Public Comment Rules Are Good, but Discourage Regulators from Doing Anything With Them

Yesterday NJ.com published an editorial, “Murphy and climate, on the clock,” which urges the rapid adoption of state regulations to push for more electric rather than gasoline powered vehicles. The problem, according to the editorial, is the time it will take the Department of Environmental Protection to respond to the comments that the proposed regulations are bound to receive. You see, administrative agencies must publish proposed regulations in the New Jersey Register and allow time for the public to comment on the proposal. At the time the regulations are adopted, the agency must respond to the comments received, most often rejecting any comments that advocate any significant change in the proposal.

Such rejection is not only because the agency is unlikely to change its mind about the best way to regulate, but because any substantial change would require a revised proposal and further delay in adopting the regulation. There is a similar requirement for adoption of municipal ordinances: two readings are required, with notice given between the two and a public hearing at the time of the second with any substantial change requiring the governing body to start over.

I don’t know the answer, but it is perverse that there is such a disincentive for the government to change its proposal in reaction to public comments.

Jay Bohn

July 20, 2023

State-Imposed Mandatory Retirement for Congress Will Not Work

A couple days ago I saw a story on AP.com about a ballot initiative in North Dakota seeking to prevent octogenarians from representing the state in Congress. According to the article,1 “No one who ‘could attain 81 years of age, by the end of their term could be elected or appointed to the state’s U.S. House or Senate seats, under the proposal.”

The proposal reminded me of the various state-level attempts to impose term limits in the 1980s and 1990s. In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), the Supreme Court ruled that the states cannot impose qualifications for prospective members of Congress stricter than those the Constitution specifies.2

In addition to the evident unconstitutionality of such a prohibition, I do not favor substantive limits upon who the people can elect.3

Jay Bohn

July 17, 2023

  1. I could not find the actual text of the proposal, so I have to rely upon the article. ↩︎
  2. Term Limits was a 5-4 decision. Only Justice Thomas remains on the Court, and he dissented from the decision.) ↩︎

U.N. Vote Against Quran Burning Raises Free Speech Concerns

In the news yesterday was a vote by the United Nation’s Human Rights Council to adopt a resolution on “Countering religious hatred constituting incitement to discrimination, hostility or violence” by a vote of 28-12 with seven abstentions.1

This appears to be the actual text:

the Council condemns and strongly rejects any advocacy and manifestation of religious hatred, including the recent public and premeditated acts of desecration of the Holy Quran, and underscores the need for holding those responsible to account in a manner consistent with obligations of States arising from international human rights law; and calls upon States to adopt national laws, policies and law enforcement frameworks that address, prevent and prosecute acts and advocacy of religious hatred that constitute incitement to discrimination, hostility or violence, and to take immediate steps to ensure accountability.

The Council urges the United Nations High Commissioner for Human Rights and all relevant Special Procedures of the Human Rights Council, and treaty bodies within their respective mandates, to speak out against advocacy of religious hatred and to formulate recommendations on addressing this phenomenon; requests the High Commissioner to present at its fifty-fourth session an oral update on the various drivers, root causes and human rights impacts of religious hatred constituting incitement to discrimination, hostility or violence, highlighting gaps in existing national, legal, policy and law enforcement frameworks, to be followed by an interactive dialogue; decides to organise an interactive panel discussion of experts at its fifty-fifth session to identify drivers and root-causes and human rights impacts of desecration of sacred books, and places of worship as well as religious symbols as a manifestation of religious hatred which could constitute incitement to discrimination, hostility or violence. 

Source: Human Rights Council Condemns and Strongly Rejects Any Manifestation of Religious Hatred, Including Recent Public Acts of Desecration of the Holy Quran | OHCHR

Although religious hatred is bad, the requirement to “prevent and prosecute acts and advocacy of religious hatred that constitute incitement to discrimination, hostility or violence,” especially with the apparent specific intent of banning the burning of the Quran (Islam’s holy book)2 led the United States and the European countries on the council to vote against the resolution. The language is a bit vague, but I think it can fairly be read to call upon countries to ban the burning of the Quran, at least when that action is intended to be expressive, and I am willing to believe that is the entire point.3 One of the concerns expressed by Turkey with Sweden’s joining NATO was that Sweden did not prevent the burning of the Quran at a demonstration.

