Category: Judicial Decisions

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

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. [↩]

News Media Should At Least Get Legal Basics Right

A large portion of my internet surfing involves looking at news sites, including so-called “aggregators” like MSN. Despite the dross, sometimes these sites provide links to interesting stories that don’t show up elsewhere. For example, yesterday there was a story entitled “Supreme Court backs Maine consumer protection law.”1 The headline piqued my curiosity because I know that the U.S. Supreme Court (which is the supreme court to which the headline refers) has yet to issue an opinion this Term. The story includes four paragraphs about the decision (with quotations), citing in part “court documents” (which turn out to be Maine’s brief in opposition to the petition for certiorari), purporting to report how the Supreme Court ruled. As I suspected, the story misstates what happened.

In 2020 Maine’s legislature passed a law that requires cable companies to provide a pro rata rebate for the month in which a subscriber cancels service, essentially requiring billing for the final month to be on a daily rather than monthly basis. Cable companies challenged the law, claiming that it was preempted((Preemption arises when state and federal laws conflict. Under the Constitution’s Supremacy Clause, federal laws trump state laws.)) by the Cable Communications Policy Act of 1984 which prohibits state regulation of “the rates for the provision of cable service.” The cable companies won at the district court level but lost at the circuit level and sought review in the U.S. Supreme Court by means of a petition for certiorari.((Certiorari was one of the common law prerogative writs whereby a superior tribunal ordered an inferior tribunal to send up its record on a case.))

Let me pause for a moment to explain how “appealing” to the Supreme Court works. The Supreme Court has discretion whether or not to take the vast majority of cases eligible for its review when such review is sought. The “right” to appeal to the Supreme Court is very limited, if it exists at all. The party seeking to have the Court take a case files a petition for certiorari; four justices must vote to grant the writ. Most petitions are denied without so much as a comment, but occasionally a justice may choose to write a brief opinion commenting on the denial or dissenting from the Court’s action granting or denying. The denial of a petition for certiorari has no legal effect beyond that particular case; it does not mean that the Court concludes that the decision below was correct.

So, where were we? Right, the cable companies lost in the court of appeals, so they asked the Supreme Court to take the case. The Court’s docket reflects the following action on January 9, 2023: “Petition DENIED.” The four paragraphs reporting on (and quoting) the Supreme Court’s ruling are inaccurate. Maybe the average American should not be expected to know the ins and outs of Supreme Court procedure, but journalists attempting to report on its activities should be more careful.((Although this post is about media inaccuracies, not the merits of the cable companies’ preemption argument, I do have to comment on a portion of the Maine attorney general Aaron Frey’s press release celebrating the denial of certiorari. He is quoted as saying, “Just as it would be unacceptable for a restaurant to charge for undelivered food or Amazon to charge for an undelivered package, large cable companies should not be permitted to charge for cable that is not provided.” The better simile might be whether a restaurant should have to proportionally refund the cost of a half-eaten meal because it was more food than the customer ultimately wanted or whether a city must refund part of the cost for a parking meter if the driver leaves before the time is up.))

Jay Bohn

January 16, 2023

Post script

While this post is not intended to be about the merits of the cable companies’ claim, I should point out that on October 15, 2021, New Jersey’s intermediate appellate court, the Appellate Division of the Superior Court, ruled that a New Jersey regulation requiring the same kind of proration was preempted by federal law. The NJ Supreme Court has granted review and heard oral argument today.((The cable company involved also obtained relief in federal district court, but the court of appeals ordered that case dismissed for procedural reasons.))

J.B.B.

January 17, 2023

  1. MSN’s source for the story was the Washington Examiner. [↩]

Justice Gorsuch’s Dissent in Arizona v. Mayorkas a Good Read

Among the tools used by the Trump and, with some apparent hesitation and distaste, the Biden Administrations to prevent entry into this country by non-citizens was an emergency decree, popularly called “Title 42,” premised upon the COVID pandemic. On November 15, 2022, the United States District Court for the District of Columbia invalidated the practice. Several States sought to intervene on appeal to defend the policy, but the U.S. Court of Appeals for the District of Columbia Circuit denied the application to intervene.

On December 27, 2022, the U.S. Supreme Court granted certiorari to review that decision and stayed the District Court’s judgment in the interim. The Court’s action does not mean that it is going to decide the legal validity of the Title 42 policy, merely whether the States can intervene to defend it.

I commend to any reader’s attention Justice Gorsuch’s dissenting opinion (which was joined by Justice Jackson). Justice Gorsuch correctly notes that the public health justification for the exclusion orders is no longer in force. “The States contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it.” But, as Justice Gorsuch concludes, “courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency.”((I see some similarity to my observation about the increasing inability of 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. The Misuse of Emergency Powers.))

Jay Bohn

January 12, 2023

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

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

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

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

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

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

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

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

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

Jay Bohn

November 21, 2022

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

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

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

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

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

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

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

Jay Bohn

November 17, 2022

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

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

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

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

Jay Bohn

November 14, 2022

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

Are We Done with Democracy?

