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Biden Stimulus Bill Provision Targeting State Tax Cuts Might be Struck Down by Courts for Same Reasons as Trump Efforts to Pull Federal Grants From Sanctuary Cities


American Rescue Plan Act

On Wednesday, the state of Ohio filed a lawsuit challenging the constitutionality of  Section 602(c)(2)(A) of the American Rescue Plan Act (ARPA), the $1.9 billion “stimulus” bill recently passed by Congress. Section 602(c)(2)(A) bars states and territorial government  that receive federal grants under the act (which includes a total of $350 billion in grants to state and local governments) from enacting tax cuts that are “directly or indirectly” offset by ARPA grants:

A State or territory shall not use the funds provided under this section or transferred pursuant to section 603(c)(4) to either directly or indirectly offset a reduction in the net tax revenue of such State or territory resulting from a change in law, regulation, or administrative interpretation during the covered period [from now till December 31, 2024] that reduces any tax (by providing for a reduction in a rate, a rebate, a deduction, a credit, or otherwise) or delays the imposition of any tax or tax increase.

State attorneys general from 21 other “red” states have signed a letter complaining about this provision. It is likely that many of them will either join Ohio’s lawsuit, or file cases of their own.

In my view, Ohio has a good chance of getting this provision invalidated in court. Ironically, the primary reason why is the same as that which led to the defeat of the Trump administration’s efforts to use the threat of withholding federal grants to pressure sanctuary cities into cooperating with federal efforts to deport undocumented immigrants. In both cases, the requirement in question was never clearly authorized by Congress. In addition, it could be that the tax requirement is “coercive”—an issue that also came up in some of the Trump sanctuary city cases.

In cases such as Pennhurst v. Halderman (1981), and South Dakota v. Dole (1987) the Supreme Court has made clear that, if the federal government imposes conditions on grants to state governments, it must do so “unambiguously” in a statute enacted by Congress. The Trump administration suffered repeated defeats in the sanctuary city cases in large part because it tried to leverage vaguely worded statutes to impose conditions related to immigration enforcement that were nowhere near clear from the statutes themselves.

Much the same problem arises in this case. Section 602 does indicate that ARPA imposes at least some constraints on the enactment of tax cuts by recipient states. But it is far from clear exactly which ones, or what the penalty for noncompliance is. Ohio’s complaint describes part of the problem:

The [tax condition] is far from “unambiguous.” What changes to tax policy that cause a decrease in net revenue are “indirectly” offset by funds acquired through the Act? Unless the answer is “every change to tax policy,” neither the English language nor economic theory provides an answer. And how does one know whether a change to tax policy causes a net reduction in revenue? For example, if revenue would have decreased even further but for a tax cut, would the tax cut still violate the Mandate? The Tax Mandate does not answer these questions. As a result, the conditions it imposes are too ambiguous to be upheld under the Spending Clause.

The ambiguity actually goes well beyond that. Among other things, it is not clear whether a change in tax rates or other relevant policies that was enacted before ARPA passed, but only takes effect during “the covered period” would qualify as a forbidden policy. Also, if a state violates the condition, it is not clear whether it stands to lose all of its ARPA grant money or only the part “offset” by the “reduction in net tax revenue.” As co-blogger Josh Blackman notes, the Biden administration Treasury Department seems to have adopted the latter position, which is more generous to states than the former. But nothing in the text of the statute tells us which interpretation is correct.

And if the Treasury interpretation is right, there is also the question of how and when we calculate the amount of money the state must give back to the federal government. Estimating the amount of revenue lost as a result of a tax cut is is a complex business. Economists sometimes differ among themselves on the methodology. In some instances, as Ohio notes, a tax cut might even increase revenue rather than reduce it. Whether a cut results in a decrease in revenue and by how much may not be known for several years. Even then, experts might still differ on how much of the loss was due to the tax cut and how much to changes in background economic conditions.

The text of Section 602 doesn’t resolve any of these ambiguities. And, as the Trump administration found in the sanctuary city cases, the gaps cannot be filled by the executive branch making up its own answers. If the executive can use vague statutes to impose its own grant conditions on state governments, it would give the president dangerous leverage to pressure the states and usurp Congress’ power of the purse, thereby undermining both federalism and the separation of powers. That was true of Trump’s assault on sanctuary cities, and Section 602 raises the same problem.

So far, at least, the Biden administration isn’t adopting the most aggressive possible interpretation of Section 602 (as Trump tried to with the authorizing statutes for grants he sought to pull from sanctuary cities). But no administration should have the power to, in effect, make up grant conditions that were never authorized by Congress.

The ambiguous nature of the Section 602 condition is its biggest legal vulnerability. But Ohio also plausibly argues that the condition is coercive:

This scheme violates the Spending Clause, because the “financial inducement” the Act offers “to the States … is much more than ‘relatively mild encouragement'” of the sort the Spending Clause permits—instead, “it is a gun to the head.” NFIB [v. Sebelius], 567 U.S. at 580–81 (op. of Roberts, C.J.)…. The Act requires every State to choose between money it cannot refuse and limits on its sovereign authority. In NFIB, the Court determined that the Medicaid expansion coerced the States because it “threatened” to deny States funding equal to “over 10 percent of” their “overall budget[s]” unless they agreed to expand their Medicaid programs…. The Act is similarly coercive: Ohio will be denied funding equal to 7.4 percent of its total expenditure in 2020—funding the State badly needs in an economic crisis—unless it agrees to limits on its power to tax.

