Never before has there been a presidential candidate quite like Marianne Williamson, the Democratic hopeful and purveyor of healing crystals who wants to combat the “dark psychic force” shrouding the White House. But that battle can’t be fought in typical fashion, she says. Instead, she suggests that the country create a Department of Peace.

The approach is Williamson’s modus operandi, which consists of taking established political norms and turning them topsy-turvy. We don’t have a health care system, we have a sickness care system. We cannot just suppress violence, we also need to create nonviolence. We should not wage war, but instead, we must wage peace.

Williamson correctly acknowledges the pitfalls of our current attitude toward defense. “We spend more on our military than the next nine largest militaries in the world,” the plan explains. “As has become evident in Afghanistan, Iraq and Syria, as well as against terrorist enemies like ISIS, at best our military can solve part of the issue, leaving the true, underlying problems unaddressed.”

And the way to do that, she says, is to deploy global peace-building support and humanitarian aid resources—food, health care, education, and more—to assist countries in ending conflict.

It’s an attractive idea, and parts may even be prudent in countries where U.S. military intervention has contributed to community decay. Take Afghanistan, for instance, where decades of conflict have left many without access to food and water. But would Williamson’s plan make a difference?

Probably not.

That our modern-day mindset toward the military has been a failure is largely wrapped up in the regime change wars we’ve waged. Such endeavors are doomed, most notably because the U.S. does not (and cannot) know the cultural underpinnings of every foreign nation. Why would peace-building be any different?

A 15-year study by Susanna P. Campbell, an assistant professor at the School of International Service of American University, hits at the heart of that very query. After spending time in Burundi, Democratic Republic of the Congo, Nepal, South Sudan, and Sudan, she concludes that international attempts at peace-building fail to produce the desired results, as those efforts are inherently accountable to foreign entities, not the local communities where the work takes place.

Aid workers on the ground—who, in Williamson’s plan, would be accountable to the U.S. government—are working to fulfill the demands of faraway stakeholders without fully integrating into the cultural landscape. Success is often measured in how much money workers spend out of the allotted project funds.

“People focus on spending. They have so much to spend and so little time,” one international aid worker in South Sudan told Campbell. “People spend 40 percent of their time talking about their burn rate [the rate at which they spend allocated funds].” Campbell suggests a local approach, where international aid groups must answer to communities—not the other way around. Such a model would be fantasy if taxpayers were funneling billions of dollars into the Department of Peace.

Williamson also proposes a broad domestic plan that is conspicuously light on specifics. If president, the spiritual guru would “effectively treat and dismantle gang psychology,” “rehabilitate the prison population,” and “address factors such as drug and alcohol abuse, mistreatment of the elderly, and much more.” Okay, but how?

Part of that would be accomplished with her Peace Academy, she says, a four-year institution to complement U.S. military academies. Graduates will serve at least five years in public service, where they will work toward violence prevention, either domestically or abroad.

It’s hard to argue with warm and fuzzy ideas like “violence prevention” and “conflict resolution,” which Williamson says she would like to see taught in schools. True to her campaign, the presidential hopeful has taken the conventional conversation and flipped it on its head, making us question why things really are the way they are. But a Department of Peace is unlikely to meaningfully reduce our aimless military pursuits and bloated defense spending—let alone the alcoholism and gang violence Williamson also hopes to fix.

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2019-08-21 17:50:42

New data from the National Survey on Drug Use and Health (NSDUH) provide further evidence to support a counterintuitive conclusion: The dramatic increase in deaths involving prescription analgesics since 2000 cannot be explained by a dramatic increase in misuse or addiction rates, because there was no such increase.

Prior NSDUH data showed that rates of past-month “nonmedical use” and past-year “pain reliever use disorder” barely changed from 2002 (when the survey began in its current form) through 2014, even as deaths involving these drugs rose by 175 percent. The survey questions on these topics changed in 2015, so the more recent numbers are not comparable. But we now have four years of data with the new wording, and they tell a similar story.

According to NSDUH, the rate of “prescription pain reliever misuse” fell in 2016 and 2017, even as deaths involving those drugs continued to rise. The rate fell again in 2018, and that year deaths may also have declined, judging from preliminary CDC data. The rate of “pain reliever use disorder,” meanwhile, fell in 2016 and 2017 but stayed the same in 2018.

The lack of correspondence between deaths involving prescription analgesics and illegal consumption or addiction rates suggests that patterns of use changed in a way that made fatal outcomes more likely. If nonmedical users started taking prescription narcotics more frequently, in higher doses, or in more dangerous combinations with other drugs, those shifts would help explain the increase in deaths.

In 2017, just 30 percent of opioid-related deaths involved prescription analgesics, and the records compiled by the CDC indicate that 68 percent of those cases also involved heroin, fentanyl, cocaine, barbiturates, benzodiazepines, or alcohol. The role of drug mixtures is probably even bigger than those records suggest. In New York City, which has one of the country’s most thorough systems for reporting drug-related deaths, 97 percent of them involve more than one substance.

The evidence does not favor a simple narrative in which more opioid prescriptions led to more abuse and addiction, which in turn led to more deaths. The “opioid crisis,” which seems to be part of a long-term upward trend in drug-related deaths that began in 1979, might more accurately be described as a problem of increasingly reckless polydrug use, a problem that cannot be solved—and may be worsened—by demanding wholesale reductions in pain pill prescriptions.

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While speaking to reporters at the White House on Tuesday, President Donald Trump tried to argue that his trade war was sapping China of its economic strength.

Instead, he inadvertently pointed out how the trade war is also hurting American companies—and seemed to suggest that his administration could be preparing to bail out of the world’s most profitable businesses.

“If I didn’t help certain companies—American companies, like Apple,” Trump said, before promising that any assistance given to Apple would be “for a very short period of time” until the tech firm was able to relocate its supply chains out of China.

“If I didn’t help them, they would have a big problem,” Trump said.

Given the White House’s haphazard handling of the trade war and the president’s propensity for going off-message, it’s hard to say what exactly Trump will do. But it is notable that he seems to be considering such a deal—just days after having dinner with Apple CEO Tim Cook. After that Friday night dinner, Trump told reporters that Cook “made a very compelling argument” about how tariffs were making it more difficult for Apple.

It seems likely that Apple will take a beating from the next round of tariffs set to take effect on September 1, but so will everyone else. According to an analysis from investment bank JP Morgan, the next round of tariffs will cost the average household between $600 and $1,000 annually, and Apple figures it will be one of many well-known American brands that will take a hit.

