Tag: hit&run

The fourth paragraph of a recent New York Times story about vaping on college campuses notes “a growing health crisis that has killed more than 50 people and injured more than 2,500,” which it says led Congress to raise the minimum purchase age for e-cigarettes to 21. Later the Times notes that the deaths and injuries are “largely attributed to vaping products containing THC.” But that inconvenient fact does not stop the Times from conflating college students’ nicotine vaping—the main subject of the story—with vaping of potentially deadly black-market cannabis products.

That sort of misleading reporting remains sadly common despite the mounting evidence implicating vitamin E acetate, a cutting and thickening agent that began showing up in illegal THC products this year, in the recent outbreak of vaping-related respiratory illnesses. Two days before the Times published its story, The New England Journal of Medicine published the results of a study that strengthens the case against that additive, which is not found in legal e-cigarettes.

Researchers at the U.S. Centers for Disease Control and Prevention (CDC) analyzed lung fluid from 51 patients with “probable or confirmed” vaping-related respiratory conditions and found vitamin E acetate in 48, or 94 percent. As Boston University public health professor Michael Siegel notes, “the three cases in which vitamin E acetate was not detected were not confirmed cases, and each had other potential explanations for their illnesses. One had a multi-drug overdose, one had a fungal infection, and one may have had a bacterial lung infection.”

These results, based on cases from 16 states, are similar to the findings of a November 15 CDC study that found vitamin E acetate in every lung fluid sample from 29 patients in 10 states. The new study also examined lung fluid samples from 99 healthy subjects, including 18 “exclusive users of nicotine-containing e-cigarette products,” and found no vitamin E acetate. The study “provides evidence,” the researchers say, that vaping products “can deliver vitamin E acetate to respiratory epithelial-lining fluid, the presumed site of injury in the lung.” In light of this study and earlier findings, the CDC is now describing vitamin E acetate as “closely associated” with the lung injuries.

The NEJM study, which tested 47 lung fluid samples for THC, also provides further evidence that self-reports may not be reliable in identifying which patients have consumed cannabis extracts. “THC or its metabolites were detected in BAL [bronchoalveolar-lavage] fluid samples from 40 of 47 patients,” the researchers report. “A total of 9 of 11 patients who reported no use of THC-containing e-cigarette products in the 90 days before the onset of illness had detectable THC or its metabolites in their BAL fluid. Among the patients who had available laboratory data or who reported product use, 47 of 50 (94%) had detectable THC or its metabolites in BAL fluid or reported vaping THC products in the 90 days before the onset of illness.”

As a CDC official noted after the earlier BAL study, THC would not necessarily be detectable in the lung fluid of patients who had consumed it. Without urine testing, it’s impossible to confirm the self-reports of patients who deny using cannabis products, possibly because they are reluctant to admit illegal drug use.

The researchers suggest two ways in which vitamin E acetate, which was first publicly identified as a potential lung disease culprit in early September, might be causing patients’ symptoms (endnotes omitted):

Although the ingestion and dermal application of vitamin E acetate have not generally been associated with adverse health effects, the safety of inhaling vitamin E acetate has received little attention. Vitamin E acetate is the ester of vitamin E (α-tocopherol) and acetic acid. The structure shows a long aliphatic tail that can penetrate a layer of surfactant to align the molecule in parallel with phospholipids. Phosphatidylcholines undergo transition from a gel to a liquid crystalline phase when exposed to increasing amounts of tocopherols, such as vitamin E acetate. Transitioning to a liquid crystalline phase would cause the surfactant to lose its ability to maintain the surface tension that is necessary to support respiration in the lung, thus providing a possible mechanism by which vitamin E acetate could cause respiratory dysfunction.

Another potential harmful effect of vitamin E acetate that may contribute to lung injury occurs when it is heated in e-cigarette products. Heating vitamin E acetate in these devices may create ketene by splitting off the acetate group from some or all of the vitamin E acetate. Ketene is a reactive compound that has the potential to be a lung irritant, depending on concentration.

While the researchers caution that “the causative agents” responsible for the lung disease outbreak “have not been established,” the evidence so far overwhelmingly points to relatively new additives or contaminants in black-market cannabis extracts, as opposed to legal nicotine e-liquids. Yet leading media outlets such as The New York Times continue to imply that nicotine-delivering e-cigarettes might be causing the lung injuries, suggesting that policies like raising the legal vaping age or banning flavored e-liquids are logical responses instead of panicky non sequiturs.

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A recent study published in Nature Chemistry finds that 39 percent of respondents in eight European countries say they “agree” with the statement that  “I would like to live in a world where chemical substances don’t exist.” Another 39 percent say the “slightly agree” or “slightly disagree” with this statement. Similarly,  40% say “they do everything I can to avoid contact with chemical substances in my daily life.”

