Category: reason

3/18/2008: District of Columbia v. Heller argued.

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For 12 years, the 25 residents of a “tiny house” community known as Walden EcoVillage managed to live in peace with both nature and local zoning officials in the town of Peterborough, New Hampshire.

That peace ended on December 15, when the city ordered the eviction of all the community’s residents, whose diminutive dwellings, many of which were less than 400 square feet, offered an inexpensive but technically illegal housing option. An application from the village’s owner to add more units to the property had alerted planning officials to the fact that its cottages and casitas were not permitted as full-time residences. A site visit also discovered a host of building code violations, including supposedly dangerous wiring.

“The timing for this is awful,” Peterborough Fire Chief Ed Walker admitted to New Hampshire Public Radio. The code violations nevertheless necessitated the mid-winter evictions, he said. Former Walden tenants are now suing the village’s owner, claiming he violated their leases by renting out homes that were not up to code.

A year earlier on the other side of the state, tiny-house owner Brianna O’Brien faced a similar struggle. In 2018, O’Brien had purchased a $29,000 prefabricated tiny house that she eventually plopped down on her parents’ property in the town of Hampton Falls. Within a few months, planning officials were telling O’Brien that her humble abode’s single exit, lack of plumbing, and proximity to the property line made it impermissible under the local zoning code. O’Brien also lacked the occupancy permit that is required for full-time residences.

Fixing these problems presented O’Brien with a Catch-22. “There is no building code for tiny houses, so you have to get an occupancy permit to get it zoned,” she told Business Insider in December 2020. And you can’t get an occupancy permit for a home that does not comply with the building code. “It’s a cycle that feeds into itself,” O’Brien said.

In August 2019, the Hampton Falls Zoning Board of Adjustment ruled against O’Brien, forcing her to move out. The tiny home still sits on her parents’ property. She is just not allowed to live in it.

New Hampshire’s quiet war on tiny homes hasn’t escaped the notice of lawmakers. Last year, state legislators introduced an ultimately unsuccessful bill that would have required local governments to allow tiny houses on residential plots.

Tiny houses offer an attractive, affordable option for many residents of the “Live Free or Die” state by cutting down on the floor space and frills that make standard homes so expensive. But that economizing often does not sit well with local zoning boards, which commonly require that rental properties come with costly amenities. For too many tiny-house residents, the regulatory pursuit of quality housing means they end up with no housing.

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The state of Pennsylvania has agreed to pay $475,000 to settle a lawsuit brought by the family of a man run over by a bulldozer as he was being chased by Pennsylvania State Police. The police had caught Gregory Longenecker growing a handful of marijuana plants on public land. He fled into some dense bushes, and police used a Pennsylvania Game Commission bulldozer to chase him. His body was found beneath the treads of the bulldozer. The prosecutor investigating the death found police acted reasonably.

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On Tuesday, Judge Mark Norris of the Middle District of Tennessee became the third federal judge to issue a decision holding that the Centers for Disease Control nationwide eviction moratorium is illegal. Judge Norris’ ruling in Tiger Lily, LLC v. US Department of Housing and Urban Development is very similar to last week’s ruling on the same issue in Skyworks v. CDC by a district court in Ohio. Like the Skyworks decision, this one holds that the CDC exceeded the authority granted to it by Congress under 42 U.S.C. Section 264(a) , which gives the agency the power to “make and enforce such regulations as in [the Surgeon General’s] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” The law goes on to say that “[f]or purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”

Like the judge in Skyworks, Judge Norris concludes that this listing of examples limits the range of measures the CDC may enact:

Plaintiffs contend the CDC Director is limited to the types of measures to be undertaken…. Defendants contend she is not…. Therein lies the rub. Plaintiffs’ interpretation is the more reasonable. If the Director were not limited in his or her authority, why list any specific examples of measures within that authority? Why not simply provide the Director “is authorized to make and enforce such regulations as in [her] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.”? In other words, Defendants’ theory renders the limitations of the statute—e.g. inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals, or articles to be so infected or contaminated—superfluous or surplusage….

