Category: reason

2/28/1966: Miranda v. Arizona argued.

 

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When historians speak of “the people,” I cringe. Do they mean the industrial working classes? Do they mean historically disadvantaged groups in a broader sense? Do they mean the kind of checklist diversity one sees in contemporary advertising? Or do they actually mean everyone? I never know what to think.

Regardless of what David Berry intended people to mean in the title of A People’s History of Tennis, I was excited to read the book. I am an avid reader of the history of tennis and have long had a scholarly interest in labor history. I held out hope that this book was less Howard Zinn and more Roy Rosenzweig, whose Eight Hours for What We Will (1985) was a serious study of working-class recreation and workers’ efforts to assert autonomy from corporate paternalism in their free time. A number of other fantastic culturally oriented studies followed in Rosenzweig’s footsteps, including Kathy Peiss’ Cheap Amusements (1986), Robin D.G. Kelley’s Race Rebels (1996), and Jackson Lears’ Something for Nothing: Luck in America (2004). Unfortunately, A People’s History of Tennis has a few more helpings of Zinn’s lefist dualism than it does Rosenzweig’s celebration of laborers who built a life of their own choosing outside of their daily work.

This is, to be clear, an interesting book. Berry catalogs some of the sport’s most idiosyncratic figures, both well-known and forgotten, from both the recent and the distant past. He makes a strong case that tennis has a history beyond the pomp and privilege with which it is often associated. Berry’s history of the game is filled with figures who worked cracks into the game’s aristocratic foundations, opening the sport up to men and women of different races, socioeconomic backgrounds, and sexual orientations.

Major Walter Clopton Wingfield, the delightful crank who helped popularize lawn tennis in the 1870s, exemplifies the interesting characters who populate Berry’s book. Wingfield promoted tennis as a civil and healthful game of skill for both sexes rather than as a Darwinian contest of brawn, helping establish tennis’ appeal and social acceptability for both men and women. Other noteworthy gadflies in the book include the early tennis champion Lottie Dod, who argued successfully against changing the rules of the game for women to make it safer; George Elvin, the tennis star, trade unionist, and Labour Party activist who organized a “Worker’s Wimbledon” in the 1930s; and Leif Rovsing, the Danish tennis star who was banned from the sport for his “presumed homosexuality” in 1917.

But Berry’s book strays too far from these colorful characters too often. He has a tendency to reduce the past to predictably Manichean morality plays. The forces of “the powerful” roam around like the shark in Jaws, forever seeking to wreak havoc on the sterling designs of “the people,” who themselves are presented as a fairly uniform whole—like a collective of scrappy Gavroches singing a chorus of “Little People” from Les Miserables. The likes of Major Wingfield and Lottie Dod are interesting enough in themselves. Berry’s decision to steep his story in the tropes of socialist realism makes this otherwise excellent book weaker.

Moreover, Berry’s assessment of who counts as part of the establishment is a bit strange. To be a part of the powers that be, one need not be wealthy or -particularly powerful. One need only hold cultural views that are anything less than the most progressive at the time to be considered a part of the establishment.

Berry also has a puritanical streak, which comes to the fore when he discusses the sport’s sexuality. Berry is interested in people of different sexual orientations breaking barriers, but he is not very interested in people expressing their sexuality as either participants in or spectators of the game. He lauds the milestones crossed by LGBT players while avoiding all but the most cursory mentions of their actual sexuality. Berry’s most pronounced discussion of sex in the book is an admonishment of male spectators for their “gaze” at provocatively dressed female tennis players. And this is supposed to be a book of “the people”!

Some elements of the game’s cultural impact aren’t discussed nearly enough. Fashion, for example.

