Month: February 2023

There’s a Difference Between “Constitutional” and “Unreviewable”

Just because a court rejects a challenge to a government action does not mean that the court necessarily has ruled that the action is constitutional or legal. The court may have rejected the challenge on procedural grounds and not considered the merits of the question.

Procedural grounds are not merely technicalities, although they may vary in importance. The most important procedural ground is whether the court has (subject-matter) jurisdiction to decide the case in the first place. Federal courts have limited jurisdiction and are supposed to determine whether they have jurisdiction in a particular case before moving to the merits. As we’re hearing now, this is a big (and I believe decisive) issue in the student loan cases, which will be argued tomorrow, where the specific question is whether the plaintiffs in those cases have “standing.” If the Supreme Court rules that they do not, the challenges to the student loan forgiveness program will be dismissed, but that will not answer the question of whether the secretary of education’s action was legal. That may become largely academic as it will be hard to imagine anyone who would have standing.((The need for standing can be frustrating as it insulates certain actions from review, no matter how contrary to the Constitution they may be. I don’t particularly think the lack of any chance to review whether the decision to forego the repayment of $400 billion is legal is something to celebrate.))

In addition to lack of standing, a federal court will not have jurisdiction if there is some applicable immunity. The immunity conferred by the Constitution’s Speech and Debate Clause((“Senators and Representatives … for any Speech or Debate in either House … shall not be questioned in any other Place.” U.S. CONST. art. I, § 6, cl. 1.)) was the basis for the dismissal of now-Speaker Kevin McCarthy’s challenge to proxy voting in the House of Representatives. McCarthy v. Pelosi, 5 F.4th 34 (D.C. Cir. 2021), cert. denied ___ U.S. ___ (2022).

The D.C. Circuit’s ruling is binding authority only over the U.S. District Court for the District of Columbia.((The Supreme Court’s denial of review is not an indication that it agrees with the result and is not precedential.)) Recently the attorney general of Texas filed a challenge to the Consolidated Appropriations Act of 2023 in the Northern District of Texas, arguing that representatives not physically present but “represented” by proxy cannot be counted toward whether a quorum is present.1

In a rather histrionic article, “Texas asks a Trump judge to declare most of the federal government unconstitutional,” Vox senior correspondent Ian Millhiser characterized McCarthy v. Pelosi as a ruling that proxy voting is constitutional when, as we’ve seen, it did not reach the merits. Although he has some interesting arguments on the merits and may well be right, it appears to me that the author of this article was mostly concerned with attacking Republican judges.

And just because the House of Representatives may be able to get away with proxy voting doesn’t mean it should.

Jay Bohn

February 27, 2023

  1. Without a quorum the House of Representatives cannot act. [↩]

Mixed Bag in Media Review

I have recently seen a couple of examples of journalism that are worth some comment.

First the good. On Friday CNN.com published another article fact-checking a speech by President Biden.((I previously lauded an earlier piece by the same author, Daniel Dale.)) One begins to wonder if the President’s speechwriters are just this sloppy or really dishonest. Either way, these fact checking articles are examples of good journalism.

Now the bad. Does anyone remember the magazine Newsweek? Back in ancient times when I was in school (the 1970s and 1980s) it was owned by the Washington Post and was a rival to Time as a national weekly news magazine. It fell on hard times and has gone through a succession of owners, spending some time as on-line only, but now it’s back in-print as well. Anyway, last Friday the on-line version published an article entitled “Supreme Court Reconsiders Case to Reinstate Trump.” Okay, you got me, I clicked. It turns out that the “case”((Brunson v. Adams, docket number 22-380.)) is based upon the theory that their oath of office required that the members of the 117th Congress investigate unidentified claims of foreign influence in the presidential election. The plaintiff apparently names all the members who voted to certify that election as defendants, along with President Biden, Vice President Harris, and former Vice President Pence, and is seeking their removal from office and ineligibility to hold office again and the reinstatement of President Trump. It is one of hundreds of petitions for certiorari that were denied without further comment in the order list issued by the Supreme Court on January 9, 2023.((The order list resulted from the Court’s conference held on January 6th, which date the plaintiff believed betokened some significance.)) The plaintiff has filed a petition for rehearing, which was unsurprisingly denied when the order list resulting from the Court’s conference last Friday was issued on Tuesday.

