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By the time he took office, President Joe Biden had abandoned his campaign promise to require that all Americans cover their faces in public, admitting that such an order was beyond his authority. But that concession did not stop the Biden administration from imposing a nationwide eviction moratorium with an equally dubious legal basis.

Last week a federal judge in Texas ruled that the Constitution does not give the federal government the power to decree that landlords across the country must house tenants who do not pay their rent. That case, along with a challenge to Arizona Gov. Doug Ducey’s pandemic powers that the state Supreme Court will hear next Tuesday, is part of an overdue reexamination of the assumption that politicians can do whatever they deem necessary to fight COVID-19.

The eviction moratorium, which the Centers for Disease Control and Prevention (CDC) originally issued in September, was renewed by Congress in December, then extended again by the Biden administration. It is based on a breathtakingly broad reading of the CDC director’s authority to “take such measures” he “deems reasonably necessary” to stop the interstate spread of communicable diseases.

The CDC reasoned that evicted tenants might “become homeless” or “move into close quarters in shared housing,” thereby increasing the risk of virus transmission. That rationale suggests the CDC’s authority is vast, encompassing any policy that is plausibly related to disease control, including business closures and a national stay-at-home order as well as the face mask requirement that Biden ultimately decided could not be imposed by executive fiat.

Even with congressional approval, Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas ruled last week, blocking the enforcement of rent obligations exceeds the federal government’s authority to regulate interstate commerce. Barker noted that the blanket ban on evictions, which the government claimed it could impose even in the absence of a public health threat like COVID-19, was historically unprecedented, did not involve interstate commerce, and was not necessary to enforce a broader scheme of economic regulation.

Barker emphasized that the case had no bearing on the constitutionality of state or local eviction regulations. His ruling hinged on the distinction between the federal government, which has no more authority than the Constitution grants, and the states, which retain a broad “police power” that extends much further.

The challenge to Ducey’s COVID-19 rules, by contrast, is based on the division of powers between the governor and the legislature. Arizona State University law professor Ilan Wurman, who represents a group of bar owners, argues that Ducey’s restrictions, which forced his clients to close their businesses for a total of nearly five months and continue to threaten their livelihoods, amount to unconstitutional legislation by the executive branch.

Ducey’s regulations are based on a statute that purports to grant him “all police power” during an emergency that he alone has the authority to declare. As Ducey reads that law, Wurman notes, “the Governor is empowered to do anything that in his mind is necessary to resolve the emergency.”

In practice, that has included detailed, ever-shifting codes of conduct for various industries that ordinarily could be regulated only based on specific legislative authority. But the power claimed by Ducey goes even further.

“The Governor could order everyone to stay home for six months,” Wurman says. “He can pick and choose what businesses to leave open and what businesses to close. He can tax the rich and redistribute to the poor to help them seek shelter.”

Last fall, the Michigan Supreme Court concluded that a similarly broad authority granted by that state’s legislature violated the separation of powers. The court emphasized “the sheer magnitude of the authority in dispute” and “its concentration in a single individual.”

Pandemic-inspired restrictions have clearly demonstrated the necessity of explicitly protected rights such as religious freedom. But as these cases show, structural limits on government, which tell us who may exercise which powers, are at least as important in protecting liberty from overreaching politicians.

© Copyright 2021 by Creators Syndicate Inc.

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On the one year anniversary of the first COVID case in New York, the state legislature has struck a deal to limit Governor Cuomo’s emergency powers. The Times Union has a thorough report:

The agreement among Democrats on Tuesday will prohibit the governor from unilaterally issuing new executive orders related to the pandemic without legislative review. He will retain the ability to tweak or renew existing orders relating to slowing the spread of COVID-19, including the state’s mask mandate or business restrictions. For instance, Cuomo could still order restaurant capacity limits to change. If the orders are not renewed, they would expire in 30 days.

A statute passed in 1979 empowered the governor to “temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof” for a period of 30 days. But as the coronavirus pandemic took hold, the Legislature in early March gave Cuomo the ability to “issue any directive … necessary to cope with the disaster.”