Tennis’ tent has proven the largest when the sport has gone beyond the courts, out into the streets, and become couture. For more than a century, kids of all social classes on both sides of the Atlantic have adopted the fashion styles popularized by the game’s icons: Bill Tilden’s V-neck sweaters, Suzanne Lenglen’s revealing tennis skirts, Maureen Connolly’s cardigans and pleats, the preppy-chic “polo” shirts of René Lacoste and Fred Perry, the sleek Adidas shoes known as Rod Lavers and Stan Smiths, the Nike athletic wear of the Williams sisters, the terry cloth headbands that have held back many a flowing lock, most memorably Bjorn Borg’s.

In the U.K., the sport’s iconography has played a particularly profound role in shaping youth culture. Fred Perry, Fila, Lacoste, and Adidas are standard issue for an array of subcultures in the British Isles. From casuals to chavs to mods, British kids have appropriated the styles of the court to express an identity apart from the humdrum of the everyday.

David Berry shows some interest in this aspect of tennis history. One of his book’s most inspired sections profiles Lenglen’s 1919 Wimbledon debut, where the English press dubbed her the “French Hussy” for her risqué attire—her mid-calf Jean Patou skirt, brightly colored cardigans, and silk chiffon headband. He also touches on the British fashion designer Teddy Tinling and the alluring outfits he created for the statuesque Gertrude Moran for her Wimbledon appearances in 1949. But his interest in fashion is scattershot, depriving his readers of a genuine sense of the practice of everyday life.

A People’s History of Tennis is less a people’s history of the game than an odds-and-sods history of groundbreaking individuals and formal political activism. It falls into the same trap as the work it pays homage to in its title, Howard Zinn’s essential but hamfisted A People’s History of the United States. To count as one of “the people” in either people’s history, one has to be an obvious trailblazer for some disadvantaged demographic or part of an organized left-wing political movement.

Actual people, rendered in any sort of complexity, bear little resemblance to “the people” as invoked in these books’ titles. However noble the authors’ intentions, this approach turns the past into a floor plan for a coffee-shop manifesto.

A People’s History of Tennis, by David Berry, Pluto Press, 256 pages, $19.95.

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As co-blogger Josh Blackman notes, a federal district court ruling recently concluded that the Center for Disease Control nationwide moratorium on evictions is unconstitutional, in Terkel v. CDC (Eastern District of Texas). On the other hand, two earlier district court decisions—Chambless Enterprises v. Redfield (W.D. Louisiana), and  Brown v. Azar (N.D. Georgia)—have upheld the legality of the CDC order. Technically, these rulings addressed the original CDC moratorium enacted in September under the Trump administration, rather than its extension by Biden. But they nonetheless address essentially the same policy, because Biden’s version is simply an extension of Trump’s.

While the three cases  consider the same CDC order, they actually deal with different types of arguments against it. Brown and Chambless primarily focus on claims that the CDC exceeded its authority under the relevant federal law and that interpreting the law broadly enough to allow the eviction moratorium would violate the “nondelegation” doctrine (which limits the extent to which Congress can delegate its lawmaking authority to the executive branch). By contrast, Terkel considers the argument that the moratorium exceeds the power of the federal government under its authority to regulate interstate commerce, even as augmented by the Necessary and Proper Clause. If that argument (the only one made by the plaintiffs in Terkel) prevails, the eviction moratorium would be unconstitutional even if properly authorized by Congress.

In my view, which on this point aligns with that of most other academics, the nondelegation and statutory arguments rejected in Brown and Chambless are much stronger than the limited power theory that prevailed in Terkel. But I have to admit that, so far, the arguments I like better have not done as well as the one I am much more skeptical about. It could be just a function of the particular judges who heard the three cases. Judge J. Campbell Barker, who heard the Texas case is a conservative Trump appointee; but the same is true of Judge J.P. Boulee, who decided Brown v. Azar. So I have to admit that this might be a situation where judges’ views of which arguments are best don’t align with those of legal scholars. If so, it would be far from the first such occasion!

