Friday, May 07, 2021

Reading Lists Right in a Pandemic: A Comment on Alabama Association of Realtors and the Eviction Moratorium

Earlier this week, a district court in Alabama Association of Realtors v. Dept. of Health and Human Services invalidated the federal eviction moratorium as exceeding the power delegated to the Secretary of Health and Human Services. Lower courts have split on this question -- some upholding the moratorium, others striking it down -- and unlike some I don't view the argument that the moratorium exceeds the statutorily delegated power to be wholly frivolous (at least one judge said the moratorium exceeds the federal government's constitutional authority under the commerce clause, and that argument I absolutely find wholly frivolous).

Reading the AAR opinion, though, it seemed like at least part of the court's analysis was predicated on a basic misunderstanding of the statutory text.  Warning: this is a pretty deep dive into some relatively boring grammar points. But that's a lot of what statutory interpretation is, and I think doing these dives can be helpful (I did something like this in analyzing what the Israel Anti-Boycott Act actually did, and folks seemed to find it useful).

Here's the relevant passage, from the Public Health Service Act (42 U.S.C. § 264(a)):
The [CDC], with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

One source of controversy is the degree to which the second sentence limits the first -- that is, whether the regulations which "in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases," mentioned in the first section, are only things like "inspection, fumigation, disinfection [etc.]" listed in the second sentence. But accepting that they are, the eviction moratorium may still fall under the unenumerated "other measures" mentioned at the end of the sentence. On that point, the key question is what sorts of regulations can be justified as "other measures". Here's what the district court said on that question:

These enumerated measures are not exhaustive. The Secretary may provide for “other measures, as in his judgment may be necessary.”  But any such “other measures” are “controlled and defined by reference to the enumerated categories before it.” These “other measures” must therefore be similar in nature to those listed in § 264(a). And consequently, like the enumerated measures, these “other measures” are limited in two significant respects: first, they must be directed toward “animals or articles,” and second, those “animals or articles” must be “found to be so infected or contaminated as to be sources of dangerous infection to human beings.” 

The court is correct that the contours of a catch-all clause at the end of a list, like "other measures", must be interpreted by the enumerated categories actually listed (this is known as the ejusdem generis canon). But in saying that the "other measures" must be directed towards "animals or articles", the court seems to misinterpret the basic grammar of the statute.

Let's look at the text again.

For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

One way of reading this list is to say the secretary is empowered to do seven separate things: (1) inspection, (2) fumigation, (3) disinfection, (4) sanitation, (5) pest extermination, (6) destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and  (7) other measures. Each of these are separate entries in the list of items which "in his judgment may be necessary" and don't otherwise modify one another. Broken down, the statute would be read like this:

For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such 

(1) inspection, 

(2) fumigation, 

(3) disinfection,

(4) sanitation, 

(5) pest extermination,

(6) destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and

(7) other measures,

 as in his judgment may be necessary.

(Notice that I didn't change the word order of the statute at all -- I just added numbering, indents, and line breaks).

But the district court seems to read this passage differently. It thinks that all the entries on the list are actually modifiers of "animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings". So the Secretary can provide for "inspection ... of animals or articles found to be so infected...", "fumigation ... of animals or articles found to be so infected...", "disinfection ... of animals or articles found to be so infected ..." and so on -- and consequently the "other measures" must also be things done to "animals or articles found to be so infected." Understood this way, the statute would be organized like this:

For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such 

(1) inspection, 

(2) fumigation, 

(3) disinfection,

(4) sanitation, 

(5) pest extermination,

(6) destruction

of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

But this is a very awkward and I think obviously incorrect reading, for several reasons.

First, not all the elements of the list naturally modify "animals or articles found to be so infected ...". Certainly it makes sense to engage in "inspection of animals or articles found to be so infected or contaminated as to be sources of dangerous infection", or "destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection." But it's quite awkward to speak of engaging in "pest extermination of animals or articles ...." or "fumigation of animals or articles" (can you fumigate an animal?). That's a hint that these terms are meant to stand alone and not be attached to "animals or articles."