In NFIB v. Sebelius (2012)—Obamacare case—the Supreme Court belatedly gave some teeth to the longstanding principle that conditions on federal grants to state governments cannot be so onerous as to be “coercive.” Similarly, at least one lower court ruling invalidated Trump’s January 2017 executive order seeking to pull federal grants from sanctuary grants, in part on the grounds that its attempt to pull virtually all federal funds from them was coercive.

Despite the use of the colorful metaphor of a “gun to the head,” Chief Justice John Roberts notoriously failed to make clear exactly when the amount of money at stake becomes so large that the state has no real choice but to accept. Ohio is right to point out that the ARPA grants it stands to lose amount to some 7.4% of its total spending, which is arguably in the same ballpark as the “over 10 percent” states stood to lose in NFIB. On the other hand, ARPA is a one-time grant, which the loss of Medicaid funding imposed by the Affordable Care Act would have been repeated every year. Moreover, despite Ohio’s claim that the economic crisis makes refusal impossible, most states actually have not suffered major revenue losses over the last year, and many (including Ohio itself) have actually gained tax revenue.

Thus, ARPA is not as obviously an offer the states can’t refuse, as the ACA was (or Trump’s 2017 sanctuary cities order). But even if it is not a gun to the head, it is still a large amount of money—perhaps enough to be a dagger to the groin. Whether that is enough to cross the line into “coercion” remains to be seen. We may not know unless and until the case gets to the Supreme Court, and the justices deign to enlighten us on that point.

If it were up to me, I would dump the vague and subjective “coercion” test entirely and instead replace it with more vigorous enforcement of the original meaning of the requirement that federal grants may only be used “to pay the Debts and provide for the common Defence and the general Welfare of the United States” (which, contrary to modern mythology, does not cover anything Congress might think is potentially beneficial in some way). But the coercion rule is a second-best principle preferable to simply allowing Congress to enact any conditions it wants. And, regardless of what I might think, it has been adopted by the Supreme Court, and is unlikely to be done away with anytime soon.

There is more than a hint of “fair weather federalism” in this litigation. Many, perhaps most, of the “red state” officials who support Ohio’s position had no objection to Trump’s efforts to use federal grants to pressure sanctuary cities. For their part, many Democrats who backed legal challenges to Trump’s sanctuary city policies, are happy to back the ARPA conditions (though some on the left did engage in more systematic rethinking of federalism in the Trump era).

More generally, Ohio and other red states objection to the ARPA tax condition seem happy to get federal funds, so long as there are no unpleasant conditions attached. Given the generally modest impact of the Covid crisis on the fiscal condition of most states, it would be better to do away with the ARPA grants entirely. A giant handout for states, regardless of any real need, promotes dependency and creates incentives for future profligacy. That’s good for state employees (including the present author!), but bad  for the future of federalism.

Be that as it may, the ignoble motives of many of the politicians involved don’t change the constitutional issue. The tax condition likely violates the requirement that federal grant requirements must be “unambiguous.” There is also a solid—though much less conclusive—argument that it is “coercive.” At the very least, this case is likely to prove an uphill struggle for the Biden administration.

 

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Biden Stimulus Bill Provision Targeting State Tax Cuts Might be Struck Down by Courts for Same Reasons as Trump Efforts to Pull Federal Grants From Sanctuary Cities


American Rescue Plan Act

On Wednesday, the state of Ohio filed a lawsuit challenging the constitutionality of  Section 602(c)(2)(A) of the American Rescue Plan Act (ARPA), the $1.9 billion “stimulus” bill recently passed by Congress. Section 602(c)(2)(A) bars states and territorial government  that receive federal grants under the act (which includes a total of $350 billion in grants to state and local governments) from enacting tax cuts that are “directly or indirectly” offset by ARPA grants:

A State or territory shall not use the funds provided under this section or transferred pursuant to section 603(c)(4) to either directly or indirectly offset a reduction in the net tax revenue of such State or territory resulting from a change in law, regulation, or administrative interpretation during the covered period [from now till December 31, 2024] that reduces any tax (by providing for a reduction in a rate, a rebate, a deduction, a credit, or otherwise) or delays the imposition of any tax or tax increase.

State attorneys general from 21 other “red” states have signed a letter complaining about this provision. It is likely that many of them will either join Ohio’s lawsuit, or file cases of their own.

In my view, Ohio has a good chance of getting this provision invalidated in court. Ironically, the primary reason why is the same as that which led to the defeat of the Trump administration’s efforts to use the threat of withholding federal grants to pressure sanctuary cities into cooperating with federal efforts to deport undocumented immigrants. In both cases, the requirement in question was never clearly authorized by Congress. In addition, it could be that the tax requirement is “coercive”—an issue that also came up in some of the Trump sanctuary city cases.

In cases such as Pennhurst v. Halderman (1981), and South Dakota v. Dole (1987) the Supreme Court has made clear that, if the federal government imposes conditions on grants to state governments, it must do so “unambiguously” in a statute enacted by Congress. The Trump administration suffered repeated defeats in the sanctuary city cases in large part because it tried to leverage vaguely worded statutes to impose conditions related to immigration enforcement that were nowhere near clear from the statutes themselves.

Much the same problem arises in this case. Section 602 does indicate that ARPA imposes at least some constraints on the enactment of tax cuts by recipient states. But it is far from clear exactly which ones, or what the penalty for noncompliance is. Ohio’s complaint describes part of the problem:

The [tax condition] is far from “unambiguous.” What changes to tax policy that cause a decrease in net revenue are “indirectly” offset by funds acquired through the Act? Unless the answer is “every change to tax policy,” neither the English language nor economic theory provides an answer. And how does one know whether a change to tax policy causes a net reduction in revenue? For example, if revenue would have decreased even further but for a tax cut, would the tax cut still violate the Mandate? The Tax Mandate does not answer these questions. As a result, the conditions it imposes are too ambiguous to be upheld under the Spending Clause.

