Category: judiciary

Categories
First Amendment rights free trade & free markets judiciary

The Wrong Kind of Speech

California, AB5, exemptions, freelance, contract work

In 2019, California imposed a law to force many independent contractors to become standard employees if they wanted to keep working for erstwhile clients.

AB5 threw many gig workers out of work. Many lost all of their clients, who typically could not afford to simply convert contractors from whom they had been buying stuff once in a while into regular employees.

Even in the original legislation, exemptions from AB5 were granted for certain contractors. In response to angry controversy, many more categories of contractors were added to the exemption list. Then passage of Proposition 22 allowed Uber and Lyft drivers to continue as contractors.

But guess who still may not hire independent contractors in California? People running political campaigns and petition drives, who often can’t afford to hire many or any employees. The Wall Street Journal notes that today in California, “people who sell ‘consumer products’ count as ‘direct salespersons,’ while those who work on political campaigns or ballot petitions must be counted as employees.”

Thus, under the state’s current anti-​contractor law, political speech is impaired in a way that sundry commercial speech is not.

A group called Moving Oxnard Forward has taken their First Amendment-​based complaint about this injustice to court, with the help of the Institute for Free Speech. A three-​judge panel of the Ninth Circuit Court of Appeals ruled 2 – 1 against the group. But the case can proceed now to the full Ninth Circuit or on to the U.S. Supreme Court.

At the High Court, I think we petitioners and speakers of political speech would probably win.

This is Common Sense. I’m Paul Jacob.

PDF for printing

Illustration created with DALL-​E2 and Midjourney

See all recent commentary
(simplified and organized)
See recent popular posts

Categories
ideological culture judiciary too much government

Right Color Only

unapproved races

The latest battle over race-​conscious affirmative action policies is taking place over a loan forgiveness program in the Providence, Rhode Island, public school district.

The Legal Insurrection Foundation is suing to overturn an “overtly racist and discriminatory” program being implemented by a district that receives millions in federal funding. Which means that all taxpayers are indirectly subsidizing this sort of thing.

According to the district’s new policy, an applicant for a teaching post can get up to $25,000 in college loans paid off if he teaches for three years in a row in the district. The incentive seems innocuous enough until you learn that beneficiaries of the grant, being funded by a Rhode Island charity, must “identify as Asian, Black, Indigenous, Latino, biracial, or multi-racial.”

The specification that one must “identify as” a member of one of these races may sound as if persons of unambiguously blanco tint need merely “identify as” Black or Indigenous or the like to get around the whites-​need-​not-​apply exclusion. But such a mode of circumvention — even if, as seems unlikely, it could succeed to the extent that officials pretended to believe the claim — would require applicants to lie or become delusional. 

To match this delusional policy, no doubt.

But the policy would still remain racist and discriminatory.

The Foundation’s filing quotes a dictum that if universally accepted would put an end to all this nonsense: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

This is Common Sense. I’m Paul Jacob.

PDF for printing

Illustration created with DALL‑E 2

See all recent commentary
(simplified and organized)
See recent popular posts

Categories
education and schooling judiciary subsidy

One Way or Another or Another

student debt relief

The courts have not been kind to President Joe Biden’s unilateral attempt to erase some $200 billion to $500 billion in student-​loan debt. (By “erase” I mean force all taxpayers to pay debt incurred by the millions of borrowers eligible for the forgiveness program.)

Last month, a federal judge issued a temporary stay on the program while the litigation plays out.

On November 10, another federal judge, Mark Pittman, ruled that the program is a “complete usurpation” of congressional authority. Per Pittman, the U.S. is “not ruled by an all-​powerful executive [but] by a Constitution that provides for three distinct and independent branches of government.”

In consequence, the Biden administration stopped accepting applications for student-​loan debt relief. By then more some 26 million borrowers had applied.

On November 14, another federal court also blocked the program. So Biden’s debt-​transfer plan is apparently at least thrice bogged down.

