January 19, 2021

Book review: 'Grounded' by Jon Tester

Senator Tester's memoir could become a helpful roadmap for coastal Democrats fighting for rural votes. The question is: will they pick it up and read it?

[Cross-posted from The Daily Yonder]

By Lisa Pruitt

Democratic Senator Jon Tester of Montana got little fanfare from the press when he published his memoir, Grounded, in September 2020.  Only the Wall Street Journal reviewed the book, while National Public Radio and the Los Angeles Review of Books interviewed the Senator.  The New York Times finally talked to Tester, too, but only in mid-December.  


I can see why national media wouldn’t rush to do puff pieces on a self-serving book, which all memoirs are, of course, if only in their aim of selling books.  More so political memoirs, even when there’s no reason to believe Tester is planning a presidential run.  Indeed, at age 64 and with four years left in his third Senate term, it’s not at all clear Tester will again run for anything.  


But I’d have thought that the subtitle of Tester’s book, “A Senator’s Lessons on Winning Back Rural America,” (author’s emphasis) sets it apart.  The rural-urban divide is a topic that garners a lot of airtime and column inches in the mainstream media.  Many say they want to build bridges across the burgeoning geographic chasm.  Yet, so far, neither coastal progressives nor Republicans are engaging Tester’s blueprint for that very task.  Indeed, Democratic Congresswoman Cheri Bustos’ 2018 plan to win back rural Democrats arguably garnered more publicity than Grounded has thus far attracted.


So what gives?  Once again in 2020, Democrats did not fare well among rural voters, keeping Tester’s hybrid memoir-policy manifesto timely.  Have progressive influencers read the book and found Tester’s suggestions untenable, unpalatable, or impractical?  A bridge too far and therefore not worth discussing, let alone implementing? 


I don’t know the answers to these questions, but I do know that when I got around to reading Grounded last month, I found it to be informative and thoroughly enjoyable.  It landed on my reading list “for business,” because I think, teach and write about rural issues. But I stayed with Grounded for the pleasure of reading the life story and ruminations of a rural iconoclast in 21st century politics.


The book’s appeal to me is no doubt a function of my interest in rural people and places, but you don’t have to be a ruralist to appreciate Grounded. Indeed, metro folks are the ones with the most to learn from it.  And Tester has even provided a shortcut for the efficient consumer:  Skip to the Epilogue where you’ll find two handy “to do” lists, one for Democrats and one for Republicans.  But readers who cut straight to the chase will shortchange themselves on the rich detail of Tester’s life, deeply rooted in rural Big Sandy, Montana, and a short history of that state’s politics, including the successful, century-long fight to banish dark money from politics. 


Most people who follow national politics even a little bit know something about Tester, the giant of a Senator with a big smile, a flat-top haircut, a direct manner, and a passion for government accountability.  Some will know that Tester lost three fingers to a meat grinder in his parents’ butcher shop when he was nine years old.  Folks may also be aware that Tester is the only U.S. Senator who’s also a full-time farmer.  But did you know that Tester’s college degree is in music, that as a young man he taught music at the elementary school in Big Sandy?

Tester inherited both his politics — he’s an unapologetic FDR Democrat — and his interest in politics from his mother, Helen, who got it from her mother, Christine.  Tester’s reverence for these women, as well as for his wife Sharla, his partner in both life and the management of their 1800-acre farm, is palpable throughout the book.  


Tester parlayed early stints on the Big Sandy School Board and the Choteau County Soil Conservation District into a seat in the Montana State Senate in the mid 1990s; he soon became the president of that legislative body.  Then, in 2006, Tester took a big political plunge, challenging U.S. Senator Conrad Burns, a Republican who had gotten entangled with scandal-ridden lobbyist Jack Abramoff.  Tester narrowly defeated Burns, thus reclaiming the Senate seat that had been held by Mike Mansfield (1953-77), the longest serving Senate Majority Leader in our nation’s history.  Assisted by former staffer Aaron Murphy (who gets some authorial credit on Grounded), Tester details these and other adventures in life and politics in a well-paced and engaging fashion.  Admitting that I’m a sucker for authenticity, grit, and hard work — as long as the deed accompanies the word — Tester’s book delivers. 


The central tension in Grounded arises from Tester’s 2018 re-election bid, a race that suddenly tightened that spring when President Trump set his sights on Tester’s defeat.  The senior senator from Montana caught Trump’s eye — and raised the president’s ire — when, as ranking member of the Veterans’ Affairs Committee, Tester challenged the appointment of Rear Admiral Ronny Jackson to lead the Department.  (Jackson was White House physician to Trump, as he had been to Obama and Bush).  Tester’s stance on the nomination was based on credible information that Jackson had provided controlled substances without a prescription and engaged in other questionable practices.  Ultimately, Jackson withdrew his candidacy for the VA job, giving Tester a victory in round one against Trump. 


Enraged that Tester had derailed his nominee, Trump declared war on Tester.  The president flew to Montana four times in the ensuing months and also dispatched his children to stump for Tester’s opponent.  In a state that Trump had carried by some 20 points, the Cook Political Report eventually moved the race from “leans Democratic” to “toss-up.” 