In West Virginia v. EPA, one of the last opinions issued during its current Term, the United States Supreme Court ruled 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.

Predictably, the mainstream media was appalled and condemned the opinion, not because of any in-depth analysis of the statutory language, but because the overturned regulation was perceived as the better public policy choice. 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).((See, for example, my earlier post: COVID-19 and Emergency Powers.))

In an opinion piece published on NJ.com on July 24, 2022 (2 former EPA officials: The Supreme Court has dealt a blow to our planet), the authors attack the decision from the perspective that (at least as it relates to complex matters) democracy, the Major Questions Doctrine articulated in West Virginia v. EPA should serve as a limit on administrative power, is bad.

Under the Major Questions Doctrine, never before cited by a majority opinion of the Supreme Court, there must be a clear statement from Congress from which an agency can draw the conclusion that it has been given the authority to regulate a fundamental sector of the economy. Since there was no such clear congressional authorization, the Court held that the EPA did not have the authority to implement a generation-shifting program.

Instead, citing a “consensus” developed in the 1930s, the authors assert that because the two houses of Congress “possess [neither] the expertise nor the available time,” regulatory authority should properly be vested in administrative agencies “staffed by experts.” Congressional oversight would prevent abuse of power, even though “[i]n 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.” Wow.

This proposition is no less than the wholesale transfer of legislative power to so-called “experts.” Who decides who are the experts who get all this power? The executive of course.((One can also question whether these “experts” take their marching orders from the political folks above them.))

If Congress has neither the expertise nor he time to decide the regulatory framework in the first place, how can it effectively oversee agency actions?((The answer, I suspect, is that it cannot and isn’t really supposed to. The “oversight” exercise just camouflages the effective transfer of power.))

Jay Bohn

July 28, 2022

Free Speech, but Not for All Ideas

The French philosopher Voltaire is quoted as having said, “I disapprove of what you say, but will defend to the death your right to say it.” Many modern American institutions do not share this view.

A couple decades ago I first heard the term “political correctness,” then in the context that universities, which you would think are the haven for all sorts of ideas, were inhospitable to certain ideas, usually described as “-ist”: e.g., racist, sexist. More recently these content-based restrictions on speech have been justified by the asserted need to provide “safe spaces” for those offended by the ideas.

How often have we read of a public employee expressing some idea only to be met with the employer promising an investigation and asserting that those ideas “do not reflect our values”?

NJ.com recently reported that the mayor of Bloomfield was trying to prevent the opening of a Chick-fil-A restaurant in the local Garden State Parkway service area . (The same article was published in the Star Ledger on January 15, 2022.) The objection was not to the quality of the food but to the political views of the company’s leaders. The article quoted the mayor as saying: “Bloomfield is a diverse community accepting of all races, religions and sexual orientations, which is the antithesis of what this chain stands for.” The company can have, and perhaps express its opinions, but we’re going to punish it for them.

On January 18, 2022, the United States Supreme Court heard argument in Shurtleff v. Boston (transcript available here). For almost two decades the City of Boston had a program whereby groups could request to raise a flag on a City-owned flagpole in front of City Hall for a brief time. (The City’s own flag usually flew on that pole.) During this period there were hundreds of requests from various groups; all were approved — until the petitioner’s group requested permission to fly the “Christian flag” for one hour. The request was denied. As expressed by the City’s attorney during oral argument, “[T]he City … will not put up a flag that is discriminatory, offensive, or that supports religion.”

Clearly, many disagree with Voltaire and believe that free speech does not apply if they disapprove of what you want to say.

Jay Bohn
January 20, 2022

COVID-19 and Emergency Powers II – Not Much Has Changed

About four months ago I wrote a post entitled COVID-19 and Emergency Powers in which I commented on the tendency of the nation’s governors to seize upon the COVID-19 pandemic to exercise emergency powers. I said

attempts to rein in the use of emergency powers have been viewed through the prism of politics or the perceived merits of the action taken rather than process considerations or the constitutional separation of powers.

Nothing has changed.

In a recent article, Kentucky gov suffers legal defeat in combating COVID surge, ABCNews.com reported on a ruling of the Kentucky Supreme Court ordering the dissolution of an injunction against legislation which limited the governor’s emergency powers. The ABC News article seems to imply that only governors can aggressively and correctly decide what’s best for the rest of us to combat COVID.((Unless of course the governor wants to prohibit mask and vaccine mandates, in which case local control becomes more important.))

Governors, like the President, exercise executive authority.1 State legislatures may have delegated to their respective governors some portion of their legislative power to exercise when necessitated by an emergency. In the absence of a specific state constitutional provision, why shouldn’t the same legislature be able to exercise its law-making power to act as a check on this delegation?

COVID has been with us for a year and a half. True, there always seem to be developments, but it is no longer something new that justifies allowing one person to be the sole decider of each state’s response. Every exercise of emergency power to avoid the inefficiencies of the legislative process makes it that much easier to see the next event as an emergency .

Jay Bohn
September 6, 2021

  1. The extent to which they share this authority with other officials not subordinate to them is a matter of the constitutional law of the specific state. [↩]