Month: March 2023

Defanging of Election Watchdog No Blow to Senatorial Courtesy

I’ve seen several stories recently about the Election Transparency Act, a New Jersey bill that would, among other things, make changes to the Election Law Enforcement Commission (ELEC). The bill has been the subject of a number of editorials, such as this one and this one, primarily about the reduction of ELEC’s window to investigate matters from ten years to two and the ability of the governor as a one-time matter to appoint all of the commissioners without the need for advice and consent of the Senate. Apparently, the Assembly is going to vote on the bill today.

While I certainly see big issues with the bill, this post is about the justification articulated by Senate President Nicholas Scutari for letting the governor appoint an entirely new commission((There are supposed to be four commissioners, at the moment there is one vacancy and three holdovers who continue to serve despite the expiration of their terms.)) without the need for Senate approval: “People are always criticizing (senatorial) courtesy, and what we’re doing for this one limited time is getting rid of courtesy.” For those who don’t know, New Jersey’s version of senatorial courtesy is the practice whereby the state senate will not vote on a nomination without the okay of all senators (regardless of party) who represent any part of the county in which the nominee resides. It’s a sordid practice, but one that probably will never change as long as each senator thinks that he or she may want to use it one day.

But even the staunchest opponent of senatorial courtesy cannot think that it would just be better to eliminate the Senate’s role in the appointment process altogether.((I will say that for most “purely” executive positions the governor should be able to make the appointment of his own subordinates.)) Scutari should push a Senate rule change mandating an up or down vote on appointments within a set time.

This is not to say that ELEC does not need reform. Consistent with the position I have expressed before, no administrative agency should act as both judge and prosecutor. It’s time to move adjudications that can result in fines and other penalties out of the Executive Branch.

Jay Bohn

March 30, 2023.

Some Concerns About the Multilingual Mandate

Yesterday NJ.com published an article((It is indeed more factual than most of the unlabeled opinion pieces, but it clearly conveys support for the bill.)) about a bill((Kudos are due for not only specifically identifying the bill but also providing a link.)) that will require state executive branch agencies to “translate vital documents and information . . . in[to] the 15 most common non-English languages spoken by individuals with limited-English proficiency in this State . . . .” Implementation of the law would be paid for, in part, by federal COVID funds.1 The article quotes one Republican senator who voted against the bill due to its cost and the requirement of 15 languages.((The article preceded the explanation with the suggestion that all but one Republican voted against the bill because they are all white.))

Cost is indeed a concern. Also, will agencies have to hold up issuing documents and information until all of the translations are completed?

My greater concern, however, is the potential for this mandate to expand from state agencies to local governments to private businesses. Cost would be a factor there too (and no doubt there will be no COVID funds left), but I am more concerned about whether the translations are deemed to be of equal weight with the English version? It is hard enough to draft a legal document in one language so that some reader cannot find or invent ambiguity, what about a translation into fifteen other languages?

Accessibility of government information to those who cannot speak English is not itself a bad idea, so long as it does not become a mandate that declares that the meaning of a document is the translation least favorable to its author.

Jay Bohn

March 27, 2023

  1. The connection with the pandemic must be too obvious to require explanation. [↩]

Beware “Crutch” Words

As a reader of political and legal rhetoric, I have noticed that often the writer of such documents will use “crutch” words, often adjectives and adverbs, in place of details and logical arguments. It becomes a battle of slogans rather than ideas.

As one example, let’s take the term “common sense.” When used as a modifier it is often hyphenated, as in “common-sense ideas.” We need not be told what these ideas actually are, it’s just “common sense.”

Some years ago there was a big push for “smart growth” What, other than the opposite of “dumb growth” does that mean?

How often do newspaper headlines and articles vouch for an argument by labelling its proponent as an “expert”?

All of these terms are used as a shortcut by a writer telling the reader, “Just trust me.”

Jay Bohn

March 23, 2023.

