We’re moving today from The Post to the paywall-free Reason (http://reason.com/volokh); http://volokh.com should also always forward to wherever we are blogging. Many thanks to The Post — and especially to the copy-editing desk and to Ben Sumner, who provided us with first-rate technical help — for all their help over the nearly four years that we’ve been here!
Occupational licensure, one of the most significant labor market regulations in the United States, may restrict the interstate movement of workers. We analyze the interstate migration of 22 licensed occupations. Using an empirical strategy that controls for unobservable characteristics that drive long-distance moves, we find that the between-state migration rate for individuals in occupations with state-specific licensing exam requirements is 36 percent lower relative to members of other occupations. Members of licensed occupations with national licensing exams show no evidence of limited interstate migration. The size of this effect varies across occupations and appears to be tied to the state specificity of licensing requirements. We also provide evidence that the adoption of reciprocity agreements, which lower re-licensure costs, increases the interstate migration rate of lawyers. Based on our results, we estimate that the rise in occupational licensing can explain part of the documented decline in interstate migration and job transitions in the United States.
The new study adds to the already substantial evidence indicating that licensing laws are a major obstacle to geographic mobility, particularly for poor and lower-middle class people seeking to move to areas with greater opportunity. We have gotten to the point where some 30 percent of Americans have to have licenses to legally work in their respective fields, including even some states that license florists and tour guides. The evidence also suggests that most of these laws do far more to suppress competition than protect consumers.
Like the closely related case of zoning restrictions on housing construction, licensing laws are a form of government intervention that harms the general public and the poor, while benefiting politically connected insiders. Both also greatly inhibit mobility and make it very difficult for people in economically depressed regions to move to areas with greater opportunity. Yet another similarity between zoning and licensing is that both have been severely criticized by policy experts across the political spectrum.
Sadly, thanks in part to widespread political ignorance, voters and politicians have largely turned a blind eye to both issues. Hopefully, that will begin to change.
From Monday’s district court decision in Hinds v. United States Government (E.D. Mo.):
In February 16, 2017, [self-represented] Plaintiff filed a 548-page pro se complaint, in which Plaintiff contends that by virtue of the Tax Code, the Government has established an institutionalized faith and religion of taxism. Plaintiff contends that this institutionalized religion has the effect of endorsing, favoring, and promoting organized religions, which Plaintiff believes violates the Establishment and Free Exercise clauses of the Constitution. He seeks declaratory and injunctive relief, including a permanent injunction enjoining the tax code from having any legal effect, as well as nominal damages.
On February 23, 2017, the Court ordered Plaintiff to file an amended complaint in conformity with the requirements of Federal Rule of Civil Procedure 8, which provides that a pleading must contain a short and plain statement of the grounds for the Court’s jurisdiction, a short plain statement of the claim showing that the pleader is entitled to relief, and a demand for the relief sought…..
Plaintiff filed a “Hybrid Pleading Making a Conscientious Effort to Comply with the Court’s Orders Manifesting an Amended Complaint” (“Hybrid Pleading”). There, Plaintiff contends that requiring citizens to file an individual tax return establishes a religion centered on the Internal Revenue Service (“IRS”), which has burdened Plaintiff’s First Amendment rights to free speech and free exercise of religion. Plaintiff further alleges that the challenged government conduct and activities have no legitimate, compelling interest or clear secular purpose, but have the purpose of endorsing religion with the primary effect of advancing it….
Unsurprisingly, the district court was unimpressed.
So held a New York appellate court Tuesday, upholding the lower court’s dismissal of a lawsuit brought by Cheri Jacobus against President Trump. Here are the facts and alleged facts that led to the lawsuit, with the allegedly libelous statements at the end (drawn from the lower-court opinion):
Plaintiff is a “political strategist and public relations consultant” and a frequent commentator on television news channels and other media outlets, offering “political opinion and analysis from the Republican perspective.” … On or about May 18, 2015, plaintiff received a message from … Jim Dornan, then working for the [Trump] campaign, asking if she would be interested in becoming the campaign’s communications director. The following day, plaintiff met with Dornan and [then-campaign-manager Corey] Lewandowski, and according to plaintiff, they expressed interest in working with her, with Lewandowski asking for her salary requirements. Later that day, Dornan sent a message to plaintiff, stating that Lewandowski wanted to meet with her again. By email to Lewandowski, plaintiff provided her salary requirements and indicated her interest in a position with the campaign.