As the study’s authors—Swiss academics Michael Siegrist and Angela Bearth—point out, such “chemophobia reflects stunning scientific ignorance, because human life would be virtually impossible without chemicals. Indeed, pretty much everything we use or touch is a chemical or combination of chemicals. Even if we limit the definition of “chemicals” to artificially produced substances (as opposed to naturally occurring ones), most of the products of modern industry and agriculture routinely use such materials, and they are—on average—no more dangerous than “natural” substances are. If you truly do everything you can to avoid contact with chemical substances (even just artificial ones), you would probably have to return to a stone-age lifestyle. Siegrist and Bearth note that “many claim that they do everything they can to avoid chemical substances although they clearly — and most likely unknowingly — rely extensively on products, from food to cell phones, that would not be possible to manufacture without synthetic chemicals.” If you’re reading this post on a smartphone or on a laptop, you are using “chemical substances” right now!

It may be tempting to make fun of scientific illiteracy in Europe. But we Americans are in no position to judge. Surveys in the US routinely find similar ignorance in this country. For example, some 80% of Americans say they want mandatory labeling of food containing DNA, probably because they do not realize that nearly all food contains DNA, as indeed does every human body. A 2012 survey found that 1 in 4 Americans do not know that the Earth revolves around the sun, rather than vice versa.

Most of what I said about the US DNA survey also applies to the data on chemophobia in Europe:

Polls repeatedly show that much of the public is often ignorant of both basic scientific facts, and basic facts about government and public policy. Just before the 2014 elections, which determined control of Congress, only 38 percent realized that the Republicans controlled the House of Representatives before the election, and the same number knew that the Democrats control the Senate. The public’s scientific knowledge isn’t much better…. Issues like food labeling bring together political and scientific knowledge, and it is not surprising that public opinion on these subjects is very poorly informed…

It would be a mistake to assume that widespread political and scientific ignorance are the result of “the stupidity of the American voter,” as Obamacare architect Jonathan Gruber put it. Political ignorance is not primarily the result of stupidity. For most people, it is a rational reaction to the enormous size and complexity of government and the reality that the chance that their vote will have an impact on electoral outcomes is extremely low. The same is true of much scientific ignorance. For many people, there is little benefit to understanding much about genetics or DNA. Most Americans can even go about their daily business perfectly well without knowing that the Earth revolves around the sun. Even the smartest people are inevitably ignorant of the vast majority of information out there. We all have to focus our time and energy on learning that information which is most likely to be instrumentally useful, or at least provide entertainment value. For large numbers of people, much basic political and scientific information doesn’t make the cut.

As with the US survey result, the European one is not quite as bad as it looks. Many people can happily live their lives in blissful ignorance of basic chemistry. They can continue eat GMO and processed foods, use cell phones, and partake of many other wonders of modern technology in blissful ignorance of the fact that these products contain supposedly nefarious “chemical substances.” If you don’t know what DNA is or don’t know that artificial chemicals infuse most of the items we use every day, when you see a term like “DNA” or “chemical substances” in a survey, you might assume that these things must must be dangerous, or at least should be viewed with suspicion. But, at the same time, you can still be a reasonably discerning consumer when it comes to specific products you are familiar with. Scientific ignorance should not be conflated with stupidity or irrationality.

But even though it may not have much negative effect on most people’s daily-life choices, widespread scientific ignorance can have a dangerous impact on government policy, which can be influenced by ignorant public opinion:

Unfortunately, this is a case where individually rational behavior leads to potentially dangerous collective outcomes. While it doesn’t much matter whether any individual voter is ignorant about science or public policy, when a majority (or even a large minority) of the electorate is ignorant in these ways, it can lead to the adoption of dangerous and counterproductive government policies. In this case, excessive and unnecessary warning labels on food products could confuse consumers, and divert their limited attention from real dangers.

Chemophobia of the sort documented in the European study can also lead to bans or restrictions on useful products. When activists or politicians run a PR campaign claiming that products that contain supposedly dubious “chemical substances” should be banned, people who don’t understand basic science will often be susceptible to such manipulation and disinformation, even if the products in question are actually safer or better than “natural” ones. The European Union has in fact enacted a variety of dubious restrictions on GMO foods, despite the scientific consensus that they are no more dangerous than conventional ones.  Here, as elsewhere, voters have more incentive to be ignorant and to do a poor job of evaluating the information they do know when it comes to public policy issues than when it comes to making decisions in their daily lives.

NOTE: The full text of the Nature Chemistry article is only available in a gated version (though you can get access to it through most universities in the US, Europe, and elsewhere). But here is an ungated summary. Although the latter is by an advocacy organization, I have checked it against the original, and am able to confirm that the summary accurately conveys the main points of the original.