Nonetheless, I continue to think that the Brown and Chambless rulings were too quick to dismiss the statutory and nondelegation theories, while the limited power argument is more problematic. In my view, the judges in Brown and Chambless, fail to take sufficient account of the fact that the government’s interpretation of the relevant authorizing statute would give the CDC the power to suppress almost any human activity at any time. If the government is right to argue that the statutes and regulations in question give the CDC the power to impose a nationwide eviction moratorium, as opposed to more narrowly targeted local measures, the same logic would give it virtually unlimited authority to ban other economic and social activities. I explain the point here:

[U]nder the text of the regulation [and the authorizing statute], the CDC need not prove that the regulations in question really are “reasonably necessary” or that state restrictions really are “insufficient.” They need only assert (“deem”) that such is the case.

This broad interpretation of the regulation would give the executive the power to restrict almost any type of activity. Pretty much any economic transaction or movement of people and  goods could potentially spread disease in some way. Nor is that authority limited to particularly deadly diseases such as Covid-19. It could just as readily apply to virtually any other communicable disease, such as the flu or even the common cold.

Every year, thousands of people die because of the flu, and restrictions on mobility or on economic and social activity could  be seen as “reasonable” ways to limit its spread. 42 CFR Section 70.1 (on which the definition of disease in Section 70.2 is based) in fact defines “communicable diseases” as “illnesses due to infectious agents or their toxic products, which may be transmitted from a reservoir to a susceptible host either directly as from an infected person or animal or indirectly through the agency of an intermediate plant or animal host, vector, or the inanimate environment.” Notice that this applies to any disease spread by “infectious agents,” regardless of severity. The flu and the common cold clearly qualify!

If Trump can use this authority to impose a nationwide eviction moratorium, Joe Biden (or some other future president) could use it to impose a nationwide mask mandate, a nationwide lockdown, or just about any other restriction of any activity that could potentially reduce the spread of the flu, the common cold, or any other disease.

Such virtually limitless executive authority to impose restrictions and mandates would make a hash of the separation of powers, enabling the president to circumvent Congress’s authority on a massive scale. It also would completely undermine any semblance of “nondelegation” restrictions on grants of power to the executive.

In Chambless, the court nonetheless concluded that there is no nondelegation problem here, because regulation relied on by the CDC still provides an “intelligible principle” for the exercise of executive discretion, as required by Supreme Court precedent. Specifically, it gives the CDC the authority to “take such measures to prevent such spread of the [communicable] diseases as he/she deems reasonably necessary.” But there can be no intelligible principle where the supposed limitation on discretion gives the executive the power to suppress virtually any activity it wants, simply by “deeming” that they are “reasonably necessary” to stop the spread of disease—an assertion that can be made at any time. The whole point of the “intelligible principle” rule is to limit the delegation of congressional power to executive discretion. That rule, therefore, cannot be used to uphold a delegation that imposes no meaningful limit on discretion of any kind.

In Brown v. Azar, the court doesn’t directly consider nondelegation at all, focusing strictly on statutory arguments of the sort summarized by co-blogger Josh Blackman here. But the judge should have considered the nondelegation issue when analyzing the plaintiffs’ statutory arguments because of the longstanding rule that statutes should be construed in a way that, if possible, avoids constitutional problems. Nondelegation is, obviously, a serious constitutional problem. The law authorizing CDC public health measures should be construed in a way that avoids potentially violating nondelegation rules, if possible.

By contrast, I have more reservations about the argument that prevailed in Terkel: that federal government did not have the power to authorize the eviction moratorium under the Commerce Clause, which gives Congress the authority to regulate “commerce with foreign nations, and among the several states.” I actually agree that the eviction moratorium exceeds congressional power under the text and original meaning of the Commerce Clause. A nationwide moratorium on evictions—which usually involve transactions within a single state—is not a regulation of interstate commerce. Rather, it restricts commercial transactions within a single state involving an asset that cannot even move across state lines.

Unfortunately, various Supreme Court precedents interpret the Commerce Clause as giving Congress the authority to regulate many in-state activities that, in the aggregate, have a “substantial effect” on interstate commerce. In cases like United States v. Lopez and Gonzales v. Raich, the Supreme Court also indicated that this category includes nearly all “economic activity.”