Cuomo has used the authority to issue nearly 100 executive orders since March 7, 2020, when his first pandemic-related order was issued. The governor also has issued more than 500 directives, modifications or suspensions of state regulations.

Cuomo has used the authority to issue nearly 100 executive orders since March 7, 2020, when his first pandemic-related order was issued. The governor also has issued more than 500 directives, modifications or suspensions of state regulations.

“I think everyone understands where we were back in March and where we are now. We certainly see the need for a quick response but also want to move toward a system of increased oversight, and review,” said state Senate Majority Leader Andrea Stewart-Cousins. “The public deserves to have checks and balances. Our proposal would create a system with increased input while at the same time ensuring New Yorkers continue to be protected.”

A vote on the measure is expected Friday, a Senate source said.

Assembly Speaker Carl E. Heastie said the “temporary emergency powers were granted as New York was devastated by a virus we knew nothing about. Now it is time for our government to return to regular order.”

The separation of powers should be a bipartisan issue. State legislatures should design methods to constrain emergency executive powers.

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On March 4, 2015, police in Berkshire County, Massachusetts, seized Malinda Harris’ 2011 Infiniti G37 because her son, Trevice, was suspected of selling drugs. Although Harris had let Trevice borrow her car, the cops never alleged that he used it for drug dealing or that she knew about her son’s illegal activity. Harris heard nothing more about her purloined property until October 2020, more than five years after the seizure, when she was served with a civil forfeiture complaint that had been prepared the previous January.

In a state court motion filed last week, Harris argues that the unconscionable delay in giving her a chance to get her car back was a due process violation that by itself justifies its immediate return. Massachusetts invites such abuse, she says, because its civil forfeiture law “does not provide any deadline [by] which the Commonwealth is required to initiate forfeiture proceedings.” The Phoenix-based Goldwater Institute, which represents Harris, cites several other constitutionally questionable aspects of the state’s law, which epitomizes everything that is wrong with the practice of confiscating property by alleging that it is connected to crime, even when the owner has done nothing illegal.

According to the Institute for Justice, Massachusetts “has the worst civil forfeiture laws in the country.” Massachusetts is the only state to earn an F in the latest edition of the organization’s Policing for Profit report. It is not hard to see why.

As in most states, police in Massachusetts can seize property when they have “probable cause” to believe it was used for drug trafficking. But once they have met that minimal threshold, the burden of proof shifts to the owner, who must show that the property is not subject to forfeiture.

In this case, the government has offered no evidence that Harris’ son, who left town after the seizure and was murdered three years later, used her car for drug dealing. While the forfeiture affidavit alleges that three other cars seized by police were used to transport drugs, Goldwater Institute senior attorney Stephen Silverman notes, “it contains no such allegations with respect to Harris’ Infiniti.” It says only that police found the title to the Infiniti in Trevice’s bedroom and, upon searching the car, found “occupancy papers,” two parking tickets, and a “Jiffy Lube receipt.” That evidence, Silverman says, “is plainly insufficient to establish probable cause for the forfeiture.”

Massachusetts allows innocent owners to seek the return of their assets unless they “knew or should have known that such conveyance or real property was used in and for the business of unlawfully manufacturing, dispensing, or distributing controlled substances.” But it requires owners to prove their innocence, the reverse of the presumption that applies in criminal cases.

Silverman says that rule violates due process. And since the government can keep Harris’ property even though she “has has no culpability at all,” he argues, the state’s legalized larceny also violates the Eighth Amendment’s Excessive Fines Clause. “Punishment must be proportional to the property owner’s wrongdoing,” he says. “In the case of an innocent owner, any punishment would be disproportionate.”

Even attempting to recover seized property requires hiring a lawyer, which costs thousands of dollars, a bill that in this case easily could have exceeded the market value of Harris’ car. Since the Goldwater Institute is representing her for free, she does not have to worry about that obstacle, but most forfeiture victims are not so lucky. Since the value of seized property is typically less than the cost of trying to recover it, it usually makes more sense just to give up.