It’s possible to interpret Trump’s remarks on Tuesday as him suggesting that other American companies could get similar bailouts—but that’s an even more untenable position. Trump’s earlier bailouts of farmers hurt by the trade war have already cost more money than all his tariffs have generated, so how would the White House pay for another round of tariff relief aimed at huge corporations like Nike, Boeing, and Apple? Even if there was a way to do that, would the same bailouts be offered to smaller businesses?

That’s pretty unlikely. Again, look at how the farm bailout was handled. An analysis by the Environmental Working Group, an agriculture policy center, found that 54 percent of the first $8.4 billion spent by the Trump administration’s tariff relief program flowed to just 10 percent of farmers receiving aid. More than 1,000 people living in America’s 50 largest cities have also received bailout payments—which isn’t too surprising since the federal government has a long history of sending farm subsidies to people who aren’t farmers. In all, the farm bailouts are a good indication of the problems with a centrally planned economic policy. It might sound good to say that we’ll cover the losses of farmers and companies hurt by the trade war, but actually doing that results in typical bureaucratic waste.

If Trump is suddenly more concerned about the plight of American businesses forced to pay his tariffs, then offering to bail Apple out is exactly the wrong thing to do. Even if some sort of federal subsidy would help Apple avoid the tariff costs, it would do nothing to help all the other American businesses that are suffering under those same tariffs—companies whose CEOs don’t have access to dinner with the president.

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2019-08-21 16:45:45

One year after Siwatu-Salama Ra was convicted of assaulting a woman with a deadly weapon and committing a felony while in possession of a firearm, the Michigan Court of Appeals has reversed her conviction. Both charges stemmed from an incident in which Ra sought to protect herself, her 2-year-old daughter, and her mother from a woman who was threatening to run them down with her car. 

As Reason previously reported, the incident in question occurred while Ra, then pregnant, was visiting her mother at her mother’s home in 2017. Ra’s 2-year-old daughter was with her, and her teenage niece was also present. When A’Kayla Smith, a teenage associate of Ra’s niece, arrived at the house, Ra told Smith she was not welcome to visit due to an altercation the two teenagers had at school. Ra demanded that Smith call her mother to pick her up.

When Channell Harvey, Smith’s mother, arrived at Ra’s mother’s house, she yelled at Smith and Ra from her car, which was parked in the street. Ra testified that after Smith got in her mother’s car, Ra demanded Harvey leave and that, in response, Harvey intentionally backed her car into Ra’s car, which contained Ra’s 2-year-old daughter, then attempted to run down Ra’s mother, Rhonda Anderson.

Anderson testified that Harvey knew before she backed into Ra’s car that Ra’s 2-year-old daughter was inside. Ra’s niece testified that after Harvey hit the car, Ra retrieved her daughter from the car, asked her niece to take the girl inside, and then retrieved an unloaded and legally owned handgun from her console and brandished it at Harvey while demanding she leave. Ra’s mother testified that Ra did not retrieve the gun until Harvey attempted to run Anderson down while she stood in her own front yard. Harvey, meanwhile, testified that she hit Ra’s car accidentally after Ra brandished the gun at her and that she never attempted to hit Anderson with her car.

No one testified that Ra fired the gun.

Harvey took pictures from her car of Ra holding the gun, and eventually drove to a police station where she reported the incident. Ra reported the incident three hours later. Because Harvey filed her report first, Detroit police treated her as the victim, per department policy. Harvey was never charged for driving her vehicle into Ra’s. 

Ra was charged with felony assault of Harvey, felony assault of Harvey’s daughter, who was sitting in Harvey’s vehicle at the time, and with committing a felony while in possession of a firearm. A jury found Ra not guilty of assaulting Harvey’s daughter, but guilty of assaulting Harvey and of possessing a firearm in the commission of a felony. Ra received a mandatory minimum prison sentence of two years and was forced to give birth behind bars.

On Tuesday, the Michigan Court of Appeals unanimously reversed Ra’s convictions, arguing in its decision that her trial judge failed to appropriately instruct Ra’s jury on her self-defense claim, and that said failure likely affected the outcome of her case.

It gets a little weedy here, but it’s worth understanding exactly where Ra’s trial judge went wrong.

Ra’s defense asked that the jury be instructed to decide whether Ra was justified in using nondeadly force to defend herself. The trial judge determined that a firearm—even one that is unloaded and never actually fired in the course of a dispute—is actually deadly force, and instructed the jury to decide whether Ra was justified in using deadly force in self-defense.

However, several legal precedents highlighted by the Michigan Court of Appeals show that Ra’s judge, Wayne County Circuit Court Judge Thomas Hathaway, was wrong to equate the threat of deadly force with the use of deadly force; and that, by definition, only threatening deadly force—in this case, brandishing, but not firing, a gun—is fundamentally nondeadly.

The distinction between deadly and nondeadly force matters quite a bit. Michigan’s Self-Defense Act says that a person may use deadly force if she “honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.” The law’s test for using nondeadly force, however, is much easier. It requires that the person believe “honestly and reasonably that the use of that force is necessary to defend himself, herself or another individual from the imminent unlawful use of force by another individual.”

The Michigan Court of Appeals argued that if Ra’s jury had been instructed properly, it might have determined that she was justified in using nondeadly force to dissuade Anderson from further aggression. “The evidence presented in this case supports the conclusion that it was reasonable for defendant to believe that she had to use force to protect herself or others from Harvey’s imminent unlawful use of force, even if it was not reasonable to believe that she was in danger of being killed or seriously injured,” the Appeals Court decision reads.

And had the jury reached that conclusion, it could not have found Ra guilty of committing a felony while in possession of a firearm.

“This is a huge victory for justice,” Wade Fink, Ra’s lawyer, told Reason in a statement. “Siwatu acted in self-defense and we hope the case is completely dismissed. But if this case is brought again, we intend to prove it—this time in a fair trial where Siwatu is permitted to present a defense.”

Ra’s ordeal is not necessarily over yet. While Wayne County Circuit Court Judge Donald Knapp Jr. made the decision to release her from prison in November 2018, prosecutors will now decide whether or not they want to try Ra for a second time.

Should prosecutors decide to bring Ra to trial once again, the decision would set a poor precedent about the right to legal self-defense, especially for black gun owners. Vox reported in 2018 that Ra’s conviction drew concerns from a wide span of the political spectrum, from Black Lives Matter to the National Rifle Association.

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If you are starting law school this fall, one of your classes might be civil procedure. If so, do I have a story for you. Actually, more of a parable. Here is a parable that describes the major changes in civil procedure (especially pleading) over the last five hundred years, with an emphasis on the logic behind the forms of action, code pleading, and the Federal Rules of Civil Procedure.