COVID-19 and Emergency Powers IV – The Wrap-Up

Three years ago tomorrow, March 21, 2020, NJ governor Philip Murphy issued Executive Order 107, which mandated that people stay at home. Although it was a drastic step, the COVID pandemic was still pretty new, deaths were mounting, and we did not know how to handle it. As I recall, it was thought that the time from exposure to severe symptoms did not exceed two weeks, so I expected that the restrictions would last two weeks within which time the spread of the virus would be controlled. As we know, it didn’t work that way.

Executive Order 107 was just one of many emergency measures adopted by the executive branch under powers delegated for use in an emergency (or perhaps not((For example, in the early days of the COVID pandemic, Bergen County Executive James Tedesco ordered all malls in the county to close until further notice in order to prevent the spread of the disease. When asked about his legal authority to shut down private businesses, Tedesco responded: “I have the moral authority.” NJ coronavirus: All Bergen County malls must close (northjersey.com). Because Tedesco’s closure order was quickly subsumed by Governor Murphy’s, the question of legal authority was never authoritatively tested.))) but justified on the basis of an emergency.1

My essential thesis is this: In the beginning the COVID-19 pandemic was an emergency requiring urgent action, and this justified the invocation of powers delegated for such events. After the initial weeks or months, COVID, although still a major problem, no longer justified the routine exercise of emergency powers. It remains dire but is not urgent. Our legislatures could assemble, personally or virtually, and pass laws to deal with the situation. While I have often criticized COVID emergency measures as “rule by decree,” I am not an anti-vaxxer2 nor did I oppose the concept of requiring the wearing of masks in public.((Although it should have been put on a legal foundation with law enforcement rather than business owners responsible for enforcement of the mandate.)).

The problem, as many governors and other wielders of executive authority saw it, was that the legislators would not pass the right laws, or do it quickly enough. And so many COVID emergency declarations have remained in effect even though, for most of us (thanks in large part to rapidly developed vaccines), the daily routine is now much like it was before the pandemic. Emergency declarations allow the executive to bypass pesky limitations (described as “unnecessary red tape or bureaucratic obstacles”) on their ability to do what they want.3

Recently the Washington Post published a story by Lauren Weber and Joel Achenbach entitled “Covid backlash hobbles public health and future pandemic response,”((The story appears at https://www.washingtonpost.com/health/2023/03/08/covid-public-health-backlash/ (paywall) and is reproduced by MSN at https://www.msn.com/en-us/news/us/covid-backlash-hobbles-public-health-and-future-pandemic-response/ar-AA18mBh, and was published in the print by the Star-Ledger on March 16, 2023, at page H1.)) in which the authors bemoan the (mostly) Republican response to some of the COVID measures.((The always understated Fox News has this response to the story: Washington Post torched on Twitter after complaining health officials have limited powers: ‘Medical fascism’.)) The point of this story is that opposition to overstepping in the COVID emergency and support for the separation of powers will lead to an inability to deal with the next pandemic.

There will come a time when something else requires an emergency response. Before that happens is the time to give serious thought to what authority is to be given to the executive branch and administrative agencies, and for how long. Declaring an emergency when the legislature does not agree with the executive’s policy preferences cannot be the knee-jerk response. The emergency measures must be tailored to the emergency, which cannot be the excuse for at best tangentially related policy preferences, like widespread voting by mail and student loan forgiveness.((See, for example, Elizabth Goitein’s comments which I quoted in The Misuse of Emergency Powers: “[The] purpose [of emergency powers] is to give pres­id­ents a short-term boost in power in situ­ations that Congress cannot have fore­seen (because they arise suddenly and without warn­ing) and that Congress is ill-suited to handle (because they require imme­di­ate or highly nimble responses). Emer­gency powers are not inten­ded to address long­stand­ing prob­lems, no matter how seri­ous. Nor are they meant to author­ize perman­ent or long-term policy solu­tions that Congress itself could provide but has chosen not to.”)) So long as our legislators can assemble, they get to make the policy decisions. As I concluded a post entitled What’s More Important: Process or Substance? almost two years ago, “While many might accept rule by an all wise and benevolent despot, remember the democracy is a process.”