Come Election Day 2018, however, Tester prevailed in round two against Trump.  The Senator won his third term by garnering the votes of not only Democrats and Independents but also 7% of registered Republicans.  Indeed, it was the first time Tester won his Senate seat by a majority rather than a mere plurality.  Along the way, Donald Trump Jr. called Tester a “piece of shit,” and Tester had ample opportunity to demonstrate his political acumen. On the day of Trump’s first visit to the state, Tester took out full-page ads in 14 Montana newspapers with this text:


“Welcome to Montana, and thank you President Trump for supporting Jon’s legislation to help veterans and first responders, hold the VA accountable, and get rid of waste, fraud and abuse in the federal government.  Washington’s a mess — but that’s not stopping Jon from getting things done for Montana.”


Grounded pulls no punches with Trump and his family.  Tester repeatedly refers to Donald Trump, Jr., as the “greasy-haired kid,” (p. 27) and he likens the elder Trump to the biggest bully on the Big Sandy school playground — the one Tester took on and thumped as a kid, sending a signal to all the bullies to buzz off.

January 15, 2021

2021: Is this the year that wild delta smelt become extinct?

[Cross-posted from California WaterBlog]

By Karrigan Börk, Peter Moyle, John Durand, T-C Hung, and Andrew L. Rypel

2020 was a bad year for delta smelt. No smelt were found in the standard fish sampling programs (fall midwater trawl, summer townet survey). Surveys designed specifically to catch smelt (Spring Kodiak Trawl, Enhanced Delta Smelt Monitoring Program) caught just two of them despite many long hours of sampling. The program to net adult delta smelt for captive brood stock caught just one smelt in over 151 tries. All signs point to the Delta smelt as disappearing from the wild this year, or, perhaps, 2022.

In case you had forgotten, the Delta smelt is an attractive, translucent little fish that eats plankton, has a one-year life cycle, and smells like cucumbers. It was listed as a threatened species in 1993 and has continued to decline since then. Former President Trump made it notorious when he called it a “certain little tiny fish” that was costing farmers millions of gallons of water (not true, of course).


As part of the permitting process for Delta water infrastructure, the USFWS issued a Biological Opinion (BO), written by biologists, that found that increased export of water from the big pumps of the State Water Project and the Central Valley Project would further endanger the smelt. The BO was then revised by non-biologists to conclude that increased pumping would not hurt the smelt. The reason given was that large-scale habitat improvement efforts, plus the development of a facility for spawning and rearing of domesticated smelt, would save the species. We have written a short, fairly readable, article for a law journal that describes why the revised BO will not save the smelt. We will not write further about the paper in this blog but encourage readers to give the full article a read (it is a free download).


So, is this the year the smelt becomes extinct in the wild? Frankly, we are impressed by its resilience (see previous California WaterBlogs on smelt status) but small populations of endangered pelagic fish in large habitats tend to disappear, no matter what we do, partly the result of random events.

Looking for delta smelt

We trawl clear Delta water

And find emptiness.

January 15, 2021

Lessons From India's Struggles With Corporate Purpose

[Cross-posted from Oxford Business Law Blog]

By Afra Afsharipour

The escalating debate over corporate purpose is not confined to Western developed economies. Rapidly developing economies like India are similarly grappling with how to define and develop a legal framework around corporate purpose. Corporate social responsibility (CSR) and a re-examination of corporate purpose have been at the center of discussions about corporate governance reforms in India. In this book chapter, forthcoming in the Research Handbook on Corporate Purpose and Personhood (2021), I discuss the lessons that can be learned from India’s experience with corporate purpose.

For over a decade, India has taken a multi-pronged approach toward redefining corporate purpose. Voluntary guidelines issued by the Indian Ministry of Corporate Affairs have approached stakeholderism, CSR and sustainability as part of corporate strategic planning and a company’s business policies under the oversight of the board of directors. In 2013, India enacted a new Companies Act. The Act altered the fiduciary responsibilities of the board of directors, with Section 166 of the Act providing that directors must ‘act in good faith in order to promote the objects of the company for the benefit of its members as a whole, and in the best interests of the company, its employees, the shareholders, the community and for the protection of environment.’ The Act also imposed mandatory CSR responsibilities on corporate boards with a comply or explain approach toward CSR spending. More recently, there have even been efforts to transform this comply or explain approach to CSR spending into a mandatory one. And in 2019, the Ministry of Corporate Affairs issued yet another set of National Guidelines for Responsible Business Conduct to encourage Indian businesses to reflect on their purpose and to contribute towards wider development goals while seeking to maximize their profits. In addition to the Ministry of Corporate Affairs, the Securities and Exchange Board of India, the nation’s securities regulator, has also stepped in to require substantial additional sustainability disclosures by the largest listed companies.

The success of India’s multi-pronged initiatives has been mixed. The CSR provisions of the Companies Act have led to a large increase in philanthropy. However, while domestic philanthropic giving has increased significantly, it is unevenly distributed. Moreover, the promise and future of the CSR requirement of the Companies Act is uncertain, particularly with the economic impact of the COVID-19 pandemic. Similarly, the stakeholder provisions of the Companies Act suffer from lofty rhetoric unmatched by either practice or legal remedies for stakeholders. The Securities and Exchange Board of India’s disclosure rules have significantly increased transparency for the largest Indian companies. With greater disclosures, stakeholders are positioned to engage with companies more effectively and meaningfully about their social responsibilities beyond profits. Nevertheless, mandatory CSR, a stakeholder-oriented approach to corporate law, and additional sustainability disclosures have made little dent in India’s massive inequality, poverty, corruption and pollution.