(If you’ve read this parable before, you may be interested in the new version I just posted. Among other changes, it reflects excellent comments about codification from Professor Kellen Funk of Columbia.)

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2019-08-21 14:30:49

An excerpt from yesterday’s very long Tenth Circuit panel opinion in Baca v. Colorado Dep’t of State, written by Judge Carolyn McHugh and joined by Judge Jerome Holmes:

Micheal Baca, Polly Baca, and Robert Nemanich (collectively, the Presidential Electors) were appointed as three of Colorado’s nine presidential electors for the 2016 general election. Colorado law requires the state’s presidential electors to cast their votes for the winner of the popular vote in the state for President and Vice President. Although Colorado law required the Presidential Electors to cast their votes for Hillary Clinton, Mr. Baca cast his vote for John Kasich.

In response, Colorado’s Secretary of State removed Mr. Baca as an elector and discarded his vote. The state then replaced Mr. Baca withan elector who cast her vote for Hillary Clinton. After witnessing Mr. Baca’s removal from office, Ms. Baca and Mr. Nemanich voted for Hillary Clinton despite their desire to vote for John Kasich.

After the vote, the Presidential Electors sued the Colorado Department of State (the Department) …. We conclude Mr. Baca has standing to challenge his personal injury—removal from office and cancellation of his vote—but that none of the Presidential Electors have standing to challenge the institutional injury—a general diminution of their power as electors….

Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right. The electoral college did not exist before ratification of the federal Constitution, and thus the states could reserve no rights related to it under the Tenth Amendment. Rather, the states possess only the rights expressly delegated to them in Article II and the Twelfth Amendment. Those constitutional provisions grant states the plenary power to appoint its electors. But once that appointment process is concluded, the Constitution identifies no further involvement by the states in the selection of the President and Vice President.

And the states’ power to appoint, without any duty to take care that the electors perform their federal function faithfully, does not include the power to remove. The Constitution provides a detailed list of procedures that must be performed by specific actors—not including the states—after appointment. The electors must list all votes cast for President and Vice President, certify thatlist, and send it to the President of the Senate. Even where an elector violates a state-required pledge to vote for the winners of the state popular election, there is nothing in the federal Constitution that allows the state to remove that elector or to nullify his votes. And in the absence of such express authority, the states may not interfere with the electors’ exercise of discretion in voting for President and Vice President by removing the elector and nullifying his vote. Neither historical practices nor authoritative sources alter our conclusion.

Secretary Williams impermissibly interfered with Mr. Baca’s exercise of his right to vote as a presidential elector. Specifically, Secretary Williams acted unconstitutionally by removing Mr. Baca and nullifying his vote for failing to comply with the vote binding provision in § 1-4-304(5). Mr. Baca has therefore stated a claim for relief on the merits, entitling him to nominal damages….

Judge Mary Beck Briscoe dissented:

… I would not reach the merits of the issues presented but would instead conclude that this case is moot…. [T]he Presidential Electors lack standing to pursue prospective relief…. [A]n award of damages is retrospective relief, … [but] Section “1983 creates no remedy against a State.” By suing the Department, the Presidential Electors have sued the state of Colorado. Therefore, § 1983 affords the Presidential Electors “no remedy against” the Department. [And a]bsent a plausible claim for nominal damages, this case is moot….

UPDATE: I originally mistakenly labeled Judge Briscoe as the author of the majority, and Judge McHugh as the author of the dissent; as my parents say (though they say it in Russian), that was said with “180 degree precision.” My apologies for the error, and thanks to reader Michael L Rosin for the correction.

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Law students around the country will be starting classes in the next few weeks. Last year, I wrote a post offering advice to entering students. I tried to focus on points that I rarely, if ever, see made in other pieces of this type. I think all three remain just as relevant today. Here they are (more detail in the original 2018 post):

1. Think carefully about what kind of law you want to practice.

Law is a profession with relatively high income and social status. Yet studies repeatedly show that many lawyers are deeply unhappy, a higher percentage than in most other professions. One reason for this is that many of them hate the work they do. It doesn’t necessarily have to be that way. There are lots of different types of legal careers out there, and it’s likely that one of them will be a good fit for you…. But to take advantage of this diversity, you need to start considering what type of legal career best fits your needs and interests….

Regardless, don’t just “go with the flow” in terms of choosing what kind of legal career you want to try. The jobs that many of your classmates want may be terrible for you (and vice versa). Keep in mind, also, that you likely have a wider range of options now than you will in five or ten years, when it may be much harder to switch to a very different field from the one you have been working in since graduation.

2. Get to know as many of your classmates and professors as you reasonably can.

Law is a “people” business. Connections are extremely important. No matter how brilliant a legal thinker you may be, it’s hard to get ahead as a lawyer purely by working alone at your desk. Many of your law school classmates could turn out to be useful connections down the road….

This is one front on which I didn’t do very well when I was in law school, myself. Nonetheless, I am still going to suggest you do as I say, not as I actually did. You will be better off if you learn from my mistake than if you repeat it.

3. Think about whether what you plan to do is right and just.

Law presents more serious moral dilemmas than many other professions. What lawyers do can often cost innocent people their liberty, their property, or even their lives. It can also save all three. Lawyers have played key roles in almost every major advance for liberty and justice in American history, including the establishment of the Constitution, the antislavery movement, the civil rights movement and many others. But they have also been among the major perpetrators of nearly every great injustice in our history, as well….

Law school is the right time to start working to ensure that the career you pursue is at least morally defensible. You don’t necessarily have a moral obligation to devote your career to doing good. But you should at least avoid exacerbating evil. And it’s easier to do that if you think carefully about the issues involved now (when you still have a wide range of options), than if you wait until you are already enmeshed in a job that involves perpetrating injustice…..


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2019-08-21 15:00:52

Across the map of the United States, the borders of Tennessee, Oklahoma, New Mexico, and Arizona draw a distinct line. It’s the 36º30′ line, a remnant of the boundary between free and slave states drawn in 1820. It is a scar across the belly of America, and a vivid symbol of the ways in which slavery still touches nearly every facet of American history.

That pervasive legacy is the subject of a series of articles in The New York Times titled “The 1619 Project.” To cover the history of slavery and its modern effects is certainly a worthy goal, and much of the Project achieves that goal effectively. Khalil Gibran Muhammad’s portrait of the Louisiana sugar industry, for instance, vividly covers a region that its victims considered the worst of all of slavery’s forms. Even better is Nikole Hannah-Jones’s celebration of black-led political movements. She is certainly correct that “without the idealistic, strenuous and patriotic efforts of black Americans, our democracy today would most likely look very different” and “might not be a democracy at all.”