Inasmuch as the U.S. Supreme Court has ruled that that burning the flag of the United States is protected speech under the First Amendment4, I doubt that the United States could comply with that ban, even if it wanted to.

The resolution also raises the question of when it is appropriate to use the coercive power of the state to prevent conduct because it offends the religious sensibilities of some. It may be understandable to prohibit the burning of a book sacred to two billion adherents of Islam, but on what principled basis does the same government not prohibit the slaughter of cows, which is considered sacrilegious for Hindus?

  1. Here the breakdown of how the 47 member countries voted:
    In favour (28): Algeria, Argentina, Bangladesh, Bolivia, Cameroon, China, Cote d’Ivoire, Cuba, Eritrea, Gabon, Gambia, India, Kazakhstan, Kyrgyzstan, Malawi, Malaysia, Maldives, Morocco, Pakistan, Qatar, Senegal, Somalia, South Africa, Sudan, Ukraine, United Arab Emirates, Uzbekistan and Vietnam.
    Against (12): Belgium, Costa Rica, Czechia, Finland, France, Germany, Lithuania, Luxembourg, Montenegro, Romania, United Kingdom and United States.
    Abstentions (7): Benin, Chile, Georgia, Honduras, Mexico, Nepal and Paraguay. ↩︎
  2. I am more used to seeing the term spelled “Koran.” Perhaps it’s a transliteration change; I do not mean to make an issue of the spelling. ↩︎
  3. I am certainly no expert, but at least one source indicates that when a copy of the Quran is worn, burning is an acceptable way to dispose of it, just like burning a worn U.S. flag is an acceptable means of disposal. ↩︎
  4. Texas v. Johnson, 491 U.S. 397 (1989). ↩︎

Convenience a Legitimate Argument in Favor of Self-Service

Every couple of years a play is made to end New Jersey’s ban on self-service gasoline. The current discussions seem to arise from Oregon’s recent decision to end its own ban, leaving New Jersey as the only state to prohibit drivers from pumping their own gas.

I first saw the recent contretemps in Paul Mulshine’s column last week “New Jersey’s arguments against pumping your own gas are self-serving.” That column is worth a read.

Of course, there is opposition to that view, often expressed as “I don’t want to, so it should be prohibited,” as reflected in a letter to the editor of the South Jersey Times by Denise Brush of Glassboro, who was “very offended” by Mulshine’s column and found the idea that “everyone in New Jersey should be allowed to pump their own gas . . . insulting to those who can’t do so, or would rather not.” (Yes, it can be very upsetting to find that other people have views different from one’s own. I face that problem constantly.) She makes the point that she avoids stores with self-checkouts.

Most recently Drew Sheneman, a cartoonist/columnist with whom I usually disagree, advocated for self-service in his confusingly titled editorial “Self-serve gasoline is a fate worse than death.”

Although I first moved to New Jersey some 35 years ago, I started driving in a state that had self-service and still travel through such states (i.e., everywhere but New Jersey) on occasion. Pumping your own gas is not hard and as Mulshine points out, the training requirement is not onerous. When I first arrived in New Jersey I felt funny staying in the car while someone served me.

I really don’t expect that allowing self-service will have a great effect on prices, especially if gas stations are required to provide full-service to those who want it at the same price. What I want is the convenience of not having to wait for the one attendant for all the pumps to get to me given all the other customers who happened to pull in just before me or the other duties that the attendant has. I also use the “scan and go” of Sam’s Club’s app to avoid even the self-serve checkout line.