And, like the Skyworks ruling, Judge Norris concludes that allowing the CDC to use this statute to impose an eviction moratorium would give it virtually unlimited power to suppress any activity of any kind, thereby violating the nondelegation doctrine, which limits the extent to which Congress can delegate its lawmaking power to executive agencies. That, in turn strengthens the case for giving the statute a narrower reading, under the longstanding rule that courts should, where possible, interpret federal laws in ways that avoid raising constitutional problems:

The statute before this Court sets forth a narrow list of measures which may be undertaken to make and enforce regulations necessary to prevent the spread of disease. The statute authorizes the Director to undertake certain specifically enumerated acts “and other measures, as in [her] judgment may be necessary.” 42 U.S.C. § 264(a). But those “other measures” are limited by the specific examples listed. They provide the intelligible principle without which Congress’ delegation of authority in this instance would be too broad to withstand Constitutional scrutiny… To ignore them creates surplusage which is also to be avoided.

It would not be reasonable had Congress delegated such broad authority nor could it constitutionally have done so. The CDC was given broad authority to make and enforce regulations, and the statute specifically identifies the measures to be taken. To hold otherwise would be to construe the statute so broadly as to grant this administrative agency unfettered power to prohibit or mandate anything, which would ignore the separation of powers and violate the non-delegation doctrine….

I discussed the nondelegation issue in greater detail in my very first post on the CDC moratorium back in September, when the order was adopted by Trump administration. It has since been reinstated by Biden after it had expired.

We now have three district court rulings striking down the CDC order, and two upholding it. I analyzed the earlier decisions here and here. It is likely that the legal battle over this issue will continue in the appellate courts—especially if, as I think likely, the Biden administration extends the eviction moratorium past its current March 31 deadline. As I noted in my last post on this issue, it is possible that the litigation over these questions will divide judges and legal commentators along ideological lines. So far, all three judges who ruled against the CDC (including, now, Judge Norris) are conservative Trump appointees; though so is one of the two judges who ruled in its favor. However, for reasons I noted here, liberals have good reason to be concerned about the dangerous precedent a ruling in favor of the CDC could set:

[B]efore concluding that the CDC order is legitimate, I would urge liberals to consider whether they really want the next Republican administration to have the authority to suppress virtually any activity of any kind, so long as the CDC can assert that doing so would reduce the spread of disease even in a small way (and doesn’t have to prove that it will actually do so). Do you really want the likes of Trump, Ted Cruz, or Josh Hawley to have that kind of power?

Those who think the CDC can be trusted to wield such sweeping power purely based on “scientific” considerations uninfluenced by political pressure from the White House would do well to consider all the ways in which it yielded to pressure from Trump during the Covid pandemic. Moreover, there is no such thing as a purely scientific way to wield the power to shut down virtually any activity of any kind. Any such decision relies on moral, economic, and political considerations, not just technical scientific ones.

Law Professor Lindsey Wiley, a leading academic expert on public health law worries that the reasoning adopted in Skyworks and Tiger Lily could potentially lead courts to invalidate the Biden administration’s order requiring the wearing of masks on various types of interstate transportation, which also relies on Section 264(a) for authorization.

I think this is unlikely because the focus on transportation is much more closely related to the purpose of preventing the “spread of communicable diseases from… from one State or possession into any other State or possession.” In addition, limiting it to transportation may fall into the category of promoting the “sanitation” of “articles” that facilitate the spread of disease across state lines. In this case, the relevant “articles” would be seats and air spaces on buses, airplanes, and other modes of transportation covered by the mask order. These distinctions may be the reason why Biden’s advisers concluded (correctly, in my view) that it did not have the power to order a general nationwide mask order, but could impose a much narrower one focused on transportation.

That said, if the distinctions I drew between the mask order and the eviction moratorium turn out to be wrong, I am more than happy to bite the bullet. Saving the mask mandate isn’t worth the awful price of giving the executive branch virtually unlimited power to suppress any activity it wants. That’s especially true in light of the fact that some 90% of Americans were routinely wearing masks by October 2020, well before Biden issued the mask order, and airlines, bus companies, and other interstate transportation providers also routinely required passengers to wear masks. It is, therefore, unlikely that that Biden order is achieving much beyond the mask-wearing that existed already. If an interstate transportation mask mandate really is necessary for some reason, Congress could enact one.

 

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On Monday, in Freyd v. University of Oregon, a panel of the U.S. Court of Appeals for the Ninth Circuit split over whether a university’s practice of giving “retention raises”–salary increases to prevent faculty from accepting lateral offers at other schools–could constitute employment discrimination if, as alleged in this case, the practice produces pay disparities between men and women.

