July 5, 2003
Maybe they'll listen to Wall Street--maybe

In 1979 the City of Wilmington, Delaware's largest city, adopted a brand-new pension plan for its non-uniformed employees. I began working there as an assistant city solicitor shortly after the ordinance was enacted, and dealt with some of the issues concerning the choices made by some pre-1979 employees to either stay in the old plan or join the new.

I asked my fiscal management clients why the City Council adopted the new pension ordinance, since there were only about 800 employees who weren't firefighters or police officers. It seemed a little odd that they would run so many pension plans at one time.

The explanation was simple. The city just couldn't afford to continue the old pension system.

Since the pension's inception about 60 years before, the city had always used current year funds to pay the fairly modest stipends. By the mid-70's, however, it was obvious to Wall Street that the city had built up a huge unfunded pension liability.

Wall Street told Wilmington officials that if they didn't want the city's credit ratings to sink out of sight, they had to do something about this mounting debt.

That's why the city adopted a new, fully-funded plan for employees hired after July 1, 1979, and also began putting a pile of additional money aside each year to reduce the old plan's unfunded liability.

After all, the city couldn't print money like the Feds, and Wilmington was far more hamstrung than the State of Delaware in its ability to raise new sources of revenue.

California's alleged political leaders now have a similar opportunity to take a similar hint from Wall Street and the credit rating agencies.

If the Governor and the General Assembly won't listen to the voters who are concerned about the Golden State's massive budget deficit, perhaps the folks who lend the money will gain their attention:

... California, by nature of its huge deficit and its political deadlock, is in a class by itself.

Moody's and Standard & Poor's, citing the budget stalemate and the recall movement, placed the state on their watch lists for possible downgrade in the next 90 days. Moody's rates California debt at A2, the lowest rating among the 50 states, along with New York and Louisiana. Standard & Poor's, which uses a different nomenclature, rates California debt at A, the lowest of any state....

"The concern is that they'll take the easy way out by not cutting spending or increasing revenues enough to cover the shortfall and instead will borrow their way out of their problem and hope that economic growth will bail them out," said David G. Hitchcock, a state credit analyst at Standard & Poor's who has been following California finances for more than a decade.

"That would not be a good development from a credit perspective," Mr. Hitchcock said. "But it is a sovereign state and it is in their own hands."

That's not too subtle, is it?

Essentially Wall Street is saying that California is in need of adult supervision, which is not happening right now.

This kind of signal is not so easily ignored, however.

The NYT piece also included this little fact at the end, without further comment:

California had $9.4 billion in reserves in June 2000, 18 months after Mr. Davis became governor, according to the State Department of Finance. It has none today.

Ouch.

July 4, 2003
The sound of where you live

There's a different sound to a holiday morning around here, at least at the beginning.

There are fewer cars out and about, because the long-distance commuters are sleeping in or puttering around their houses instead.

The tourists haven't yet flooded the highways on their way to the beaches, so the far-off sounds of angry horns aren't to be heard just yet. That'll happen a few hours from now.

At least around here, there also seems to be an understanding that a day like July 4 should not begin with the sound of lawnmowers.

In the relative quiet, one tends to concentrate on other sounds.

About 7:45 a.m., for example, I could clearly hear the low G note of the horn blast of the Cape May Lewes Ferry, about six miles away.

As I worked in my yard, there was the familiar sound of a passing gull, flying toward the ocean two miles east.

A few robins were walking in the front yard, looking for breakfast.

Two red wing blackbirds flew over the robins toward some destination in the back yard.

A killdeer called out near our gravel driveway, presumably to ward off some perceived threat.

The usual threesome of mourning doves looked down on the other birds and me from their perch on the roof, noting our presence.

Have a great holiday!

A day lilly, still wet with morning dew.

July 3, 2003
Not so uncommonly silly after all

I appreciate Mark Kleiman’s alacrity in responding to my request for comment on the recent DEA interpretive regulation concerning THC limits in food products, recently reversed by the Ninth Circuit on procedural grounds.

As noted in Judge Kozinski’s dissent, another Ninth Circuit decision is pending that deals with a substantive DEA regulation on the same subject. The chances of this other, so-called “legislative” regulation being upheld are probably much greater, at least as a matter of process.

