From the Peanut Gallery – Page 16

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). [↩]

Grateful for Geographic Accuracy

Yesterday NJ.com published an updated survey of New Jersey’s 50 greatest hole-in-the-wall restaurants (behind the paywall unfortunately). Listed among them was Toby’s Cup, correctly described as being in Lopatcong Township rather than in nearby Phillipsburg (a point specifically made in the text of the article).

While I applaud the geographical accuracy, I note that it was missing in last month’s roundup New Jersey’s 25 best vineyards and wineries, the ultimate guide (also behind the paywall), which incorrectly listed Alba Vineyard as being located in Milford (a borough in Hunterdon County) rather than Pohatcong Township, Warren County, not even adjacent to Milford.((I understand that Alba is served by the Milford post office and therefore has a Milford mailing address, but that’s a different issue for another day.))

Especially if I’m paying for information from the professional media, I expect factual accuracy and attention to detail. As the converse of the biblical parable of the talents,((Matthew 25:14-30.)) fail me in small things and I will not trust you with greater.

Jay Bohn

September 5, 2022

Professional Media Need to Take Some Responsibility for “Misinformation”

Especially since the 2020 election, the mainstream media have been complaining about mis- (or dis-) information being spread, particularly by means of social media. A similar complaint is made by NJ.com’s editorial Misinformation campaign over sex ed carries on was was published on August 26, 2022.

Misinformation is best combatted by (accurate) information. I thought that was the job of the news media, particularly newspapers. That’s why I subscribe to several. But they’re not doing their job.

It seems to be that most writers are less interest in reporting facts than in pushing their point of view. I have many times (here and here for example) complained that many “news articles” are really editorials in disguise. To misquote Joe Friday, “Just the facts, ma’am.” It may not be the most glamorous or exciting part of journalism, but I suspect that why those who subscribe do (or, to put it in current perspective, what gets the eyeballs and mouse clicks).

A similar problem is the lack of details, which was the subject of one of my earliest posts.

To use as an example NJ.com’s complaint about misinformation related to sex education, the problem is that the public does not have a report of what is being taught. Where is the public supposed to get the information? Isn’t it newsworthy enough? The very on-line editorial ends with a request for support for journalism. Maybe better quality would get better support. (I suspect the real answer is that the education establishment is just as uninterested in providing the information as the news media are to report it. “It’s not the public’s business; don’t worry your pretty little heads over it. It’s our job. We know best.”)

Another example is the 2020 presidential election itself and the allegations made about whether it was stolen. Did any news outlet lay out details of the allegations to support the labelling of the claims as false? Not that I saw. The only detailed discussion I ever found was the was the July 2022, report prepared by conservatives outside the media: Lost, Not Stolen: The Conservative Case that Trump Lost and Biden won the 2020 Presidential Election.

If the news media are not going to provide their customers with accurate information, they need to take responsibility for a large measure of the ability of others to spread misinformation.

Jay Bohn

September 1, 2022

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

Freedom of Religion, As Long As You Agree With Me

My earlier posts involving First Amendment rights have dealt with the lukewarm support that is shown for the free speech rights of speakers with whom one disagrees.¹ In this post I am going to branch out a bit to the free exercise of religion (although free speech also applies to this example).

In an article published this past Monday, NJ.com reports that some residents of the Ocean Grove section of Neptune Township are concerned that the new beach pier that the religious organization that owns the land in the community is planning to construct to replace the prior pier that was destroyed by Superstorm Sandy, gasp, “too closely resembles a cross.”²

The article quotes a local resident, Doug Grote (described therein as a “retired” Methodist minister), whose follow-up guest column was published on NJ.com on Tuesday, as saying that the cross-shaped pier feels like “Christian bullying,” and reports that he has sought unidentified “intervention” by local and state officials.

As the article notes, Ocean Grove was initially founded as a religious retreat. The land is owned by the “The Ocean Grove Camp Meeting Association of The United Methodist Church” (OGCMA).((The OGCMA was formerly named “The Ocean Grove Camp Meeting Association of the Methodist Episcopal Church.”))

Ocean Grove is no longer a separate municipality. Although a Borough of Ocean Grove was established from part of Neptune Township following a referendum in 1920, it was dissolved following a court decision in 1921.((The Story of New Jersey’s Civil Boundaries 1606-1968.)) Therefore, Mr. Grote’s references to the “citizenry” of Ocean Grove is inaccurate at best.

The OGCMA continued to exercise certain governmental powers until the legislation providing for such powers was declared unconstitutional in 1979.((State v. Celmer, 80 N.J. 405. The article inaccurately characterizes the decision as “declar[ing OGCMA’s] charter unconstitutional.” The decision did not dissolve the OGCMA, but ruled that its “Board [of Trustees] cannot exercise essential governmental functions, make law or force compliance with its rules through the establishment of a municipal court and police department.”))