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Though it sometimes feels here at Reason like every day is Festivus—at least the Airing of Grievances part, if not quite the Feats of Strength—it is also true that the Seinfeld-concocted holiday comes every December 23. That means two things: 1) the annual tweet-storm from Sen. Rand Paul (R–Ky.) and, if it falls on a Monday, 2) a Festivus-themed episode of the Reason Roundtable podcast.

Nick Gillespie, Peter Suderman, Katherine Mangu-Ward, and Matt Welch huck darts at, among many other targets, last week’s “bucket of garbage” budget deal, our brand new Space Force, Democratic presidential candidates, cigarette prohibitionists, presidential cultists, trade warriors, governor sons of governors, nu-trad-con manifesto writers, would-be campaign-finance regulators, politicians who can’t stop yammering about baseball, and whichever alien force lives inside Nick Gillespie’s mouth robotically dispensing Zardoz references. There’s even a shocking twist or two near the end, so be here now until the final second, if time even exists.

Audio production by Ian Keyser and Regan Taylor.

Music: “Dance Of The Sugar Plum Fairies” by Tchaikovsky

Relevant links from the show:

“A Special Reason Festivus Airing of the Grievances: Podcast,” by Matt Welch

“‘Until You Pin Me, George, Festivus Is Not Over!’” by Jesse Walker

“Peace, Love, and Misunderstanding,” by Jacob Sullum

“Bipartisan ‘Bucket of Garbage’ Budget Bill Contains $50 Billion in Special Interest Tax Breaks,” by Eric Boehm

“Republicans, Democrats Agree to Dump $738 Billion More Into the Forever War and Space Force,” by Elizabeth Nolan Brown

“Even in Impeachment-Crazed D.C., It’s Always a Good Time To Borrow and Spend!” by Nick Gillespie

“America’s Forgotten Debt,” by John Stossel

“Here’s the One Book All the Democratic Candidates (and President Trump) Should Read,” by Nick Gillespie

“Democrats Still Fundraising Off Citizens United, Still Wrong About What It Means,” by Elizabeth Nolan Brown

“Warren and Buttigieg Spar Over Who Has the Purest Donors,” by Scott Shackford

“The Cult of the Presidency,” by Gene Healy

“House-Passed Budget Deal Raises Age To Buy Cigarettes to 21,” by Christian Britschgi

“It Wasn’t Just a Chokehold That Killed Eric Garner,” by Jacob Sullum

“This Week Is a Crucial Final Exam Capping the Second Year of Trump’s Trade Wars,” by Eric Boehm

“The New Trustbusters Are Coming for Big Tech,” by Thomas W. Hazlett

“The Moral Scolds of the New Illiberal Right Are Coming For Your Internet,” by Peter Suderman

“New York Gov. Andrew Cuomo to State Economy: ‘Drop Dead,’” by Nick Gillespie

“The Five Faces of Jerry Brown,” by Jesse Walker

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A lot of things happened in the past 10 years. A boom in housing construction was not one of them. The 2010s will go down as a decade of historically low housing starts, resulting in higher home prices and rents for some and longer commutes for others.

Last week, Freddie Mae Deputy Chief Economist Len Keifer tweeted out a graph comparing new housing starts over the past six decades. The results are startling.

the 2010s will end up with the lowest number of housing units started in 6 decades, by a wide margin pic.twitter.com/3o43sEQnzp

— ???? ???????????? ???????????????????????? ???? (@lenkiefer) December 18, 2019

In the past 10 years, construction started for 9.8 million new housing units in the U.S. That compares to 15.4 million units in the last decade and 13.7 million in the decade before that. (Keifer notes that those numbers don’t include manufactured housing, a traditional source of low-income housing. It increased a little, but not enough to change the pattern.)

lack of new housing actually worse than above graph makes it out to be

historically manufactured housing (MH) not included in figures above, has been an important source of affordable housing

even though MH has been increasing, still well below historical avg pic.twitter.com/4GHHWBjqPT

— ???? ???????????? ???????????????????????? ???? (@lenkiefer) December 18, 2019

The national numbers match what we’ve seen in some of the highest-cost housing markets in the country.

New York City added 509,000 housing units, or about 2.2 units per new job, from 2001 to 2008, according to a recent report from the city’s Department of Planning. It added only 457,000 units, or .5 new units per new job, from 2009 to 2018.

In 2018, the Californian authorities permitted 117,892 new units of housing for the state’s nearly 40 million residents, according to California’s Department of Finance. By comparison, the Golden State issued 131,732 housing permits in 1975 (the earliest year data is available), despite having only 21.5 million residents.

The question isn’t whether government regulation has constrained supply. Rather its which government regulations have restricted supply the most.