Although the Newsweek article is factually accurate, it lacks crucial context and the headline’s choice of wording allows for the reader to believe that the Court has some interest in the case. The article is, in a word, misleading. There is a relatively low bar for a disappointed litigant to file a petition for certiorari, a modest filing fee and printing costs. The overall chance of any petition’s being granted is less than 3%,((One statistic I saw indicated that the average applicant to Harvard has a chance of admission that is twice as high.)) with pro se cases less likely to achieve the votes of four justices which is required for a grant.

Newsweek was not the only on-line news source to write about the denial of certiorari in the Brunson case. The Hill reported it on January 9, 2023, under the tile “Supreme Court declines to hear long shot 2020 election case” with a lot more background.

Now I’m not saying that the Newsweek article was intentionally misleading,((Never ascribe to malice what is adequately explained by stupidity.)) but professional journalists should have a bit more working knowledge of how our court system works. If, as I suspect, the Supreme Court disposes of the student loan cases on standing grounds, it will be inaccurate to describe the decision as “upholding” the forgiveness program, as the Court will not have reached the merits. Accuracy is important.

Jay Bohn

February 23, 2023

End Limit on Number of Liquor Licenses

Sometimes a “system” will evolve in a way that would never be consciously deigned if one were starting from scratch. I believe that New Jerey’s liquor license regime is a prime example. Aside from special cases (hotels of at least 100 rooms, airports, bowling alleys, and other politically favored locations), plenary retail consumption (bars and restaurants) and distribution licenses are issued by the local municipality and limited based upon population. The time has come to end this artificial scarcity and stop treating the licenses themselves as an article of commerce.

In his State of the State speech last month (video | text), Governor Murphy had this to say about New Jersey’s liquor licensing scheme:

And I am greatly aware that some of, if not the, hardest hit businesses from the pandemic were our restaurants. And few were harder hit than the small neighborhood establishments – many, if not most, family-owned – that couldn’t get a liquor license that is so critical to maintaining a healthy profit margin.
 
There’s no other way to put it – our liquor licensing regime is antiquated and confusing. We rely on a foundation of rules written in the days immediately after Prohibition to govern a 21st century economy. That makes no sense.
 
It makes no sense to restaurateurs like Ehren Ryan, the chef/owner – along with his wife, Nadine – of Millburn’s Common Lot, where a liquor license can ensure the stability of his establishment. Ehren is with us today.
 
And so, I ask for your partnership in rewriting our liquor license laws to make them not just modern, but fair. The old rules have purposely created market scarcity and driven up costs to the point where a liquor license can draw seven figures.
 
For many small, independent restaurateurs – folks like Ehren, and many others like him in other communities, and especially those in Black and Brown communities where access to capital has historically been limited – that’s just too high a price to pay.
 
Expanding the number of available liquor licenses will not only help keep our favorite local restaurants healthy, it will also help keep our economy healthy.
 
This won’t be easy, but it will be worth it. We project that overhauling our liquor license regime will create upwards of 10,000 jobs annually and, over the next 10 years, generate up to $10 billion in new economic activity and $1 billion in new state and local revenues.
 
And here is how we can do it.
 
Right now, the number of liquor licenses allowed to be issued by any local government is one for every 3,000 residents. I propose that over the next few years, we gradually relax this requirement and expand the number of available licenses until the restriction is eliminated in its entirety and the market can work freely.
 
Meanwhile, we can maintain the local control that is so critical in making sure our downtowns retain the character that makes them so special.
 
Now, I fully recognize that some restaurants have made significant up-front investments to obtain their current licenses. We must be fair to them and I propose a targeted tax credit to support them as the supply of licenses grows.

While I am not convinced that current license holders are entitled to any compensation if their monopoly is ended, I do have a suggestion how the first part of the gradual expansion is could be effected in a way that would provide a financial benefit to them without a tax expenditure.

Suppose that we agreed to a four-year phase-in of unlimited liquor licenses. At the beginning of year 1 give every current license holder (the “mother” license) one additional license that can be used, sold, or pocketed. (For at least this phase the license could not be used in a different municipality unless both towns consented.) Then, in year 3 each holder of a mother license, whose year 1 “daughter” license is actually in use, would get another additional license. In this way current license holders will have had the benefit of six (4+2) years of an additional premises or the equivalent market value. True, the value will drop, but this will allow “mom and pop” restaurants to afford licenses, and at the end of the four-year period the numerical limitation will end.