Where the 1619 articles go wrong is in a persistent and off-key theme: an effort to prove that slavery “is the country’s very origin,” that slavery is the source of “nearly everything that has truly made America exceptional,” and that, in Hannah-Jones’s words, the founders “used” “racist ideology” “at the nation’s founding.” In this, the Times steps beyond history and into political polemic—one based on a falsehood and that in an essential way, repudiates the work of countless people of all races, including those Hannah-Jones celebrates, who have believed that what makes America “exceptional” is the proposition that all men are created equal. 

For one thing, the idea that, in Hannah-Jones’ words, the “white men” who wrote the Declaration of Independence “did not believe” its words applied to black people is simply false. John Adams, James Madison, George Washington, Thomas Jefferson, and others said at the time that the doctrine of equality rendered slavery anathema. True, Jefferson also wrote the infamous passages suggesting that “the blacks…are inferior to the whites in the endowments both of body and mind,” but he thought even that was irrelevant to the question of slavery’s immorality. “Whatever be their degree of talent,” Jefferson wrote, “it is no measure of their rights. Because Sir Isaac Newton was superior to others in understanding, he was not therefore lord of the person or property of others.” 

The myth that America was premised on slavery took off in the 1830s, not the 1770s. That was when John C. Calhoun, Alexander Stephens, George Fitzhugh, and others offered a new vision of America—one that either disregarded the facts of history to portray the founders as white supremacists, or denounced them for not being so. Relatively moderate figures such as Illinois Sen. Stephen Douglas twisted the language of the Declaration to say that the phrase “all men are created equal” actually meant only white men. Abraham Lincoln effectively refuted that in his debates with Douglas. Calhoun was, in a sense, more honest about his abhorrent views; he scorned the Declaration precisely because it made no color distinctions. “There is not a word of truth in it,” wrote Calhoun. People are “in no sense…either free or equal.” Indiana Sen. John Pettit was even more succinct. The Declaration, he said, was “a self-evident lie.”

It was these men—the generation after the founding—who manufactured the myth of American white supremacy. They did so against the opposition of such figures as Lincoln, Charles Sumner, Frederick Douglass, and John Quincy Adams. “From the day of the declaration of independence,” wrote Adams, the “wise rulers of the land” had counseled “to repair the injustice” of slavery, not perpetuate it. “Universal emancipation was the lesson which they had urged upon their contemporaries, and held forth as transcendent and irremissible [sic] duties to their children of the present age.” These opponents of the new white supremacist myth were hardly fringe figures. Lincoln and Douglass were national leaders backed by millions who agreed with their opposition to the white supremacist lie. Adams was a former president. Sumner was nearly assassinated in the Senate for opposing white supremacy. Yet their work is never discussed in the Times articles.

In 1857, Chief Justice Roger Taney sought to make the myth into the law of the land by asserting in Scott v. Sandford that the United States was created as, and could only ever be, a nation for whites. “The right of property in a slave,” he declared, “is distinctly and expressly affirmed in the Constitution.” This was false: the Constitution contains no legal protection for slavery, and doesn’t even use the word. Both Lincoln and Douglass answered Taney by citing the historical record as well as the text of the laws: the founders had called slavery both evil and inconsistent with their principles; they forbade the slave trade and tried to ban it in the territories; nothing in the Declaration or the Constitution established a color line; in fact, when the Constitution was ratified, black Americans were citizens in several states and could even vote. The founders deserved blame for not doing more, but the idea that they were white supremacists, said Douglass, was “a slander upon their memory.”

Lincoln provided the most thorough refutation. There was only one piece of evidence, he observed, ever offered to support the thesis that the Declaration’s authors didn’t mean “all men” when they wrote it: that was the fact that they did not free the slaves on July 4, 1776. Yet there were many other explanations for that which did not prove the Declaration was a lie. Most obviously, some founders may simply have been hypocrites. But that individual failing did not prove that the Declaration excluded non-whites, or that the Constitution guaranteed slavery.

Even some abolitionists embraced the white supremacy legend. William Lloyd Garrison denounced the Constitution because he believed it protected slavery. This, Douglass replied, was false both legally and factually: those who claimed it was pro-slavery had the burden of proof—yet they never offered any. The Constitution’s wording gave it no guarantees and provided plentiful means for abolishing it. In fact, none of its words would have to be changed for Congress to eliminate slavery overnight. It was slavery’s defenders, he argued, not its enemies, who should fear the Constitution—and secession proved him right. Slaveocrats had realized that the Constitution was, in Douglass’s words, “a glorious liberty document,” and they wanted out. 

Still, after the war, “Lost Cause” historians rehabilitated the Confederate vision, claiming the Constitution was a racist document, so that the legend remains today. The United States, writes Hannah-Jones, “was founded…as a slavocracy,” and the Constitution “preserved and protected slavery.” This is once more asserted as an uncontroverted fact—and Lincoln’s and Douglass’s refutations of it go unmentioned in the Times

No doubt Taney would be delighted at this acceptance of his thesis. What accounts for it? The myth of a white supremacist founding has always served the emotional needs of many people. For racists, it offers a rationalization for hatred. For others, it offers a vision of the founders as arch-villains. Some find it comforting to believe that an evil as colossal as slavery could only be manufactured by diabolically perfect men rather than by quotidian politics and the banality of evil. For still others, it provides a new fable of the fall from Eden, attractive because it implies the possibility of a single act of redemption. If evil entered the world at a single time, by a conscious act, maybe it could be reversed by one conscious revolution. 

The reality is more complex, more dreadful, and, in some ways, more glorious. After all, slavery was abolished, segregation was overturned, and the struggle today is carried on by people ultimately driven by their commitment to the principle that all men are created equal—the principle articulated at the nation’s birth. It was precisely because millions of Americans have never bought the notion that America was built as a slavocracy—and have had historical grounds for that denial—that they were willing to lay their lives on the line, not only in the 1860s but ever since, to make good on the promissory note of the Declaration.

Their efforts raise the question of what counts as the historical “truth” about the American Dream. A nation’s history, after all, occupies a realm between fact and moral commitments. Like a marriage, a constitution, or an ethical concept like “blame,” it encompasses both what actually happened and the philosophical question of what those happenings mean. Slavery certainly happened—but so, too, did the abolitionist movement and the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments. The authors of those amendments viewed them not as changing the Constitution, but as rescuing it from Taney and other mythmakers who had tried to pervert it into a white supremacist document. 