On June 9, 2015, plaintiff met with Dornan and Lewandowski for a second time. At this meeting, during a discussion about communications issues, [plaintiff alleges that] Lewandowski became agitated, loud, and rude, exclaiming that the FOX television network would do whatever the campaign wanted, and telling plaintiff that she had no idea how FOX works. As Lewandowski’s agitation mounted, Dornan left the meeting, and, soon after, plaintiff also excused herself. According to plaintiff, she then decided that she could not work for Lewandowski, and shortly thereafter, in reply to a text from Dornan, advised him that working with Lewandowski would be too difficult. No further discussions about a position with the campaign were held with Lewandowski, or with Dornan, who subsequently stopped working for the campaign. Plaintiff pursued the position no further, nor was she offered it….
In the [following] months …, plaintiff frequently appeared on television as a commentator, and posted comments on social media sites, including Twitter, both defending and criticizing Trump. On January 26, 2016, plaintiff appeared on a CNN cable television show to discuss Trump’s threat to boycott one of the Republican presidential primary debates unless FOX removed Megyn Kelly as a moderator. During her appearance, plaintiff characterized Trump as a “bad debater” and stated that he “comes off like a third grader faking his way through an oral report on current affairs” and was using the Megyn Kelly dispute with FOX as an excuse for avoiding the debate. The next day, during an on-air telephone call with the host of MSNBC’s Morning Joe program, Lewandowski referenced plaintiff’s comments about Trump, stating that “[t]his is the same person … who came to the office on multiple occasions trying to get a job from the Trump campaign, and when she wasn’t hired clearly she went off and was upset by that.”
On February 2, 2016, plaintiff again appeared on CNN along with a Trump supporter to discuss Trump’s claims that his campaign was self-funded and CNN’s investigation finding that one-third of his campaign funds came from other sources. Plaintiff remarked on the show that “there had been a Trump Super PAC, [that] the campaign lied about it, and then shut it down,” as was reported in the news. She also said that the campaign had approached several Republican billionaire donors, all of whom had declined to donate money to Trump.
Later that night, Trump posted the following on Twitter: “Great job on @donlemon tonight @kayleighmcenany @cherijacobus begged us for a job. We said no and she went hostile. A real dummy! @CNN.” A day later, on February 3, 2016, plaintiff’s then lawyer sent Trump a cease and desist letter. Two days after that, on February 5, 2016, Trump posted the following tweet about plaintiff: “Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility!”
My friend and sometime co-clerk, UCLA law professor Jon Michaels, has a new book out from Harvard University Press — Constitutional Coup: Privatization’s Threat to the American Republic. You can read the introduction to the book here, but the following quote (from pp. 11-13) will give you a flavor of the argument:
This constitutional calamity is privatization’s evisceration of the administrative separation of powers — again, the often overlooked but nevertheless undeniable architecture that effectively constitutionalized twentieth-century administrative governance, restoring and renewing the framers’ commitment to separating and checking power through a mixture of democratic and juridical actors. In brief, today’s fusion of market and political power — this running government like a politicized business — has the effect of sidelining or defanging otherwise independent, expert, and truly mandarin civil servants and marginalizing the populist contributions of an otherwise empowered and diverse civil society. The fusion also has the effect, quite often, of funneling government responsibilities through private or essentially privatized corridors, far away from public scrutiny and legal constraints. All told, sovereign power is being concentrated in the hands of presidentially appointed agency heads and the private actors paid to do their bidding. The end result is an unprecedentedly potent and potentially abusive State, led by a largely unfettered executive capable of wielding concentrated sovereign power in a hyperpartisan or crassly commercialized fashion.
For those distressed by this recent turn of events, the framers’ commitment to checks and balances provided, and still provides, an answer. It provided an answer to constrain not only the First Congress but also the alphabet agencies arising out of the New Deal and World War II. That same commitment needs to be renewed today, to address the State-aggrandizing, power-concentrating challenges posed by twenty-first-century privatization.