It is not surprising that India has struggled so intensely with a stakeholder-oriented approach to corporate purpose. The ownership structure of Indian firms plays a significant role in challenging the stakeholder-driven corporate purpose efforts in India. Controlling shareholders (referred to as promoters in the Indian context) are the most powerful players in corporate India. For many promoter families, shareholder wealth maximization aligns directly with their own interests. In addition, the philanthropy approach of India’s CSR provisions provides promoters with a philanthropic glow that aligns with the promoter’s self-interest.

Concentrated ownership can also create opportunities for stakeholderism to transform into mutually beneficial relationships between the government and powerful promoters. In the Indian context, the government has used private firms to promote its policy objectives of development and growth. But private firms have also been used as an instrument of rent extraction for party and political purposes. For example, companies are increasingly contributing CSR funds into the Prime Minister’s Relief Fund, but there is little transparency in how such funds are spent. Furthermore, there are concerns that contributions to government-controlled funds undermine the work of non-governmental organizations.

Many experts argue that promoter power has expanded significantly post-economic liberalization with greater links between political and business elites. Powerful promoters are often the biggest funders of political campaigns. Business elites are deeply involved in political decisions and policy making, serving on a variety of parliamentary committees that recommend important policy decisions for the government. Furthermore, a number of prominent industrialists have entered politics, primarily through serving in the upper house of Parliament (Rajya Sabha). In controlled companies, companies’ CSR policies may inevitably reflect the interests of promoters, including their political interests and aspirations, as well as their views on social reality and values.

The Indian experience presents an important perspective for the corporate purpose debate from a country where firms are dominated by controlling stockholders. In a country where politics and business are deeply intertwined, and where powerful controlling stockholders have an outsized role, stakeholderism may make little headway. Instead, the Indian approach to stakeholderism provides an environment where corporations can use their CSR efforts and corporate purpose rhetoric to curry political favor with the state, while the state can use stakeholderism to politically signal that it values society, even in the face of rising inequality, pollution and persistent poverty.

January 11, 2021

The framers would have seen the mob at the Capitol as traitors

[Cross-posted from The Washington Post]

By Carlton F.W. Larson

The scenes are nearly unbelievable: An armed mob storming the U.S. Capitol to disrupt the counting of the electoral votes. The rioters claimed to be patriots, some of them even waving the Revolutionary War flag “Don’t Tread on Me.” So what would our nation’s founders have thought about this conduct?

The answer is pretty clear — they would have denounced it as treason. Article III of the Constitution limits the crime to “levying war against the United States” or “adhering to their enemies, giving them aid and comfort.” Adhering to enemies addresses aid to foreign nations or groups with whom the United States is in a state of open war. By contrast, “levying war” primarily addresses internal concerns. The Constitution’s drafters understood the term “levying war” to include any armed insurrection to obstruct a law of the United States. When tax protesters in western Pennsylvania attempted to resist the collection of federal excise taxes during the Whiskey Rebellion, President George Washington formed an army to fight them; his administration later indicted a number of the rebels for treason. A few years later, when men in eastern Pennsylvania used force to prevent the collection of a federal property tax, the John Adams administration prosecuted the leaders for treason. Supreme Court justices presiding over these trials all agreed treason had been committed. In 1842, Justice Joseph Story summarized the law, concluding it was treason “by force to prevent the execution of any one or more general and public laws of the government, or to resist the exercise of any legitimate authority of the government in its sovereign capacity.”

An armed attack on the Capitol to obstruct the counting of the electoral votes easily qualifies as treason under the framers’ original understanding of the Treason Clause. Indeed, the case is even stronger than it was in the Whiskey Rebellion and Fries’s Rebellion cases, none of which involved a direct attack on the national capital.

But in a perverse irony, the MAGA mob may be protected from a treason prosecution because of an 1851 case arising out of the Fugitive Slave Act. The Millard Fillmore administration prosecuted men in Pennsylvania who fought the return of enslaved people to captivity (and in the process killed Edward Gorsuch, a distant relative of current Supreme Court Justice Neil M. Gorsuch). Presiding over the trial, which was held in the second floor of Independence Hall in Philadelphia, Supreme Court Justice Robert Grier held that resistance to one particular law was not enough — treason by levying war requires a design to overthrow the government itself.

That’s where things get tricky. Grier’s decision has never been formally accepted (or repudiated) by the Supreme Court, but it seems likely that a federal court would follow it. Did the MAGA mob attempt to the overthrow the government of the United States, or did they just seek to obstruct one particular law (the Electoral Count Act)? A prosecutor could certainly argue it was an attempt on the government itself: The Electoral Count Act is not just any law. It’s about the peaceful transfer of power. And an attempt to thwart the certification of President-elect Joe Biden’s lawful accession to power through force looks very much like an attempt to overthrow the government itself. I have repeatedly written about the importance of not tossing the term “treason” around lightly. But of all the events of the last four years, this comes the closest to the framers’ understanding of the crime.

On the other hand, if treason charges ever went to trial, lawyers for the defendants would push Grier’s opinion for all it’s worth, insisting there was no intent to overthrow the United States government as such; they were simply protesting what they viewed, however benightedly, as a stolen election. The Constitution as it was interpreted in 1851, not the original Constitution of 1787, might then come in to save them.

But there are ample other criminal charges that can more easily be brought. Seditious conspiracy is an obvious fit. This statute prohibits, among other things, “two or more people” from conspiring to “by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” Seditious conspiracy carries a maximum penalty of 20 years in prison; it was most notably used recently to prosecute the 1993 World Trade Center bombers. The MAGA mob’s actions on Wednesday fit this statute to a T. Other criminal statutes, ranging from simple trespass to firearms offenses, will also come into play. District of Columbia police had arrested at least 52 people by Wednesday evening, mostly for allegedly carrying illegal weapons or violating the city’s emergency curfew.