In fact, it would be more accurate to say that what makes America unique isn’t slavery but the effort to abolish it. Slavery is among the oldest and most ubiquitous of all human institutions; as the Times series’ title indicates, American slavery predated the American Revolution by a century and a half. What’s unique about America is that it alone announced at birth the principle that all men are created equal—and that its people have struggled to realize that principle since then. As a result of their efforts, the Constitution today has much more to do with what happened in 1865 than in 1776, let alone 1619. Nothing could be more worthwhile than learning slavery’s history, and remembering its victims and vanquishers. But to claim that America’s essence is white supremacy is to swallow slavery’s fatal lie. 

As usual, Lincoln said it best. When the founders wrote of equality, he explained, they knew they had “no power to confer such a boon” at that instant. But that was not their purpose. Instead, they “set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.” That constant labor, in the generations that followed, is the true source of “nearly everything that has truly made America exceptional.”

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President Donald Trump doesn’t seem to understand why Denmark won’t just sell him Greenland. Come on, he even promised not to build a big, gold Trump Tower on some remote village shore there!

After making an initial offer on the Danish territory last week—one leaders in Denmark promptly rejected—Trump hasn’t let go of his absolutely insane crusade to start buying up another country’s land. “Strategically it’s interesting and we’d be interested but we’ll talk to them a little bit,” the president told reporters Sunday.

On Monday, he tweeted this:

Meanwhile, Eric Trump shared the same photo with quite a different sentiment:  

Trump was supposed to visit Denmark in September, with other world leaders, but announced yesterday via Twitter that he was calling off the trip.

“Trump’s announcement suggests that, despite his denials, the central purpose of his trip had been discussion of a U.S. purchase of the massive, glaciered island, which holds increasing value as melting sea ice opens new parts of the Arctic to shipping and resource extraction,” states The Washington Post.

The prime minister of Denmark, Mette Frederiksen, has called Trump’s offer “absurd” and said “I strongly hope that this is not meant seriously.”

Greenland’s Foreign Minister Ane Lone Bagger said “we are open for business, but we’re not for sale.”

On Tuesday night, Trump tweeted that because Frederiksen said “she would have no interest in discussing the purchase of Greenland, I will be postponing our meeting scheduled in two weeks for another time.”


Kamala Harris has seen a significant drop in polls recently. In the latest CNN poll of 2020 presidential candidates, Sen. Harris (D–Calif.) is down 12 percent since late June. This is the largest drop of any top candidate.

Joe Biden—already leading—was the only candidate to see a significant positive change, gaining 7 percentage points since CNN’s late June polling. He’s now at 29 percent, with nearest competitor Sen. Bernie Sanders (I–Vt.) at 15 percent. (Read more about Sanders’ new criminal just reform proposals here.)

Warren trailed right behind Sanders with 14 percent, followed by Buttigieg and Harris (both at 5 percent) and Beto O’Rourke (3 percent).

Booker, Castro, and Gabbard all polled at 2 percent.


Facebook yanks “Women for Trump” ad. The social media site said the ad—which featured a photo of women and the caption “The Women for Trump Coalition needs the support of strong women like you!”—was in violation of Facebook policy with regard to gender and advertising. More from The Hill:

Facebook’s ad policy prohibits “content that asserts or implies personal attributes,” including, among other things, “direct or indirect assertions or implications about a person’s … gender identity.”

Facebook reportedly pulled the ad following an inquiry from Popular Info.

“We’ve notified the campaign that the ads violate policy. They cannot continue to run unless fixed,” a Facebook spokesperson told The Hill in a statement.


Recession forecast not reassuring…The White House has gone from insisting the U.S. economy is not on the verge of a recession to saying that if we do have one, it will be “moderate and short.”


  • Chelsea Manning wants your letters:
  • The Justice Department and Food and Drug Administration are ramping up enforcement against unauthorized abortion pill sales.
  • China is trying to stop online gambling in the Philippines and elsewhere. “China is mounting pressure on Southeast Asian nations in its effort to stamp out online gambling which it says causes hundreds of millions of yuan to illegally flow out of its economy,” reports the Bangkok Post.
  • Reason‘s Peter Suderman analyzes Kamala Harris on healthcare:

Harris doesn’t really care about health policy as policy; instead she appears to view the issue through an exclusively political lens, wanting to be seen as a supporter of Medicare for All and its most popular promises without reckoning with the trade-offs that a real single-payer health care system of the sort proposed by Sen. Bernie Sanders (I–Vt.). Sanders may be in it for the revolution, but Harris is in it for the optics.

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2019-08-21 14:00:07

The state of California has made it shockingly easy for construction unions to delay new construction under the guise of environmental protection, through a practice known as “greenmailing.” And time after time, they have. 

Consider Newport Crossings, a 350-unit apartment complex complete with 7,500 square feet of commercial space, and a half-acre public park proposed by developer Starboard Realty Partners. 

Starboard’s planned development would replace a blighted, 1970s-era shopping center where some 70 percent of the shopfronts sit vacant. Newport Crossings would add new housing to an area currently dominated by office blocks, shops, and restaurants. 

Normally, this sort of project would meet stiff resistance in California, where approval times for a comparable development can range from two to three years. But Starboard worked with community groups to iron out issues over parking and landscaping, and agreed to reserve 78 of its new units for lower-income renters.

“These Newport Crossings guys really went the extra mile and met with environmentalists, met with some of these slow growth guys. Met with a whole host of community types,” says Erik Weigand, the vice chair of the Newport Beach Planning Commission. (Weigand also serves as the treasurer of the Orange County Republican Party.) “They met with everyone, and came up with a project that everyone would like.”  

By law, projects like Newport Crossings must make plans available for 45 days of public comment. And in January of this year, on the very last day of the mandatory comment period, the Southwest Regional Council of Carpenters (SWRCC)—a union representing 50,000 carpenters throughout the Southwest—submitted a letter detailing a number of supposed deficiencies in the city’s environmental study of Newport Crossings. 

The city’s analysis, according to the SWRCC, failed to incorporate enough discussion of what the conversion of the site from solely retail to mostly residential would do for air impacts and greenhouse gases, not to mention traffic and population growth. Nor, the SWRCC letter said, did the city do enough to identify other projects in the area which might, when considered cumulatively alongside the Newport Crossings project, have significant environmental impacts.

And while Starboard was already required by the city to retain an archeologist to watch out for dinosaur fossils and Native American artifacts—which would be quarantined and assessed for their importance if found—the SWRCC took issue with the fact that the city’s draft environmental impact report didn’t specify what would happen with any of these artifacts should they actually be determined to be important. 

