Government/Politics – Page 10 – From the Peanut Gallery

Gun Laws Not Something for Excessive Police Discretion

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

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

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

Jay Bohn

October 24, 2022

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

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

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

Jay Bohn

October 17, 2022

Developers’ Escrows and the SEP Problem

During last year’s trek into economics, I posited that demand can be distorted by what I called the “SEP problem,” when someone else is paying. My thesis is that “demand” includes, but means more than, “want” or “desire” for an item; it requires “wherewithal,” the ability to pay, to be effective.((Discussed in a bit more detail in Economics 102: The Law of Supply and Demand.)) I gave as one example the means by which New Jersey municipal land use agencies pay for the services of their attorneys, engineers, planners, and other professionals in reviewing applications for development:

The applicant is required to fund (and replenish when depleted) an escrow account which is used to pay the municipal professionals. The applicant has no control over the selection of these professionals or their hourly rates and little opportunity to challenge their bills. Municipalities, which set the rates and can control the time expended on the review, have little incentive to do so, because “someone else is paying.”

The hourly rates paid to these professionals are not the biggest part of the problem because the law at least imposes some restraint. The professional is not allowed to charge the developer’s escrow at a rate greater than the professional charges the municipality when the town itself is the one paying the bill and municipalities will often pay lower rates than private clients.

The problem will usually arise in the amount of time that the professional devotes to the review and the prolixity of their reports, a long report giving the impression that the time was actually and appropriately spent. The problem becomes more acute when the professional is part of a larger firm that will assign multiple employees to work on the same review.((I have heard more than once that the municipal engineer charged more for the review of plans than the applicant’s engineer charged to prepare them.))

There is a means to dispute a charge, but it involves a challenge brought before the county board of construction appeals (not necessarily expert in this area), and what developer wants to anger the municipal review professional while the project is ongoing, or a future project is contemplated?

These jobs can become very lucrative for the professionals and despite some efforts to prevent it by “pay to play” restrictions, there is undoubtedly some sharing of revenues between some professionals and the politicians who select them. At the least the jobs are regarded in many towns as a political plum to be handed out to supporters. (There is often a wholesale change in professionals following a change in party control.)

This is not only a problem for developers; this system could lead to a tacit understanding between developers and municipal professionals: “I won’t complain about your escrow charges as long as I get my approval.” or “If you want your approval, don’t complain about my charges.”((I am saying there is a potential; I do not have any personal knowledge that this has actually happened.))

There is no structural way to assure good government, but government can be designed so that is more likely. I believe that municipalities should be given a greater incentive to control these charges by “having some skin in the game.” I propose that this be done by requiring some percentage (I don’t know if it should be 10% or 50%) of the cost be paid by the municipality.

Diverting Student Loan Relief to State Schools a Questionable Solution to a Different Problem

Last Thursday the Morning Call (a newspaper published in Allenton, Pennsylvania, for those of you who are not local((Look at me, implying not only that I have readers, but that they are geographically diverse.))) published “Invest in state schools, not in student debt,” an editorial by Eduardo Porter from Bloomberg Opinion.¹

Porter’s thesis is that the federal contribution to the availability of higher education, in the form of student loans and grants, largely resulted in price increases by “[p]retty much the entire educational ecosystem”((Porter spews particular venom at for-profit schools.)) and it would now be better (although not politically palatable) to spend the $500 billion plus that President Biden’s student debt cancellation is going to cost (in the form of foregone revenue) on matching the State appropriations to their public colleges and universities.

While I certainly agree with the premise that the availability of financial aid caused a large part of the increase in college costs (because any broad-based demand-side subsidy will tend to increase the cost of the subsidized commodity), the suggested solution is objectionable for any number of reasons.

Let’s start with the one Porter implicitly recognized when he doubted the political palatability of his proposal, student loan relief seeks to a solve a different problem. It attempts to mitigate perceived financial hardship resulting from the borrowers’ past consumption of higher education, while Porter’s “investment” is aimed at preventing or limiting future price increases, directly benefiting a mostly different set of student-consumers.

Further, even if the President((Technically, the Administration’s argument is that the secretary of education has the authority, but same difference.)) has the authority to cancel student loan debt as he proposes (which is by no means certain–Nancy Pelosi herself denied in the summer of 2021), that is hardly the same thing as sending checks to States or schools.