No matter what charges are forthcoming later, one thing should be crystal clear: No person storming the Capitol to overthrow an election has any business claiming to be an heir to our country’s founders. George Washington, who laid the foundation of the Capitol building, would have viewed the attack as treason, even if modern law might not necessarily agree.

January 11, 2021

Might Chevron deference be reconsidered?

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

Jack Chin for SCOTUSBlog previews Pham v. Guzman Chavez, which will be argued before the Supreme Court on January 11.  Chin writes that "[t]he case, addresses the right of certain noncitizens to be released on bond while they are in the process of removal from the United States. The migrants at issue are a subgroup of a subgroup: those who have previously been ordered removed, and are statutorily subject to swift deportation based on reinstatement of the prior order, but who have a so-called `withholding' claim, which, if granted, prohibits their removal to a particular country under the Convention Against Torture or related U.S. statutes and regulations."

The case raises the deference doctrine of Chevron USA v. Natural Resources Defense Council, which Justice Kennedy observed in Pereira v  Sessions might be due for reconsideration.

January 11, 2021

Case preview: Justice will confront statutory puzzle on bond eligibility for non-citizens contesting deportation

[Cross-posted from SCOTUSblog]

By Gabriel “Jack” Chin

Pham v. Guzman Chavez, which will be argued on Jan. 11, addresses the right of certain noncitizens to be released on bond while they are in the process of removal from the United States. The migrants at issue are a subgroup of a subgroup: those who have previously been ordered removed, and are statutorily subject to swift deportation based on reinstatement of the prior order, but who have a so-called “withholding” claim, which, if granted, prohibits their removal to a particular country under the Convention Against Torture or related U.S. statutes and regulations. Noncitizens with reinstated removal orders are normally summarily removed with virtually no formal process, and are prohibited from raising almost all defenses or claims for discretionary relief. The major exception is that withholding claims halt removal as the petition is administratively and judicially evaluated. (Some courts hold that claims of U.S. citizenship may also be raised).

The Immigration and Nationality Act allows migrants pursuing so-called “withholding only” relief to be released on bond at some point; the court must decide which release statute applies. The United States insists that the restrictive 8 U.S.C. § 1231 governs. That section applies to some noncitizens already ordered removed, and it mandates 90 days’ detention to carry out the deportation. After 90 days, if for some reason deportation has not occurred, release is granted or denied based on an internal Immigration and Customs Enforcement process with no live hearing. If release is granted, various forms of supervision are required. In addition, in Zadvydas v. Davis, the Supreme Court recognized constitutional limits on detention under Section 1231 once it appears that there is no significant likelihood that a noncitizen would actually be removed.

Maria Angelica Guzman Chavez and other noncitizens claim they may be released under 8 U.S.C. § 1226, which applies “pending a decision on whether the alien is to be removed.” This section generally requires no period of detention, does not mandate supervision if a person is released, and, perhaps most importantly, allows an immigration judge to evaluate the question of release based on live testimony.

The briefs of the parties and amici underline the consequences of the choice. Withholding-only cases can remain pending before an immigration judge or the Board of Immigration Appeals for months, or several years, if the decision is reviewed in a court of appeals. Detained individuals are less likely to obtain counsel, which reduces the chances of obtaining relief. According to amici, prolonged detention under harsh conditions sometimes causes noncitizens to abandon their meritorious claims. Drawing the sting from the unsympathetic fact that all migrants involved in this case have previously been deported and subsequently reentered the United States unlawfully, amici point out that some had no opportunity to present their claims in the first proceeding. The inspector general of the Department of Homeland Security, for example, noted that ICE detainees were not always given information about asylum and withholding of removal in a language they could understand.

The question of the applicable bond regime divided the circuits, as well as the three-judge panel of the U.S. Court of Appeals for the 4th Circuit the justices are reviewing here. This disagreement accurately reflects the headache-inducing complexity of the statutory structure.

At one level, the parties argue over policy and practicalities — should a withholding-only claimant be treated as a recidivist in the process of being expelled again, or as someone whose ability to stay in the United States remains undecided? The United States points out that a withholding-only claim does not undermine the removability of an individual with a reinstated removal order. A decision on withholding relief, the government says, is “not a decision on whether the alien is to be removed from the United States; rather it only affects where and when removal may occur.” In principle, a person awarded withholding relief may be removed to some other country that is willing to take them in.

However, removal to a third country cannot happen without giving the noncitizen the opportunity to raise a withholding claim as to the new country. And the noncitizens claim that less than 2% of those granted withholding are removed to some alternative country where they do not face danger. Thus, those ultimately awarded withholding relief often remain in the United States, at liberty, indefinitely. Detention under the more restrictive Section 1231 is intended to give the government an opportunity to arrange for actual deportation. Because that cannot happen while the withholding claim is evaluated, the noncitizens contend that mandatory detention is a pointless and arbitrary imposition of hardship, unconnected to any legitimate justification for a restraint on physical liberty.

The technical statutory analysis is also challenging. The mandatory detention/limited release scheme of Section 1231 is triggered by the commencement of the “removal period.” The removal period begins “on the latest of the following”: (1) the date the order of removal becomes “administratively final”; (2) “the date of the court’s final order,” if the order is judicially reviewed and the court orders a stay; or (3) the date the noncitizen is released from some form of non-immigration detention, such as prison.