Some scholars like to point to zoning restrictions that prevent developers from constructing taller, denser apartment buildings in high-demand urban areas. Others stress urban growth boundaries that block new suburban housing.

On top of this are historical preservation laws, environmental regulations, and prevailing wage requirements for construction workers. Whatever their other policy merits may be these all increase the costs of building new homes.

“The bigger background narrative is NIMBYism generally,” says Salim Furth, an urban policy expert at the Mercatus Center. “It’s not that localities have planned for housing and have just done it in a way that doesn’t produce quite enough. There’s a visceral ‘just don’t build anything here’ attitude that is prevailing in most American suburbs today.”

A 2016 National Association of Home Builders (NAHB) study estimates that regulatory costs have increased the price of a new single-family home by 30 percent in the first half of the decade. Another NAHB study found that regulations account for a third of new multifamily regulatory costs.

The people who bear the burden of these regulations are renters and new home purchasers who find themselves shelling out more money for the same amount of housing.

An October report from Apartment List put the percentage of cost-burdened renters (those paying more than 30 percent of their income in rent) at just under 50 percent. In 1960 only 24 percent of renters were cost-burdened. Some have chosen to save on housing by spending more time behind the wheel: The Washington Post reports that Americans commuting longer than ever before.

Policy makers are starting to wake up to the problem of a government-induced housing affordability crisis. Occasionally they are even passing good policies.

California has significantly deregulated the construction of granny flats, resulting in a massive spike in the construction of those units in places like Los Angeles. Seattle has done the same, while also upzoning some city neighborhoods to allow for denser residential and commercial development. Oregon and Minneapolis both abolished single-family-only zoning laws.

Alas, these reforms have often been coupled with counterproductive price controls. Both California and Oregon passed caps on rental price increases this year. New York similarly strengthened pre-existing limits on rent increases in New York City. It has also given local governments the authority to pass their own rent control laws.

On balance, Furth believes housing policy is moving in the right direction at the federal and state level. But he thinks that is counteracted at the local level, where the trend is toward giving planners more power to micromanage what new housing will look like.

“That allows local elected officials to have a seat at the table designing and planning everything. They have certain priorities that never include affordability,” Furth tells Reason. Local governments have an incentive, he says, to boost tax revenue above all else. That leads them to zone for higher-quality housing that will attract wealthy residents who pay a lot in taxes but consume few services.

In California, the high levels of discretion built into the permitting process allows activists and other self-interested parties to slow down new development. But other cities, such as Des Moines, are moving in the direction of zoning for higher-quality, higher-priced homes.

Some cities, such as Houston, have managed to stay affordable despite tremendous growth precisely because local officials have decided not to micromanage what new housing will look like or where it can be built.

Getting other cities to embrace a lighter-touch regulatory approach requires policy changes. It also requires people to accept having less control over what other people do with their property.

“We need to change the way that we think about property and neighbors,” says Furth. “We have a pattern of thinking that is just going to lead to worse and worse outcomes.”

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Ohio lawmakers trying to pass sentencing reforms have faced opposition this year from the usual suspects, such as lobbyists for prosecutors and law enforcement. But they’ve also run into vocal criticism from an unexpected source: Ohio Supreme Court Chief Justice Maureen O’Connor.

It is unusual—and it may damage the objectivity and independence of the court system—for sitting Supreme Court justices to lobby for or against legislation. But that hasn’t stopped O’Connor from jumping into the middle of the legislature’s deliberations over a pair of criminal justice reform proposals. In newspaper op-eds, public appearances, and letters to members of the state Senate, O’Connor, who happens to be a former prosecutor and lobbyist, has repeatedly argued against a bill that would downgrade some felony drug possession charges to misdemeanor offenses.

O’Connor, of course, has a First Amendment right to speak about legislation and to criticize the legislative process if she wants. But she seems to recognize the unusual nature of her advocacy.

“You may think it unprecedented to receive a letter from me, as Chief Justice, that addresses my concerns about [Senate Bill 3],” O’Connor wrote in a December 3 missive to state legislators, a copy of which was obtained by Reason. But, she adds, it is “my duty” to speak out about issues that “affect the administration of criminal justice and the operation of Ohio’s courts.”

 

 

 

 

 

 

 

 

 

 

 

Sen. John Eklund (R–Munson), the sponsor of the bill in question and one of the recipients of O’Connor’s letter, agrees that it’s unusual to get a letter from a sitting Supreme Court justice advocating against a specific piece of legislation.

Eklund’s bill is one of two major criminal justice reform measures that have been jockeying for legislators’ support in Columbus this year. He says says it’s rooted in the idea that people deserve a chance to prove they can learn from past mistakes.