Even when a Massachusetts property owner can afford a lawyer, he cannot do anything until the government notifies him that it is proceeding with the forfeiture, which in this case happened 68 months after the seizure. “The Commonwealth has offered no justification for why it took almost five years to file this suit or another 10 months to serve it,” Silverman says. “This lengthy, unexplained delay deprived Harris of due process and requires that the Complaint be dismissed.”

More generally, Massachusetts “does not dictate that owners be provided prompt,
post-seizure hearings to challenge, among other things, the validity of the seizure and the continued retention of the property pending the forfeiture proceeding’s final outcome,” Silverman says. “This omission creates too big of a risk of erroneous deprivation.”

And did I mention that the Berkshire County Law Enforcement Task Force, which seized Harris’ Infiniti, and the Berkshire County District Attorney’s Office, which is pursuing the forfeiture, get to keep all the proceeds from selling the car? That financial incentive, Silverman says, also violates due process, because it creates a “temptation to overzealously pursue forfeiture cases.” It also encourages police to prioritize profit above public safety.

If police and prosecutors did not have a financial stake in civil forfeiture, they probably would be much less resistant to changes that threaten to derail the money train. Although the Bay State’s especially odious forfeiture racket has provoked criticism for years, opposition from law enforcement agencies so far has doomed all reform efforts.

“Civil asset forfeiture abuse will only stop when people stand up to and fight against these abuses,” Silverman says. “I admire Malinda’s courage and strength and look forward to Malinda getting her day in court.”

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The U.S. Court of Appeals for the Sixth Circuit issued an unusual and interesting opinion today in Larry E. Parrish P.C. v. Bennett. The opinion by Judge Griffin begins:

In this action, Larry E. Parrish, P.C., a Tennessee law firm (the “Parrish Firm”) sued three judges of the Tennessee Court of Appeals because they allegedly made false statements in a written opinion resolving an appeal to which the Parrish Firm was a party. Plaintiff claims that the false statements were a violation of its Fourteenth Amendment rights, but as a remedy, it seeks no damages or injunctive relief—instead, requesting only a declaration that defendants violated its constitutional rights.

The district court, however, granted defendants’ motion to dismiss, reasoning that it was “not a close issue” that it lacked jurisdiction, and that even if it had jurisdiction, dismissal was required by judicial immunity and the relevant statute of limitations. Finally, even ignoring these sizable defects, the district court concluded that the facts pleaded by plaintiff were insufficient to state a claim. Now on appeal, plaintiff primarily challenges the district court’s rulings regarding jurisdiction and judicial immunity. We affirm the judgment of the district court and direct plaintiff and plaintiff’s counsel to show cause why sanctions should not be assessed against them on appeal.

That last little bit—the order that the plaintiff and plaintiff’s counsel show cause why they should not be required to pay sanctions—is quite unusual. In my view, show cause orders threatening to impose sanctions are too unusual, as courts are generally too reluctant to impose sanctions on attorneys who file frivolous or vexatious lawsuits.

The underlying facts are quite something. The Parrish firm was hired by Ms. Strong to file a malpractice claim against her prior attorney, but this action was dismissed because the Parrish firm missed discovery deadlines. Ms. Strong apparently refused to pay, and the Parrish firm sued. Ms. Strong counterclaimed, and prevailed in the trial court. The Parrish firm appealed, and was apparently sufficiently upset with the resulting appellate court decision that the Parrish sued the judges on the appellate panel seeking a correction of allegedly false claims in the appellate opinion. Unable to obtain relief in state court, the Parrish firm turned to federal court, eventually leading to today’s opinion.