My main interest in the case was in the administrative law question discussed by the appellate panel, concerning the level of public involvement required before adopting the interpretive rule. On the substantive issue raised by the regulation, however, I also said that a rule that completely zeroed out any THC in consumer products seemed “uncommonly silly” to me. I deferred to Kleiman’s expertise, however.

Kleiman’s response to my request was a little edgier than I expected. As I read his post and other material on the subject, however, I understood why he expressed himself in somewhat exasperated tones.

Kleiman first noted that marijuana is not among the most important drug policy issues the country needs to address. That's a point with which I agree, compared to cocaine, heroin, speed, and some others.

He then explains that hemp food producers are trying to market “hemp energy bars.” These contain either hemp seed or hemp oil or both. The THC in these bars is well below any level that would produce a high, but as Kleiman says, that may not be the point:

One answer is that the DEA is against [even traces of THC in food] for the same reason the hempsters are for it: it's all part of the symbolic warfare about cannabis policy. That, presumably, is what Fritz thinks is uncommonly silly.

But there's another issue here. Since the products contain traces of THC, having eaten them would serve as a convenient excuse for testing positive for cannabis in a drug test. Apparently that's not a real issue at a technical level; you just couldn't eat enough to actually trigger a positive result. But it's still one more issue that drug testers would have to contend with; even if the excuse doesn't work, lots of people might be persuaded that it would work, and thus think they could drug-test-proof themselves by just laying in a supply of hemp energy bars.

So I think DEA was acting to protect drug testing, which may be a bad idea -- I rather think it is, in the workplace setting, with respect to cannabis -- but isn't silly.

Point taken.

Nonetheless, it appears I didn’t express my own sentiments clearly enough the first time.

What I actually thought was a bit silly was the absolute prohibition against any traces of THC in the food or beverage products. I didn't consider the regulation to be symbolic at all. I just thought it was too strict and therefore hard to defend.

My own professional experience with drug policy is primarily limited to the legal issues involved in drug testing of government employees, for example the U.S. DOT’s requirements for Commercial Driver’s Licenses (CDL). Thanks to regulations such as 49 CFR Section 40.87, I’m used to the notion of a threshold amount for both the initial urine test (50 nanograms/milliliter) and the confirmation test (15 ng/ml) for THC.

There are good reasons to adopt a limit above zero, as pointed out in a recent e-mail sent to me by Daryl Cobranchi, who works as a chemist when he’s not blogging:

The case also moves into my area of expertise, analytical chemistry (specifically GC/MS [gas chromatography/mass spectrometry] which is used in these trace-level analyses).  There is no such thing as zero concentration.  Pretty much everything contains everything else.  Even the air we breathe is likely to contain a molecule or two of Delta-9-tetrahydracannabinol (the active ingredient).  Analytical chemistry has lowered detection limits to unbelievable levels these days. Modern techniques can easily detect parts-per-billion and often down into the parts-per-quadrillion.  A ppq is 1 mL in 1 billion liters.

Cobranchi also referred to the now-repealed Delaney amendment, an FDA provision which prohibited any food additives that could cause cancer, regardless of concentration levels. 

As Cobranchi notes:

This was the same zero concentration problem.  They went to a "de minimus" … standard solely to account for the decrease in analytical detection limits.  It sounds like the DEA should adopt a similar standard.  If you couldn't get high on a hemp product no matter how much you consumed, there should be no concern.

Some folks in the hemp food trade argue against the DEA rules on a similar basis. They suggest a pledge system instead, whereby the manufacturers agree to keep the THC levels as low as 5.0 parts per million (ppm) for hemp oil and 1.5 ppm for hemp nut.

On the other hand, some hemp-using companies claim they can already achieve the zero-tolerance standard, as noted in this press release:

HempNut Inc. announced that effective today, it believes it is the only DEA-compliant hempseed food and importing company in the United States.

Pursuant to a new Drug Enforcement Administration regulation effective Feb. 7, THC is banned in hempseed products for human consumption. Since 1994 HempNut foods have contained no THC, in anticipation of this move by DEA, the company said today.

If true, then with this news HempNut may have just helped uphold the DEA regulation, as well as given the company a significant competitive advantage.

Nonetheless, from a policy and legal standpoint I would have been more comfortable defending a DEA tolerance rule that was set at, say, half the levels suggested by the hemp companies that argued for the pledge system.