“We want people to get better and move on to lead productive lives, while also ensuring that traffickers are arrested and stay behind bars,” he explains.

One way Eklund’s bill would do that is by reclassifying low-level drug possession crimes, which are now charged as felonies in Ohio, as misdemeanors. That would give some individuals convicted of those nonviolent offenses the opportunity to seek treatment rather than being incarcerated, and it would not limit future job prospects in the same way a felony conviction does.

At the same time that she’s been lobbying against Senate Bill 3, O’Connor has been pushing the legislature to approve the other criminal justice bill it was considering this year: House Bill 1. In her December 3 letter, O’Connor highlights the House bill’s support from law enforcement groups—she specifically name-checks the Ohio Prosecuting Attorneys Association—as a reason to prefer it to the Senate proposal.

The House bill also seeks to shunt some drug offenders into treatment programs, but it does not reclassify some drug felonies as misdemeanors. O’Connor and others claim that the cudgel of a felony charge is necessary to get offenders into treatment.

“Downgrading the underlying offenses will only reduce one of these incentives and the likelihood of a lasting recovery,” the chief justice wrote in a September 19 letter to Eklund.

There’s no law or rule that says judges can’t lobby for legislation. Indeed, Jonas Anderson, a professor of law at American University who has written about judicial ethics and lobbying, points out that there are times when judicial input can offer important information to legislators, particularly when they can provide technical information about the workings or needs of the justice system.

But judges should be careful about crossing the line into pushing or opposing specific policies, he adds.

“We think of the judicial system as a place where you can get a decision about a dispute that’s free from political considerations,” says Anderson.

In lobbying against Senate Bill 3, O’Connor has indeed made some technical arguments about how the court system would operate under the new sentencing guidelines proposed by the law. But her objections are overwhelmingly directed at the underlying policy.

In that September 19 letter to Eklund, for example, O’Connor spends two pages arguing that 81 percent of Ohioans sentenced to prison for low-level drug offenses last year had prior criminal convictions and therefore would not be eligible for the treatment programs Eklund is proposing to use as an alternative to jail time. (Of course that means 19 percent of those offenders—more than 300 people, by O’Connor’s own count—would stand to benefit.)

That argument, like the one she makes about what steps are necessary to get drug offenders into treatment programs, are not dispassionate analyses of the workings of the judicial system—such as, for example, informing lawmakers about how a policy change might affect judges’ workloads. Instead, they are fundamentally prescriptive arguments rooted in policy preferences.

O’Connor has a long history in Ohio politics, both behind the bench and as a lobbyist. It’s that career that might best explain her involvement in the debate over sentencing reform.

Before becoming the first female chief justice in the state’s history, O’Connor was a magistrate and then a judge for the state’s Court of Common Pleas. She resigned from the bench in 1993 to become a prosecutor in Summit County. There, according to her official state Supreme Court bio, she “aggressively prosecuted repeat offenders, violent criminals, and public officials who committed ethical violations or improprieties, and lobbied the General Assembly for tougher laws on rape and gang-related offences.” She won accolades from Mothers Against Drunk Driving and other victims’ rights groups that advocate for harsher penalties within the criminal justice system. From there, she was elected as lieutenant governor in 1998.

O’Connor returned to judicial work in 2003 after being elected to the state Supreme Court the previous year. She was elected as the court’s chief justice in 2010, and re-elected to a second term in that position in 2016. O’Connor, who is 68, will be forced to retire when her current term expires in 2022 under Ohio’s law prohibiting judges from running for re-election if they are over 70.

After a career defined by criss-crossing the dividing lines between branches of government—and by advocating for tougher criminal justice legislation both from inside the executive branch and as an outside lobbyist—O’Connor apparently thinks it appropriate to tell state lawmakers what to do. Indeed, this is not the first time she’s tried to stamp out sentencing reforms. In 2018, she penned op-eds telling voters to oppose a ballot measure that would have reduced drug possession penalties in order to keep low-level nonviolent offenders out of the prison system. Passage of the measure would be “catastrophic” for Ohio, she wrote. Not exactly the sort of dispassionate analysis one would hope to read from the head of the state’s highest court.

Voters listened, and they defeated that proposal at the ballot box last year.

As 2019 drew to a close, O’Connor has amplified her opposition to SB 3. Two weeks ago, she authored an op-ed arguing that transforming some drug possession felonies into misdemeanors “would be a serious mistake.” She has used speaking appearances at legal forums to litigate her opposition to the sentencing reforms included in SB 3.

Despite a flurry of legislative activity in December, state lawmakers ultimately punted consideration of SB 3 until next year.