Jay Bohn

February 20, 2023

Civility in Public Discourse: It Works Both Ways

In my last post I commented on discourtesies shown to the President of the United States during various addresses to Congress by individual members and the then-Speaker. Such childish behavior is not limited to our legislators as the President and presidential staff have been equally disrespectful.

Donald Trump, both as candidate and as President, seemed to revel in insulting comments and pejorative nicknames. It’s not just that he was blunt, he constantly belittled those with whom he disagreed.

But I thought the adults were supposed to be in charge now. As part of its argument in favor of student loan forgiveness the White House twitter account identified six Republican members of Congress as having had PPP loans forgiven. NJ.com reported this event with apparent glee and pride that it appeared that a former Murphy staffer was behind it. As I previously noted, PPP loans were intended to be forgiven from the get-go, so long as the proceeds were used for specified purposes, primarily to continue to provide salaries, wages and benefits to the borrower’s employees. Not the same thing at all. Are the President’s political opponents’ tax returns going to be released next?

Insults, snarkiness, and trolling may give the speaker momentary self-satisfaction, but ultimately they are not a reasoned response and only serve to increase the partisan divide, the them versus us mentality that considers politics only a game.

Jay Bohn

February 16, 2023

Civility in Public Discourse: It Looks Like We Must Lead from Behind

I didn’t watch last week’s State of the Union address, but I did read that there were some discourteous remarks from some of the “Honorable” members of Congress. NJ.com/Star-Ledger Washington correspondent Jonathan D. Salant wrote about it in another unlabeled editorial yesterday.

The recent comments brought to mind the incident in 2009 when, during another presidential speech to Congress, Representative Joe Wilson responded to one of President Obama’s comments, “You lie.”

Once one party does it, the other feels it has to follow. Even more egregious that these comments by individual members was the conduct of then-Speaker Nancy Pelosi who ripped up the copy of the State of the Union address that President Trump handed to her. As Speaker Kevin McCarthy did not repeat the gesture, perhaps individual members thought they had to, what?, defend President Trump’s honor?

The State of the Union address is one of our few “state” occasions, with a bit of pageantry. If you’ve been reading this blog for a while, you must have realized that I am in favor of free speech. But that doesn’t mean that everyone is entitled to the same microphone. There is plenty of opportunity for the other party to respond, including prime time immediately after. And just because the government cannot forbid discourteous comments doesn’t mean that our elected representatives should engage in them. Let the President say his piece.

NJ.com used to allow readers to comment on articles. Every so often I feel a bit nostalgic about that feature, until I remember that most of the reader’s comments were . . . (well, let’s just say that they did not raise the level of public discourse).

The professional journalists are usually more courteous that the reader comments, but that’s to be expected. What I would really rather have is an actual discussion of the issues rather than the personalities. Ultimately name-calling does not advance the debate.

Jay Bohn

February 13, 2023


Predictably, Increased Electric Vehicle Subsidies Lead to Increased Electric Vehicle Prices

Back in August 2021 all of my posts were on economic topics, building up to, or dealing with the implications of, this central thesis: “broad-based demand-side subsidies tend to cause the price of the subsidized commodity to increase.” The ensuing posts applied this principle to healthcare, higher education, and housing.

As part of the push to eliminate reliance upon fossil fuels, many have been urging the use of electric vehicles. (This post is not about whether that is a good idea.) One problem is that electric cars tend to be more expensive that gasoline-powered cars. The knee-jerk reaction is of course a government subsidy program, in this case a provision of the Inflation Reduction Act which grants a tax credit of up to $7500 for the purchase of an electric vehicle.

Last weekend the online version of ABC News reported “Tesla has raised prices on its Model Y in the U.S., apparently due to rising demand and changes in U.S. government rules that make more versions of the small SUV eligible for tax credits.” Utterly predictable.

One caveat here. apparently there is a price limit for vehicles to be eligible for the [full] credit, so there may be an incentive for manufacturers to rein in prices. Such features are necessary if a subsidy scheme is truly going to put the subsidized commodity into the hands of people who cannot (or choose not) to pay for it completely on their own.

Jay Bohn

February 9, 2023

There is a Debate on the Value of Objectivity in Journalism; Do the Two Sides Mean the Same Thing?