The ambiguity actually goes well beyond that. Among other things, it is not clear whether a change in tax rates or other relevant policies that was enacted before ARPA passed, but only takes effect during “the covered period” would qualify as a forbidden policy. Also, if a state violates the condition, it is not clear whether it stands to lose all of its ARPA grant money or only the part “offset” by the “reduction in net tax revenue.” As co-blogger Josh Blackman notes, the Biden administration Treasury Department seems to have adopted the latter position, which is more generous to states than the former. But nothing in the text of the statute tells us which interpretation is correct.

And if the Treasury interpretation is right, there is also the question of how and when we calculate the amount of money the state must give back to the federal government. Estimating the amount of revenue lost as a result of a tax cut is is a complex business. Economists sometimes differ among themselves on the methodology. In some instances, as Ohio notes, a tax cut might even increase revenue rather than reduce it. Whether a cut results in a decrease in revenue and by how much may not be known for several years. Even then, experts might still differ on how much of the loss was due to the tax cut and how much to changes in background economic conditions.

The text of Section 602 doesn’t resolve any of these ambiguities. And, as the Trump administration found in the sanctuary city cases, the gaps cannot be filled by the executive branch making up its own answers. If the executive can use vague statutes to impose its own grant conditions on state governments, it would give the president dangerous leverage to pressure the states and usurp Congress’ power of the purse, thereby undermining both federalism and the separation of powers. That was true of Trump’s assault on sanctuary cities, and Section 602 raises the same problem.

So far, at least, the Biden administration isn’t adopting the most aggressive possible interpretation of Section 602 (as Trump tried to with the authorizing statutes for grants he sought to pull from sanctuary cities). But no administration should have the power to, in effect, make up grant conditions that were never authorized by Congress.

The ambiguous nature of the Section 602 condition is its biggest legal vulnerability. But Ohio also plausibly argues that the condition is coercive:

This scheme violates the Spending Clause, because the “financial inducement” the Act offers “to the States … is much more than ‘relatively mild encouragement'” of the sort the Spending Clause permits—instead, “it is a gun to the head.” NFIB [v. Sebelius], 567 U.S. at 580–81 (op. of Roberts, C.J.)…. The Act requires every State to choose between money it cannot refuse and limits on its sovereign authority. In NFIB, the Court determined that the Medicaid expansion coerced the States because it “threatened” to deny States funding equal to “over 10 percent of” their “overall budget[s]” unless they agreed to expand their Medicaid programs…. The Act is similarly coercive: Ohio will be denied funding equal to 7.4 percent of its total expenditure in 2020—funding the State badly needs in an economic crisis—unless it agrees to limits on its power to tax.

In NFIB v. Sebelius (2012)—Obamacare case—the Supreme Court belatedly gave some teeth to the longstanding principle that conditions on federal grants to state governments cannot be so onerous as to be “coercive.” Similarly, at least one lower court ruling invalidated Trump’s January 2017 executive order seeking to pull federal grants from sanctuary grants, in part on the grounds that its attempt to pull virtually all federal funds from them was coercive.

Despite the use of the colorful metaphor of a “gun to the head,” Chief Justice John Roberts notoriously failed to make clear exactly when the amount of money at stake becomes so large that the state has no real choice but to accept. Ohio is right to point out that the ARPA grants it stands to lose amount to some 7.4% of its total spending, which is arguably in the same ballpark as the “over 10 percent” states stood to lose in NFIB. On the other hand, ARPA is a one-time grant, which the loss of Medicaid funding imposed by the Affordable Care Act would have been repeated every year. Moreover, despite Ohio’s claim that the economic crisis makes refusal impossible, most states actually have not suffered major revenue losses over the last year, and many (including Ohio itself) have actually gained tax revenue.

Thus, ARPA is not as obviously an offer the states can’t refuse, as the ACA was (or Trump’s 2017 sanctuary cities order). But even if it is not a gun to the head, it is still a large amount of money—perhaps enough to be a dagger to the groin. Whether that is enough to cross the line into “coercion” remains to be seen. We may not know unless and until the case gets to the Supreme Court, and the justices deign to enlighten us on that point.

If it were up to me, I would dump the vague and subjective “coercion” test entirely and instead replace it with more vigorous enforcement of the original meaning of the requirement that federal grants may only be used “to pay the Debts and provide for the common Defence and the general Welfare of the United States” (which, contrary to modern mythology, does not cover anything Congress might think is potentially beneficial in some way). But the coercion rule is a second-best principle preferable to simply allowing Congress to enact any conditions it wants. And, regardless of what I might think, it has been adopted by the Supreme Court, and is unlikely to be done away with anytime soon.

There is more than a hint of “fair weather federalism” in this litigation. Many, perhaps most, of the “red state” officials who support Ohio’s position had no objection to Trump’s efforts to use federal grants to pressure sanctuary cities. For their part, many Democrats who backed legal challenges to Trump’s sanctuary city policies, are happy to back the ARPA conditions (though some on the left did engage in more systematic rethinking of federalism in the Trump era).

More generally, Ohio and other red states objection to the ARPA tax condition seem happy to get federal funds, so long as there are no unpleasant conditions attached. Given the generally modest impact of the Covid crisis on the fiscal condition of most states, it would be better to do away with the ARPA grants entirely. A giant handout for states, regardless of any real need, promotes dependency and creates incentives for future profligacy. That’s good for state employees (including the present author!), but bad  for the future of federalism.