By using her authority as the state’s top jurist to parrot talking points from prosecutors and law enforcement lobbyists, O’Connor may yet succeed in stomping criminal justice reform efforts, but she also undermines her own credibility and that of the state’s court system. The legitimacy of the judiciary survives largely because the system is perceived to be separate from the political machinations that go on within a legislature. O’Connor’s willingness to use her judicial position to help shape policy should make Ohioans wonder about her ability to be an objective arbiter.

“Judges shouldn’t be muzzled,” says Anderson, “but lobbying as a judge—not as an individual, but as a judge—risks the independence and objectivity of the judicial branch.”

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New York Gov. Andrew Cuomo is calling for harsher penalties for untaxed cigarette sales in the Empire State, showing yet again that regulators do not understand the relationship between high taxes and black markets.

New York state has some of the highest cigarette taxes in the country. And in New York City, the prices are even higher: a minimum of $13 a pack. Partly due to these high imposed costs, more than half of the cigarettes consumed within New York are estimated to have been smuggled in from states with lower tobacco taxes. These cigarettes are then resold on the black market in New York for less than the price of legal cigarettes.

Cuomo says his agenda for 2020 includes crafting a new state law that will go after any retailers who bring in cigarettes purchased in other states and then try to sell them. Under Cuomo’s proposal, retailers caught selling cigarettes they’ve smuggled from other states could lose their liquor and lottery licenses and even be shut down entirely.

While some regulators deliberately turn a blind eye to how their own high taxes and complicated regulations lead to black markets (see California’s almost comical attempt to legalize recreational marijuana), Cuomo’s State of the State release makes it clear that he knows very well that the state’s own regulations are feeding this behavior:

One byproduct of the aggressive rate of taxation applied to cigarettes in New York City—currently the second highest rate in the nation—is the continuing incentive for unlawful retailers to evade those taxes by breaking the law.  Some unscrupulous retailers persist in trafficking in cheap untaxed cigarettes, a practice that not only undermines efforts to reduce smoking, but also deprives the State of essential revenue for use in enforcement and public health initiatives. It also places law-abiding retailers at a significant competitive disadvantage, while making it difficult for localities and the State to regulate the price of these products with the goal of discouraging people from buying them.

If passed, Cuomo’s law will be used to go after small businesses that are already struggling to turn a profit. Convenience stores operate on tiny margins (often less than 2 percent) and many are dependent on tobacco sales for their profits. The idea that there are tons of “unscrupulous retailers” living high on the hog off smuggled cigarettes is akin to believing that every drug dealer is Pablo Escobar. For every black market tobacco kingpin, there are many more people like Eric Garner, who was confronted by police and ultimately choked and killed partly over suspicion that he was selling untaxed black market cigarettes. We could see more Garners under Cuomo’s proposal, which local police will be expected to enforce.

This proposal certainly doesn’t bode well for Cuomo’s desire to legalize recreational marijuana in New York. Based on the way it taxes cigarettes, New York is likely to have the same problem as California: extremely high taxes and oppressive regulations that will keep the black market fully intact.

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A nonprofit legal foundation is suing the state of California on behalf of freelance workers who say California’s recently passed Assembly Bill 5 (AB5) will destroy their livelihoods. Set to take effect on January 1, 2020, AB5 will make it illegal for contractors who reside in California to create more than 35 pieces of content in a year for a single company, unless the outlet hires them full time.

“By enforcing the 35-submission limit, Defendant, acting under color of state law, unconstitutionally deprives Plaintiffs’ members of their freedom of speech as protected by the First and Fourteenth Amendments to the U.S. Constitution,” states the lawsuit, which was filed by the Pacific Legal Foundation.

The bill’s pending implementation has wreaked havoc on publications that rely heavily on California freelancers. Just last week, Vox Media announced it not be renewing the contracts of around 200 California freelancers who write for the sports website SB Nation. Instead, Vox will replace many of those part-time employees with 20 part-time and full-time employees. Rev, which provides transcription services, and Scripted, which connects freelance copywriters with people who need their services, also notified their California contractors that they would no longer give them work. 

“Companies can simply blacklist California writers and work with writers in other states, and that’s exactly what’s happening,” Alisha Grauso, an entertainment journalist and the co-leader of California Freelance Writers United (CAFWU), tells Reason. “I don’t blame them.”  

Assemblywoman Lorena Gonzalez (D-San Diego), the architect of AB5, has heard these stories. “I’m sure some legit freelancers lost substantial income,” she tweeted in the wake of Vox’s announcement, “and I empathize with that especially this time of year. But Vox is a vulture.”

“These were never good jobs,” Gonzalez said earlier this month. “No one has ever suggested that, even freelancers.”

But many of the freelance journalists, writers, and content creators who now have to navigate the disastrous consequences of Gonzalez’s legislation beg to differ. 