On the substance, the Sixth Circuit found the Parrish firm’s arguments to be “unpersuasive at best, and nearly incoherent at worst,” and easily concluded that the federal courts lack jurisdiction to hear their claims. Wrote Judge Griffin:

we conclude that the complaint failed to present a justiciable case or controversy because plaintiff requested a ruling only on whether the past actions of defendants were right or wrong, which could not affect the present relationship between the parties. In other words, plaintiff sought only an advisory opinion from the district court as to whether its constitutional rights had been violated. The court therefore lacked an Article III controversy to adjudicate.

On the question of sanctions, Judge Griffin wrote:

defendants request that we sanction the Parrish Firm and Larry Parrish individually under 28 U.S.C. § 1927 and Federal Rule of Appellate Procedure 38.

Rule 38 provides that we may assess “just damages and single or double costs” in response to a frivolous appeal, either upon a motion from the opposing party or if the court gives notice and an opportunity to respond. Fed. R. App. P. 38. Generally, an appeal is frivolous if “it is obviously without merit and is prosecuted for delay, harassment, or other improper purposes.” Barney v. Holzer Clinic, Ltd., 110 F.3d 1207, 1212 (6th Cir. 1997) (quoting NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 591 (6th Cir. 1987)). But an appeal may also be frivolous if it is filed out of “sheer obstinacy—when the only issues in the case clearly have been resolved against the appellant.” Anderson v. Dickson, 715 F. App’x 481, 489 (6th Cir. 2017) (internal quotation marks and citation omitted); see also Wilton Corp. v. Ashland Castings Corp., 188 F.3d 670, 676 (6th Cir. 1999) (“Sanctions are appropriate where the appeal was prosecuted with no reasonable expectation of altering the district court’s judgment and for purposes of delay or harassment or out of sheer obstinacy.” (internal quotation marks and citation omitted)). Similarly, § 1927 provides: “[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927. We have imposed § 1927 sanctions where “an attorney objectively ‘falls short of the obligations owed by a member of the bar to the court and which, as a result, causes additional expense to the opposing party.'” Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2006) (quoting Ruben v. Warren City Sch., 825 F.2d 977, 984 (6th Cir. 1987)).

It appears that those standards have been met here. First, we agree with the district court that the jurisdictional defects presented by the complaint were “not . . . close issue[s],” and plaintiff’s arguments on appeal did not narrow the issues in any meaningful way. And beyond those flaws, the appeal appears frivolous because plaintiff has not provided any cogent argument to explain why the statute of limitations did not bar his claim, nor how the complaint pleaded facts to plausibly establish a Fourteenth Amendment violation—two additional grounds the district court gave for granting the motion to dismiss. In other words, even if plaintiff had prevailed on the two issues it briefed (jurisdiction and judicial immunity), we would still affirm the district court’s dismissal of the complaint because the Parrish Firm has forfeited case dispositive issues by failing to raise them for review. Finally, we share the district court’s concern for attorney Parrish’s penchant for calling state judges’ integrity into question seemingly whenever they disagree with him.

Accordingly, defendants may file an affidavit setting forth their reasonable costs and attorneys’ fees incurred by this appeal not later than fourteen days after the issuance of this opinion. Once defendants’ affidavit is filed, plaintiff and plaintiff’s counsel shall have fourteen days to show cause why they should not be sanctioned, addressing both Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927.

As noted, it’s somewhat rare for a federal appellate court to issue such an order. Perhaps it will not be so rare in the future. I can think of a few recent cases in which sanctions might be justified.

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Writing in The New York Times, Nobel Prize-winning columnist Paul Krugman offers a unified theory of everything wrong with America: We’re just too free to choose.

Krugman says this is the lesson to be learned from last month’s energy crisis in Texas that left some of the state’s residents—people who had freely chosen to sign-up for variable rate offerings from their electric service providers—with sky-high bills when demand surged as the state’s generating supply crashed. People can’t be trusted to choose their electric service, he argues, because some will make ill-informed decisions that come with unexpected costs. From there, he expands this thesis to a general principle, one that he says is to blame for everything from rising health insurance premiums to the subprime mortgage meltdown of a decade ago.