Be that as it may, the ignoble motives of many of the politicians involved don’t change the constitutional issue. The tax condition likely violates the requirement that federal grant requirements must be “unambiguous.” There is also a solid—though much less conclusive—argument that it is “coercive.” At the very least, this case is likely to prove an uphill struggle for the Biden administration.

 

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Our Right to Criticize Governments and Countries,

I wanted to step back a bit from the University of San Diego / Tom Smith / China controversy to make a broader point:

We must always have the right—not just as a legal matter, but as a matter of academic freedom and social mores—to criticize governments: American, Chinese, Israeli, Russian, Saudi, or whatever else.

Such freedom of criticism is necessary so that we can help influence our own governments’ internal behavior. It’s necessary so that we can help influence our own governments’ behavior towards other governments. It’s necessary so that we can figure out the perils that these governments might be posing, to us, to their own citizens, or to their neighbors.

Governments are powerful, important institutions. They need to be constantly subject to discussion, evaluation, and criticism. (The same is also often true as to other powerful institutions within countries, and as to the broad current of public opinion in countries, especially democracies.) Even if it ultimately turns out that the governments are being mistakenly accused, or their misconduct is exaggerated, we can only figure out if we’re free to discuss it.

Of course, governments are also associated with people: their employees (e.g., individual police officers or other officials), their citizens, and often people who share an ethnic background with the country involved.

Because of this, criticism of the government will sometimes lead a small fraction of listeners to act violently against those individuals. Criticism of police departments could lead to some people shooting individual police officers. Criticism of Israel could lead to some people attacking Israelis, Israeli-Americans, and Jews. Criticism of China could lead to some people attacking people of Chinese extraction (or for that matter other East Asians).

But while of course we should condemn such crimes, that isn’t a basis for suppressing or even condemning criticism of the governments. Much important speech may have a tendency to lead a few people in the audience to act violently. (Consider impassioned speech about animal rights, the environment, abortion, union member solidarity, and more.) Yet the speech must remain protected, both against legal retaliation and against retaliation by universities; and I think it also needs to be tolerated as a matter of social convention.

In particular, it’s wrong to casually assume that all criticism of China must stem from racism towards the Chinese, all criticism of Israel (even harsh criticism) must stem from anti-Semitism (see this post and this one for my past statements about that), and the like. It is especially wrong to treat the use of the adjective “Chinese” (or “Russian” or “French” or what have you) as necessarily referring to the ethnicity, when in context it seems much more likely to refer to the government (as in the University of San Diego incident) or to the country. Debate about governments can’t remain free if such references are simply assumed to be ethnically bigoted, in the absence of any concrete evidence.

Naturally, when the speech is mistaken, it should be substantively responded to. When there is specific evidence that a particular criticism of a government or country is actually based on racial or ethnic hostility, that should be pointed out. Likewise, if there is evidence that a government is being faulted for behavior that is commonly engaged in by other governments, that may be worth pointing out as well.

But that’s not what I’m seeing in the criticism of the University of San Diego incident, or in other similar situations. Rather, it seems to me that the concern about the indubitable actual incidents of ethnic bigotry (and especially bigoted violence) is wrongly endangering eminently legitimate criticisms of governments—just as so many other worthy concerns (e.g., about Communism, about winning wars, and the like) have in the past wrongly endangered eminently legitimate criticisms of our and other governments.

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Our Right to Criticize Governments and Countries,

I wanted to step back a bit from the University of San Diego / Tom Smith / China controversy to make a broader point:

We must always have the right—not just as a legal matter, but as a matter of academic freedom and social mores—to criticize governments: American, Chinese, Israeli, Russian, Saudi, or whatever else.

Such freedom of criticism is necessary so that we can help influence our own governments’ internal behavior. It’s necessary so that we can help influence our own governments’ behavior towards other governments. It’s necessary so that we can figure out the perils that these governments might be posing, to us, to their own citizens, or to their neighbors.

Governments are powerful, important institutions. They need to be constantly subject to discussion, evaluation, and criticism. (The same is also often true as to other powerful institutions within countries, and as to the broad current of public opinion in countries, especially democracies.) Even if it ultimately turns out that the governments are being mistakenly accused, or their misconduct is exaggerated, we can only figure out if we’re free to discuss it.

Of course, governments are also associated with people: their employees (e.g., individual police officers or other officials), their citizens, and often people who share an ethnic background with the country involved.

Because of this, criticism of the government will sometimes lead a small fraction of listeners to act violently against those individuals. Criticism of police departments could lead to some people shooting individual police officers. Criticism of Israel could lead to some people attacking Israelis, Israeli-Americans, and Jews. Criticism of China could lead to some people attacking people of Chinese extraction (or for that matter other East Asians).

But while of course we should condemn such crimes, that isn’t a basis for suppressing or even condemning criticism of the governments. Much important speech may have a tendency to lead a few people in the audience to act violently. (Consider impassioned speech about animal rights, the environment, abortion, union member solidarity, and more.) Yet the speech must remain protected, both against legal retaliation and against retaliation by universities; and I think it also needs to be tolerated as a matter of social convention.

In particular, it’s wrong to casually assume that all criticism of China must stem from racism towards the Chinese, all criticism of Israel (even harsh criticism) must stem from anti-Semitism (see this post and this one for my past statements about that), and the like. It is especially wrong to treat the use of the adjective “Chinese” (or “Russian” or “French” or what have you) as necessarily referring to the ethnicity, when in context it seems much more likely to refer to the government (as in the University of San Diego incident) or to the country. Debate about governments can’t remain free if such references are simply assumed to be ethnically bigoted, in the absence of any concrete evidence.