“I’ve been able to earn nearly three times the amount I did working a day job, doing what I absolutely love, and having more to volunteer and spend time with loved ones,” wrote Jackie Lam, a financial journalist. Kelly Butler, a freelance copywriter, echoed those sentiments. “Thousands of CA female freelancer writers, single moms, minorities, stand to lose their livelihood due to this bill,” she said. “I was told by a client because I live in CA they can’t use me. I made $20K from them this year.”

Grauso says that CAFWU, the group fighting against AB5, is composed primarily of the people that Gonzalez claimed the bill would help. It is currently 72.3 percent women, which Grauso says is no coincidence.

“The reality is it still falls primarily on women to be the caretakers and caregivers of their families, and freelancing allows women to be stay-at-home mothers or to care for an aging parent,” Grauso says. “Being made employees kills their flexibility and ability to be home when needed. I cannot stress enough how anti-women this bill is.” 

The 35-piece per publication limit comes out to less than one piece per week. Anyone who writes a weekly column, for instance, is likely out of a job if their publisher cannot hire them as an employee. The bill also penalizes freelancers who create content in non-traditional formats such as blog posts, transcriptions, and listicles, the latter of which are often requested in bulk and take only “about 20 minutes to compile,” writes another freelancer. 

“[AB5] was drafted by a lawmaker who had the outdated mindset that most writers work within the old, traditional newspaper and print model,” explains Grauso. “But the vast majority of writers are in the digital media space, which operates completely differently.”

According to the Hollywood Reporter, Gonzalez initially set the annual limit at 26 pieces, but later changed it to 35 after a backlash. “Was it a little arbitrary? Yeah,” Gonzalez told the Reporter. “Writing bills with numbers like that are a little bit arbitrary.”

The assemblywoman recently tweeted that unemployment trending lower is “useless” because “people have to work 2-3 jobs or a side hustle” to make ends meet. “Now is the time to demand more,” she said.

According to the most recent Census data, only 8.3 percent of workers have more than one job; of that number, only 6.9 percent have more than two jobs. But Gonzalez doesn’t seem to care about the data, and has made it pretty clear that she does not want to listen to her constituents. 

“[Freelancers] shouldn’t fucking have to [work 2-3 jobs],” the assemblywoman, addressing a detractor, said in a Twitter exchange last week. “And until you or anyone else that wants to bitch about AB5 puts out cognizant policy proposals to curb this chaos, you can keep your criticism anonymous.”

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Remy is creeped out by restrictive ballot access measures. Also by Prince Andrew.

Written and performed by Remy.
Produced and edited by Austin Bragg.
Music tracks and mastering by Ben Karlstrom.

LYRICS:

The first Noel I heard early one day
As I tried to run as a new candidate
My cheeks were wetter than Prince Andrew’s shirt
When the man spoke to me and he told me these words:

No “L,” no “L”
No “L,” no “L”
No room for me on the ballot, oh well

I looked up a party wherein
I could join but was told “There’s no room at the inn”
No bed to lay and I heard “take a hike”
Like the time I bought my wife an exercise bike

No “L,” no “L”
No “L,” no “L”
No room for me in the parties, oh well

My wish this year is to feel content
At the ballot and not—to be frank—incensed
Must it be so hard to boot folks we don’t like
But they claim it is lawful and I think that’s right, but…

No “L,” no “L”
No “L,” no “L”
Seriously, how creepy is Prince Andrew?

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My latest article was just published in the Texas Law Review, and it is called “The Unconstitutionality of Justice Black.” I originally gave it the accurate but completely uninteresting title “Ex Parte Levitt,” the name of the too-widely-forgotten case that inspired the article.

The article is about the constitutional controversy over the appointment of Justice Black. The day that Black was sworn in to the Supreme Court in 1937, an apparent crank tried to orally argue that Black was an unconstitutional usurper. The Court dismissed the case on procedural grounds.

But it turns out that the crank was correct, and might not really have been a crank. Justice Black was unconstitutionally appointed, and while the suit might have had some procedural problems, they weren’t exactly the problems that the Court thought they were.

The piece also discusses the aftermath of the litigation. As you may know, Justice Black sat on the bench for many decades. But during all that time, the Court never actually ruled on the lawfulness of Justice Black’s appointment. Instead, after a while everybody just took it for granted anyway.

As I’ve blogged before here, I’m generally a fan of Justice Black’s work, so I feel a little sheepish about publishing the piece. But I’ve become convinced that his appointment was unconstitutional. You can read the whole thing (only 30 pages) if you want to see why.