Jay Bohn

March 20, 2021

  1. I have previously been critical of the misuses of such powers: 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. [↩]
  2. It is Time for Vaccine Passports [↩]
  3. As I noted in Superstorm Sandy, Ten Years Later: The State of Emergency Continues, we are (or as of 2022 were) still in the state of emergency declared in connection with Superstorm Sandy in 2012 for exactly that reason. [↩]

NJ Supreme Court’s Malanga Decision Important Step in Keeping Towns Honest

When governments are devised, powers are often divided and procedural requirements imposed. Those in power often chafe at the limitation on their absolute discretion. On occasion circumstances may arise where the need for prompt action overcomes the benefit of the procedural limitations. We call those circumstances “states of emergency” and, as I’ve written before((Superstorm Sandy, Ten Years Later: The State of Emergency Continues)), they are often declared or continued solely to avoid “unnecessary red tape or bureaucratic obstacles” (read normal checks and balances).

But states of emergencies are not the only devices that allow local governments to evade normal procedural requirements. In the land use field municipalities are increasingly determining that particular properties or neighborhoods are “areas in need of redevelopment,” a euphemism for the constitutional term “blighted” which has been deemed too pejorative. But employment of the softer term has led to a concomitant softening of the standard actually employed (as opposed to supposed to be employed) in making the determination, from blight to “it could be better.”

Once an area is determined to be “in need of redevelopment,” the municipality can overlay or substitute the normal zoning with a “redevelopment plan,” can limit the ability to develop the property to a chosen “redeveloper,” can make use of eminent domain to effect the redevelopment, can sell municipal property without public bidding, and can exempt the real estate from taxation under a PILOT (payment in lieu of taxes) program.

The way it’s supposed to work is this: the municipal governing body authorizes the planning board to conduct an investigation of the area to determine if a particular area is “in need of redevelopment.” A state statute, the Local Redevelopment and Housing Law (LRHL) sets forth the substantive standards that govern whether the declaration of blight (I’m sorry, need of redevelopment) may be made. The planning board conducts the investigation, holds a hearing, reaches a conclusion and transmits its report to the governing body, which then makes the decision based upon the evidence contained in the record of the hearing. Then a redevelopment plan is put together (by or with review by the planning board) and approved by the governing body.

The way it all too often can work is this: a favored developer wants to build a project on property it may or may not own and privately approaches “the powers that be” who cause the governing body to retain a consultant to prepare a draft report to justify the “in need of redevelopment” determination, often mainly parroting the statutory language. (There is a good chance that the consultant will also be hired to prepare any resulting redevelopment plan, so there’s all the more incentive to find a need.) The report is made publicly available, and notice of the planning board hearing is given (enough to satisfy the statute, but not much more). The consultant puts on the prepared presentation. There may be some public participation, but there is not likely to be time for opposition to get organized and marshal its own evidence). The planning board and governing body serially vote unanimously for the determination and in another month for the previously prepared redevelopment plan.

One of the important checks on municipal authority is the availability of judicial review to make it conform to statutory limits. To make certain that appointed judges do not substitute themselves for the elected local leaders the municipal action is cloaked with a presumption of validity and cannot be overturned unless it is arbitrary, capricious, and unreasonable. In many cases this standard requires that the municipal action be supported by substantial evidence in the record. Courts take this standard seriously (I often think too seriously) and it seems to me that the unreasonableness of a decision has to be glaringly obvious before they intervene.

That’s why I was pleased with this past Monday’s NJ Supreme Court decision in Malanga v. Township of West Orange. The town undertook the redevelopment designation process on its own public library with a pretty clear purpose of getting the ability to sell it at a private sale. Although the study found the library to be “in need of redevelopment” because “it could be better,” it was never for the purpose of improving that building. A new library is being built elsewhere while the current library site was intended to be redeveloped with senior citizen housing.((During the pendency of the challenge the township acted under a different statute to contract to sell the library site to a developer for the construction of an all affordable senior citizen housing development. That sale has not yet closed, and the town was unwilling to give up the redevelopment designation in case it fell through, so the Supreme Court rejected its contention that the case was moot.)) The lower courts upheld the municipal action, but the Supreme Court undertook a searching analysis of the record in light of the relevant statutory language and unanimously found that the municipal action was not supported by substantial evidence in the record.