Naturally, when the speech is mistaken, it should be substantively responded to. When there is specific evidence that a particular criticism of a government or country is actually based on racial or ethnic hostility, that should be pointed out. Likewise, if there is evidence that a government is being faulted for behavior that is commonly engaged in by other governments, that may be worth pointing out as well.

But that’s not what I’m seeing in the criticism of the University of San Diego incident, or in other similar situations. Rather, it seems to me that the concern about the indubitable actual incidents of ethnic bigotry (and especially bigoted violence) is wrongly endangering eminently legitimate criticisms of governments—just as so many other worthy concerns (e.g., about Communism, about winning wars, and the like) have in the past wrongly endangered eminently legitimate criticisms of our and other governments.

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Univ. of San Diego Law School Investigating Professor for Post Critical of China

Here is the post, by Prof. Tom Smith (The Right Coast):

Wednesday, March 10, 2021

Wuhan Lab Theory a Dark Cloud on China—WSJ

By Tom Smith

Alas, the World Health Organization mission is turning into a case of disaster foretold. A credible inquiry requires China’s full cooperation, not just cooperation with those lines of inquiry that are consistent with its own propaganda. And couldn’t somebody have put Peter Daszak, team member from New York City’s EcoHealth Alliance, under permanent mouth quarantine?

To insist that human encroachment on nature is the great risk tells us nothing about what happened in this particular case. To insist, as he did on NPR, that China’s manhandling of the delegation with greeters in full hazmat garb, its forcing of the visitors into 14-day quarantine, was merely testament to China’s Covid rigor overlooks another possibility: China was seeking to intimidate and dominate the investigators because of the colossal importance it places on controlling the virus narrative.

via www.wsj.com

If you believe that the coronavirus did not escape from the lab in Wuhan, you have to at least consider that you are an idiot who is swallowing whole a lot of Chinese cock swaddle. At least Peter Daszak has good personal and financial reasons, not to mention reasons of career preservation, for advancing what he must know is a facially implausible thesis. But whatever. Go Science!

UPDATE: It appears that some people are interpreting my reference to “Chinese cock swaddle,” as a reference to an ethnic group. That is a misinterpretation. To be clear, I was referring to the Chinese government.

Even without the UPDATE, it’s clear that the reference to “Chinese cock swaddle” must be a reference to the government of China, not to Chinese-Americans or to people of Chinese extraction. The title of the post is about China, and the quote refers four times to China (“China’s full cooperation,” “China’s manhandling of the delegation,” “China’s Covid rigor,” “China was seeking”). Though “Chinese” sometimes refers to the government, sometimes to the nation, and sometimes to the ethnic group, here the referent is clear, and it isn’t to Chinese-Americans or to USD law students from China or anything like that.

And yet Prof. Smith is now being investigated by the law school, and the “Asian Pacific American Law Student Association (APALSA) and the USD School of Law Student Bar Association are calling on law school and university officials to fire the professor who they say used racist language when talking about the coronavirus and China.” (Abbie Alford, CBS8). The law school has published the following response:

The University of San Diego School of Law is aware of the blog post of the faculty member.

While the blog is not hosted by the University of San Diego, these forms of bias, wherever they occur, have an adverse impact on our community. It is especially concerning when the disparaging language comes from a member of our community. A core value of the University of San Diego School of Law is that all members of the community must be treated with dignity and respect. University policies specifically prohibit harassment, including the use of epithets, derogatory comments, or slurs based on race or national origin, among other categories.

We have received formal complaints relating to the faculty member’s conduct, and in accordance with university procedures, there will be a process to review whether university or law school policies have been violated.

Yet I stress again that the blog post is not “disparaging language” or “epithets, derogatory comments, or slurs based on race or national origin” towards any “members of the [USD] community” (students, faculty, or staff). It is disparaging language towards China, in context referring to the government of China.

To the extent people who feel some connection to China find it offensive, that is no basis for the university to prohibit such speech, or even investigate a faculty member for such speech—just as a university has no business investigating a faculty member for sharp criticism of the government of Israel (or of other Israeli institutions), or of Russia or, back in the day, South Africa or whatever else.

I’ve heard some suggestion that such harsh condemnation of the Chinese government might increase the risk of hate crimes against Asians. I’m skeptical that this is likely so, especially in a blog post such as this.

But in any event, faculty or student speech like this can’t be suppressed simply because it has a supposedly bad tendency to inflame a few of its readers in a way that might cause them to commit crimes:

  • Harsh criticism of the police might lead to violent attacks on the police.
  • Harsh criticism of the Israeli government (or of “Israel” generally) may lead to violent attacks on Jews.
  • Harsh criticism of the U.S. government might lead to criminal attacks on government institutions, whether from the Right (as with the Capitol riot) or from the Left (as with the riots in Portland).

Yet such speech remains protected by academic freedom and free speech principles. In particular, besides the promises of academic freedom (which I think covers public commentary and not just scholarship) that USD, alongside most other private academic institutions, provides, the California Labor Code protects “political activities” even by private employees:

[§ 1101.] No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

[§ 1102.] No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

And the California Supreme Court has made clear (in Gay Law Students Ass’n v. Pac. Tel. & Tel. (1979)) that “political activities” includes not just electioneering but also “espousal of … a cause,” including non-campaign-related causes, such as “the struggle of the homosexual community for equal rights.” Espousal of opposition to the Chinese government is equally a “political activit[y]” that USD can’t penalize.