City planning staff dismissed most of these complaints as inaccurate or irrelevant, saying in a February-dated written response that none of the objections raised by the union “indicates that there would be a substantial increase in the severity of a previously identified environmental impact that will not be mitigated.” 

And even though an SWRCC representative showed up at the final Planning Commission hearing on the project to rehash his group’s objections, the Commission nonetheless approved the project unanimously. In response, the union appealed to the city council in March, asking that the environmental report adopted by the commission be rejected, and a more thorough version of the report responding to the SWRCC’s complaints be prepared. 

This threatened to delay approval of Newport Crossings by weeks or months. Had Newport Beach’s city council also approved the project, the SWRCC likely would have sued, stretching things out even longer. 

None of this transpired. Instead, in late April the SWRCC suddenly dropped its appeal. Despite the fact that none of its environmental concerns had been addressed by the city, the union was now happy for it to go forward. 

That’s because the SWRCC’s complaints were never about the environment, says Weigand, a four-year veteran of the planning commission, who alleges more cynical motivations are at play.  

“They’re just trying to force the developer to get their guys the work,” he says. “Basically, you have these carpenters trying to shake down the process.”  

Because project labor agreements are private contracts between two private parties, and because they can contain clauses forbidding the disclosure of their terms or even their existence, tracking how many projects are bound by them and how much they cost developers is nearly impossible. 

But what Weigand is describing is the practice of greenmailing, whereby self-interested parties file frivolous environmental complaints against a project as a means of extracting concessions from its developer.

Construction unions—enabled by a convoluted set of regulations that often make fighting these environmental complaints more expensive than just giving in—have become expert greenmail practitioners, using the tactic to secure exclusive, generous project labor agreements across the state.

This is particularly true of the SWRCC, which has targeted more than a dozen projects in Southern California with environmental comment letters, administrative appeals, and lawsuits that seem to have little to do with the union’s core mission. (The SWRCC did not respond to Reason‘s repeated requests for comment.)

The individual projects targeted by these greenmailing tactics can be stalled for years at a time, both delaying the delivery of new housing and raising its costs upon completion. 

The ease with which unions can employ these tactics gives them a powerful political incentive to resist any efforts at streamlining the approval of new construction.  

At a time when California’s housing supply is stretched to the breaking point, and even modest dwellings are selling or renting for amounts well above what’s typical in most other states, these union-backed efforts to delay and raise the cost of new housing are fueling a housing affordability crisis in a state that’s said to be short some 3.5 million units. 

Protecting the Environment—or Protecting Union Jobs?

The reason that labor unions can so easily hold up projects with frivolous objections dates back to 1970, and the passage of the California Environmental Quality Act (CEQA). 

CEQA was originally intended to safeguard California’s natural environment from state-sponsored development projects by requiring that government agencies study projects they undertake for any significant environmental impacts.

Should significant impacts be found, the agency in question was required to mitigate them before moving ahead with the project. The law was also written to be self-executing, meaning that it is ultimately enforced by litigation from citizens “or the threat thereof.”  

Members of the public who believe an agency approved a project without properly studying some environmental impact are empowered to appeal that approval to a higher government body. Should these administrative appeals be rejected, CEQA empowers them to sue in state court. 

The scope of CEQA grew dramatically over time. In 1972, a California Supreme Court decision clarified that the law covered not only publicly funded projects, but also privately sponsored developments that required the discretionary approval of a government agency. A subsequent 1987 decision expanded the definition of discretionary to include the approval of any building permit that came with requirements or conditions beyond what was spelled out in local zoning codes.

As CEQA expanded to cover more projects, the law also demanded more and more environmental impacts be studied and mitigated. In addition to studying impacts on air quality and wildlife populations, CEQA now mandates that projects be examined for their effect on greenhouse gas emissions and cultural resources like Native American artifacts or historic buildings.

The result was that most every development in the state now has to be studied for a long list of potential environmental effects. This has made it “a very, very powerful greenmail” tool, says Jennifer Hernandez, a land use attorney with the law firm Holland & Knight. 

A group suing under CEQA “doesn’t need to have members in the community where the project is located,” Hernandez says, adding that these groups “can write a very standard [complaint]. ‘Your traffic analysis is wrong. Your air analysis is wrong. You haven’t provided enough detail about this or that.'” 

The costs of appealing a CEQA decision are typically quite low—a couple hundred dollars, depending on the locality—while the sometimes months-long delays they cause can cost developers hundreds of thousands of dollars. Things are even more lopsided once an appeal becomes a lawsuit, says Hernandez.   

“Not only are the odds fifty-fifty that someone suing will win but if they sue and win, they’re entitled to attorneys’ fees and a bonus on top of attorneys’ fees,” she says.  “If they sue and lose, they still held up financing for the project, but will never be liable for attorney fees for the other side.” 

“It’s almost a zero-cost lawsuit and an immediate ability to halt a project,” she says.  

“I Have Rarely Seen CEQA Used to Actually Protect the Environment”

In short, the structure of CEQA makes it a perfect tool for self-interested parties who are eager to extract concessions from deep-pocketed developers. That includes labor unions who have used the threat of CEQA litigation to secure generous, exclusive project labor agreements.

“Think of it like a settlement agreement,” says Hernandez, telling Reason that project labor agreements secured through CEQA appeals and lawsuits will typically include a promise to hire a specific union local and pay them union-level wages and benefits. In addition, she says, developers will often agree to fund union apprenticeship programs, pension funds, and legal work. And these agreements happen in private, lending plausible deniability to both parties.

Tracking how many projects have been targeted by union-backed CEQA administrative appeals and lawsuits is possible, but still difficult as these actions happen before a multitude of planning commissions, city councils, county boards of supervisors, and state agencies. The task is made harder by the fact that labor groups often prefer to file CEQA actions through apparent proxies or other closely related organizations.  

One example would be the Coalition for Responsible Equitable Economic Development (CREED LA), a prolific filer of CEQA comment letters on large developments in Los Angeles. The group’s CEO is Mike Layton, who also serves as the financial secretary for Southern California Pipe Trades District Council 16, a union. The two organizations share the same address. 

CREED LA’s website describes it as having the “active support of the Mechanical, Electrical, Plumbing, Iron Worker, and Rod Buster Trades.” (CREED LA did not respond to Reason‘s request for comment.)

The California Policy Center—a conservative think-tank—maintains a long list of environmental groups it claims are “masquerading” as grassroots groups which use CEQA to secure project labor agreements. 

In this sense, the SWRCC is more transparent than many other unions, affixing its own name to its legal and administrative CEQA filings. Nevertheless, getting a firm count of the projects targeted by the union is a difficult task.