I’m not going to go into detail about the municipal justifications and the particulars of the Court’s decision. I’m not criticizing the determination that maybe the library could be better or that senior citizen affordable housing should be built. But I am celebrating that the Court took its task seriously and did not simply take the easy route of rubber stamping the municipal action.

Jay Bohn

March 16, 2023

The Best Response to Misinformation is Accurate and Detailed Information

Yesterday NJ.com published an editorial “It’s not just Fox. Conservative media is lying to you.” I have no problem with the comments about Fox; the revelations in the Dominion Voting Systems lawsuit are pretty compelling, for example. While it may be true that “other conservative media channels . . . trash the basic rules of fairness in journalism,” the editorial neither names such “other” channels nor provides any examples.

The editorial then proceeds to compare the situation to two well-known cases where “mainstream”((“Mainstream” is NJ.com’s word. I have described such outlets as “professional media” to distinguish them from me, the hobbyist.)) media (the Washington Post and the New York Times to be exact) had to apologize for fictionalization by their reporters.

The purveyors of news should be accurate, and I am in no way defending Fox, but I do not know who these “26 leading right-wing outlets” are. I doubt very many of them provide significant news reporting. I think I’ve said this before((For example, here and here.)): a significant proportion of the “news,” even from “mainstream” sources is opinion, whether labeled as such or not. No doubt there are many “left-wing outlets” who also ignore inconvenient facts.

At the risk of repeating myself: news stories should be accurate and detailed. How many “mainstream” news outlets provided detailed reports of President Trump’s claims about widespread vote fraud? They merely labeled such claims as “false,” (which they are, but the point is give us the facts, don’t just expect the reader to trust your conclusions).

Jay Bohn

March 13, 2023

Proposal to Regulate Prior Authorization Highlights Conundrum in Paying for Healthcare

When a movie needs a group of villains, few are going to object if it turns out to be the Nazis. In non-movie life that role is often played by insurance companies.

Earlier this week NJ.com published a guest opinion by Josh Bengal, the director of government relations and staff counsel for the Medical Society of New Jersey. The point of the column was to encourage the passage of the “Ensuring Transparency in Prior Authorization Act, which — he says— “would remove barriers put up by health insurance companies, which use ‘prior authorization’ to deny coverage for care and treatment a physician deems medically necessary, but insurers consider ‘unnecessary.’”

I will get to the proposed statute in a minute, first I want to comment on something Bengal says in his opening paragraph about an ongoing review of our country’s healthcare system: “At the core of this review is an important question: How can we ensure patients have access to all the healthcare services they need exactly when they need them?” Absent a very strict interpretation of “need,” we can’t. In our society we have limited resources but unlimited wants. If you’re spending your own money, you make choices about what needs or wants take priority, but if someone else is paying, more wants have a way of becoming critical needs. Insurance policies are contracts, and patients should get the benefit of their bargain, which is not likely to be unlimited care.

As far as the prior authorization is concerned (and based solely on the description in the column — I have not read the actual bill), the proposal seems to involve only relatively modest, procedural requirements, such as prompt decisions, clear and concise requirements, and an opportunity to discuss denials with a physician. Who can argue with that? Exactly what makes me think that there are other features that may not be so benign. How to address limited resources and unlimited desires is a much more complex question.

Jay Bohn

March 9, 2023

Supreme Court a Scapegoat for Those Who Can’t Abide Judicial Review of Policies with Which They Agree

Stop me if you’ve heard this before. I politician addresses a rally in Washington, urging the crowd of activists to affect an official proceeding. I am of course talking about Senator Elizabeth Warren addressing supporters of student loan debt cancellation outside the Supreme Court while the justices heard arguments on whether the HEROES Act gives the secretary of education the power to do just that. ABCNEWS.com quotes Senator Warren as saying, “We are here today because President Biden has the legal authority to cancel student loan debt. Let me say that one more time and make ‘em hear it inside.” It is different less in kind than degree (albeit a lot of degree) from what Donald Trump did on January 6, 2021.