Finally (for now), the proposal does not really increase the supply of higher education, it just subsidizes demand less directly. No institution ever thinks it has enough revenue as new spending will immediately be seen to be needed. (Look at New Jersey’s 2022-2023 State budget; lots of extra money balanced by lots of new spending (I’m sorry, “investment”).)

Jay Bohn

September 19, 2022

I could not find the editorial on mcall.com, I imagine because it is syndicated, but it appears to be on Bloomberg’s own site (paywall) under the title “Deliver Students From Debt by Investing in State Schools.” [↩]

Border State Busing Exposes “Sanctuary City” Hypocrisy

Immigration is a complicated issue and has been a matter of contention since the founding of the republic.((Remember the Adams-era Alien and Sedition Acts from American history? The Sedition Act got the most attention, but three of the four laws, one of which remains in effect, were aimed at non-citizens.)) We cannot even agree on terminology. The phrase “illegal aliens,” common a few decades ago, is criticized on the ground that “no person is illegal.” (True, but the phrase does emphasize that these people’s entry into, or continued presence in, the United States is contrary to law, whereas the substitute “undocumented aliens” suggests that it is simply a question of lost paperwork, much like not having your car’s registration and insurance card in your glove compartment when stopped by the police.) Now even the word “alien” is unacceptable and being replaced by “non-citizen.”

For years some states, like Texas, have been pushing for the federal government fully to enforce existing immigration laws while presidents (who are constitutionally responsible to enforce those laws) decline to do so because they disagree with them from a policy perspective.((I too would prefer a more open immigration system than current law provides, but as the hypothetical reader of this blog may have gathered, I am always concerned about process issues. Immigration policy is a matter for legislation by Congress, subject to the presidential veto. Picking and choosing what laws to enforce encourages disrespect for all law.)) Many cities have declared themselves sanctuaries and refuse to cooperate in immigration enforcement activities. But these cities do not bear the same burden as do communities along the border. These “sanctuary cities” are able to pretend to the moral high ground because, to put it in economic terms, someone else is paying.

Thousands of migrants cross the border. Once in the country, even if caught by immigration officials, they claim asylum (which will be granted to so very few that the claim itself is essentially a fiction)((Asylum protects those with a well-founded fear of persecution, not the vast majority who simply want the better life they foresee in the United States.)) and are released until they receive a hearing. In the meantime they are, as the Southwest Airlines ad puts it, “free to move about the country.” Texas Governor Greg Abbot has responded in a politically brilliant way by creating “Operation Lone Star” in which willing migrants((See this CNN story: Texas is bussing migrants to New York and DC for free — many want to go .)) are put on busses that take them to Washington, New York, and, more recently, Chicago.

While mouthing platitudes about being welcoming communities, the mayors of these destination cities are seething about having to bear the economic cost of food and shelter for the migrants. The mayor of Washington complains that the federal government will not mobilize the National Guard; the mayor of Chicago created her own bussing program and sent the migrants to a hotel in a Republican suburb.

And what would a blog post be without a complaint about the professional media? It’s hard to find facts as most of the coverage is either partisan (in the sense of pro or anti immigration) or more interested in political conflict.

Jay Bohn

September 15, 2022

The Misuse of Emergency Powers

A while back((I just came across the piece yesterday.)) Tom Moran of the Star-Ledger/NJ.com published an editorial (which in turn relies substantially upon an analysis by Elizabeth Goitein of the Brennan Center for Justice) saying that President Biden should not, as urged by a number of senators, including New Jersey’s Cory Booker, declare an emergency in order to take action on climate change that Congress will not.

Both Moran and Goitein cite President Trump’s misuse of emergency power to reallocate government spending to his border wall as an example not to be followed. Goitein writes:

[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.

This position is consistent with the opinions I have expressed regarding COVID-19 and emergency powers here, here, and here. “Emergency” does not mean the same thing as “urgent.”

From my observation, 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.((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.)) As I wrote a few months ago, in response to the United States Supreme Court’s ruling West Virginia v. EPA that Congress did not grant EPA the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan, two former EPA officials took the editorial position that in lieu of democracy regulatory authority should properly be vested in administrative agencies “staffed by experts.” “In the absence of specific statutory language to the contrary, deference would be given to each agency in defining the scope and limitation of its power, its range of activity, and the interpretation of the statutes it administers.”