Those levels aren’t zero, after all, which thanks to the FDA's Delaney clause history is subject to political attacks at the very least. A tiny tolerance level would also not produce any significant risk that someone’s drug test results could be defended on the basis that they ate 25 hemp energy bars the night before. Furthermore, any company that managed to achieve zero status could still find themselves with a marketing advantage.

There’s another point Kleiman makes that I fully agree with, especially now that I’ve read the material posted at several “hemp-friendly” sites.

Kleiman said he could take hempsters’ arguments far more seriously if they weren't also such admitted stoners.

From what I’ve read, I could also be more sympathetic to the nominally rational arguments made by some of these folks, if they weren’t also in the business of trying to sell concentrated clean urine or other devices to spook drug testing of safety-sensitive positions. 

As noted in a prior post, when these people claim that any drug testing is a violation of civil rights, they are the ones that are just being silly.

July 2, 2003
Heavy weather

On Monday night I watched the new Weather Underground documentary, directed by Sam Green and Bill Siegel. The Rehoboth Film Society screened it to about 60 of its members, as part of the run-up toward this fall’s film festival.

From what I recall as a teenager and as a college student during the heyday of the SDS splinter group in the late 60s and early 70s, this appeared to be a fairly accurate portrayal.

The film includes a good mix of old television footage of the Vietnam War, the famous aborted Days of Rage event in Chicago, and other notable events of the time, spliced in among contemporary talking head moments from some of the primary participants, such as Mark Rudd, Brian Flanagan, Bernadine Dohrn, Bill Ayers, and Naomi Jaffe.

Todd Gitlin and others help maintain the movie’s sense of balance, presenting a range of views about the Weathermen, their politics, and their bombings.

The passage of time seems to have produced an appropriate sense of perspective among some of the group, especially in the comments by Flanagan and Rudd. Both men accept the fact that the Weatherman committed evil in carrying out the bombings, armed robberies, and rioting, even though at the time the group was convinced they were on the right side of history. As Elvis Mitchell quoted Flanagan in his June 4 NYT review of the movie,

''When you feel you have right on your side, you can do some pretty horrific things.''

Unfortunately, I saw no such admissions from the women members of the Weathermen shown in the documentary.

It's possible that this omission was deliberate on the part of the filmmakers, as part of the editing process.

Based on what Dohrn, Jaffe, and others say in the film, however, I have my doubts.

In any event, the movie is well worth watching, if you have the chance.

July 1, 2003
Chutzpah alert

The amazing thing is that she almost got away with it.

In the early 1990's Theresa Lamplugh and her husband ran a gun show operation in Pennsylvania and nearby states. Something about their business attracted the attention of the Bureau of Alcohol, Tobacco and Firearms, as well as the Internal Revenue Service.

Eventually sufficient probable cause developed to support a search warrant on the Lamplugh's home. The information obtained by the BATF and the IRS in the search led to a multi-count indictment alleging firearms offenses as well as separate charges alleging the failure to file income tax returns for 1991 and 1992.

In pre-trial proceedings, the Lamplughs succeeded in having the tax trial separated from the firearms prosecution, with the tax charges dealt with first.

A few days before the tax trial, the Lamplughs appeared at their lawyers' offices with a box that appeared to contain the 1991 and 1992 tax return materials.

This was an incredibly lucky break, not least of which because by then well over four years had elapsed since the execution of the search warrant.

It was also a complete fraud. The tax return materials were fake.

Nonetheless, Theresa convinced her attorney that the documents were genuine. Together they agreed that the materials would be useful in defending against the failure-to-file charges.

Not quite. The documents actually hurt far more than they helped the defense. An IRS witness testified that based on the new information, the Lamplughs had understated their income even more than the IRS first thought. There were other problems with the records, such as the fact that critical dates on some of the materials were screwed up, ruining the credibility of the document-based defense.

Theresa and her husband were convicted of the tax charges, but she managed to escape conviction on the firearms offenses.

Her husband wasn't as lucky, since he died during the appeal period.

Mrs. Lamplugh kept up the fight, and somehow convinced the District Court to grant her a new trial on the tax convictions, due to the alleged ineffective assistance of her counsel in the way he used the tax records she gave him.

Fortunately, the Third Circuit felt otherwise:

First. Mrs. Lamplugh conspired with her husband to prepare false copies of federal income tax returns allegedly filed in 1991 and 1992.