“Many of us are actually offered too many choices, in ways that can do a lot of harm,” Krugman argues. “Sometimes people offered too much choice will make bigger mistakes than they imagined possible.” That’s grounds for denying someone the right to take out a risky mortgage or refusing to deregulate electricity markets, Krugman argues, even though the outcomes he’s proposing would leave people with fewer options for obtaining home-ownership and likely paying higher prices for energy.

Indeed, to understand the consequences of limiting choice, just take a look at the Obamacare health insurance marketplaces, which prohibit the purchase of cheap insurance plans that would otherwise be available. They are set up this way for exactly the reasons that Krugman is outlining: because some people might make the “wrong” choice and end up with massive medical bills. The result of that policy is higher premiums for everyone.

But the real kicker is Krugman’s contention that “an excess of choice is taking a psychological toll on many Americans, even when they don’t end up experiencing disaster.”

Nonsense. Krugman is pushing an only slightly more sophisticated version of Sen. Bernie Sanders (I–Vt.) complaints about the wide variety of deodorants available at any American supermarket. Or, if you prefer a more academic take, he’s peddling a warmed-over version of The Paradox of Choice, in which psychologist Barry Schwartz argued that a proliferation of choices “no longer liberates” but rather “debilitates” and “might even be said to tyrannize.”

That claim has been challenged in subsequent social experiments, including one that reviewed 50 experiments into “choice overload” and found no evidence to support the idea. In fact, a 2009 study found that increasing the number of choices actually leads to people making more reasonable—not riskier or more indulgent—choices, because it is more difficult to justify the outlandish option when so many sensible ones exist.

Psychology aside, it should be obvious that restricting individuals’ choices is not a pathway to greater satisfaction. Krugman is right that the freedom to make your own decisions about life’s most important things—how to finance a house, how to save for retirement—comes with benefits and consequences, and plenty of stress to boot. But Krugman’s argument would suggest that gay Americans were generally happier in the days when the choice to get married was denied to them. By the same token,  were women more content when laws and customs denied them many of the choices they are now free to make every day?

The same is true when it comes to consumption. There aren’t 19 flavors of Pop-Tarts and a billion different types of breakfast cereal because Kellogg’s is run by a mad scientist who enjoys nothing more than discovering new ways to mash together carbs and food coloring. They exist because the revealed preferences of consumers show that we like having lots of choices.

To be sure, there will always be people who make poor choices—and that includes major, life-altering choices. But Krugman is wrong to fret over the “ideology” of ever-greater choices that “has turned America into a land where many aspects of life that used to be just part of the background now require potentially fateful decisions. You don’t get a company pension, you have to decide how to invest your 401(k).”

Before extolling the benefits of having someone else handle your retirement account, however, Krugman might want to take a look at how that’s working out. State-run pension plans for government employees are a collective $1 trillion in the red, thanks to a combination of deliberate under-funding and poor investment decisions. Private sector pension systems didn’t go nearly extinct because of Milton Friedman’s “ideology;” they did so because companies often ran them poorly and left retirees with less than what had been promised.

This is the real blind spot in Krugman’s argument, and the question he never bothers asking: namely, who should be making these decisions, if not the individuals subject to the risks?

When it comes to mortgages, electric bills, pensions, health care, and anything else, the person who is going to try their best to make the right choices is the person taking the risk. Putting someone else in charge is no way to reduce the stress of making major life decisions, as Krugman seems to believe it would—it just leaves you powerless.

Human beings are fallible, of course, and some of us like to take risks more than others, so there will always be both winners and losers. That’s why the size, scope, and cost of the public safety net—that is, how much the rest of us should invest in helping those who make poor choices or fall on bad luck—is a matter of never-ending debate. And, of course, the government has a role to play in ensuring that outright fraud is not occurring in any marketplace.

But let’s not confuse a debate over the government’s limited role as a prosecutor of fraud and provider of emergency support to the truly needy for a normative debate over whether we should prefer a world with more or fewer choices.