In the ordinary case of a reinstated removal order coupled with a withholding-only claim, the trigger for the removal period will turn on whether the order is “administratively final.” There is no statutory definition of “administratively final.” However, the INA deems a deportation order “final” when it is affirmed by the Board of Immigration Appeals, or when the time for board review has passed without an application for review. The United States argues that “final” and “administratively final” are identical, and that a reinstated order of removal is, if anything, more final than “final.” Under subsection (a)(5) of Section 1231, if an immigration officer finds that someone ordered removed has unlawfully reentered, the government points out, “the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief … and the alien shall be removed under the prior order at any time after reentry.”

The noncitizens do not dispute that in the more than 98% of reinstatement cases raising no withholding claim, a reinstated order is final and triggers the removal period and mandatory detention under Section 1231. But in the relatively unusual cases where a withholding claim is advanced, it will be considered by an immigration judge, and possibly also the board and a court of appeals. It makes no sense, they claim, to regard an order of deportation as “final” when it undisputedly cannot be executed precisely because it is undergoing administrative review.

The noncitizens have on their side a remarkable body of precedent which developed to untangle the puzzle of review of withholding claims. A reinstated order is statutorily “not subject to being … reviewed.” In addition, 8 U.S.C. § 1252(b)(1), governing judicial review of removal, provides that “[t]he petition for review must be filed not later than 30 days after the date of the final order of removal,” which for a reinstated order will usually be a date long in the past. The prohibition on review coupled with the expired deadline might suggest that reinstated orders are simply unreviewable. But 8 C.F.R. § 241.8(e) makes clear that withholding claims can be raised even in the context of a reinstated order. And the INA makes clear that a withholding claim is judicially reviewable as part of the reinstated order. Subsection (a)(4) of Section 1252 provides that “a petition for review” of a removal order “shall be the sole and exclusive means for judicial review” of withholding claims, which unambiguously suggests that withholding claims can be judicially reviewed after conclusion of the administrative process. Based on this provision, 11 circuits agree a reinstated order is judicially reviewable, as a vehicle to permit review of withholding claims. And several courts have also held that a reinstated order is not final until the withholding claim is administratively resolved.

The United States did not address this body of cases in its opening brief. Turning to them in its reply, the government declined to argue that all 11 circuits were wrong, instead contending that “the court need not resolve the issue.” “Finality is variously defined,” it explained, and “like many legal terms its meaning depends on context.” The government’s position is apparently that a reinstated order with a pending withholding claim is not final for purposes of judicial review, yet is final for purposes of bond. But the two bond regimes differ based on the finality of the order. And if the language is to be interpreted prudentially, the government’s position is challenged by the fact that withholding claims are unusual exceptions to the general effect of reinstatement, and that successful withholding claims do, apparently, almost always mean there will be no removal.

The United States finally invokes Chevron USA v. Natural Resources Defense Council, under which courts defer to agencies’ reasonable interpretations of ambiguous statutes. The government argues that regulations issued by the Department of Homeland Security and the Department of Justice reflect the determination that Section 1231 applies. The noncitizens dispute that any regulations actually reflect that interpretation, and they invoke the constitutional avoidance canon, under which courts refrain from statutory interpretations that would cause constitutional problems. Here, they argue, the government’s interpretation would subject individuals to prolonged periods of civil detention with no legitimate justification – an outcome that would raise serious due process problems. In a case this close and complicated, these considerations will surely be discussed at Monday’s argument — and could even be decisive.

January 11, 2021

Columbia Law honors Hong Yen Chang

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

In 2015, more than a century after Hong Yen Chang, a Chinese immigrant who had graduated Columbia Law School, was denied a license to practice law in California because of laws that discriminated against Chinese immigrants, the Supreme Court of California granted him posthumous admission to the bar.  The efforts of UC Davis School of Law students and UC Davis law professor Jack Chin led to the court's decision.  Students in the law school's Asian Pacific American Law Students Association petitioned the court on behalf of Chang, pointing out that the laws that prevented him from practicing as an attorney have been discredited and repealed and asking the court to "right this historic wrong." In "a candid reckoning with a sordid chapter of our state and national history," the court granted Chang posthumous admission to the California bar.

Kimmy Yam for NBC News reported on the latest on the story of Hong Yen Chang.   Columbia has honored Hong Yen Chang.  In December 2020, the law school announced that its Center for Chinese Legal Studies will be named for Chang.  Chang in 1886 was Columbia's first Chinese law graduate.

January 11, 2021

Priorities for President-elect Biden's EPA


[Cross-posted from Daily Journal]

By Richard M. Frank

It's been a long and dispiriting four years for the U.S. Environmental Protection Agency under President Donald Trump. There's a large measure of truth in the wry rebranding of the current agency by many observers as the anti-Environmental Protection Agency. The past four years have damaged considerably the stature and reputation of the EPA, a regulatory agency created 50 years ago by another Republican president, Richard Nixon.

President-elect Joe Biden has a unique opportunity to repair the integrity of a tarnished EPA and, more importantly, to reverse many of the misguided, unprincipled environmental policies and regulatory rollbacks the Trump administration's EPA has adopted in recent years. Here are some of the actions Biden and his newly announced EPA administrator, Michael Regan, can and should take to rehabilitate the agency's integrity and effectiveness:

Restore the EPA's traditional reliance on science in its decision-making. In the first months of the Trump administration, members of the EPA's respected Science Advisory Board were purged and replaced by individuals more politically malleable and ideologically aligned with the administration. The incoming Biden administration should quickly make personnel changes to the board that rehabilitate its integrity and traditional independent role. And that should be but the first important step in restoring sound science as a cornerstone of EPA regulatory policy.