In Terkel, Judge Barker concludes that the eviction moratorium is not a regulation of economic activity because it only restricts evictions, but does not suspend the requirement that tenants continue to pay rent. Thus, the CDC order doesn’t regulate economic activity because  does not have “any effect on the parties’ financial relationship.”

This strikes me as unpersuasive. Preventing eviction has an obvious effect on financial obligations, because it terminates the landlord-tenant relationship, thus ending any obligation the tenant might have to continue paying rent in the future. Eviction is, therefore, economic activity in much the same way as firing an employee is. Neither changes the two parties’ obligations during the period when their commercial relationship was still in effect. The employer must still pay the employee any salary she was owed for the period before she was fired, and the tenant still owes rent for the period prior to eviction. But both nonetheless qualify as economic transactions on any plausible sense of the word.

If an eviction moratorium is not a regulation of economic activity because it doesn’t change financial obligations in the sense described by Judge Barker, the same can be said of federal laws restricting the firing of employees and the termination of various other economic relationships. I doubt the Supreme Court will be willing to go there.

That said, the concept of “economic activity,” as used by the Supreme Court, is far from a model of clarity. There may be other ways to distinguish eviction moratoria from other types of in-state transactions that the federal government regulates. Among other things, eviction moratoria regulate the use of real estate, which is a quintessentially immobile local asset, not a commodity or service that can be shipped across interstate lines. While out-of-staters can rent or buy property, they cannot move it. That makes federal land-use regulation different from federal regulation of the production of goods and services that move across state boundaries. This distinction could potentially justify giving a narrower scope to federal power over the former under the Commerce Clause, without greatly disturbing existing Supreme Court precedent.

Much more can be said about all three of the decisions on the legality of the CDC  eviction moratorium. There are also other lawsuits out there challenging the order. I addressed some of the issues involved in greater detail here and here (and also explaining why I am skeptical that the eviction moratorium is actually needed to protect needy tenants and prevent the spread of disease).

For now, I will only add that it is likely the legal battle over this issues is likely to continue. All three cases could eventually make their way to appellate courts. While Biden’s extension of the initial Trump moratorium only lasts till March 31, there is a good chance it will be extended further at that time. It is also possible that Congress will impose a statutory eviction moratorium by passing the relevant provision of the Biden Administration’s stimulus bill (which would impose a statutory moratorium until September). If that happens, it would moot out the statutory and nondelegation issues raised in Brown and Chambless. But the federalism argument addressed in Terkel would remain a live issue, as it applies even if Congress has clearly authorized the moratorium and done so in a way that avoid nondelegation problems.

NOTE: The plaintiffs in some of the lawsuits against the eviction moratorium (though not those in the three cases discussed above) are represented by the Pacific Legal Foundation, where my wife works. I myself have played a minor (unpaid) role in advising PLF on this litigation.

 

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Sacramento Bee (Darrell Smith) reported on this yesterday.

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A promising new law will give agricultural communities in Massachusetts more say in local public-health rules that apply to them and impact their property and livelihoods.

The law, An Act Providing for Agricultural Commission Input on Municipal Board of Health Regulations, which went on the books last month, might be the first of its kind in this country. It is designed to “giv[e] farmers, farm stands, farmers markets and others involved in agriculture a say in the development of local health regulations.”

The law requires that a local health department—prior to adopting any new regulations that would apply to farmers markets, farms, or backyard livestock or gardening—provide a local agricultural commission with a copy of the proposed rules. The new law also creates a 45-day review window, during which the local agricultural commission can hold public hearings and critique the proposed health regulations.

(Local agricultural commissions are quite common in Massachusetts. A 2017 post by the Massachusetts Association of Agricultural Commissions indicates there were nearly 175 local agricultural commissions in Massachusetts at the time.)

