD & DECEPTION in working closely with Big Tech Companies, the DNC, & the Democrat Party, do you throw the Presidential Election Results of 2020 OUT and declare the RIGHTFUL WINNER, or do you have a NEW ELECTION? A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution. Our great “Founders” did not want, and would not condone, False & Fraudulent Elections!

Aside from its grammatical confusion, this post continues the lie (which is not a term I have used about it before((The mainstream media have used the term “lie,” but as a matter of faith rather than as the conclusion of a story they have told in detail. See Professional Media Need to Take Some Responsibility for “Misinformation”))) that the 2020 was stolen rather than lost. (While I do question the constitutionality of court’s re-writing laws governing federal elects on the grounds of the COVID emergency,((As I have said before, 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).)) this did not change enough votes to justify the continued denial that Joseph Biden won the election and is the legitimate President of the United States.)

While there is no doubt a shocking number of people who will follow Trump wherever he leads, I believe that many Republicans who have not yet denounced him merely lack the courage to do so. I hope it comes soon.

Jay Bohn

December 5, 2022

The Demand for Trump’s Tax Returns Could Lead to Weaponization of Tax Laws

Donald Trump spurned recent tradition for presidential candidates by not releasing his federal income tax returns. I don’t think that’s a bad thing; there is no legal requirement to do so, and, if Congress were to consider such a law, it should debate who else’s public influence justifies the loss of privacy: the vice president, members of Congress, maybe reporters.

Because the media believe that they are entitled to know everything (for the public good of course), the clear trend of coverage of this issue over the years has been in favor of disclosure.

Well, now Trump’s more recent tax returns are in the hands of the House Ways and Means Committee for the ostensible reason that they would be useful in the crafting of future legislation. That’s not going to happen, but I’m sure that they will be made public in short order, which was the real purpose of the request.

A few other observations about media coverage of this issue.

Articles have speculated why Trump did not release the returns, always from the perspective that his refusal was nefarious, or at least venal. The suggested reasons included that they would show that he was not as wealthy as he claimed or that he paid what the reporters deemed to be too little in taxes. Not once do I recall reading any expectation (which I think is a given) that dozens if not hundreds of people will pore over the filings once they are released hoping to find something that they can assert shows not just legitimate tax avoidance (which will be the subject of critical commentary anyway) but actual criminal tax evasion.

As usual, coverage of the court proceedings has been inaccurate. No court has ordered the release of the tax returns to the committee. That result is provided by statute. The court proceedings were Trump’s attempt to stop the turnover, which all failed. (To be clear, I am not asserting that as a legal matter those decisions were in any way incorrect. Certain Congressional committees have the legal right to obtain anyone’s tax return. That’s the problem.)

Jay Bohn

December 1, 2022