Now I personally don’t much care for the vulgarity of “cock swaddle,” though a mutual acquaintance of Prof. Smith’s and mine speculates that this wasn’t a deliberate reference to something sexual, but a mistaken attempt to use something softer than “bullshit” (perhaps under the influence of a dimly remembered “codswallop”). Still, even if we take “cock swaddle” at face value as a vulgarism, that is clearly not the basis for the investigation or, as best I can tell, for the calls for firing.

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Univ. of San Diego Law School Investigating Professor for Post Critical of China

Here is the post, by Prof. Tom Smith (The Right Coast):

Wednesday, March 10, 2021

Wuhan Lab Theory a Dark Cloud on China—WSJ

By Tom Smith

Alas, the World Health Organization mission is turning into a case of disaster foretold. A credible inquiry requires China’s full cooperation, not just cooperation with those lines of inquiry that are consistent with its own propaganda. And couldn’t somebody have put Peter Daszak, team member from New York City’s EcoHealth Alliance, under permanent mouth quarantine?

To insist that human encroachment on nature is the great risk tells us nothing about what happened in this particular case. To insist, as he did on NPR, that China’s manhandling of the delegation with greeters in full hazmat garb, its forcing of the visitors into 14-day quarantine, was merely testament to China’s Covid rigor overlooks another possibility: China was seeking to intimidate and dominate the investigators because of the colossal importance it places on controlling the virus narrative.

via www.wsj.com

If you believe that the coronavirus did not escape from the lab in Wuhan, you have to at least consider that you are an idiot who is swallowing whole a lot of Chinese cock swaddle. At least Peter Daszak has good personal and financial reasons, not to mention reasons of career preservation, for advancing what he must know is a facially implausible thesis. But whatever. Go Science!

UPDATE: It appears that some people are interpreting my reference to “Chinese cock swaddle,” as a reference to an ethnic group. That is a misinterpretation. To be clear, I was referring to the Chinese government.

Even without the UPDATE, it’s clear that the reference to “Chinese cock swaddle” must be a reference to the government of China, not to Chinese-Americans or to people of Chinese extraction. The title of the post is about China, and the quote refers four times to China (“China’s full cooperation,” “China’s manhandling of the delegation,” “China’s Covid rigor,” “China was seeking”). Though “Chinese” sometimes refers to the government, sometimes to the nation, and sometimes to the ethnic group, here the referent is clear, and it isn’t to Chinese-Americans or to USD law students from China or anything like that.

And yet Prof. Smith is now being investigated by the law school, and the “Asian Pacific American Law Student Association (APALSA) and the USD School of Law Student Bar Association are calling on law school and university officials to fire the professor who they say used racist language when talking about the coronavirus and China.” (Abbie Alford, CBS8). The law school has published the following response:

The University of San Diego School of Law is aware of the blog post of the faculty member.

While the blog is not hosted by the University of San Diego, these forms of bias, wherever they occur, have an adverse impact on our community. It is especially concerning when the disparaging language comes from a member of our community. A core value of the University of San Diego School of Law is that all members of the community must be treated with dignity and respect. University policies specifically prohibit harassment, including the use of epithets, derogatory comments, or slurs based on race or national origin, among other categories.

We have received formal complaints relating to the faculty member’s conduct, and in accordance with university procedures, there will be a process to review whether university or law school policies have been violated.

The Dean also sent this to the faculty, administrators, and staff:

Dear Law School Community,

It has come to my attention that a faculty member made a blog post concerning the origin of COVID-19, using offensive language in reference to people from China. As I wrote to you in a previous message, COVID-19 has been associated with an alarming increase in hate crimes directed against the Asian and Pacific Islander (API) community, with racist commentary relating to the virus and its origins. While the blog is not hosted by the University of San Diego, these forms of bias, wherever they occur, have an adverse impact on our community. It is especially concerning when the disparaging language comes from a member of our community.

Scientists are investigating the exact origins of COVID-19. Whatever the realm for debate by experts about this scientific question, there is no place for language that demeans a particular national group. Such language undermines our shared commitment to creating an inclusive, welcoming community.

A core value of the University of San Diego School of Law is that all members of the community must be treated with dignity and respect. University policies specifically prohibit harassment, including the use of epithets, derogatory comments, or slurs based on race or national origin, among other categories. I have received formal complaints relating to the faculty member’s conduct, and in accordance with university procedures, there will be a process to review whether university or law school policies have been violated.

I will be meeting as soon as possible with leaders of the Asian Pacific American Law Students Association and the Student Bar Association to discuss further steps. In addition, I will continue to work with faculty, students, staff, and alumni over the course of this spring and beyond to develop and implement plans to promote diversity, equity, and inclusion at the law school. This occurrence reminds us again of the importance and urgency of this project. I will be sending you more information about plans as they develop.

It is clear that we have much work to do together to repair and enhance our community. That work must begin by acknowledging the harm caused by this kind of demeaning language.

Yet I stress again that the blog post is not “disparaging language” or “epithets, derogatory comments, or slurs based on race or national origin” towards any “members of the [USD] community” (students, faculty, or staff). It is disparaging language towards China, in context referring to the government of China.

To the extent people who feel some connection to China find it offensive, that is no basis for the university to prohibit such speech, or even investigate a faculty member for such speech—just as a university has no business investigating a faculty member for sharp criticism of the government of Israel (or of other Israeli institutions), or of Russia or, back in the day, South Africa or whatever else.

I’ve heard some suggestion that such harsh condemnation of the Chinese government might increase the risk of hate crimes against Asians. I’m skeptical that this is likely so, especially in a blog post such as this.