Judge Jay Bybee wrote the majority opinion, joined by District Court Judge Kathleen Cardone (sitting by designation). Here is how he sets the stage:

Jennifer Freyd is a Professor of Psychology at the University of Oregon (“the University”). Although she is a well-recognized academic and pioneer in trauma studies, the University pays Freyd several thousand dollars less per year than it does four of Freyd’s male colleagues, despite their being of equal rank and seniority. Freyd alleges that this gender disparity in pay is department wide and is caused by the University’s practice of granting “retention raises” to faculty as an incentive to remain at the University when they are being courted by other academic institutions. She further claims that female professors at the University of Oregon are less likely to engage in retention negotiations than male professors, and when they do, they are less likely to successfully obtain a raise.

Freyd sued the University alleging violations of, inter alia, the Equal Pay Act, Title VII, Title IX, and Oregon law.

The district court granted summary judgment for the University on all counts. The court’s majority, however, reversed the district court on several counts, finding that a reasonable jury could have concluded that the University of Oregon’s policies, including its practice of offering “retention raises,” violated federal or state employment discrimination laws because they produced pay disparities between male and female faculty who perform equivalent work.

Judge VanDyke wrote separately, concurring in part and dissenting in part. His opinion begins:

Jennifer Freyd is far from the typical employee arguing that she is being treated differently based on her sex. She is not merely a professor of Psychology, or even just a tenured professor of Psychology. She is a full professor of Psychology at the University of Oregon—the top echelon, crème-de-la-crème of her academic field. She is, one might say, in the big leagues of her profession. According to Dr. Freyd herself, her job at her elite level of academic achievement is marked by “considerable discretion and autonomy in developing and executing a unique research agenda and professional profile,” and “[n]o two people will exercise their discretion and autonomy in the same way.”

Just as we see with top professional athletes or the very best attorneys in their field, competition is fierce for leading academic talent. Universities understandably attempt to poach top dons from other schools by offering better pay and other benefits and opportunities, and the professors’ home institutions are often required to make comparable offers (called “retention raises”) to keep their own outstanding people—especially those who are willing to seriously entertain an offer to change institutions. This case effectively challenges that market-driven practice as violative of a host of federal and Oregon laws prohibiting sex-based discrimination.[FN1]

FN1. The majority criticizes what it characterizes as my “strong preference for a ‘market-driven practice.'” My preferences are unrelated to my pointing out the obvious here. The fact that an employment practice is “market-driven” may not necessarily exempt it from Title VII, but it is unquestionably relevant to whether it is prohibited. While it is perhaps true that a “‘business necessity’ defense is not the same as a guarantee of a free market,” it is certainly true that every business necessity is, ultimately, market-driven. Even the majority cannot avoid market-driven concepts when discussing the University’s business necessity defense (“the need for retention raises” and “job-related” have no meaning apart from a job market).

If Freyd is correct that—even in this elite context, where the defining characteristic of professors at this level is their uniqueness—pay disparities based on retention raises can permit a jury to award damages for sex discrimination, then employers will predictably be incentivized to abandon a tool for retaining top talent and revert to lock-step pay. Worse, unless all of the federal circuits agree with ours (always an unlikely proposition), another predictable result of today’s decision is that universities in the Ninth Circuit will be unable to compete economically to retain their best professors, and we could see a corresponding brain drain in universities in the western states.

Of course, if this were required by our laws prohibiting sex discrimination, then so be it. But it isn’t. The district court was correct that, for professors at this level, “a university is more akin to the National Baseball League than it is to a traditional employer.” Freyd v. Univ. of Or., 384 F. Supp. 3d 1284, 1288 (D. Or. 2019). Only by emphasizing a superficial “common core of tasks” shared by full professors and downplaying all of the obvious differences that have made them stand-outs in their profession can the majority conclude that “a reasonable jury could find that Freyd and her comparators … do substantially equal work” for purposes of the Equal Pay Act. The majority also errs in its consideration of Freyd’s Title VII disparate impact claim, relying on irrelevant statistical data to find a genuine issue of material fact and then indulging the academic fiction that the University’s retention raise practice may not serve a business necessity. I disagree with these conclusions, and therefore respectfully dissent.

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