Second, if "destruction" is the last element of the list of things modifying "of animals found to be so infected ...", then it should be preceded by an "and" or an "or" -- something like this:

For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such 

(1) inspection, 

(2) fumigation, 

(3) disinfection,

(4) sanitation, 

(5) pest extermination, or

(6) destruction

of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, 

and other measures,

as in his judgment may be necessary.

That "or" may be small, but it is crucial -- it's what makes all of the preceding list elements relate to "animals or articles" and so generate the implication that "other measures" must connect to "animals or articles" as well. Consider the following sentence:

You can walk, swim, run for a mile, and engage in other forms of exercise to stay fit.

The most natural way of breaking that down is: 

You can

(1) walk,

(2) swim,

(3) run for a mile, and

(4) engage in other forms of exercise

to stay fit.   

"Other forms of exercise" would be interpreted to be things akin to walking, or swimming, or running for a mile -- so rowing I'd say is probably in, while "brain teasers" probably isn't.

But let's say I intended "for a mile" to modify not just "run" but all the preceding elements of the list ("walk for a mile", "swim for a mile", and "run for a mile"). At the very least, I'd need an "and" or "or" before "run": 

You can

walk, 

swim, or 

run

for a mile, 

and engage in other forms of exercise

to stay fit. 

Without that "or", the sentence is grammatically improper if it's meant to be structured this way (it'd be like if I said "You can walk, swim, run for a mile to stay fit." There the missing "or" really stands out).

That tees up the third problem -- if "and other measures" is meant to be the last item in the list of measures that are directed at "animals or articles", then the text is out of order. You can already spot that  in our exercise sentence with our awkward extra indent for "and engage in other forms of exercise". In that sentence, if we wanted "engage in other forms of exercise" to be the last element of the list of activities one can do "for a mile to stay fit," the sentence would more naturally be drafted like this:

You can

walk, 

swim, 

run,

and engage in other forms of exercise 

for a mile to stay fit. 

Written this way, then it would be sensible to say that these other forms of exercise must also be done "for a mile" (and perhaps, further limits the exercises to the sorts of exercises which can be done for a mile -- so rowing still works, but weightlifting does not). 

Likewise, if we wanted "and other measures" to be the last part of the list, all of whose components which are meant to be tied to "animals or articles", then it is in the wrong order. The text should read:

For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such 

(1) inspection, 

(2) fumigation, 

(3) disinfection,

(4) sanitation, 

(5) pest extermination,

(6) destruction,

(7) and other measures 

of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

But the text doesn't say that (partially because the grammar doesn't work, because one can't really have "other measures of animals or articles found to be...", which is yet another reason why this reading is suspect -- really, the better way to go about it would have been to just put the "and" or "or" before "destruction"). 

Put that all together, and the district court's view that "other measures" must be "directed toward 'animals or articles ... found to be so infected or contaminated as to be sources of dangerous infection to human beings'" seems difficult to square with the text at hand.

What difference does this make? Well, recall the key question is whether an eviction moratorium is sufficiently similar to the enumerated items in the list so that it can be reasonably included under "other measures". If all elements of the list must be "directed toward 'animals or articles ... found to be so infected or contaminated as to be sources of dangerous infection to human beings'", then it's fair to conclude, as the district court did, that an eviction moratorium is rather far afield from the enumerated contents. An eviction is not an animal or an article, after all.

But if "animals or articles found to be so infected ..." is tied to only one entry in the list ("destruction", as in "destruction of animals or articles ..."), then the the overall content of the list is much broader. The relevant question becomes whether an eviction moratorium is sufficiently similar to things like inspection, fumigation, disinfection, sanitation ... etc. etc.