Jay Bohn

July 10, 2023

Initial Thoughts on the Affirmative Action Decisions

A week ago the U.S. Supreme Court issued its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (and its companion case, Students for Fair Admissions, Inc. v. University of North Carolina) wherein it held that the schools’ admissions programs violate the Equal Protection Clause of the Fourteenth Amendment. Predictably there has been much wailing and grinding of teeth from those who favor the use of racial quotas to ensure that every governmental organization, college class, or other group “looks like America,” as that is, apparently, a requirement if ours it not to be a racist society.

The various opinions are well over 200 pages in length, and I have not finished reading them, so I will refrain from extensive commentary for the moment. There are however, a few points I want to make:

  • Spots in a class at Harvard and UNC are a limited commodity for which there is a great deal of competition.
  • The two takeaways from the Court’s fractured decision in Regents of University of California v. Bakke, 438 U. S. 265 (1978), were that while a strict quota system reserving a specific number of spots was not permissible, schools could use the applicant’s race as a “plus” factor
  • College admission is a zero-sum game; for every student admitted as a result of the “plus,” another is denied for that reason.
  • The “plus” is thus significant in two ways: it is both important for indivdual decisions and can greatly influence the result.

I am left with the abiding sense that the “plus” as used by these schools is really a quota by another name; they do not want substantially fewer minority applicants than the prior class: each class must “look like America,” so the plus factor is made whatever it has to be to reach that goal.

As a final comment, the individual decision-makers at universities and other institutions that favor affirmative action can do so without being concerned that it will cost them personally — others (today’s young people) are paying. Would their position be different if say tenured professors were discharged to create spots so that the faculty could “look like America”?

Jay Bohn

July 6, 2023

Batting .500 in Supreme Court Decision Prediction

Last November I wrote about the Northern District of Texas’ ruling in Brown v. U.S. Department of Education which found President Biden’s student loan forgiveness plan unlawful. In order reach the point where it could issue a decision on the merits, the court had to conclude that the plaintiffs in that case had standing to bring the suit in the first place, which was a problem other opponents of student loan forgiveness had not been able to overcome. I believed that the Brown plaintiffs also had not established their own standing and it was my expectation that the decision would be reversed on that basis by the Fifth Circuit.

The court of appeals never got the chance to decide the case because the Supreme Court issued a rare writ of certiorari before judgment so that it could review the decision in conjunction with Biden v. Nebraska, a case in which the Eastern District of Missouri had ruled that the six plaintiff states in that matter – Nebraska, Missouri, Arkansas, Iowa, Kansas and South Carolina – did not have standing but where the Eight Circuit nevertheless issued an injunction against the program pending appeal.

I firmly believed that the Supreme Court would find that neither set of plaintiffs had standing, which would render the student loan forgiveness program unreviewable.

Well, I was half right. Justice Alito wrote a unanimous opinion in Brown which rejected the plaintiffs claim of standing and so vacated the district court’s decision and remanded with directions to dismiss the case.

However, in Biden v. Nebraska the Court (by a vote of 6 to 3) held that Missouri, at least, had standing to bring its challenge. On the merits the Court, by the same vote, ruled that the HEROES Act does not give the Secretary of Education the power to create the broad-based student loan forgiveness program,1 a position with which former House Speaker Nancy Pelosi once noted her agreement.

  1. I have not had the opportunity to read either Brown or Biden v. Nebraska in full (lots of opinions were issued in the last couple of weeks.) ↩︎

The State Legislature Should Be Full-Time

It has been a while since I have commented on the structure of our government.

Most, if not all, members of the New Jersey State Legislature have other employment, some private and some public. A few still hold elected office. I believe that employment beyond the Legislature carries with it too much conflict of interest. I would prefer that legislators should be subject to the same limits on outside employment as full-time State judges.

I know that the idea is that public-spirited men and women will dedicate a part of their time to legislative duties but spend most of it as part of the governed. Nice idea, and maybe once true, but government has become too all-pervading.

As we are expecting more time from legislators, and prohibiting external income, their legislative pay will have to be increased. Still, I do not expect the increase to make up for the total amount of outside income they will have to forego. It is a sacrifice they must be willing to make if they want to hold public office.