But in any event, faculty or student speech like this can’t be suppressed simply because it has a supposedly bad tendency to inflame a few of its readers in a way that might cause them to commit crimes:

  • Harsh criticism of the police might lead to violent attacks on the police.
  • Harsh criticism of the Israeli government (or of “Israel” generally) may lead to violent attacks on Jews.
  • Harsh criticism of the U.S. government might lead to criminal attacks on government institutions, whether from the Right (as with the Capitol riot) or from the Left (as with the riots in Portland).

Yet such speech remains protected by academic freedom and free speech principles. In particular, besides the promises of academic freedom (which I think covers public commentary and not just scholarship) that USD, alongside most other private academic institutions, provides, the California Labor Code protects “political activities” even by private employees:

[§ 1101.] No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

[§ 1102.] No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

And the California Supreme Court has made clear (in Gay Law Students Ass’n v. Pac. Tel. & Tel. (1979)) that “political activities” includes not just electioneering but also “espousal of … a cause,” including non-campaign-related causes, such as “the struggle of the homosexual community for equal rights.” Espousal of opposition to the Chinese government is equally a “political activit[y]” that USD can’t penalize.

Now I personally don’t much care for the vulgarity of “cock swaddle,” though a mutual acquaintance of Prof. Smith’s and mine speculates that this wasn’t a deliberate reference to something sexual, but a mistaken attempt to use something softer than “bullshit” (perhaps under the influence of a dimly remembered “codswallop”). Still, even if we take “cock swaddle” at face value as a vulgarism, that is clearly not the basis for the investigation or, as best I can tell, for the calls for firing.

UPDATE [3:33 pm Eastern, 3/20/2021]: I added the “Dear Law School Community” letter from the Dean, which I received after posting this.

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More Information about the Academic Freedom Alliance

On March 8, the Academic Freedom Alliance launched publicly. I have the pleasure of chairing the organization, a nonprofit aimed at advancing and defending academic freedom and professorial free speech at American universities. The founding members of the AFA are a diverse group that runs across the ideological spectrum, and the AFA is committed to defending professorial speech rights regardless of the content of the speech or the ideas being expressed. Professors can quite appropriately be criticized for bad ideas or poor judgment, but when they are acting within their established contractual or constitutional rights they cannot be sanctioned by their employers for their speech.

Over the past several days, I have elaborated on the commitments of the group and the principles of the AFA. You can see more at an interview with the alumni group, Princetonians for Free Speech, and with the AAUP’s Academe Blog. I wrote about the group at National Review Online. My conversation about academic freedom and campus free speech with the Shaping Opinion podcast will drop on Monday. We are grateful for coverage of the launch by such outlets as the FIRE, Wall Street Journal, the Associated Press, the New York Post, Inside Higher Ed, Forbes, and Voice of America.

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More Information about the Academic Freedom Alliance

On March 8, the Academic Freedom Alliance launched publicly. I have the pleasure of chairing the organization, a nonprofit aimed at advancing and defending academic freedom and professorial free speech at American universities. The founding members of the AFA are a diverse group that runs across the ideological spectrum, and the AFA is committed to defending professorial speech rights regardless of the content of the speech or the ideas being expressed. Professors can quite appropriately be criticized for bad ideas or poor judgment, but when they are acting within their established contractual or constitutional rights they cannot be sanctioned by their employers for their speech.

Over the past several days, I have elaborated on the commitments of the group and the principles of the AFA. You can see more at an interview with the alumni group, Princetonians for Free Speech, and with the AAUP’s Academe Blog. I wrote about the group at National Review Online. My conversation about academic freedom and campus free speech with the Shaping Opinion podcast will drop on Monday. We are grateful for coverage of the launch by such outlets as the FIRE, Wall Street Journal, the Associated Press, the New York Post, Inside Higher Ed, Forbes, and Voice of America.

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Why Are Members of Congress Trying To Ban the Importation of Kangaroo Meat?


Kanga

Rep. Matt Gaetz (R-Fla.) and Rep. Jamin Raskin (D-Md.) don’t see eye to eye on much. Gaetz lied about the Capitol riot. Raskin led the impeachment of the man who incited it. On perhaps just one issue, though, they speak with one voice. What issue is so vital that it has united such seeming polar opposites? The apparent need to ban the sale of kangaroo meat in the United States.

Indeed, Gaetz and Raskin have joined with a handful of other bipartisan sponsors to promote the Kangaroo Protection Act, which would “prohibit the sale of kangaroo products” in this country, including meat and leather, and the importation of the same.

Under the terms of the bill, which is at once a joke and deadly serious, violators could face prison time and steep fines for each violation.

While reporting that Australia opposes the ban strenuously—the country exports around $80 million of kangaroo products to the U.S. every year—the Sydney Morning Herald also notes that a “coalition of animal rights groups [is] behind the bill.”

By sheer coincidence, the Kangaroo Protection Act also contains language that would establish a private right of action, meaning people—in this case, likely animal-rights supporters and groups—could file suit against alleged violators to uphold the law.

As the Herald also reports, one of the groups leading the charge to ban kangaroo meat in the U.S. is Animal Wellness Action, headed by Wayne Pacelle, the former head of the Humane Society of the United States (HSUS), who resigned from that group in 2018 in the face of allegations of sexual harassment made by several female HSUS subordinates.

Pacelle says he thinks the bill to ban kangaroo meat has legs. “It’s an easy vote for Democrats certainly, and also for Republicans to show they are animal-welfare friendly,” he told the Herald.

It may appear an easy vote if one were to consider the opinions only of animal-rights supporters. In an interview shared by Viva!, a UK-based animal-rights group that opposes selling or eating kangaroo meat, David Nicholls, a former kangaroo hunter, describes why he gave up the hunt.