In his column yesterday, Star-Ledger/NJ.com columnist Paul Mulshine wrote about a recent study by Leonard Downie, Jr., and Andrew Heyward of the Walter Cronkite School of Journalism and Mass Communication at Arizona State University that concludes that objectivity in journalism should no longer be a goal. Based upon Mulshine’s comments about the study, it seems to support all of the trends in professional journalism that I have argued against. It seeks to “move beyond accuracy to truth . . . .”((This reminds me of the scene in Raiders of the Lost Ark when Professor Jones tells his class: “Archaeology is the search for fact … not truth. If it’s truth you’re interested in, Dr. Tyree’s philosophy class is right down the hall.”)) One of the sources of the study is quoted as saying “I think that part of what’s happening is (that) now we’re allowing people to tell their truth. As long as our facts are correct, they can tell their truth.” (parenthesis in original, emphasis added).

After reading the study, I certainly can’t say that I understand it. I wonder if there is a disconnect between what the study means by “objectivity” (and “truth”) and what Mulshine means (which I think is what I would understand it to be).((Of course, Mulshine also says “As a good, old-fashioned newspaper, the Star-Ledger labels opinion as opinion and news as news.” I wish this were the case, but I have many times cited examples where opinions were disguised as news articles: Some Weaknesses in NJ.com’s Arguments Against the SALT Deduction Limit, Your Bias is Showing, Professional Media Need to Take Some Responsibility for “Misinformation”, Whether a Hug or a Handshake, Christie’s Greeting of President Obama During Post-Sandy Visit Did Not “Change” American Politics, Christie’s Criticism of Trump Not New; Don’t Assume It’s in Preparation for 2024, and Supreme Court’s “Free Ride” for Corruption Shows That Laws Are Poorly Written (or that Prosecutors Extending Them to Conduct Not Covered).))

The study and Mulshine’s column both use the term “bothsidesism.” Mulshine’s column links to a post by the Association of Foreign Press Correspondents which provides a definition: “The false balance fallacy, otherwise known as bothsidesism, is the equivocation of two acts unequal in their scope to support the validity of one side of an argument.”((I believe the intended meaning is more clearly set forth in a quotation from Ross Gelbspan within the post: “The professional canon of journalistic fairness requires reporters who write about a controversy to present competing points of view. When the issue is of a political or social nature, fairness – presenting the most compelling arguments of both sides with equal weight – is a fundamental check on biased reporting. But this canon causes problems when it is applied to issues of science. It seems to demand that journalists present competing points of views on a scientific question as though they had equal scientific weight, when actually they do not.”)) Again, it seems that there is a disconnect in what is meant by the term.

This is important stuff. I fundamentally agree with what I see Mulshine as saying: news is about facts. To the extent that Downie and Heyward are asserting that it is preferable to report point of view as news, maybe that’s what “fake news” is. I’m not sure that’s what they’re saying, but their report is less than clear on this point.

Jay Bohn

February 6, 2023

CNN Adds to Laurels with Good Explanation of Standing Issue in Student Loan Case

This is a good week for CNN.com. My most recent post lauded a fact-checking piece and now I’m going to write about a story last Tuesday which gives a good explanation of what I believe will be the basis of the Supreme Court’s decision on the student loan forgiveness cases — the challengers’ lack of standing.

In “The Supreme Court’s student loans case is about more than student loans,” CNN Supreme Court reporter Ariane de Vogue provides a good explanation of the concept of “standing,” which is a limit on the power of federal courts derived from the fact that the Article III, section 2, of the United States Constitution extends the judicial power of the United States only to “Cases” and “Controversies.”((I discussed standing in my November 17, 2022, post Texas Federal Court’s Dash to Invalidation of Biden’s Student Loan Forgiveness Program Likely to be Called Back for False Start.)) For once this is not a hidden opinion piece which introduces a hard-working American facing the impossible prospect of ever paying off student loans and leveraging that emotional appeal into an argument that the Supreme Court should uphold the program for one or another reason unrelated to the actual questions before the Court, with a detour to equate this program with PPP loan forgiveness.((See my August 29, 2022, post Thoughts About Student Loan Forgiveness.))

But, as its title indicates, the article is not just about the fate of Biden’s student loan forgiveness plan. It traces the recent expansion of State standing to Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), which allowed States to sue the Environmental Protection Agency to compel it to regulate greenhouse gases and led to a skyrocketing of “lawsuits brought by state attorneys general challenging actions by the federal government . . . with states making extravagant standing arguments.” Whether that’s good or bad depends upon who’s president.

Jay Bohn

February 2, 2023