Of course, I expect the legislators to earn the extra pay. For reasons I have previously expressed, most, if not all, regulatory authority should be taken back from administrative agencies in the executive branch. The Legislature should make the laws.

Jay Bohn

June 29, 2023

Ruminations on Parking

In his NJ.com column yesterday, “New book on parking is just the ticket” (also published in yesterday’s Star-Ledger, for once with the same title), Paul Mulshine discusses a recent book by Henry Grabar, Paved Paradise: How Parking Explains the World. As articulated by Mulshine, Grabar traces a lot of modern evils to the requirement the new development include a minimum number of parking spaces.

In my day job I’m an attorney, in part practicing land use and zoning law. (I often represent clients before municipal boards that meet in the evening, so I guess it’s a night job too.) The towns in which I appear all have minimum parking requirements. (Even in one city that had a zone that specifically did not require onsite parking, the planning board always wanted to know where the residents of the apartments that my client was going to create would park. What part of “no parking requirement” didn’t they understand?)

I think that a lot of the impetus behind parking requirements is the desire to use the requirement as an additional limitation of what can actually be built. Residential developers usually want to know how many units they can get while commercial developers want maximum floor area. Modern zoning codes control the intensity of residential development by limiting density, the number of dwelling units per gross area of land, as well as by limits on building and impervious cover and floor area compared to the total area of the site. The intensity of commercial development is controlled by similar coverage limits as well as detailed minimum parking requirements, usually based upon the floor are of the building (often one parking space is required for every 200-300 square feet of floor area depending upon the use.)((Parking requirements for restaurants and houses of worship are often based upon stated seating capacity, on the order of one space for every three seats.))

Whatever the ostensibly permitted floor area for a commercial development based on lot size, once you add required parking spaces, you may have no room for the building. Towns regulate not only the number of parking spaces, but also their size. Typical minimum stall sizes are 10 x 20 and 9 x 18 feet. Even at the smaller size a 9 x 18 space is 162 square feet (not counting pavement needed for drive aisles and driveways.((Some towns allow a developer to “bank” spaces, meaning that they are all designed but do not have to be built unless the town determines that they are needed. The land is still reserved for future parking and so is still subtracted from what can actually be developed.))

Buildings can be multi-story (depending on local height limitations), but parking lots are usually a single level. (Mulshine’s column contains a cost figure for parking garages at $40,000 per parking space.)

Now, in addition to providing off-street parking spaces, developers must make a certain number of the spaces “EV-ready” so that electric vehicle drivers will be able to charge them. That legislation contains a small compensation, EV spaces count as two towards minimum requirements, but cannot reduce that actual requirement by more than 10%. Nothing, however, prevents municipalities from raising the requirements to soak up that bonus.

Jay Bohn

June 26, 2023

StayNJ Should Go Away

In the end it will be seen as inevitable. In late May New Jersey Assembly Speaker Craig Coughlin his “StayNJ” plan that he said would “effectively cut most seniors’ property taxes in half.” (emphasis added) I said it seemed like a gimmick, indeed an expensive gimmick. We later learned some details. As should have been obvious form the start, it was not a real tax cut. No government is going to be deprived of any revenue, but qualifying property owners would see a credit on their tax bills.((I have seen no detailed reporting of the exact mechanics.)) And just like other rebates, it will depend upon the vagaries of the annual closed door budget negotiations. I concluded that it was what it seemed to be: a gimmick.

Why don’t I want to benefit senior citizens, a group I hope to join one day? My first concern is why everyone seems to think that senior citizens should get this special benefit. I haven’t seen an explanation, but I posited two reasons: either age is used as a proxy for ability to pay or there is the thought that by age 65 senior citizens have “done their bit,” particularly in paying for schools.

Another problem is that StayNJ (and all the other tax rebates) are just a band-aid solution. They actually do nothing to address the root causes of high property taxes; they just reduce the pain for the favored few. I have suggested that public education, which is the single biggest payee of property taxes, should be funded, and run, by the State. (Although I am realistic enough to know that New Jersey will have self-serve gasoline long before that happens.)