[Cross-posted from my new other blog—Summary, Judgment]

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The House Judiciary Committee issued a subpoena to former White House Counsel Don McGahn. McGahn, and the Department of Justice, asserted absolute immunity from the subpoena. The District Court rejected the claim of absolute immunity and DOJ appealed. After the House voted on the impeachment resolutions, a panel of the D.C. Circuit requested supplemental briefing “addressing the effect of the articles of impeachment on the issues in this case, including whether the articles of impeachment render this case moot and whether expedited consideration remains necessary.”

DOJ has now filed that supplemental brief.

First, DOJ contends that the case is not moot. The subpoena was premised on the House’s oversight and legislative powers, apart from its impeachment powers. More importantly, DOJ contends that the Court no longer needs to decide if “the subpoena was ever validly justified by the House’s impeachment power in the first place.” I suspect this argument is a preview of arguments the President would make to the Supreme Court if other impeachment-related cases arrive.

Second, DOJ explains that the impeachment vote does have one immediate implication: the proceedings should slow down. In short, the House has already voted on its articles of impeachment. Therefore, expedited consideration of this subpoena is no longer necessary. DOJ strongly suggests that the House’s impeachment investigation is over. Is this argument correct? To be sure, the House only approved two articles. It will likely contend that its impeachment inquiry of other matters–such as Mueller and obstruction of justice–remain ongoing. This fact may have supported Leadership’s decision to not bring articles directly premised on the Mueller Report and obstruction of justice–doing so could have potentially mooted pending litigation.

Third, DOJ argues that the Committee’s “primary justification to sue no longer exists.” That is, the need to facilitate the impeachment inquiry process. Again, the House will likely contend that the impeachment inquiry into Mueller and obstruction continues, without regard to the two approved Articles.

Fourth, DOJ contends that obstruction of congress article does implicate the district court’s opinion, which was premised on obstruction of justice.

Second, the article of impeachment addressing purported obstruction of Congress relies in part on the judicial proceedings in this very case. The House Judiciary Committee’s impeachment report, for example, cites the district court’s characterization of the Justice Department’s litigating position in this case for the proposition that the President “insists that unfounded doctrines, such as absolute immunity, preclude testimony by many current and former officials who might shed light on any Presidential abuses.” H.R. Rep. No. 116-__, Impeachment of Donald J. Trump, President of the United States: Report of the Committee on the Judiciary 165 (2019). Pursuing an interbranch suit in court while simultaneously pursuing impeachment, and then using that litigation as part of the impeachment proceedings, is “far from the model of the traditional common-law cause of action at the conceptual core of the case-or-controversy requirement.” Raines v. Byrd, 521 U.S. 811, 833 (1997) (Souter, J., concurring). But that is exactly what the Committee has done. The effect of that choice is to “embroil[] the federal courts in a power contest nearly at the height of its political tension.” Id

One of the risks of incorporating the judicial decisions into the article is that the courts may now avoid getting further entangled. This argument will resonate well with the Supreme Court:

Indeed, if this Court now were to resolve the merits question in this case, it would appear to be weighing in on a contested issue in any impeachment trial. That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial. Cf. Nixon v. United States, 506 U.S. 224, 232, 235-36 (1993). The now very real possibility of this Court appearing to weigh in on an article of impeachment at a time when political tensions are at their highest levels—before, during, or after a Senate trial regarding the removal of a President—puts in stark relief why this sort of interbranch dispute is not one that has “traditionally thought to be capable of resolution through the judicial process.” Raines, 521 U.S. at 819. This Court should decline the Committee’s request that it enter the fray and instead should dismiss this fraught suit between the political branches for lack of jurisdiction.

This argument creates potential recusal issues for Chief Justice Roberts. He will likely have to preside over these issues during the impeachment trial. Could he then hear this appeal from the D.C. Circuit? Or what about in reverse? What would happen first? The impeachment trial? Or an emergency appeal to the Supreme Court? Or might they happen at the same time.

DOJ filed a separate brief on Thursday, that closed with an ominous footnote:

The Committee has requested (Br. 53) that this Court should “vacate its administrative stay and affirm the district court’s order without delay.” Although the judgment instead should be reversed and the case dismissed, if the Court were to disagree, it should at least leave the stay in place for a reasonable period to allow the Solicitor General to seek appropriate relief from the Supreme Court, especially given the serious question whether McGahn’s testimony is even relevant to the now-passed articles of impeachment.

In other words, if the D.C. Circuit agrees with the District Court, then the Solicitor General has asked for a “reasonable period” of time to file an immediate appeal to the Supreme Court. The D.C. Circuit will hear oral argument on January 3. I imagine a decision would be rendered shortly thereafter. Perhaps, at that juncture, the impeachment trial will have started. Or perhaps not.

Maybe the House follows the Tribe proposal, and refuses to transmit the articles, altogether. To resolve the mootness inquiry, the Court may have to decide if the President has in fact been impeached.

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