Democracy is inefficient and sometimes gets it wrong, but it’s the best form of government we have.((Winston Churchill is often mistakenly quoted as saying: “Democracy is the worst form of government, except for all the others.”))

Jay Bohn

September 12, 2022

On the Waterfront (Commission)

In 1953, partially in response to a series of articles in The New York Sun that exposed the grip the mob had on commerce in the ports around New York City,((“On the Waterfront, a Mob Watchdog Is Fighting to Survive,” New York Times (online) January 17, 2018.)) the States of New York and New Jersey, with the consent of Congress, entered into a “compact” which created the Waterfront Commission of New York Harbor (the Waterfront Commission), to regulate the harbor.

In 2018 New Jersey passed a statute (Chapter 324) to withdraw from the compact and terminate the Waterfront Commission. This past March, just before the withdrawal was to take effect, New York sought leave to file a rare original action in the United States Supreme Court and a motion for preliminary relief to enjoin the withdrawal during the pendency of the action. The Supreme Court quickly granted preliminary relief and a few months later granted New York’s motion to file a bill of complaint. At the same time the Court granted the States’ joint motion to file cross-motions for judgment on the pleadings.

Last week the New Jersey Globe scooped NJ.com/the Star-Ledger in reporting that the United States had filed an amicus brief in support of New Jersey’s position.

Kudos to the New Jersey Globe for reporting the story, but it got the procedural history wrong. The end of the Globe’s article states that the Supreme Court’s decision to allow the bill of complaint to be filed “stay[ed] a Court of Appeals decision that sided with New Jersey.” This is inaccurate. What happened is that after Chapter 324 was passed the Waterfront Commission itself sued New Jersey in federal district court, which sided with the Waterfront Commission on the merits.((Waterfront Comm’n of N.Y. Harbor v. Murphy, 429 F. Supp. 3d 1, 3 (D.N.J. 2019).)) On appeal, the U.S. Court of Appeals for the Third Circuit ruled that the district court did not have jurisdiction over the State of New Jersey under the doctrine of sovereign immunity.((Waterfront Comm’n of N.Y. Harbor v. Governor of N.J., 961 F.3d 234, 236 (3d Cir. 2020).)) The Supreme Court denied review. ¹ Thus, the Third Circuit’s holding that the district court does not have jurisdiction over the State of New Jersey in a suit brought by the Waterfront Commission remains in effect. The Supreme Court’s unquestioned jurisdiction to entertain a suit brought by the State of New York is an entirely different matter.

As far as I could find, NJ.com has only published one story with any level of detail on the merits of New Jersey’s attempt to withdraw from the compact, a 2021 editorial The only reason to break up the Waterfront Commission: Politics. Not politics really though, the editorial contends that the New York Shipping Association and the “mobbed-up” International Longshoremen’s Association have bought New Jersey. If NJ.com believes that, where are the hard-hitting investigative pieces, like those that lead to the creation of the Waterfront Commission in the first place, proving it to be so?

I don’t know if New Jersey can or will root out any corruption infecting the 80% of harbor business that flows through the state, but I do not for one moment believe that New York’s opposition to the termination of the compact and the Waterfront Commission reflects only that concern. Like other bi-state agencies, the Waterfront Commission is a source of patronage spoils in the form of lucrative jobs and contracts split between the two governors, although I suspect that, as usual, New York gets more than its fair share.

Jay Bohn

September 8, 2022

Waterfront Comm’n of N.Y. Harbor v. Murphy, 142 S. Ct. 561 (2021). [↩]

Thoughts About Student Loan Forgiveness

Last week President Biden announced his long-awaited decision on using “executive authority” to forgive student loan debt held by the federal government. Ultimately there was little surprise as the announcement indicated that $10,000 per borrower earning less than $125,000 annually would be forgiven, a position essentially consistent with his campaign promise and widely telegraphed in the media in the lead up to the announcement. One wrinkle that I did not see predicted in advance is that borrowers who had received Pell grants would see loan forgiveness of $20,000.