Reestablish environmental enforcement as an EPA priority. Another cross-cutting issue on which the Biden administration should focus is environmental enforcement. Generally overlooked by the media but enormously consequential is the fact that over the past four years the Trump administration's EPA has largely turned its back on enforcing federal environmental statutes and regulations. The number of EPA-initiated enforcement proceedings has dropped precipitously over that period, as has the amount of fines and penalties collected by the agency for environmental violations. Even more cynically, in March the EPA issued a policy announcing that it would not enforce or seek penalties for noncompliance with environmental monitoring and reporting obligations -- citing the coronavirus epidemic. The Biden administration should waste no time in reversing the latter 2/4 enforcement moratorium and reestablishing environmental enforcement as an EPA priority. As President Abraham Lincoln once observed, "Without enforcement, laws are nothing more than good ideas." How true.

Restore California's ability to adopt its own, more stringent greenhouse gas emission standards for motor vehicles under the Clean Air Act. Perhaps no Trump administration environmental rollback has provoked more outrage from Californians than Trump's September 2019 announcement that he was revoking California's authority under the federal Clean Air Act to maintain its own greenhouse gas emission limits for motor vehicles -- limits more stringent than those national GHG standards imposed by the EPA. (Trump falsely tweeted that this revocation would make cars sold under the federal standard "far safer and much less expensive.") California Attorney General Xavier Becerra immediately filed suit challenging the revocation, and that litigation remains pending. But the Biden administration can quickly make the litigation moot by restoring California's independent authority to set its own GHG emission limits. In doing so, it would be déjà vu all over again: In 2008, former President George W. Bush similarly attempted to revoke California's statutory authority to establish its more aggressive vehicular GHG emission standards, only to have then-newly elected President Barack Obama reverse that decision and reinstate California's authority in the first months of his administration the following year. Biden should and likely will waste no time taking the same corrective action in early 2021. (Such a decision would have impact far beyond California's borders: The CAA expressly allows other states to "opt into" California's more stringent vehicle emission standards, and over a dozen states have done so; together with California, they represent over 40% of the U.S. motor vehicle market.)

Adopt a more balanced and protective "WOTUS" regulation under the Clean Water Act. For many years, the question of how to interpret and apply the jurisdictional limits of the federal Clean Water Act has bedeviled property owners, regulators and courts trying to determine what constitutes the "waters of the United States." No less a personage than U.S. Supreme Court Chief Justice John Roberts in 2006 urged the EPA to adopt a regulation clarifying the scope of federal regulatory authority under the CWA. After a decade of dithering, the EPA finally adopted such a regulation in 2018, in the waning days of the Obama administration. But that regulation never took effect, having been challenged by developers and property owners in court, and eventually renounced by the incoming Trump administration. Trump's EPA eventually replaced the Obama "WOTUS rule" with a far more circumscribed version, one leaving unprotected numerous wetlands and other ecologically sensitive resources. The Biden EPA should go back to the drawing board and replace the Trump WOTUS rule with one more protective of environmental values and resources.

Reverse the Trump administration's abysmal approach to (non-)regulation of toxic substances. Perhaps in no area of environmental regulation has the Trump EPA been so deficient as it has in its approach to regulation of toxic materials. It has attempted to roll back a number of toxic standards, ignored congressional mandates and deadlines to 3/4 promulgate others and, in the process, endangered public health. A particularly egregious example is the EPA's most recent regulatory misadventure: last week, the Trump administration issued a so-called "Lead and Copper Rule" that, if left in place, will delay remediation of aged lead pipes that currently deliver critical drinking water supplies to millions of Americans for up to three decades and, in some cases, indefinitely. The toxicity of antiquated, leaching lead pipes is well-known to doctors and public health officials, and is especially dangerous to children, the elderly and pregnant women. The Biden EPA should waste no time in revisiting the Trump EPA's Lead and Copper Rule, replacing it with a new regulation that is far more responsive to the urgent public health crisis presented by lead pipes that contaminate drinking water supplies. More broadly, the Biden administration should restore EPA regulation of toxic and hazardous materials to a top priority.

Make environmental justice a major focus of the Biden EPA. Presidential administrations before Trump's had given at least a nod and a wink to environmental justice concerns. The Trump administration, by contrast, has given environmental justice policies the back of its hand. The incoming Biden administration can and should make environmental justice a major theme and priority. Biden's EPA -- led by Administrator Regan, who currently leads the North Carolina Department of Environmental Quality -- is in a perfect position to do just that. Both Biden and Regan have stressed their commitment to making sure that the environmental and public health interests of minority, underserved and poor communities are prioritized by EPA and the federal government generally. (In fulfilling that commitment they would be wise to consult with environmental officials in California, which -- as in so many areas of environmental policy -- has led the nation when it comes to aggressively fostering environmental justice initiatives.)

Make climate change and GHG reduction the overarching focus of EPA environmental policy. The most encouraging environmental message from the incoming Biden administration to date is that it is committed to reversing the Trump administration's criminal neglect of national and international climate change concerns. Biden has assembled a broad-based climate change leadership team -- consisting of multiple cabinet members, former U.S. Senator and Secretary of State John Kerry, former EPA Administrator Gina McCarthy and others -- to engage on climate change issues both at home and abroad. That makes eminently good sense. Biden's EPA has a major role to play in meeting this overarching challenge, and the early signals are promising that it will.