Today is the operative word. One is reminded of the hopeful yet chilly words of Benjamin Franklin, when asked by an inquisitive Philadelphian what form of government the framers concocted: “A republic, if you can keep it.” Generations past have done their best to keep it. Now that it is our turn, the instant challenge is privatization. If we wait much longer, we’re certain to reach a tipping point, at which time reversing the privatization trend will prove next to impossible. This is true on legal, pragmatic, and even psychological levels.
Legally, the more privatization is allowed to continue apace without muscular constitutional pushback, the harder it will be for the courts to take late-arriving challenges seriously. Even if those challenges prove compelling, the courts’ hands may very well be tied as the federal landscape continues to be drastically and possibly inexorably altered by the forces of privatization and as a host of sticky cultural norms, instances of congressional acquiescence, and years of historical gloss render the privatized State constitutional by default.
Pragmatically, we will have hollowed out the government sector to such an extent that we may well lack the capacity, infrastructure, and know-how to reclaim that which has increasingly been outsources or marketized. Indeed, there is seemingly no other explanation for the State Department’s recent practice of renewing contracts with the notorious Blackwater firm after the Obama administration sanctioned Blackwater for illicit arms smuggling, after federal prosecutors brought murder charges against Blackwater employees, and after the American-backed governments in Baghdad and Kabul designated Blackwater employees as personae non gratae. Apparently, the United States had no viable in-house alternative.
And, psychologically, we will have done such a good job disassociating the public services we like from the government itself — and will have been doing that job for so long — that we’ll risk altogether forgetting the State’s sovereign, democratic mission. Indeed, the more we indulge the fiction of governmentless government, and the longer we enable those who demonize government workers, the harder it becomes to generate support, or even respect, for the actual public sphere and its role in the political economy.
It is therefore imperative to reverse course now: to “insource” State responsibilities that have long been privatized, to redeem the constitutionally legitimating project of the administrative separation of powers, and to make clear that government’s legality and efficacy turn on it being a manifestly unbusinesslike institution. This is how we carry the commitment to separation of powers all the way forward.
I’m not done reading the book yet, but this is all very interesting, and there is plenty to both agree and disagree with. I encourage anyone interested in the administrative state, separation of powers, or privatization to read this book, and I might write more about it in the future.
Via LearnedLeague: how many countries can you name that are entirely south of the Tropic of Capricorn?
A clerkship with a Supreme Court justice is among the most prestigious positions a young attorney can obtain. A series of articles in the National Law Journal documents how most Supreme Court clerks seem to be cut from the same cloth: Most clerks are white males and have attended one of a handful of elite law schools. Yet as the articles also show, the extent to which different justices achieve diversity in their chambers varies quite a bit — and perhaps not always in the ways one might expect.
Among the reports’ findings:
- “Since 2005 — when the Roberts court began — 85 percent of all law clerks have been white. Only 20 of the 487 clerks hired by justices were African-American, and eight were Hispanic. Twice as many men as women gain entry, even though as of last year, more than half of all law students are female.”
- “Since Chief Justice John Roberts Jr. joined the court in 2005, just 8 percent of the law clerks he’s hired have been racial or ethnic minorities; At the other end of the spectrum, 31 percent of Justice Sonia Sotomayor’s clerks have been non-white, making her chambers the most diverse.”
- Since joining the Supreme Court in 1993, Justice Ruth Bader Ginsburg has hired only one African American clerk. (Further, as noted during her confirmation hearing, then-Judge Ginsburg never hired an African American clerk during her 13 years on the U.S. Court of Appeals for the D.C. Circuit.)
- “While Ginsburg and Breyer have hired men and women in equal numbers, other chambers continue to be male-dominated. The court’s swing vote, Anthony M. Kennedy, has hired six times as many men as women as law clerks since 2005.”
- Since 2005, Roberts and Justices Kennedy, Stephen G. Breyer and Elena Kagan have hired a majority of their clerks from two law schools, Harvard and Yale.
- Justice Clarence Thomas has “hired from 23 different law schools since 2005, with one-third of his clerks coming from schools outside the Top 10 on the U.S. News and World Report rankings.”
- A disproportionate share of clerks since 2005 clerked for a handful of appellate judges before their Supreme Court clerkships, including Judges Brett Kavanaugh and Merrick Garland on the D.C. Circuit, Judge J. Harvie Wilkinson III on the 4th Circuit, Judge Robert Katzmann on the 2nd Circuit, and Judge Alex Kozinski on the 9th Circuit.