Category: reason

11/14/1922: Pennsylvania Coal Co. v. Mahon argued.

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The DACA litigation turns, in part, on two separate memoranda issued by two Homeland Security Secretaries: (1) a memorandum from Secretary Elaine Duke, and  (2) a memorandum from Secretary Kirstjen Nielsen. The latter document was created after Judge John Bates (DDC) asked the government to provide a further explanation for its decision.

In a recent post, Andy Pincus was surprised at how the Solicitor General characterized the interplay between these memos. (I am grateful to Andy’s company and camaraderie as we waited on the cold and rainy bar line together early Tuesday morning.) He wrote:

These questions of accountability and procedural regularity are heightened by the quite surprising reply brief filed by the Solicitor General last week, which reverses position on the Nielsen memo, urging the Court to consider it a new agency action and to uphold DACA’s termination based on the policy explanations offered by Secretary Nielsen.

I don’t see a reversal at all. I checked the government’s briefs in the lower courts, and found very similar arguments. Specifically, DOJ argued that the Nielsen Memorandum provided an “independent” policy justifications to rescind DACA. The Court may find those rationales unpersuasive, or conclude that the Nielsen memo is outside the administrative record, but the government preserved the argument. Here are some excerpts (with my emphasis added).

D.C. Circuit Reply Brief:”[A]s DHS did not need to use notice-and-comment rulemaking to rescind DACA, the Nielsen Memo could stand as an independent basis to rescind DACA even if the Duke Memo were somehow insufficient on its own.” (at 22-23)

Second Circuit Reply Brief: “The Nielsen Memo briefly elaborates on the Duke Memo, which the district court already considered, and this Court can and should assess that further explanation itself.  Indeed, the Court may consider the Nielsen Memo on its own terms, including insofar as its reasoning goes beyond the Duke Memo, given that, as the district court recognized, rescinding DACA does not require notice-and-comment rulemaking.” (at 3-4)

These briefs were consistent with how SG Francisco presented his argument before the Court. Indeed, he used the phrase “independent” several times:

GENERAL FRANCISCO: Sure. For a couple of reasons, Your Honor. First, because she sets forth separate and independent bases justifying the rescission: first, her belief that it’s illegal; second, her belief that there are serious doubts about its illegality; and, third, her conclusion that, as a matter of enforcement policy, the Department of Homeland Security is against these kinds of broad-based non-enforcement decisions.

GENERAL FRANCISCO: –that’s precisely what Secretary Nielsen’s memo did. It did two things. First, it explained the basis for Secretary Nielsen –Secretary Duke’s decision, but, secondly, it set forth her own independent judgment.

GENERAL FRANCISCO: I –I simply disagree with that. When she specifically says that she is setting forth separate, separate and independent grounds justifying the rescission, I don’t think that there’s any fair way to read that but by saying that she would have rescinded it based on any of the independent grounds, which brings me

The SG’s reply brief did not “reverse position” on the Nielsen memorandum.

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Despite being a historically conservative state, Louisiana first legalized medical marijuana back in 1978. It amended the law in 1991, then left the program to wither on the regulatory vine, with the Department of Health failing to appoint a Marijuana Prescription Review Board or to draw up contracts with national groups for production and distribution.

That began to change in 2015, when Republican state Sen. Fred Mills, a pharmacist and the former executive director of the Louisiana Board of Pharmacy, sponsored legislation to implement the distribution of medical cannabis to patients. In 2016, Mills sponsored a second law that laid out the program’s specifics. Both bills eventually passed the state House and Senate and were signed into law by former Republican Gov. Bobby Jindal. In early August, Louisiana officially became the Deep South’s first state to dispense medical marijuana.

In theory, the program is working: Roughly 1,500 patients in Louisiana are receiving medical cannabis. But some 5,000 patients have consulted with physicians about the program, and there doesn’t appear to be enough legal marijuana to go around. Advocates say that’s because a series of compromises among lawmakers, the Louisiana District Attorneys Association, the Louisiana Sheriffs’ Association, and conservative Christian groups have made a regulatory disaster of the law.

Mills says he originally intended for the legislation to be “more of a free market system.” It’s not. Under state law, only nine pharmacies in nine zones across 52,000 square miles received permits to dispense medical marijuana. Smokeable and edible versions of the product were banned, as was vaporization. (Oils, tinctures, sprays, pills, and gelatin-based chewables are allowed.) The Louisiana Department of Agriculture and Forestry has licensed just two growers—GB Sciences and Ilera Holistic Healthcare—to contract with the agricultural departments at Louisiana State University and Southern University, respectively, to produce medical cannabis for the entire state. As of this writing, only LSU’s operation is producing medical marijuana; Southern University’s first crop isn’t expected until later this year.

Despite advocates’ pleas, only certain doctors are allowed to recommend medical cannabis to patients, and the state created a list of qualifying conditions rather than allowing physicians to use their discretion.

“I’ve always testified that this should be a decision 100 percent between a physician and a patient, and if somebody has a debilitating condition, then why should government get in the way?” Mills says. But he was forced to change his approach. “The only way I could get the legislation passed was to work cooperatively with the law enforcement community. I think if we hadn’t done what we needed to, to basically take an approach of crawl before you walk and walk before you run, I don’t think we would have passed the legislation.”