The OGCMA remains the owner of the land upon which it intends to construct the pier. According to the article, the pier has received the governmental approvals required for its construction, for which the OGCMA is paying with $750,000 of its own funds and another $550,000 especially raised for the purpose.

But apparently private ownership and religious expression are not enough for some. The article quotes a member of the local zoning board as saying that the cross-shaped pier necessarily represents Christian nationalism.

Although the cross is certainly a–if not the–preeminent symbol of Christianity, it is a basic shape (two line segments intersecting at more or less right angles) that long pre-dates its association with Christianity and continues to be seen in many places today (e.g., street intersections, the plus “+” sign, and a lower-case “t”) without any religious connotation. Indeed, the article quotes OGCMA’s president as responding to a question of whether the cross-shape is intentionally religious by saying merely that the shape is “highly functional.”((I do think this response is a bit too cute, but nonetheless accurate. The addition of the perpendicular arm of the cross to the pier increases its surface area without the need to extend the pier (which, I suspect, is probably not permitted) and thus increases its utility.))

Mr. Grote’s position is even more critical:

To me, any political power that would appear to bully its captive, vulnerable, secular citizenry into accepting a sectarian cross as the center of its cultural life is a likely human rights violator. With the pier’s construction set to begin soon, I fear that my faith’s lovely cross may soon become as toxic as a Trojan horse for Ocean Grove, Asbury Park, and all of New Jersey.

So, let’s do what democracy does best: Let’s let the politicians, the journalists, faith leaders, and advocacy groups ask the OGCMA to hold on to its $550,000 for a while until matters are investigated, all of its citizenry are consulted, and approve the cross-shaped pier, or not, just like democracy ought to work.

So, OGCMA’s right to religious expression on its own property must be subordinated to the sensibilities of those who do not share its religious views?

Jay Bohn

August 25, 2022

Post script

Mr. Grote’s guest column was published in today’s Star-Ledger, along with a follow-up on the original article that is also available on NJ.com.

The follow-up article continues to sow confusion about the OGCMA’s role by saying: “Under a complex charter, the association has authority over the land, beach and boardwalk in Ocean Grove, which is a small seaside section of Neptune Township in Monmouth County.” This statement implies that the land, beach and boardwalk are not the private property of the OGCMA and that somehow the association continues to exercise governmental authority rather than having the same rights as any property owner.

The follow-up also quotes another local resident as seeking political intervention: “It is time for our leaders, who are actually elected, to get involved to ensure that the protections afforded to us under the 1st Amendment to the U.S Constitution are not violated.” (You see, my First Amendment rights are more important than yours.)

J.B.B.
August 28, 2022

Free Speech is a Bitch; Free Speech, but Not for All Ideas. [↩]
The same article appears on page 1 of Tuesday’s edition of the Star-Ledger under the title “Pier plan in religious town crosses into controversy. [↩]

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

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

Abortion Kills More Black than White Babies

Many supporters of a legal right to abortion argue that there is a racial aspect, but two of these arguments are in direct contradiction to each other.

Two politics reporters at FiveThirtyEight.com argue that the anti-abortion movement is concerned that not enough white babies are being born in the United States. They claim that “the anti-abortion movement, at its core, has always been about upholding white supremacy.” How The Fight To Ban Abortion Is Rooted In The ‘Great Replacement’ Theory

Others assert that restrictions on abortion will have a greater impact upon racial minorities, see e.g., from NPR Abortion is also about racial justice, experts and advocates say; and from The Atlantic Abortion’s Racial Gap.

Abortion rates do indeed vary by race and ethnicity:

I don’t get it. If the primary concern of abortion opponents is to preserve a white majority, they should favor abortion as it kills more Black and Hispanic babies.

Jay Bohn

August 15, 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

Your Bias is Showing

The title of a story posted on NJ.com yesterday, Murphy signs costly auto insurance law that will affect 1.1M N.J. drivers, illustrates two of my gripes about commercial journalism these days, especially the on-line kind.

I believe that news articles should be primarily about providing the reader with facts. Other pieces, clearly labeled as “opinion” or “editorial”((I would prefer that the label “analysis” be reserved for much more in-depth reviews of an issue.)) can reflect the author’s point of view. I have found that adjectives and adverbs usually indicate the “article” is not primarily a factual presentation. In the story in question the title does not give the reader a clue about the nature of the auto insurance law, merely that it is, or will be, “costly.” Costly is bad, so the legislation must be as well. It turns out that the legislation raises the minimum liability limit for automobile insurance policies, which will naturally lead to an increase in the premiums. Whether this is good or bad is not my point, but that the title reflects the author’s value judgment.((Previous coverage of the issues suggested that proponents of the change were or were seeking to benefit personal injury attorneys.))

My other complaint is that the title, which is what appears on the site’s homepage, does not adequately convey what the article is about but instead serves as a piece of “click-bait” to excite the reader’s curiosity to go to the article (thus generating ad revenue). I know that’s what commercial journalism is about these days, but it is still annoying that my time is monetized in this way.

Jay Bohn

August 8, 2022