Although none of the opinions that I have seen from others raise any of these issues, there is substantial agreement about a third objection: cost.((Although I don’t agree with everything he says, Tom Moran has some good comments in In Trenton, Democrats call Murphy’s bluff. Tequila shots all around!)) The money will have to come from somewhere. Sure, the State seems flush at the moment, but just as the biblical seven years of plenty were followed by seven years of famine((Genesis 41:52-53.)), so New Jersey will, probably much sooner than seven years, suffer more budget woes and StayNJ will be on the chopping block. In the future the spendthrift attitude toward the current surplus will be as reviled as skipping the pension payment.

But there was hope. Governor Murphy came out against it, even threatening to shut down state government by vetoing a budget that included StayNJ. But his heart wasn’t in it, and a compromise was recently announced: means-testing the benefit at an annual income of $500,000 and reducing the maximum rebate to $6,500.

Jay Bohn

June 22, 2023

The Wealth Piled by the Bondsman’s Toil Continues to Sink

Aside from Jesus and His mother Mary, every human sins. The means that we all have things that we’ve done or failed to do of which we are ashamed, sometimes deeply so. This truth applies to societies as well. One of America’s greatest shames is slavery. We learn in history that the first African slaves were brought to America in 1603, and the legal institution lasted until 1865, but its pernicious effects continue until today.

I am reminded of this particular passage from Abraham Lincoln’s second inaugural address, delivered during the Civil War:

“Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.” If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”

America’s long history of slavery and the bloody war that was necessary to end it as a legal institution has led to the continued existence of racism almost 160 years later.

Racism in its most conventional application is judging other by the color of their skin. Racism in its widest sense, the belief that any particular ethnic group in inherently superior or inferior to another, is as wrong as it is commonplace. It is a widely shared trait to fear the “other,” to be more comfortable with those “who are like us,” who, for that very reason, must be better than “others.”

I don’t believe that this will be ended by reversing the hierarchy for a similar period of time. Any scheme that seeks to allocate benefits based on race will only make the divisions stronger. I agree with Chief Justice Roberts when he said: “The way to stop discrimination on the basis of race is to stop
discriminating on the basis of race.”((Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 748 (2007).)) The desire to see every governmental organization, college class, or other group “look like America,” as if that will signal triumph over racism, can only be achieved by a quota system.((And once you define a non-racist society as one in which every group is represented everywhere in proportion to its representation in the general population, every “group” that sees itself under-represented will clamor for recognition and its reserved spaces.)) Look at the articles((For example, Joseph Ax says “A decision banning affirmative action would force elite colleges and universities to revamp their policies and search for new ways to ensure diversity in their student populations. Many schools have said other measures would not be as effective, resulting in fewer minority students on campuses.” What happens if the Supreme Court bans affirmative action? Aya M. Waller-Bey writes in her article for The Atlantic, “A Big Problem With College Admissions Could Be About to Get Worse ,” that the college admissions essay has become the place to write about one’s trauma to increase the chance of success in gaining admission to selective colleges that are looking for “diverse” student bodies.

This reminds me of the Seinfeld episode “The Andrea Doria,” the one where George uses tales of the tragedies of his life in an attempt to prevail over an Andrea Doria survivor in the competition for an apartment. In the end neither gets it.)) about how colleges are going to deal with the Supreme Court’s widely expected decision to end affirmative action in college admission.((Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina.)) They indicate that the schools are determined to force a racially diverse class, one that “looks like America” even if they cannot openly consider the race of the applicants. Using quotas to achieve racial diversity is still judging applicants by the color of their skin. It is going to create winners and losers. The losers will resent the system and blame “the other” for the loss of “what might have been.”((I cannot help but think that many of the institutional leaders who push “affirmative action” are comfortable doing so because they will not personally bear the burden of losing a college seat or a job under such programs. Someone else is paying that price.))

Jay Bohn

June 19, 2023