Second. She falsely represented to her attorney that these documents were genuine and that they should be used to demonstrate that she was not guilty of failing to file her federal income tax returns in 1991 and 1992.

Third. She obstructed justice by directing her attorney to disclose the fraudulent tax returns to the Government …in order to introduce them as defense exhibits in an attempt to raise a reasonable doubt regarding her guilt.

Fourth. She conspired to maneuver the prosecution into a Hobson's choice of abandoning its prosecution because she had found copies of the tax returns she allegedly filed in 1991 and 1992, or of appearing to suppress damaging exculpatory evidence overlooked by Government agents in executing the search warrant.

If this court were to grant Mrs. Lamplugh a new trial based on her claim of ineffective assistance of counsel, we would allow a defendant to manipulate the justice system by knowingly presenting fabricated written documents to her counsel in an attempt to deceive the court, the jury, and the Government into accepting her theory of defense, or by successfully gaining a new trial when the strategy failed because the defense counsel did not detect the fraud. Mrs. Lamplugh seeks to absolve herself of her misconduct by contending that her counsel was ineffective because he did not discover her deception. To grant a new trial under these circumstances would completely undermine the integrity of the judicial process.

And with that, the Circuit Court restored her conviction.

Fine with me.

July 1, 2003
Recommended reading

I highly recommend the web-only article by Jeffrey Rosen of The New Republic concerning the problems with the recent Texas sodomy law decision by the Supreme Court.

And I'm not just saying that because his analysis tracks my own assessment of the weaknesses in the majority opinion, especially when compared to the opinions by Justices Thomas and O'Connor.

Although it doesn't hurt.

June 30, 2003
Anyone care to comment? Anyone?

The Ninth Circuit today issued an opinion that it didn’t need to—at least, not according to the dissent. 

A group of hemp-related product sellers sued the DEA to block an “interpretive” rule concerning THC, the active ingredient in marijuana. The plaintiffs argued that the drug enforcement agency couldn’t issue this rule without complying with the more extensive public involvement process required for “legislative” regulations under the Administrative Procedures Act.

According to the Circuit Court majority, the challenged rule

purport[ed] to interpret both the CSA [Controlled Substances Act] and the DEA regulations to ban all naturally-occurring THC, including that found in hemp seed and oil, on Schedule I.

The record before the Court indicated that it is impossible to eliminate all traces of THC from hemp products. The net effect of the new interpretation, therefore, is that previously routine sales of food or beverages that included hemp oil or seed or other hemp derivatives would become illegal, or at least subject to the same restrictive distribution requirements of all Schedule I drugs, even though

[h]emp seeds and oil typically contain minuscule trace amounts of THC, less than 2 parts per million in the seed and 5 parts per million in the oil.

On the same day the DEA issued this interpretative guide, the agency also issued a new draft formal order directly adding natural THC to the list of Schedule I drugs. The comment period ended a few months later, and the DEA subsequently adopted the new, admittedly “legislative” regulation.

This separate regulation is also under attack by the same plaintiffs, but in separate litigation now before the same Circuit.

The panel majority noted the usual problems with making the distinction between the types of administrative rules that agencies can adopt:

Courts have struggled with identifying the difference between legislative rules and interpretive rules. In general terms, interpretive rules merely explain, but do not add to, the substantive law that already exists in the form of a statute or legislative rule. [citation omitted]. Legislative rules, on the other hand, create rights, impose obligations, or effect a change in existing law pursuant to authority delegated by Congress.

As this case illustrates, the real difference involves time, effort, administrative convenience, and adherence to a form of democratic participation. An interpretive guideline that is truly and only explanatory can be adopted fairly quickly, and without significant public notice or involvement. A rule that clearly tells the public either it can’t or it must do something requires notice and a chance for comment on its likely impact prior to the rule's adoption.

The panel quickly agreed that this new interpretive rule was actually legislative in nature, and remanded the case back to the DEA. 

Judge Alex Kozinski dissented, and I think he had the better argument.

Kozinski stressed what everyone knew, now that the other, admittedly legislative regulation had been formally adopted:

Plaintiffs concede that, so long as this regulation remains in force, the agency’s interpretive rule makes no difference. The new regulation has thus “eradicated the effects” of the interpretive rule and mooted the controversy surrounding it. [citation omitted]. 