Senator Warren is then quoted as saying, “It is time for the Supreme Court to stop playing politics and just apply the law and let us cancel this debt.” What is holding a rally outside the court building, if not politics? I get it, it’s different. She’s on the right side.

While the nine justices are not as divorced from politics as one might hope,1 their treatment of this issue can hardly be called playing. The Supreme Court is involved because the Biden Administration asked it to be when it sought review of two lower court actions that stalled the scheme. The Court granted certiorari before judgment in the courts of appeals (rare); did so within two weeks of the initial application; and scheduled the cases to be heard within a matter of months. As usual, a decision is likely before the Court breaks for the summer in late June or early July.

This timeline is much quicker than the Biden Administration’s revealing of its student loan forgiveness plan. President Biden ran on the promise to cancel $10,000 of debt per borrower, a lot like the program he ultimately approved. He took the oath of office on January 20, 2021. Of course, first he had to deal with a Justice Department legal opinion that he (or perhaps more specifically, the secretary of education) did not have the authority to cancel the debt.((As I have previously written, then-House Speaker Nancy Pelosi agreed with this position.)) The plan was finally announced in August 2022, some 19 months later, just in time for the mid-term campaign season. Then it became urgent as the Biden Administration tried to run out the clock to prevent challenges.

Lets be clear. For many who are criticizing the court, the only justification that is needed for the program is that it is good policy, regardless of by whom or how it was created. The substance rather than the process is what’s important. But, as I said before, “While many might accept rule by an all wise and benevolent despot, remember the democracy is a process.” Or, as I said in another context, “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).”

Jay Bohn

March 6, 2023

  1. While there is some merit in the comment that the “fairness” of the program is not a relevant consideration for the Court, neither is the solicitor general’s assertion at the commencement of the argument [transcript here] that “Over the past three years, millions of Americans have struggled to pay rent, utilities, food, and many have been unable to pay their debts.” [↩]

If We are to Have a Government of Laws, Someone Must Be Able to Enforce Limits on Executive Power

Several of my recent posts have discussed the legal 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.”((See There’s a Difference Between “Constitutional” and “Unreviewable”; CNN Adds to Laurels with Good Explanation of Standing Issue in Student Loan Case; Texas Federal Court’s Dash to Invalidation of Biden’s Student Loan Forgiveness Program Likely to be Called Back for False Start.)) The requirement of standing is said to prevent courts from rendering advisory opinions, but it can be frustrating because standing does not exist where the prospective plaintiff’s concern is a generalized grievance such as, I have predicted,((Mixed Bag in Media Review)) whether President Biden’s student loan forgiveness plan is authorized by the HEROES Act.((On Tuesday the Supreme Court heard oral argument on the student loan cases: Biden v. Nebraska (audio feed | transcript) and Dept. of Education v. Brown (audio feed | transcript). A good academic analysis of the requirement of standing in relation to challenges to student loan forgiveness can be found in Hoover, Standing and Student Loan Cancellation, 108 Va. L. Rev. Online 129 (2022).))

Should the requirement of standing be relaxed where there is an important question that would otherwise be unreviewable?((I approach this question from a policy perspective, not by way of a legal argument that present standing doctrine is wrong.)) I guess that depends on whether you agree with the policy sought to be reviewed. After all, checks and balances are most important with respect to actions that one opposes.

New Jersey’s state courts do not have the same standing requirement as do federal courts. Standing in New Jersey requires only “a sufficient stake and real adverseness.”((Crescent Park Tenants Ass’n v. Realty Equities Corp., 58 N.J. 98, 107 (1971))) The question of expanded federal standing is considered by CNN’s Supreme Court reporter Ariane de Vogue in an article I have earlier praised, “The Supreme Court’s student loans case is about more than student loans.”

While shutting the courthouse door to opponents of executive action may empower Presidents in the short-term, it should give Congress pause in being too loose in the delegation of power in the longer term. You may trust today’s President, but what about the next?

Jay Bohn

March 2, 2023