So: is it? I'm not sure, honestly (as I said at the top -- I don't think the argument that the eviction moratorium is not authorized by Section 264 is utterly frivolous). Clearly, there are differences between things like inspections or sanitation versus an eviction moratorium. On the other hand, if they were the same, then we wouldn't need the "other measures" catch-all to expand the Secretary's authority. The point of having an "other measures" clause is to permit the Secretary to do things that aren't included in the explicitly enumerated list. And ensuring people have the ability to stay in place during a highly contagious pandemic doesn't strike me as being so utterly disconnected from things like "sanitation" or "inspection" that it fails the ejusdem generis canon (if the "other measures" the Secretary proposed was, say, changing the lyrics of our national anthem to "Please spare us from the dreaded 'rona!", that would be an example of such a disconnect).

Ultimately, I think the better argument is that the Secretary should get deference here. At the very least, I think the district court was wrong in claiming the text is "plain" in demonstrating the impermissibility of the eviction moratorium, and it's worrisome that the court's reasoning to the contrary seems to rely on a basic misreading of the text itself. I worry that there may be, unfortunately, a wave of judges who think of themselves as hard-nosed textualists but who don't always do a good job reading texts, and the result often is the smuggling in of ideological or partisan biases under the guise of austere, legalistic decision-making.

Monday, May 03, 2021

The Linfield Aggression (and What It Tells Us About Vulgar Anti-Academic Discourse)

Some of you might have come across the wild-and-getting-wilder fiasco that is currently embroiling Oregon's Linfield University. The quick and dirty summary:

  • (Jewish) tenured professor and faculty trustee accuses the university board of turning a blind eye to sexual assault by high-level collegiate officials, and the university's (Black) President of making antisemitic remarks.
  • University board of trustees dismisses complaints and tries to sweep them under the rug.
  • Professor goes public with complaints; faculty votes no-confidence in the administration; ADL and other local Jewish organizations rally behind professor.
  • University fires the (again, tenured) professor with no notice and no process -- he finds out when he tries to log in to his email and is locked out.
  • Outcry grows larger, university president refuses to resign and commissions a report from the local NAACP saying he's the victim of anti-Black bias.
That's pretty rough, but it gives you the basic idea.

From what I've seen, the Linfield administration has gone on a truly drunken power trip here (it's explanation for why it can summarily terminate a tenured professor without any of the procedural protections guaranteed in the faculty handbook is beyond absurd), and for the most part that's how it's being covered in the academic community -- university administrators abusing power, almost universal rallying in defense of the Jewish professor who was terminated as a whistle-blower.

I'd just note that there is a vulgar understanding of the state of academic and/or "anti-oppression" discourse that I think would not predict this response. That is, given that the terminated academic is Jewish and claiming antisemitism, and the terminating university president is African-American, those who hold the vulgar view would assume that the academic world would either ignore or outright support the injustice done to the Jewish professor because, after all, automatic hierarchy of oppression and Jews-are-White etc etc. That this has not been the reaction, and that there has again been near-universal support for the Jewish faculty member, perhaps might be thought to falsify some of the more uncompromising presumptions of the vulgar discourse.

It won't -- these presuppositions are no doubt unfalsifiable -- but it should.

Sunday, May 02, 2021

The Reverse (Full) Livingstone (aka "The Hannity"?)

The Jerusalem Post wrote an article covering allegations of antisemitism against Sean Hannity after he referred to Bernie Sanders as "Bolshevik Bernie". The Post noted the long history of "Bolshevik" being used to tar Jewish public figures with left-of-center views as dangerous threats to the integrity of the nation, even (or especially) when those figures' positions have little in common with Soviet Bolshevism but rather appear to be social democratic.

Hannity is furious (I suppose when is Hannity not furious?), and is demanding a "retraction" from the Post -- despite the fact that the Post's article was a news story simply reporting on the controversy, not making any judgment of its own.

The basis for Hannity's demand?
“I demand an immediate retraction & apology from the @Jerusalem_Post,” Hannity tweeted Friday evening. “Israel has no greater friend, ally and supporter in the U.S. than me. I have a record of unwavering and passionate support for the state of Israel for 33 years on radio and 25 years on TV.”