According to data from Holland & Knight, the SWRCC has targeted eight separate projects since 2017 with CEQA actions. Reason turned up another three such examples in the city of Los Angeles during that time. Counting the Newport Beach project, that makes at least a dozen projects that have been hit with SWRCC CEQA comment letters, appeals, and lawsuits. 

Sometimes these CEQA actions are done solely on behalf of the SWRCC. In Los Angeles, they are often done in conjunction with Laborers’ Local 300—a union of construction workers affiliated with the Laborers’ International Union of North America (LIUNA). 

In 2018, the SWRCC filed three lawsuits against the City of Los Angeles, as well as its city council and planning commission, alleging these bodies approved three separate mixed-use developments—totaling 1,823 residential units plus 236,000 square feet of commercial space—in violation of CEQA’s environmental reporting requirements.  

Those include the 475-unit 520 Mateo project being developed by Carmel Partners, the 725-unit College Station project being built in Chinatown by Atlas Capital, and Icon Company’s 623-unit Panorama project. (This latter lawsuit was filed jointly with LIUNA Local 300.) 

The SWRCC’s lawsuits raise a strikingly similar set of objections to these projects’ approval—objections that also surfaced during the union’s protests over Newport Crossings.  

In its CEQA lawsuit against the City of Los Angeles over its approval of the 520 Mateo development, the SWRCC argued, citing a 2015 California Supreme Court decision resolving a challenge to a state agency’s approval of a large residential development, that the city’s use of statewide greenhouse gas emission targets (known as the “Scoping Plan”) to evaluate the significance of the project’s emissions—as opposed to relying on city-adopted emissions targets—was a CEQA violation. 

“To rely on the Scoping Plan, an agency, such as Respondent [the City of Los Angeles], must provide analysis that adequately explains why application of the Scoping Plan at the project-level would be suitable under the circumstances. Respondent provided no such analysis and, thus, Respondent’s reliance on the Scoping Plan is erroneous,” reads the SWRCC’s lawsuit targeting the 520 Mateo project. 

Compare that to the lawsuit the SWRCC filed against the city over its approval of Atlas Capital’s College Station project, which also alleges an impermissible reliance on the statewide emission targets. 

“To rely on the Scoping Plan, an agency, such as Respondent [the City of Los Angeles], must provide analysis that adequately explains why application of the Scoping Plan at the project-level would be suitable under the circumstances. Respondent provided no such analysis and, thus Respondent’s use of the Scoping Plan is erroneous,” reads that lawsuit. 

The SWRCC raised a similar complaint about the Newport Crossings project, writing in its January comment letter that “The City [Newport Beach] incorrectly relies on federal and statewide plans and regulations which were not designed to be applied at the project-level…the City provides little analytical connection between these plans and requirements for the Project itself.” 

Concerns about union-level wages, hiring practices, or other labor issues naturally don’t surface in the SWRCC’s CEQA filings. But the union’s other communications tell a different story.  

Take Icon’s Panorama project, for example. 

In joint comment letters and appeals, the SWRCC and LIUNA Local 300 argued the environmental impact report prepared for Panorama failed to adequately study the project’s impacts on air quality, traffic, and local public services like schools and fire protection.

These same objections surface in the joint lawsuit the two unions filed in October 2018 targeting the project. 

Yet an October 2018 lobbying disclosure filed by LIUNA Local 300’s lobbyist Ernesto Pantoja with the Los Angeles City Ethics Commission mentions none of these environmental concerns. 

“I reached out to the Council office to gain support from the developer to use Union Labor on the proposed project,” reads Pantoja’s filing regarding Icon’s project. 

Icon CEO Billy Ruvelson reports receiving a similar appeal in his dealings with the SWRCC and LIUNA Local 300 in regards to his company’s Panorama project.  

“The unions began opposing and appealing our project once we circulated our [environmental impact report] and throughout our administrative process,” Ruvelson says. “Their demands to us consistently involved entering into labor agreements with them in return for dropping their opposition and appeals.” 

Throughout 2017 and 2018, Ruvelson and his business partners were in frequent contact with the SWRCC and its representatives, telling them they would work to include unionized contractors where feasible, but signing on to an all-union labor contract would make the project prohibitively expensive. Ruvelson tells Reason that using all-union labor would raise the costs of his project by as much as 20 percent, and that Icon “couldn’t obtain the rents required to support such cost increase.” 

A number of studies have attempted to flesh out how much union wage requirements raise construction costs. One 2005 study from UC Berkeley estimated these requirements raised costs anywhere from 9 to 37 percent. A 2014 state-sponsored study found union wage requirements raised the cost of affordable housing development by 11 percent.

At no point were the environmental concerns the SWRCC was raising in comment letters and appeals brought up during their one-on-one communications and in-person meetings with Icon, Ruvelson says.

The absence of environmental concerns from lobbying disclosures isn’t definitive; perhaps those activities all occurred outside of contexts that require disclosure. But the disclosures do clearly demonstrate keen interest in the labor issues surrounding these developments. And the overlap between the pecuniary interests of the union and its oddly altruistic environmentalism has raised eyebrows.

Indeed, the SWRCC’s use of CEQA to force Icon into hiring all-union labor was transparent enough to earn a public rebuke from Los Angeles Planning Commission’s President David Ambroz, who called the union’s environmental objections “specious at best” and “patently false.” 

“I am dismayed that I have rarely seen CEQA used to actually protect the environment,” said Ambroz at an April Planning Commission hearing. “This seems to be a labor question, whether you are going to use union labor or not.” 

In January, Icon counter-sued both the SWRCC and LIUNA Local 300, claiming that their use of CEQA to shake down the company amounted to a violation of federal anti-racketeering laws. The case is expected to go to trial sometime this summer. Ruvelson tells Reason that the CEQA-induced delays on the Panorama project have cost his company millions of dollars. 

For developer Onni’s 231-unit 6901 Santa Monica Boulevard project, the story is similar. LIUNA and the SWRCC also filed a joint comment letter alleging the city failed to comply with CEQA in approving the project. 

The lobbying disclosure filed by LIUNA Local 300, however, mentions nothing about CEQA. Instead, Pantoja, the union’s lobbyist, says only that he “reached out to Council office 4 to request assistance in helping to set up a meeting with the developer of this project Onni Group. We wanted to sit down with the developer to attempt to convince them to hire Union Labor on this proposed project.”  

LIUNA’s lobbying disclosure for the 520 Mateo Project likewise only describes the union’s desire to work with city officials to secure a project labor agreement from the developer. 

In the separate CEQA appeals filed by the SWRCC and LIUNA targeting 520 Mateo, however, the unions’ objections focused only on the potential environmental impacts the project might have on their members’ health.