The purpose of this post is to discuss some concerns about this decision and the arguments made for and against loan forgiveness. I am not going to address every argument for and against that I have seen in the media.

The first concern is whether the president indeed has the authority to forgive student loans in this way.((See Forbes‘ discussion of this question from January 2021.)) The issue was discussed on a PolitiFact posting last summer in some detail. You have to really dig deep into the coverage of the announcement to find a current story that addresses this important question. In the beginning of his term the president asked the secretary of education to prepare a memo on this question. For over a year this memo had never been released.((However, a redacted draft version was published by Insider last November.)) Suddenly a memo, written to the secretary of education by the department’s general counsel on August 23, 2022, argues (contrary to the conclusions of a similar inquiry undertaken at the end of the Trump administration((The Forbes article contains a hyperlink to this older memo, but clicking it results in a “404 – Page not found” error on the Department of Education website.))) that the secretary has legal authority to cancel student debt on a categorical basis under the Higher Education Relief Opportunities for Students (“HEROES”) Act of 2003 during a war or national emergency, which according the the memo includes the COVID-19 pandemic. This opinion is shared by the Office of Legal Counsel in the Department of Justice. 46 Op. O.L.C. __ (Aug. 24, 2022).)

Doubts or outright denials of the president’s authority to declare widespread forgiveness have been expressed not just by Republicans; last summer House Speaker Nancy Pelosi said the following in a press conference:

People think that the President of the United States – is this more on the subject than you ever want to know? Well, you’ll let me know. People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress. And I don’t even like to call it forgiveness because that implies a transgression. It’s not to be forgiven, just freeing people from those obligations.
. . . .
But the difference between the President – the President can’t do it. So that’s not even a discussion. Not everybody realizes that. But the President can only postpone, delay, but not forgive.
Transcript of Pelosi Weekly Press Conference Today [July 28, 2021]

A second concern is that the announced forgiveness is a one-off event, not a coherent program. Indeed, the Star-Ledger highlighted just this concern in last Friday’s edition by publishing on the front page an Associated Press story pointing out that it does not fix the underlying problem, the rising cost of college (more about this in a bit). (Although not available on NJ.com, the story can be found on the AP’s own website). Still, it will lead to expectations on the part of future borrowers that it will be repeated.

There are those who want to find an equivalence between this extraordinary student loan forgiveness and the forgiveness of loans under the Paycheck Protection Plan (PPP) at the beginning of the COVID pandemic. The White House twitter account identifies six Republican members of Congress as having had PPP loans forgiven. But, 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. Remember March 2020, when governors all over the country declared emergencies and shut down the economy? The PPP loan program gave employers the ability to continue to pay employees, even if the stay at home orders prevented them from working. The purpose was to keep the economy from cratering. Oh, it was also authorized by Congress.

Then there’s the argument that this program is unfair to those who paid back their loans. While the new generation getting something an older generation didn’t may appear a bit unfair, but is it unfair that we enjoy indoor plumbing when our ancestors had to use an outhouse in the middle of winter?

I am more interested in the response of proponents of student loan forgiveness on this point, which is to cite the staggering increase in the cost of higher education. The White House’s announcement tells us “Since 1980, the total cost of both four-year public and four-year private college has nearly tripled, even after accounting for inflation.” Star-Ledger columnist Drew Shenemen says: “In 1970, prime boomer college age, the average yearly tuition for a four-year public university was $358. Tuition at private schools was a bit over a grand. In 2020, one year of tuition at a public university was over $10,000 nationally and $13,000 in New Jersey. Private tuition hit $38,000 nationally and $37,000 in Jersey.” This brings me to the point I made during last August’s great (in the sense of “long” or “arduous,” I suspect, rather than “wonderful”) trek into economic principles: broad-based demand-side subsidies tend to cause the price of the subsidized commodity to increase. As relevant here, the cost of higher education has increased at many times the rate of inflation generally. A significant cause of this increase is the existence of financial aid. 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.