Adopt a multifaceted strategy to revoke and replace Trump administration's antienvironmental policies comprehensively and swiftly. There's a great deal that the incoming Biden administration can do to neuter and reverse the innumerable environmental rollbacks the Trump administration has attempted. One of Trump's most egregious strategic errors has been his efforts to regulate by executive order rather than through the Administrative Procedure Act's formal rulemaking process. In many cases, courts have invalidated those legally flawed executive orders, leaving in place preexisting environmental standards; those orders that remain on the books can be revoked by new executive orders Biden should adopt 4/4 in the first weeks of his administration. In other instances, Trump's EPA has attempted to adopt "interim" or "non-final" regulations; they can similarly be nullified quickly by the incoming administration. Finally -- and most consequentially -- the state of California has led a broad coalition of other states and environmental organizations in bringing court challenges to virtually every regulation the Trump EPA has adopted to roll back federal environmental standards. Most of those cases remain pending. The Biden administration, led by the Justice Department and the EPA, should attempt to negotiate settlements of those lawsuits that incorporate the Biden administration's renunciation of the misguided Trump regulatory rollbacks. In many cases, that will be the most efficient and expeditious way to invalidate the pernicious, anti-environmental policies promulgated by the Trump administration over the past four years.

The EPA has been battered, bruised and besmirched over the past four years under the Trump administration. A great many reforms will be required to repair the damage to the agency, the nation's environment and the public interest. Those reforms cannot and will not occur overnight. But the corrective measures summarized above -- some already embraced by the incoming Biden administration -- should go a long way towards restoring the EPA's historic stature and, more importantly, protecting the nation's environment and public health. Here's wishing President-elect Biden and Administrator-designee Regan the very best of luck in doing so.


January 5, 2021

How to solve the transit budget crunch: Price the private use of public streets

[Cross-posted from SPUR]

By Chris Elmendorf and Darien Shanske

COVID-19 has been catastrophic for public transit. Plunging fare and tax revenues are forcing drastic cuts. San Francisco’s transit agency could lay off more than one in five workers. Los Angeles is cutting service by 20%. Washington, DC is proposing to shutter 16% of its stations and eliminate weekend rail service. State governments can’t provide stopgap funding because they’re constitutionally constrained to balance budgets (though there is some room for creativity). Congress ought to step up, but Mitch McConnell stands in the way.

We think there’s a solution right under our feet: Make private drivers pay market rates to use the public’s roads. Traditionally, transit customers have had to fork over hefty fares, while private drivers go for free. The result is congestion, endless circling for parking spaces, Ubers and Lyfts blocking bike lanes and bus stops, and, at this precarious fiscal moment, a huge pot of potential revenue waiting to be claimed.

The place to start is residential parking. San Francisco has 275,000 curb parking spaces, only 10% of which are metered. Another 80,000 are in restricted residential parking zones. For a trivial annual fee, residents park without limit in their zone. Meanwhile, garage parking in the city costs on the order of $200 to $500 a month. Street parking isn’t worth as much as garage parking, and the value of a curb space would vary a lot from one neighborhood to the next. But even if the average curb space in the city were worth only $100 per month, the city could be earning $300 million a year from the street parking it now gives away. That’s almost double the transit agency’s forecasted deficit next year.

Cities less dense and affluent than San Francisco probably couldn't generate as much revenue this way. But with a little creativity, they could use the future value of street parking to close present budget gaps. For example, they could sell market-rate parking passes that would be valid for several years, or issue annual permits while converting the future revenue stream into marketable securities. Similarly, if a city is concerned about introducing a new charge during the pandemic, it could commit to imposing the charge next year or later — but start borrowing against the revenue stream now.

How would a city that decides to charge market rates for residential parking figure out the price? UCLA professor Donald Shoup recommends a uniform-price auction. The city would determine the number of parking spaces on a block or in a zone, and then invite bids for annual permits to park in that area. Permits would be allocated to the top bidders at the lowest price that any of them offered. For example, if a block has 20 spaces, the top 20 bidders would each win a space, and they’d pay the amount of the 20th highest bid.  
Another pricing strategy is to adapt the “variable rate” model that San Francisco and other cities are already using for metered parking in commercial districts. In these districts, the metered rate adjusts gradually in response to demand, ensuring that there’s usually an open space (but no excess of open spaces) on each block. Street parking in residential neighborhoods could operate on the same principle, albeit with parking allocated through residential permits rather than meters. The city would set the initial price for residential permits in each zone based on a “guestimate” of their value, and then gradually adjust the price upward or downward every few months until the number of subscribed permits is equal to the number of curb parking spaces in the zone. 
Charging market rates to use the curb lane would yield all sorts of other benefits, too. Some residents would decide the costs of private car ownership are no longer worth it. They’d sell their cars, decongesting crowded streets and reducing greenhouse gas emissions. Car-sharing, bike-sharing and ride-sharing companies could bid for curb space, expanding services throughout the city. Visionaries who foresee non-parking uses of the curb should be invited to join the bidding, too. More parklets and street-side eateries would enliven the city scene.

An objection to more expensive street parking is its potential to hurt people with low incomes. But programs to price the curb lane could be fine-tuned with discounts for low-income residents and small businesses. The revenue could also fund free transit passes for low-income households, since not all of them own cars.

