Category: Law

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 Justice Gorsuch correctly notes that the public health justification for the exclusion orders is no longer in force.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

We Cannot Simply Ignore the Parts of the Constitution We Don’t Like

Recently the Star-Ledger Editorial Board opined that “The 2nd Amendment is a curse.”1 While I am not entirely convinced that we would not be better off without that constitutional guaranty, I am unwilling to pretend that it is not part of the Bill of Rights or that its meaning must necessarily reflect my own view of the best public policy.

For once I would like a discussion of the Second Amendment to start with its text: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” While the wording could certainly be clearer, it does not limit the right to State militias, it is expressly guaranteed to “the people.”2 But what exactly the right is is not specified with any clarity, and “Arms” may not mean every sort of weapon.

I would like to think that we can deduce some textually faithful middle ground between those who find no limit acceptable and those who believe that no ordinary citizen should have a gun.

Jay Bohn

January 5, 2023

  1. That’s the title of the on-line version. The print version published on January 3, 2023, was given a slightly different title: “The 2nd Amendment is our nation’s curse.” I’m still waiting for an explanation of the need to have different titles for the same content on-line and in print. [↩]
  2. The text of the Tenth Amendment, proposed at the same time, shows well that the First Congress know how to distinguish the two: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” [↩]

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

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

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

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

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

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

Jay Bohn

December 15, 2022

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

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

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

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

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

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

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

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

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

Constitution Protects Free Speech, not Conduct Occurring While Speaking

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

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

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

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

Jay Bohn

December 8, 2022

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

To Avoid Statutory Interpretation Issues, Legislature Should Write Clearer Statutes

I’ve been seeing a lot of article-editorials recently attacking originalism as an approach to interpreting the Constitution. I plan to address constitutional interpretation at length someday, but not today. What I want to address in this post are interpretive questions (primarily of statutes) that could be avoided if the legislature were only clearer.

Early on in this blog I wrote about a Supreme Court case Yellen v. Confederated Tribes of Chehalis Reservation where the Supreme Court had to decide “[w]hether Alaska Native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act are ‘Indian Tribe[s]’ for purposes of the CARES Act.” I took no position on the outcome, but I was critical on Congress’s sloppy drafting that led to the question’s being unclear and its failure to settle the question by a clarifying amendment before the case got to the Court.

Recently a New Jersey statute was brought to my attention. It prescribes a certain rule unless a and b or c. Generally, the word and is conjunctive. If the statutory framework were a and b and c, then all three conditions would have to be true to invoke the “unless.” Conversely, or is disjunctive, so if the statutory framework were a or b or c, then the “unless” would apply if any one (or more) of the three conditions were true.

Use of parentheses helps show the two different interpretations:

  • (a and b) or c
  • a and (b or c)

Apparently, there is a sort of order of operations for logical expressions (and I read “logical” to refer to computer logic) whereby and is applied before or such that “(a and b) or c” would be the way to read this statute, but I am aware of no authority to apply (computer) logical rules to reading statutes.

But by mixing the conjunctions, the Legislature created confusion. Laws do not use parentheses to show the order of operations, but the statute would be clearer if the alternatives were more clearly outlined:

Provision applies, unless

1. a. a, and

b. b; or

2. c.

OR

Provision applies, unless

1. a, and

2. a. b or

b. c.

Jay Bohn

October 20, 2022

The Supreme Court’s Decision in Pig Welfare Case Should Not be About Pigs

In yesterday’s paper (but not online) the Star-Ledger published an editorial “How much cruelty is a pork chop worth?” by Kathleen Parker of the Washington Post regarding National Pork Producers Council v. Ross, a case to be argued in the United States Supreme Court on Tuesday.

The case involves a challenge to a California law adopted by initiative to prohibit the in-state sale of pork products produced by livestock practices that the proponents of the initiative petition deemed to be inhumane. The challengers basically assert that the law seeks to regulate out-of-state conduct((Almost all pork consumed in California is produced elsewhere.)) and this violates a doctrine known as the “dormant” or “negative” commerce clause.((The “commerce clause” of the United States Constitution authorizes Congress to regulate commerce between the States (“interstate commerce”). The dormant commerce clause is an interpretation of the Constitution that equates lack of Congressional regulation with an affirmative choice by Congress that the area be unregulated. It essentially denied States the power to regulate conduct affecting interstate commerce. It is really more complicated than that, but this explanation provides the essential point.))

The Parker editorial does a good job of engendering ethical sympathy for the pigs, but that should not be the basis of the Court’s ultimate decision in the case. The Court must decide whether, under our Constitution, California and its voters have the power to pass the law, not whether the farm practices mandated by that law should be imposed as an ethical matter. Parker’s result-oriented argument is essentially the same as made by those senators who have urged President Biden to declare an emergency in order to take action on climate change that Congress will not. As I noted last month, “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.”

In closing, I want to note that Parker seems to assume that the liberal justices on the Court will vote the way she advocates when she writes that “the justices who make up the high court’s conservative majority have a rare opportunity to align themselves . . . with their liberal counterparts . . . .” While I am not going to predict how any justice will vote, I do point out that Justice Thomas is no friend of the dormant commerce clause. “The negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application.” Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564, 610 (1997) (Thomas, J., dissenting).

Jay Bohn

October 10, 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

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

If You Thought the War on Drugs Was Bad, Try Cheating the Tax Man

In an opinion piece published on NJ.com on July 24, 2022 (Former AG: Local prosecutors need to step up and shut down New Jersey’s Illegal cannabis market), former New Jersey attorney general Chris Porrino urges rigorous enforcement action against unlicensed cannabis merchants whose “activity is unsupervised, unregulated, untaxed and potentially unsafe.” While criminal laws should be uniformly enforced (if only because the failure to do so breeds contempt for all law), is this not another war on drugs, this time for the benefit of tax collectors and those lucky (or connected) enough to get a license?

Jay Bohn

August 22, 2022