Except that another student-​loan-​debt-​erasing thing has been going on since early in the pandemic, a pause on debt payments rationalized by the economic hardship imposed by lockdowns.

This pause was set to lapse at the end of this year, with payments to resume in January. But according to a White House insider “familiar with the matter,” the administration has been making “increasingly firm plans to extend the repayment pause.”

The pause also costs taxpayers money. The original rationale for it no longer exists. Like the mega-​debt-​relief program, extending the pause would also be unconstitutional.

This subsidy is also unlikely to inspire kindness from the courts.

This is Common Sense. I’m Paul Jacob.

PDF for printing

Illustration created with DALL‑E 2

See all recent commentary
(simplified and organized)
See recent popular posts

Categories
initiative, referendum, and recall judiciary term limits

The Fix Wasn’t In

Al Jaeger has been the Secretary of State in North Dakota

Something totally unexpected — by me, at least — happened earlier this month in North Dakota. It concerned a citizen initiative to term-​limit the Peace Garden State’s governor and state legislators.

Not unexpected, however, how often term limits measures meet resistance from long-​serving politicians, judges, and officials.

Al Jaeger has been the Secretary of State in North Dakota for the last 30 years. This is Mr. Jaeger’s final term; at age 79, he’s not seeking re-election.

Back in February, Jared Hendrix and the North Dakota Term Limits committee submitted over 46,000 voter signatures on petitions to Jaeger’s office, enough to far surpass the 31,164 requirement to earn a spot on this November’s ballot. 

Yet, in March, Secretary Jaeger ruled that the petition fell far short of the requirement, throwing out over 15,000 otherwise valid signatures because the petitions were notarized by someone he “suspected” of fraud. Before making this public announcement, however, Jaeger had brought proponent Hendrix into his office and, along with the state’s attorney general, threatened criminal prosecutions unless he withdrew the petition.

Hendrix refused to cave. And with help from U.S. Term Limits, the North Dakota group challenged the secretary’s denial. Still, when a lower court judge agreed that Jaeger, with all his experience, could make such sweeping judgments to disqualify petitions, I feared the fix was in. 

But earlier this month, the surprise: the North Dakota Supreme Court ruled, unanimously, that Jaeger had misapplied the law and ordered the amendment placed on the ballot as Measure 1.

Yes. Misapplied. Deliberately?

Thankfully, the term limits amendment includes a provision to prevent itself, if passed, from being overturned except by another citizen initiative. 

We know how eager establishment politicians are to kill term limits by hook or by crook, mostly crook.

This is Common Sense. I’m Paul Jacob.

PDF for printing

See all recent commentary
(simplified and organized)
See recent popular posts

Categories
ballot access judiciary

Zombie Vote Protected

zombies, voting

A few weeks before the election, a federal judge has blocked Arizona legislation to combat voter fraud.

Opponents routinely characterize efforts such as this Arizona measure to ensure election integrity as “voter suppression.” Charges of racial discrimination often get tossed in to allow for the customary level of hysterical partisan denunciation.

According to Jon Sherman of the Fair Elections Center, even if  HB2243 is “not discriminatory on its face . . . it is an open invitation. It declares open season for discrimination on the basis of race, ethnicity, dress, English proficiency, anything else.”

Of course,HB2243 extends no such invitation.

The legislation states that registration forms shall contain such things as a statement “that if the registrant permanently moves to another state after registering to vote in this state, the registrant’s voter registration shall be canceled.”

It also authorizes the county reorder to cancel a registration when he “is informed and confirms that the person registered is dead.”

Sounds like it could certainly suppress the zombie vote.

Legislation should be as carefully worded as possible. But no degree of precision in a law designed to prevent persons from voting who are not entitled to vote will prevent opponents from charging that it’s really, deep down inside, about “declaring open season for discrimination.”

Had the Arizona legislature passed the new law in plenty of time to grapple with legal challenges, the reformmighthave been in place for the mid-​terms. Let’s hope HB2243 is in place and free of judicial encumbrance by 2024. 