This new Massachusetts law echoes a drum I’ve been beating for years. As I’ve long noted, there’s a great deal of tension between expanding local food options and crafting new and stricter food-safety regulations. 

Many people today want more local food options. Others want tougher food regulations. Some people want both. But that latter wish is nothing more than a pipe dream. In my book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, I highlight this problem while using an example from—of all places—Massachusetts. In that example, a small, certified organic farm in Massachusetts was forced to stop selling bagged lettuce in a nearby town. That’s because the latter’s health department considered the lettuce to be a processed food, which would subject it to additional regulations. The local health department apparently determined the lettuce was a “processed” food because the farm cut the stalk off the lettuce before bagging it. 

“If we’d just sold the lettuce with the stalk on, we wouldn’t have a problem,” the farm’s owner told me. “But because we cut off the stalk, it was considered ‘processed.'”

As I explain in the book, lettuce stalks are bitter and are usually cut from the lettuce sold at farmers markets, grocers, or anywhere else before sale. “Most consumers never even see [a lettuce stalk], because most farmers cut it off, knowing that consumers won’t eat it,” I explain.

The “processed” lettuce rule is exactly the sort of inane and backwards regulation the new Massachusetts law is designed to eliminate—thanks to the input of farmers—before it ever gets on the books.

“Local boards of health make consequential decisions that impact the health of our communities and local industries,” says State Sen. Adam Hinds (D–Pittsfield), who co-sponsored the new law, in an email to me last week. “They should have a say in the matter of these decisions. This legislation means boards of health will now be obliged to hear from their local agricultural commissions when issues might impact farming and agriculture.“

Others have similar hopes for the new law.

“We hope that the new law will prompt conversations between local health regulators and farmers,” says Winton Pitcoff, director of the Massachusetts Food System Collaborative, which promotes local foods in the state and supported the new law, in an email to me this week. “Too often those relationships are antagonistic, but the reality is that they can be mutually supportive when regulators understand better what it takes for farms to remain sustainable while still keeping consumers safe, and when farmers have an opportunity to educate regulators, most of whom are under-resourced and so often don’t have the capacity to thoughtfully develop appropriate regulations.”

“Few BOH [health departments] have any expertise in agriculture, but with the rising interest in backyard livestock, farmers markets and small farms—many BOH were putting out regulations—often they made no sense,” says Brad Mitchell, deputy executive director of the Massachusetts Farm Bureau Federation, which also supported the new law, in an email to me this week. “Our goal in bringing this to the legislature was to try to ensure that any ag related regulations that BOH put out were done… with the benefit of some knowledge of agriculture. Ag Commissions were created to provide such expertise, but too often BOHs were not consulting with them. This fixes that.”

While Hinds tells me he’s unaware of any opposition to the bill, saying its passage was a “pretty seamless” process, others I spoke with did raise a concern. Two colleagues I spoke with about the law, each of whom knows farming and the law and hails from outside Massachusetts, raised concerns that a law like this one will work better in Massachusetts than it might in a traditional “Big Ag” state such as Iowa, North Dakota, or Texas. The people I spoke with worried “Big Ag” might dominate or co-opt local agricultural commission membership in states where large farms are more common.

Mitchell suggests those concerns are misplaced.

“Conceptually it will work anywhere,” Mitchell says of the new Massachusetts law. “The concept is very simple—some of those[] involved in the rulemaking process should have some expertise in the activity on which the rules regulate.. It would be fine if ag comms were comprised of ‘big ag’ folks. They are advisory only and there is knowledge in this group. The issue we actually have with ag comm[ission]s in [Massachusetts] is that some have been co-opted by folks who have read a couple Michael Pollan books and think they know it all.”

As I noted earlier, this Massachusetts law may be the first of its kind in this country. Given the challenges that local health departments around the country pose to local food producers, I hope it’s a smashing success. And I hope other states around the country move to adopt similar protections for farmers, farmers markets, and backyard gardeners and livestock owners. Doing so would help locally produced food to flourish.

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