Hannity mentioned what he described as friendly relations with Israeli Prime Ministers Benjamin Netanyahu, Ehud Barak, and the late Shimon Peres, which he misspelled Perez.

I've noted before the frequent usage of pro-Israel attitudes as an attempted "get-out-of-antisemitism-free card", but it seems time we give it a more formal name. 

A related practice, it seems, is "the Livingstone Formulation", where one dismisses accusations of antisemitism on the grounds that those accusations actually stem from naught but a desire to silence "criticism of Israel". I've dubbed "the full Livingstone" as those cases where this dismissal is made even when the conduct that is accused of being antisemitic has nothing to do with Israel (as it was not in Livingstone's original case).

So, from that, I'd suggest that where someone dismisses an allegation of antisemitism by noting they are a "strong supporter of Israel", we dub that a "reverse Livingstone." And when, as here, the allegation of antisemitism has nothing to do with one's views on Israel, then that would be a "reverse full Livingstone", or, perhaps, the "Hannity".

Being "Asked to Recount an Experience" is Nazism, McCarthyism, and Communism All Rolled Into One!

Robert Steinbuch, a law professor at Arkansas-Little Rock, has some thoughts on an academic event on anti-racism he recently attended featuring Ibram X. Kendi. The event itself he found interesting -- "I found some of the dialogue valuable. We scratched the surface of a real substantive debate. It was an important beginning. More real discussion is needed." But problems emerged once the conversation shifted to Zoom breakout rooms, where Kendi encouraged participants to share instances where they had made "affirmative efforts at being Anti-Racist."

This, apparently, is one of the greatest affronts to human dignity and academic integrity that has ever shadowed a university campus. It is, we're told, reminiscent of Nazism, and McCarthyism, and Stalinism. No, I'm not exaggerating -- all of those analogies are made, even as Steinbuch admits that there was absolutely no statements that participation was compelled nor any penalty for noncompliance. This is, believe it or not, just a taste of how Steinbuch describes what he was asked to, er, endure:

Sadly, academics across the country engaging in such activities often don't recognize the meaningful similarity between socially coerced statements of Anti-Racist activities and the anti-communist oaths of the McCarthy era—evincing the failure, regularly repeated, to appreciate tragic histories so often justified by good intentions. Indeed, the McCarthyites were actually right that Communism is evil—its adherents having directly killed tens of millions of people—notwithstanding that such proclamations might not be de rigueur today.

The McCarthyites were wrong, however, in forcing the public adoption of that view through sworn allegiance, as is well recognized today. Being allowed to be wrong, particularly in the political context, ironically leads to improved democracy and enlightenment. Learning good citizenship is not like memorizing multiplication tables. It must actually be done to be mastered.

Such community shaming exercises surely weren't restricted to conservatives during the Red scare, but conservatives have been branded—perhaps not exclusively but certainly disproportionately—with that ignominy, nonetheless. While McCarthyites well deserve to share that label, in reality those actions were emblematic of the archetypal totalitarianism of both the far left and the far right during the last century that resulted in the most homicides in human history.

Indeed, Soviets and Nazis readily adopted mandatory oath taking and social shaming as methods of forced conformity in addition to imprisonment, torture, and murder. My father lived under the former during World War II; many other relatives died under the latter.

During that instance in which I was caught in Zoom's version of Gene Roddenberry's transporter buffer, I was afforded a fleeting moment to reflect on my options regarding what I perceived as a social conformity exercise: I feared that not responding would garner the now seemingly acceptable label of White Fragility, much like those who refused to chant the mantra of having never been a member of the communist party were effectively tattooed with a scarlet "R."

Again, there's even more in that vein. 