Enacting this kind of legislation is of many things that need to be done to safeguard elections.

This is Common Sense. I’m Paul Jacob.

PDF for printing

Illustration created with DALL‑E

See all recent commentary
(simplified and organized)
See recent popular posts

Categories
education and schooling judiciary

The Choice in School Choice

private school, students, religious

The U.S. Supreme Court has ruled that state programs which help parents pay for private schooling may not discriminate against parents who want to send their kids to a religious school.

The court relied on its 2020 ruling that state programs subsidizing private schooling “cannot disqualify some private schools solely because they are religious.”

The present case pertains to a Maine program. The court determined that “Maine’s ‘nonsectarian’ requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause.”

It adds that a state government’s interest in not establishing a religion “does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

Maine’s tuition program is for families who live in regions without any secondary public school. Qualifying families can use the subsidy to pay for either public or private schooling in another part of the state. Before 1981, Maine had no problem with students going to religious schools under the program. In that year, the rule changed.

So-​called sectarian schools are, of course, often the major and sometimes the only private secondary-​school alternative to public schools in an area. According to the Council for American Private Education, 78 percent of all students who attend private schools in the U.S. attend schools that are religiously affiliated.

Proponents of keeping kids trapped in public schools are in an uproar over the court’s decision.

But it only stands to reason that school choice programs must permit choice.

This is Common Sense. I’m Paul Jacob.

PDF for printing

See all recent commentary
(simplified and organized)
See recent popular posts

Categories
education and schooling judiciary

School Choice Rescued

Tennessee, education, schools

Though not yet a complete victory for school choice, a recent decision by the Tennessee Supreme Court constitutes a big win for the Tennessee Education Savings Account Pilot Program.

The court rejected a major claim in a lawsuit filed by Nashville County and Shelby County to challenge the constitutionality of the program, which awards scholarships up to $7,300 to qualifying students so they can escape failing public schools.

The lawsuit contends that the program flouts a rule prohibiting the state legislature from passing local laws that are “applicable to a particular county . . . either in its governmental or its proprietary capacity.”

Judging that school districts aren’t counties and that the ESA program does not impair the ability of counties to govern themselves, Tennessee’s highest court threw out a determination to the contrary by lower courts and sent the case back down for review of other claims in the lawsuit.

The Institute for Justice and the Beacon Center of Tennessee, which have been working together on the case, are optimistic about the final outcome.

According to IJ attorney Arif Panju, the ruling means that “thousands of Tennessee parents and children trapped in failing school districts can look forward to seeking a better education this fall at a school of their choice.”

In its description of the program, the Tennessee government mentions the lawsuit and expresses the hope that the state will “succeed on appeal” and begin enrolling students in 2022.

This is Common Sense. I’m Paul Jacob.

PDF for printing

See all recent commentary
(simplified and organized)
See recent popular posts

Categories
ideological culture judiciary national politics & policies U.S. Constitution

Packing Unpacked

Supreme Court, Justice, court packing

The “court packing” notion that progressives itch to implement has obvious flaws — which have been addressed (but not settled) in the recent report of the Presidential Commission on the Supreme Court of the United States, initiated by the Biden Administration last April. 

The report, just out, did not give progressives what they want. “Opponents contend that expanding — or ‘packing’ — the Court would significantly diminish its independence and legitimacy and establish a dangerous precedent that could be used by any future political force as a means of pressuring or intimidating the Court. The Commission takes no position on the validity or strength of these claims.” 

Not a few Democrats wanted the Commission to take a very negative position on those claims. Democrats currently maintain a shaky hold on power in the Legislative and Executive branches. Had the Commission given them the green-​light to push progressives onto the Court — to overwhelm the current “conservative” majority — they might have consolidated power.

The report is inconvenient for that political move — as is Associate Justice Stephen Breyer’s opposition. Damon Root, at Reason, summarizes Breyer’s case: “It is a tit-​for-​tat race to the bottom. One party expands the size of the bench for nakedly partisan purposes, so the other party does the same (or worse) as soon as it gets the chance.” Breyer fears that court-​packing would undermine Court authority, and liberalism itself would suffer.