“I began to realize the place of humans on the planet did not come with special and intrinsic rights to do at whim with it and the creatures on it,” Nicholls says. “I slowly turned vegetarian and am now a fully-fledged vegan.”

Nicholls’s transformation from hunter to vegan is all well and good, but it’s also about as relevant to whether or not kangaroo meat should be legal as is any other person’s dietary preferences—mine and yours included. About as relevant, in fact, as the Australian movement known as “kangatarianism,” which is like pescatarianism but with kangaroo meat subbing for seafood as the eater’s sole animal protein of choice. All of which is to say that no one person’s or group’s dietary preferences should have a bearing whatsoever on the legality of any food.

While I don’t usually reference Wikipedia, its entry for kangaroo meat does an exemplary job describing the many ways that eating kangaroo is common, humane, sustainable, and a key part of the diets of Aboriginal and non-Aboriginal people who live on the continent.

“The commercial kangaroo industry offers a path for self-determination for Aboriginal people,” Clayton Donovan, a leading indigenous Australian chef, told The Guardian this month. “And now another group of non-Indigenous are talking about taking it away entirely.”

The proposed kangaroo ban comes as kangaroo meat is gaining in popularity in Australia, where it’s valued as an “environmentally friendly alternative to beef and pork.”

I’ve never had the good fortune to eat kangaroo. But Reason editor-in-chief Katherine Mangu-Ward, who has supped on roo, describes it as “outstanding… tender, extremely flavorful, appealingly rosy meat.”

Sounds lovely to me.

“If you want to buy a Happy Meal with a horsemeat burger, a can of Four Loko, trans fat fried foie gras, and a side of shark fin soup, I applaud your right to make those choices,” I once told the Washington City Paper. The rights of carnivores, omnivores, vegans, and kangatarians alike deserve the same applause—and protection.

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Why Are Members of Congress Trying To Ban the Importation of Kangaroo Meat?


Kanga

Rep. Matt Gaetz (R-Fla.) and Rep. Jamin Raskin (D-Md.) don’t see eye to eye on much. Gaetz lied about the Capitol riot. Raskin led the impeachment of the man who incited it. On perhaps just one issue, though, they speak with one voice. What issue is so vital that it has united such seeming polar opposites? The apparent need to ban the sale of kangaroo meat in the United States.

Indeed, Gaetz and Raskin have joined with a handful of other bipartisan sponsors to promote the Kangaroo Protection Act, which would “prohibit the sale of kangaroo products” in this country, including meat and leather, and the importation of the same.

Under the terms of the bill, which is at once a joke and deadly serious, violators could face prison time and steep fines for each violation.

While reporting that Australia opposes the ban strenuously—the country exports around $80 million of kangaroo products to the U.S. every year—the Sydney Morning Herald also notes that a “coalition of animal rights groups [is] behind the bill.”

By sheer coincidence, the Kangaroo Protection Act also contains language that would establish a private right of action, meaning people—in this case, likely animal-rights supporters and groups—could file suit against alleged violators to uphold the law.

As the Herald also reports, one of the groups leading the charge to ban kangaroo meat in the U.S. is Animal Wellness Action, headed by Wayne Pacelle, the former head of the Humane Society of the United States (HSUS), who resigned from that group in 2018 in the face of allegations of sexual harassment made by several female HSUS subordinates.

Pacelle says he thinks the bill to ban kangaroo meat has legs. “It’s an easy vote for Democrats certainly, and also for Republicans to show they are animal-welfare friendly,” he told the Herald.

It may appear an easy vote if one were to consider the opinions only of animal-rights supporters. In an interview shared by Viva!, a UK-based animal-rights group that opposes selling or eating kangaroo meat, David Nicholls, a former kangaroo hunter, describes why he gave up the hunt.

“I began to realize the place of humans on the planet did not come with special and intrinsic rights to do at whim with it and the creatures on it,” Nicholls says. “I slowly turned vegetarian and am now a fully-fledged vegan.”

Nicholls’s transformation from hunter to vegan is all well and good, but it’s also about as relevant to whether or not kangaroo meat should be legal as is any other person’s dietary preferences—mine and yours included. About as relevant, in fact, as the Australian movement known as “kangatarianism,” which is like pescatarianism but with kangaroo meat subbing for seafood as the eater’s sole animal protein of choice. All of which is to say that no one person’s or group’s dietary preferences should have a bearing whatsoever on the legality of any food.

While I don’t usually reference Wikipedia, its entry for kangaroo meat does an exemplary job describing the many ways that eating kangaroo is common, humane, sustainable, and a key part of the diets of Aboriginal and non-Aboriginal people who live on the continent.

“The commercial kangaroo industry offers a path for self-determination for Aboriginal people,” Clayton Donovan, a leading indigenous Australian chef, told The Guardian this month. “And now another group of non-Indigenous are talking about taking it away entirely.”

The proposed kangaroo ban comes as kangaroo meat is gaining in popularity in Australia, where it’s valued as an “environmentally friendly alternative to beef and pork.”

I’ve never had the good fortune to eat kangaroo. But Reason editor-in-chief Katherine Mangu-Ward, who has supped on roo, describes it as “outstanding… tender, extremely flavorful, appealingly rosy meat.”

Sounds lovely to me.

“If you want to buy a Happy Meal with a horsemeat burger, a can of Four Loko, trans fat fried foie gras, and a side of shark fin soup, I applaud your right to make those choices,” I once told the Washington City Paper. The rights of carnivores, omnivores, vegans, and kangatarians alike deserve the same applause—and protection.

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