My first thought on reading the account of Kendi's event was that Kendi frames the question in such a way that presupposes all participants, many if not most of whom are White, have done something actively anti-racist that they can share -- with the purpose of elucidating  those experiences presumably to encourage and validate them. I flag that because of how it flies in the face of how the popular discourse attacking such events presents their treatment of White people. In contemporary anti-racist discourse, White Americans, we are told, are viewed as little better than maggots, whose only contribution to anti-racism discourse is to loudly announce their status as human garbage and plead for forgiveness and grace. Kendi's event does exactly the opposite of this -- it is predicated on the presumption that everyone is trying and we should encourage them in their efforts. Alas, some folks are impossible to please, I guess.

But my main observation on reading Steinbuch's lament was that he perhaps can be asked to grow a slightly thicker skin here. McCarthyism? Nazism, totalitarianism? Because one was asked -- not even compelled, but asked -- to share a life experience? If ever there was a moment for "our grandfathers stormed the beaches at Normandy ..." generational shaming, this is it.

Let's be clear: I have been part of educational spaces, as either a student or a teacher, for most of my life. Exercises of the form "recount a time when you ..." are not exactly unheard of, nor are they typically perceived as an exercised in authoritarian compelled speech and mandatory ideological rituals. "Recount a time when you were proud of your community." "Recount a time when you were treated unfairly." "Recount a time when you stood up for others." Using such recollections as a starting point for further discussion strikes me as perfectly normal, and I fail to see how "recount a time when you were actively anti-racist" is any different. And if one honestly, genuinely, cannot think of any moment in one's life where one has done anything anti-racist, I'm not convinced that isn't a valid subject for further thought and discussion either.

But that tees up Steinbuch's other problem, which is that he does not think the actions he most associates with "anti-racism" will be accepted as such in this milieu. Steinbuch's self-identified "most significant Anti-Racist academic endeavor.... has been my effort to reduce racial disparities by recognizing the harm caused by mismatch resulting from highly race conscious admissions programs in higher education." His findings represent an "unpopular and inconvenient truth" that "is not generally welcomed discourse in our overwhelmingly leftist academia across the country."

I've written quite a bit on mismatch theory myself -- see here, here, here, here, and here -- and I'm not going to rehash all my points again. What I will say is that, if Steinbuch thinks it is impossible to present the relevant data in such a way that it could be included in an anti-racist discussion (even in "overwhelmingly leftist academia"), he's not trying hard enough. Observing that even after implementing race-based affirmative action programs in law schools we continue to see disparities in success rates for racial minority lawyers compared to Whites -- a finding which suggests that such programs are at the very least not a sufficient condition for eliminating racial disparities and at most need to be substantially retooled or even replaced with something different -- could easily fit into these conversations.

After all, "anti-racist" discourse rarely is accused of being too pollyannaish about the ability of This One Weird Trick to end racism, whether that trick is affirmative action or anything else. The stereotype is if anything the opposite -- being very concerned about the resilience of racial disparities in spite of concerted efforts to contest them. There's no reason why this resilience should evaporate in the face of affirmative action programs, any more than it does in the face of any other proposed intervention. So I'll say that as data, the findings of the mismatch theorists are important factoids that should be considered; which is not the same thing as saying that their normative implications are self-evident or one-sided (there are all manner of reasons why one could accept the raw data behind the mismatch hypothesis and still think race-based affirmative action programs are justifiable and/or desirable -- I go into some in the above-linked posts).

Of course, saying that Steinbuch's data should be considered is not the same thing as saying it (to say nothing of whatever normative upshots he draws from it) must be accepted on faith or without criticism. Allowing for critique is an important part of open discussion too. And perhaps these criticisms will sometimes be challenging or harsh (as, no doubt, proponents of affirmative action -- who hear Steinbuch as saying that they are in fact contributors to the harm of generating racist disparities in higher education -- perceive his critiques to be in relation to themselves).

But that returns us to the matter of growing thicker skin. Simply put, if this is the contribution Steinbuch wants to make to the anti-racism discourse, it isn't unfair -- or McCarthyist, or Nazi-like, or totalitarianism of any stripe -- to ask him to actually make it, and stand behind it, and participate in the conversation about it, even if that conversation isn't one where all participants fall over themselves to agree with every conclusion he's made.