And one final reference to COVID. As noted above, in March 2020 our economy was largely, and very suddenly, shut down. Lots of programs, in addition to PPP loans, were enacted as temporary, emergency measures to prevent economic disaster: $600 bonus unemployment benefits, eviction moratoria, mandated sick leave, to name a few. These were somewhat blunt and put in place hurriedly. For the most part they were not means-tested, there simply wasn’t time to fashion the programs in the same detail as one would normally expect. Once of these measures was a pause in the requirement to make payment toward student loans and the accrual of interest on these loans. The bluntness of this response, a pause regardless of how much, if any, income the borrower lost as a result of the pandemic, was excusable due to the urgency of the problem. Two and a half years later, that excuse no longer suffices. To the extent that student loan forgiveness is a response to COVID (and that is the legal basis being asserted), a closer fit should be required.

Jay Bohn

August 29, 2022

Ruminations on Political Parties

My recent post on the nascent political party Forward got me to thinking of the nature of political parties in our country. Although the existence of political parties could hardly have been a surprise to the framers, the Constitution does not expressly provide for them; they are extra-constitutional.((A digression on nomenclature. Without claiming to have coined the term, I have decided that extra-constitutional best describes a political institution for which the Constitution does not provide but which is not inconsistent with it. Other terms I considered were nonconstitutional and aconstitutional. I would use meta-constitutional to describe the nature of constitutions.

The term constitutional can be used in two similar, but distinct, senses. First, and most commonly, as the opposite of unconstitutional which connotes “contrary to;” and secondly as “based upon.”))

Fundamentally then, a political party is a more or less organized group of people seeking the election of candidates to public office under the party’s name. As such, political parties require no more legal recognition than any other private group. But in most states, some political parties are accorded a degree of recognition, most significantly in the form of a place on the general election ballot for the party’s nominees for public office.

In New Jersey such recognized political parties select their nominees by means of a partisan primary election. The members of the party (that is, those voters who have chosen to “affiliate” with the party by asking for that party’s ballot at the primary) choose the candidates who will run under the party name in the general election. (An alternative system, and what I believe Forward is advocating, is the use of primary elections to winnow the candidate field but not to award the party label to the winners, a non-partisan primary.) In addition to the party nominees the general election ballot will include independent candidates.

There is no inherent reason why a political party has to choose its candidates in this fashion; the party could hold a convention or authorize some committee to make the choice in the allegorical “smoke-filled room.”

Some years ago the idea was going around that the nominating process resulted in candidates who were considered to be on the “extreme” (that means bad) side of the party–I guess they were too partisan, so these people advocated open primaries, that is, a primary where anyone could choose to participate, whether affiliated with, or completely opposed to, the party’s principles. This was called an “open” primary. The constitutionality of such an open primary is tricky. In California Democratic Party v. Jones, 530 U.S. 567 (2000), a 7-2 majority held that California blanket primary system was an unconstitutional infringement on the rights of political parties’ to associate, while in Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008), a somewhat different 7-2 majority upheld a “modified blanket primary” system.

Jay Bohn

August 18, 2022

Way Too Early for Conclusions on Mar-a-Lago Search

A few days ago the FBI conducted a search of Donald Trump’s Florida home. Predictably the former president and others were appalled at this unprecedented action. Trump is quoted as say that the search was persecution by “Radical Left Democrats who desperately don’t want me to run for President in 2024.” House Republican leader Kevin McCarthy tweeted:

I’ve seen enough.
The Department of Justice has reached an intolerable state of weaponized politicization.
When Republicans take back the House, we will conduct immediate oversight on this department, follow the facts, and leave no stone unturned.
Attorney General Garland, preserve your documents and clear your calendar.
(1) Kevin McCarthy on Twitter: “Attorney General Garland: preserve your documents and clear your calendar. https://t.co/dStAjnwbAT” / Twitter

If Trump and McCarthy are correct, the raid was an abuse of power for political purposes, but it is far too early to come to that conclusion. Former New Jersey governor Chris Christie (who is also a former U.S. Attorney and knows a thing or three about criminal investigations of prominent political figures) points out that this was not just a decision by the FBI, but the Justice Department had to convince a federal judge that there was probable cause for the search. As Christie says, we “really don’t know what we don’t know,” so we need some patience.

For my part, I really doubt that this action was raw politics. There are just too many people involved with too much to lose and little to gain. While some people would no doubt be intimidated by an FBI search and “get the message,” who would think Donald Trump is one of them? Like Governor Christie, I look forward to the release of relevant information in due course.

Jay Bohn

August 11, 2022