Alternatively, the city could pursue an incremental pricing strategy that would allow everyone who now has a residential permit to continue parking as they always have. San Francisco recently piloted a “Paid + Permit” model for blocks adjoining commercial districts. Residents park for free while visitors pay market rates using meters or their phone. This pilot brought in more than half the revenue of fully metered commercial blocks nearby. Extending the Paid + Permit program to the 80,000 curb spaces now covered by the city’s residential parking program would generate a lot of revenue—and without a political fracas over charging residents for something they’re accustomed to getting for free (or, more precisely: accustomed to paying for with time and gas as they prowl for parking, rather than paying for with money).

But is it legal?

The main argument against market pricing of the curb lane is a legal one. States have constrained local fiscal authority in various ways, so there’s no uniform answer to the legality question. But in California, at least, the answer appears to be “Yes.”  
There is a common perception that the California Constitution, which strictly limits local taxes and fees, or the California Vehicle Code, which sets rules for public streets, allows cities to charge only “cost recovery” fees for residential parking. (A cost-recovery fee raises only enough revenue to cover the costs of administering a program.) We believe this perception is incorrect. 

The constitutional question

The California Constitution elaborately restricts local taxes and fees. But as amended by Proposition 26, it excludes from these limitations “a charge imposed for entrance to or use of local government property, or the purchase, rental, or lease of local government property.” Cal. Const. art. XIII C(1)(e)(4).

As the state supreme court recently explained, “the right to use public streets ... is a property interest [which a local government may] sell or lease … and spend the compensation it receives for whatever purposes it chooses.” Jacks v. City of Santa Barbara, 3 Cal. 5th 248, 254 (2017). Under Jacks, charging people to use public streets would count as a “tax” only if the charge did not bear a "reasonable relationship to the value of the property interest." So long as the city does not set the price for residential parking so high as to result in a large excess of unused curb space, the city’s fee-based parking program should pass muster.
Jacks interpreted “tax” as defined in Prop. 218, not as recently refined by Prop. 26. Nevertheless, the court discussed Prop. 26, and there’s not much reason to think the analysis would come out differently under Prop. 26 because, at least as to this aspect of the definition of tax, Prop. 26 appears to have codified the pre-existing common law analysis applied in Jacks. The court said as much in City of San Buenaventura v. United Water Conservation District, 3 Cal. 5th 1191, 1210 (2017). Two related Prop. 26 cases are now pending before the California Supreme Court. One goes beyond Jacks, holding that fees for use of public property are categorically not taxes, however exorbitant the fee. The other one extends Jacks to Prop. 26. Under either approach, market-rate fees for residential parking would be permissible (“not taxes”).  

The only constitutional issue we’re at all concerned about is the possibility that a residential parking fee would be characterized as an “incident of property ownership.” Under Prop. 218, fees imposed as an incident of property ownership are limited to cost recovery. However, this potential problem could easily be sidestepped by allowing people who don’t own or rent property in a zone to purchase curb-use permits. Even if the permits were restricted to owners and renters in the zone, it’s doubtful that Prop. 218 would be triggered, because the right to park in a zone is not a service provided “to any particular parcel.” See City of San Buenaventura, 3 Cal. 5th at 1207-1208 (holding that groundwater pumping fees are not “incidents of property ownership” because “the agency provides no service to any particular parcels”).  

That fees to park on public streets are not “taxes” under the California constitution has another implication of some practical importance: they can be adopted by any duly authorized governmental body, with no need for a popular vote. Solving the transit agency budget crunch need not wait until the next election.

The Vehicle Code question

As the Attorney General has explained, California’s Vehicle Code gives cities “broad power to restrict parking on public streets, and the … specific power to adopt preferential parking programs that exempt residents, merchants, and their guests from [the general restrictions].” CVC 22507(a). Notably, nothing in CVC 22507(a) says anything about fees that may be used to “restrict parking,” or about fees that may be charged to residents and merchants who benefit from a “preferential parking program.” 
The Vehicle Code does insist that if cities charge homeowners to park across their driveways, the fee be set at the cost-recovery level only (CVC 22507.2). But no such limitation is mentioned in the section of the Code about regular street-parking permits (CVC 22507). In fact, the distinction between 22507.2 (driveway permits) and 22507 (other permits) seems to anticipate Proposition 218’s limitation on fees “imposed … as an incident of property ownership.” The fee to park across one’s own private driveway is arguably incidental to property ownership, whereas a fee to park anywhere in a zone is much less likely to be characterized in that way.  

Section 22508 of the Vehicle Code authorizes metered zones with variable, demand-responsive hourly rates. Perhaps one could argue that by not mentioning demand-responsive rates in other sections of the Code, the legislature implied that cities may not charge market rates for monthly or annual permits on non-metered blocks. That argument’s a reach, but even if it were correct, cities could just meter their residential zones while issuing (market-rate) monthly or annual permits that entitle the permit-holder to park without feeding the meter. Nor is a meter at each space required. One meter can serve several physical blocks, supplemented by permits or pay-per-phone.
Here’s the bottom line: The question of what and whom to charge for using the curb lane is a political and policy question for California cities, not a legal matter. Yes, someone will probably sue if a city raises the price of parking—but they’re not likely to win. Making drastic cuts to the transit budget is a choice, not an inevitability. There is a better way.

January 4, 2021

Episode 48: 'The Final Days'

Episode 48 of “What Trump Can Teach Us Con Law,” “The Final Days,” explores President Donald Trump's failure to overturn the results of the presidential election and what the Constitution has to say about pardons. Listen to the episode