On that question, there is no debate to be had. A world of proliferating choice is one that includes more possibilities for individual and societal flourishing. Not all choices are beneficial and some consequences of freedom can be painful, but it is beyond bizarre for Krugman to wish away the benefits of the modern world because of a few costly mistakes. It’s worse for him to suggest that you shouldn’t get to make your own decisions because someone else might have screwed up.

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For years, Julie Hall has been running a small animal rescue operation without incident on her farm in the northern Michigan town of Petoskey.

That ended in late January when state wildlife officials showed up at her door in response to a complaint that she was taking in animals without the proper permits. Hall has since been charged with a misdemeanor, and six of her animals, including a blind raccoon and a one-legged crow, were confiscated and euthanized by the state.

“I truly did not know I was breaking the law because I had done this all my life, as a farmer, I’d done this,” says Hall. “Had I known I was such a criminal, I would have never done it. I’m not built that way.”

The state’s Department of Natural Resources (DNR) says that licensing requirements exist to prevent rescued wild animals from becoming a danger to the community and that it had no choice but to put down the animals collected from Hall’s farm.

“We put out press releases every spring saying, do not pick up wildlife, do not keep wildlife, do not take wildlife out of the wild. It’s illegal and it’s not good for wildlife,” said Jim Gorno, an official with DNR, to the Charlevoix Courier in late February. “What happens is the wildlife is raised, sometimes if you let it go, they become a nuisance or even a disease issue here.”

Hall has been taking in animals at her family’s KeiJu Farm for decades. She candidly admits that she didn’t have the required state permission to be a Michigan Licensed Rehabilitator.

Everyone from farmers and friends to members of the community would bring her all sorts of creatures in need of help, she says, from animals injured by hunters to orphaned baby raccoons.

“We have nothing but wildlife up here. We’ve moved into their homes. It’s our responsibility when something like that happens,” she says of her animal rescue work.

Hall, assisted by a crew of volunteers, would do what she could to nurse the animals brought to her back to health so that they could be released back into the wild. Animals that came to her as babies were taught to fish, hunt, and fend for themselves before being let go, she says.

Those animals with more serious disabilities—or which failed to pass tests showing they would be able to survive in the wild—she kept around permanently alongside her domesticated goats, chickens, and alpacas.

“I’m not a fool. I know exactly how this works. I’ve read articles, books. I’ve done this all my life,” she says.

The crackdown on her rescue operation, Hall says, came after a disgruntled volunteer—who she had let go for stealing—complained to a number of state agencies about her farm.

A few of these agencies conducted uneventful site visits in response to those complaints. Officials from the state’s Department of Agriculture showed up, she says, but left after finding no violations and helping her move some hay around.

Things went differently when DNR officials showed up at her farm on January 28.

“Four DNR vehicles pulled into my driveway like SWAT,” Hall says. “I think they were expecting me to be erratic. I calmly and quietly took them to the enclosures where the animals were.”

What followed was a traumatizing experience for Hall. DNR officials went around scooping up the unpermitted wild animals she was keeping on her farm, including Sassy, a blind raccoon, and several Canadian geese who’d been wounded by hunters and had been living on Hall’s farm for a few years.

“Sassy didn’t want to move for nothing,” recalls Hall. “She didn’t want to come. She could sense something was wrong.”

A deer that Hall had taken in as a fawn was euthanized that day on the farm. DNR officials gave the animal two injections, one to put it to sleep, and then another to put it down.

“It was so horrible,” says Hall, tearing up. “I couldn’t fix anything.”

The Charlevoix Courier reports that six animals in total were eventually euthanized by DNR. Hall was charged with holding wild animals in captivity without a permit, a misdemeanor offense.

Hall is currently working to get the necessary permits to restart her rescue operation. But that effort could be derailed if she is convicted. She says that she intends to fight the charge, and that a court hearing is set for March.

Hall is clearly rankled that her rescue work has become a legal issue. “If you love and care for an animal,” she says, “it’s against the law.”

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