Kevin Caldwell, the president and founder of the cannabis reform group Commonsense NOLA, says the current system is “unsustainable,” an outcome his group warned of early in the legislative process. “But nonetheless that is how things were decided,” because the Louisiana District Attorneys Association and the Louisiana Sheriffs’ Association “are the kings of the Louisiana Legislature.”

Patients and advocates were excluded from the regulatory process, Caldwell says, and it shows in the state-run market. A 30-milliliter jar of THC tincture costs between $180 and $220 at certain medical marijuana dispensaries—three times the price found in states where recreational adult-use cannabis is legal. What’s more, he adds, “a lot of the sickest patients that want to use the program are on Medicaid and don’t quite have the money for a $200 visit and then the follow-up visit.” Restricting how many physicians can recommend cannabis has likely made the cost of obtaining a recommendation more expensive.

Republican state Agricultural Commissioner Mike Strain, whose department regulates the production of medical marijuana, doesn’t see a problem. “If you have the type of diseases that it’s designed to treat under the law and you can go to a physician, and there are a significant number of physicians there, and one of the nine pharmacies that distribute it across the street, there should not be a problem to access.”

Mills hopes increased social acceptability will eventually push the program forward. He points to how former Democratic Gov. Kathleen Blanco’s family recently went public about her using medical marijuana on her deathbed earlier this year. “Her family really attributes medical marijuana to her quality of life,” Mills says. “I just think that [the medical marijuana program] is going to be more accepted and I think the unknowns will become more familiar for those who have been fighting us.”

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Tiffani Shaddell Lankford, a substitute teacher with the Hays County Independent School District in Texas, has been charged with felony second-degree assault of a female student at Lehman High School. Videos show Lankford appear to punch the student, who is seated at a desk, several times, pull her out from the desk and throw her to the ground and stomp her.

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Here we go again. We’re approaching another deadline to pass a government spending bill or risk a government shutdown. Legislators routinely manufacture this sort of “crisis” to ram through provisions that wouldn’t survive scrutiny standing on their own. Congress is reportedly likely to push the budget deadline into December, but whenever the next full funding bill is finally taken up, there will inevitably be an effort to load it up with crony handouts.

At the top of the wish list will be “tax extenders.” These are tax provisions that generally bestow benefits on particular business interests, but they expire every year or so. They must be renewed regularly if the benefits are to continue.

Not all tax extenders are corporate favoritism. Some alleviate economic distortions in the tax code. But most of those provisions were either mooted by the 2017 tax reform or have already been made permanent. What is left, by and large, is cronyism, especially for various forms of renewable energy.

There are a number of negatives associated with the system of temporary tax extenders beyond the fact that many of them consist of corporate handouts and other bad policies. For one, the current list of tax extenders includes provisions that have been expired since 2017 or 2018. Often when this happens, Congress makes their renewal retroactive. This practice only exacerbates the economic distortions and uncertainty surrounding extenders. Tax accountants, however, love it.

Temporary extenders also produce a wasteful lobbying bonanza as businesses seek to ensure that their benefits are renewed. This system is terrible for everyone except the direct beneficiaries of the largesse.

If any of the current tax extenders happen to be good policy, they should be made permanent. The rest should be allowed to die for good.

Beyond extenders, another tax provision to beware of at this time of year is the electric vehicle tax credit, which is in the process of phasing out. It’s limited by the number of vehicles sold on a per-manufacturer basis, so it’s not ending all at once, but two of the top sellers in the industry have already surpassed the current threshold.

Yet, just as with extenders, there’s a lot of pressure to keep this gravy train rolling. Automobile retailers obviously want it. And for both political and ideological reasons, many members of Congress are also on board. Two weeks ago, a coalition of 166 Democrats in Congress signed a letter to House leadership advocating an extension of the electric vehicle tax credit as part of a list of other green energy credits and handouts.

Working against their effort is the fact that the benefits of this tax break go primarily to wealthy individuals who are better able to afford the more expensive electric vehicles. A 2016 Congressional Research Service report found that 78 percent of those tax credits went to people with adjusted gross incomes of $100,000 or more, and 7 percent went to people earning over $1 million. A later analysis by the Pacific Research Institute confirmed these findings, including that over 99 percent of the credits went to households earning above $50,000.

Granted, in their continued fight to remove the cap put on the state and local tax deductions as part of tax reform, Democrats have proven that they have no problem with handouts to the wealthy if they perceive that it serves a broader ideological purpose.

But even they must admit that it doesn’t look good when their top presidential candidates are now waging class warfare and pushing wealth taxes.

Nor can anyone credibly claim that this tax credit serves a greater good. A paper published earlier this year by economists Benjamin Leard, Shanjun Li, and Jianwei Xing showed that electric vehicles primarily replace newer gas-powered vehicles that are already relatively fuel-efficient, not older vehicles that generate more pollution. These researchers also find that 70 percent of the buyers getting the credits were going to purchase an electric vehicle anyway.

There is, in other words, every good reason to let the electric vehicle tax credit expire as intended. Congress should likewise resist its impulse to keep renewing corporate handouts by reviving expired tax extenders.

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