By “liberalism” I take Breyer to mean the order that is defined by the Constitution itself: separation of powers, basic rights, citizen control of government. And there is a way to save this kind of “liberalism”: fix the size of the Supreme Court in the Constitution.

The very opposite of court packing.

This is Common Sense. I’m Paul Jacob.

PDF for printing

See all recent commentary
(simplified and organized)
See recent popular posts

Categories
crime and punishment First Amendment rights general freedom judiciary Regulating Protest

No Longer Compelled?

Adam Germain

In October, Pastor Artur Pawlowski, who had been jailed during the pandemic for holding church services in Calgary, Alberta, was ordered as one condition of his probation to always append a statement of official government doctrine to his own public uttering of opinions about pandemic policy.

According to the October 15 ruling by Alberta Justice Adam Germain, when “exercising [their] right of free speech” to speak against lockdowns and vaccines, Artur Pawlowski, his brother Dawid, and Whistle Stop Café owner Chris Scott must also recite a disclaimer.

It reads, in part: “I am obliged to inform you that the majority of medical experts favour social distancing, mask wearing, and avoiding large crowds to reduce the spread of COVID-​19. Most medical experts also support participation in a vaccination program.”

Pastor Pawlowski told Fox News that he would “not obey this court order” to self-​denounce, and he likened the issuing court’s proceedings to the judicial proceedings of the Soviet Union.

“This crooked judge wants to turn me into a CBC reporter or CNN reporter, that every time that I am in public, every time I’m opening my mouth, I am to pray their mantra to the government.”

On November 25, Justice Jo’Anne Strekaf of Alberta’s Court of Appeal lifted this order compelling specific speech, which Justice Germain pretends is compatible with freedom of speech. Whether this latest ruling is permanent depends on what happens at a June 14, 2022 hearing.

Until then, at least, the creepy order has been suspended.

This is Common Sense. I’m Paul Jacob.

PDF for printing

See all recent commentary
(simplified and organized)
See recent popular posts

Categories
judiciary national politics & policies too much government

Emergency Effrontery

Joe Biden, Covid, Vaccines

The ruling was hardly shocking. Most constitutional scholars expected it, I think. That being said, the whole business is … shocking.

I refer to the 5th Circuit Court of Appeals coming down hard against the Biden Administration’s vaccine mandate.

Say those words, “vaccine mandate,” reflecting on how it was “enacted” — not by act of Congress — and the Occupational Safety and Health Administration’s tortured justification for forcing private companies seems doomed.

At least if the Constitution retains any of its meaning.

“The stay,” explains Reason editor Jacob Sullum, “which the court issued on Friday evening, says OSHA shall ‘take no steps to implement or enforce the Mandate until further court order.’ It is officially a preliminary pause ‘pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.’ But the court left little doubt that it would grant those motions, saying ‘petitioners’ challenges to the Mandate show a great likelihood of success on the merits.’”

The administration’s desperate shoehorning of OSHA’s statutory ability to concoct an “emergency temporary standard” (ETS) is an act of effrontery. 

Sullum, in his detailed coverage, shows just how extraordinary and inapt the reliance upon the ETS is. The COVID-​19 crisis cannot justify the mandate through the legal mechanism chosen. It is fairly obvious that, as the court put it, Biden’s decree “grossly exceeds OSHA’s statutory authority.”

Sullum quotes another judge’s concurring opinion to the effect that even a congressionally legislated mandate would be controversial, constitutionally.

But breathe easy: Nancy Pelosi’s and Chuck Schumer’s Congress has no interest in creating a rational and constitutional response to the crisis.

And our Congress? Well, it doesn’t exist.

This is Common Sense. I’m Paul Jacob.

PDF for printing

See all recent commentary
(simplified and organized)
See recent popular posts