“Southwest Carpenters live and work in the City of Los Angeles, and is concerned about the environmental impacts of this Project,” reads the SWRCC’s environmental appeal for the 520 Mateo project. “Without an adequate [Environmental Impact Report], Southwest Carpenters is aggrieved by the lack of disclosure regarding the Project’s environmental impacts.” 

“Members of appellant Laborers International Union of North America Local 300 live in the vicinity of the proposed Project. They breathe the air, suffer traffic congestion, and will suffer other environmental impacts of the Project unless it is properly mitigated,” reads LIUNA Local 300’s July appeal of the same project. 

LIUNA and the SWRCC also filed separate CEQA appeals of Atlas’ College Station project, a project which is also referenced in LIUNA Local 300’s lobbying disclosure. That particular disclosure mentions neither environmental concerns, nor anything about securing a project labor agreement, only that LIUNA’s lobbyist sought help getting a meeting with Atlas. 

The SWRCC sued the city over its approval of the 520 Mateo project in August 2018. The union’s lawsuit against the city over the approval of the Chinatown project was filed in December 2018. Onni’s 6901 Santa Monica project appears to have escaped litigation. 

Both the Chinatown and 520 Mateo lawsuits appear headed for settlement. It’s unclear what, if any, additional environmental reviews or mitigation measures the developers or the city agreed to undertake in either case. Neither Atlas Capital nor Carmel Partners responded to Reason‘s request for comment. 

Paying the Price 

At least 97 separate projects have been targeted by labor unions with CEQA appeals and lawsuits, according to a count provided by Holland & Knight. Of these, the majority are residential projects, followed by retail developments, as well as a handful of renewable energy projects. 

This list of targeted projects, however, is likely far from comprehensive. It is obviously missing any greenmail-induced project labor agreements worked out in private, before appeals and lawsuits came into play. 

In addition to using a law intended for environmental protection for their own economic self-interest, labor’s use of CEQA to greenmail developers comes with real costs for a state grappling with a severe housing affordability crisis borne of insufficient supply. 

By delaying the delivery of new housing with all those appeals and lawsuits, market-rate renters that could be occupying those newly constructed flats are instead left to bid up the price of existing units. Low-income tenants are meanwhile left waiting for a spot in severely over-subscribed rent-restricted housing. 

Should developers agree to union demands, they will be left paying substantially higher wages on their project. That, in turn, raises the costs of development. 

Studies of prevailing wage laws in California, which require that developers pay a uniform, union-level wage to construction workers, find that the cost of projects are raised by anywhere from 9 to 37 percent. Ruvelson’s estimate that the SWRCC’s demands would raise the costs of his Panorama project by some 20 percent fall towards the lower end of that range. In California, where housing is scarce and renters can’t afford to be choosy, these cost increases are inevitably going to be passed on to renters. 

For Weigand, this deliberate infliction of additional costs on housing development is one of the more offensive things about how unions, and the SWRCC in particular, use CEQA. 

“The developer is going to eat it at first, but they’ll just pass that down to the consumer, and the consumer gets dinged,” he says. “That’s the problem in California is these things cost so much to build, and the homeowner and the renter has to spend so much money to cover the expenses that are unnecessary.” 

In a more indirect way, the threat of greenmailing can ensure that many marginal projects don’t happen at all. The potential for CEQA litigation, says Hernandez, can serve as a powerful disincentive for anyone considering trying to build new housing.  

“When you start an approval process, you think about buying land, you think about going through this two- or three-year approval process…and then at the end of the day, you can still be sued and held up, what you’ve really done is substantially reduced who can play in that sandbox,” she says. 

And when the costs of CEQA appeals and litigation are coupled with the possibility that, at the end of that process, a developer might be stuck paying unaffordable union wages, the deterrent the law creates becomes stronger still. 

A recent Los Angeles city ballot initiative provides a good example of how forcing developers into paying union-level wages can deter the construction of new housing. 

In 2016, voters in the city approved Measure JJJ which, among other things, required that projects larger than 10 units, requiring a zoning variance of some kind, would have to pay union-level wages. In essence, the law mandated what unions have been trying to achieve through greenmailing. 

According to a May 2019 study from University of California, Berkeley’s College of Environmental Design and Los Angeles-based think tank LAplus, prevailing wages required by Measure JJJ were increasing costs by 20 percent across the board. Developers interviewed for the study reported not being able to incorporate these costs into their projects, with some saying they had abandoned plans to build homes or even their entire business model. Only one project subject to Measure JJJ’s requirements has been approved since its passage. 

The value of CEQA as a greenmailing tool comes at another cost. It gives building trade unions a powerful incentive to oppose almost any reform to California’s building regulations that might make housing development faster and cheaper. 

Reforming the law itself is obviously going to be a non-starter with labor, a point former Gov. Jerry Brown made bluntly back in a 2016 interview. 

“You can’t change CEQA,” Brown told University of California Los Angeles’ BluePrint magazine that year. “The unions won’t let you because they use it as a hammer to get project labor agreements. The environmentalists like it because it’s the people’s document that you have to disclose all the impacts.” 

Refusing to consider changes to CEQA as currently written not only allows labor unions to put pressure on developers. It also allows every other interest group in the state that might want to stop a project, or even engage in a little greenmailing themselves, to do so. 

And because the CEQA process is invoked whenever a project needs some sort of zoning variance or is subject to discretionary approval by a government agency, labor unions are loathe to support wider changes to the state’s byzantine zoning regulations and approval processes. 

In 2016 Brown proposed making the construction of apartment buildings “by right” meaning that they wouldn’t be subject to discretionary approval by local governments or CEQA review. By all accounts, union opposition to the bill was the decisive factor in killing that reform. 

The state’s unions also helped put an end to other housing reform legislation in 2018. The bill would have upzoned residential land near transit stops, allowing apartments to be built where only single-family homes are permitted today. 

The Sacramento Bee noted that many housing reforms that passed the state legislature in 2017 came with prevailing wage requirements. 

That California is in the midst of a major housing affordability crisis is accepted by most everyone in the state. There is also a wide and growing consensus that this crisis is fundamentally a problem of supply: too many people, not enough homes. 

Yet as long as even the most uncontroversial developments like Newport Crossings can be delayed by environmental law and labor unions, who themselves want the project to go forward, there is no way the state is going to build itself out of its housing woes. 

“The only people we’re helping is the union guys because they’re the ones that’re looking for the work,” says Weigand. ” We’re hurting everyone else that’s trying to find a home that’s affordable, especially in a place like Newport Beach.” 

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