In addition, given the usual deference courts give administrative agencies in rulemaking, it was highly likely that the new rule would be upheld in the companion litigation. If the admittedly legislative regulation were overturned, however, that would also have the effect of negating the DEA’s ability to use the interpretive rule.

As Judge Kozinski put it, under these circumstances today's decision was “gratuitous”.

Two other quick points:

a. The agency I represent must comply with the rule-making portions of Delaware’s Administrative Procedures Act, 29 Del.C. Chapter 101, modeled on the Federal APA. On occasion I’m asked whether the agency should go ahead with “the full notice and comment” or whether it can shortcut the process.

I ask my clients if there’s any way to interpret the new proposal as a directive to anyone outside the agency on how to obtain a benefit or permit, or how to conduct their business affairs in relation to the Department. If so, then go through the notice and comment period. On extremely rare occasions, they will receive perhaps a single comment or two. Usually none will be forthcoming, much like the results of Ben Stein's earnest requests for feedback from his students.

Even when my clients don’t think their new regulations are legislative in nature, I suggest that they comply with the APA's notice and comment provisions. It eliminates the chance of having the rule hung up by someone’s later disagreement over process issues, as occurred in this case. In addition, it gives the public a chance to express their opinions, even if they don’t usually seize the opportunity. On occasion the agency will also be able to remind citizens that they had that opportunity when it was first proposed.

b. As for the substance of the new THC rules, considering the trace amounts found in food and beverages containing hemp, I think Justice Thomas’ recent invocation of Justice Potter Stewart’s Griswold dissent could also apply here with some force.

A completely zero tolerance THC requirement strikes me as "uncommonly silly."

Nonetheless, I would defer to drug policy experts such as Mark Kleiman on that issue before I came to any final conclusions.

I therefore plan to give Kleiman notice of this post and an opportunity to comment.

June 30, 2003
Thank you, Mr. Lelyveld

The recent unpleasantness about plagiarism, favoritism, cronyism, and other nasty isms at the New York Times led to the departure of executive editor Howell Raines and managing editor Gerald Boyd.

For an unspecified duration, Joseph Lelyveld is now serving as interim executive editor, returning to his former employer after a relatively short retirement.

Today’s NYT op-ed page gives me some hope that this change will be an improvement.

There’s a fine piece by Stanley Fish, a college dean at UI-Chicago, respectfully describing and challenging the recent dissent filed by Justice Clarence Thomas in the University of Michigan law school admissions case. 

I highly recommend reading the whole essay, but these portions stand out:

Legacy preferences and "many other kinds of arbitrary admissions procedures" are not, he says, prohibited by the 14th Amendment to the Constitution, which prevents states from denying citizens "equal protection of the laws." But classifications "made on the basis of race" are. He may privately believe that legacy exceptions are unwise and unfair — as the adjectives "unseemly" and "arbitrary" indicate he does — but it is not his role as a Supreme Court justice, he declares, to "impose my view of higher education admissions on the nation."

I focus on this short passage in his 31-page dissent because it gives the lie to those who read the opinion as a personal expression of anger at having been the beneficiary of a policy that retroactively casts a shadow over his achievements. In fact the opinion is a repudiation of the personal in favor of the principles of justice as Justice Thomas understands them. He asks, what does the equal protection clause forbid? The answer he finds is that the clause forbids discrimination on the basis of race, whether that discrimination is benign or malign in intention.

… Justice Thomas is not saying his social science is better than theirs — although he obviously thinks that it is, just as he obviously thinks that legacy preferences are unseemly. He is saying social science evidence is not the way to go, because the next survey may well overturn all the assumptions we now rely on. Better to stick with what the Constitution actually says and let the empirical facts fall where they may.

Later in his piece, Fish makes it very clear that he does not agree with Justice Thomas, preferring instead the analytical path used by Justice O’Connor in the majority opinion.

And that’s fine. While I favor the approach to constitutional questions Justice Thomas used in this case, I certainly appreciate there are valid arguments going the other way.

Nonetheless, there were other, intemperate arguments made about Justice Thomas’ stand on this issue, including one made previously in the same newspaper by Maureen Dowd.

With all due respect to the prior top management at the NYT, I have the impression that their editorial selections on this topic would have stopped with the publication of Dowd’s screed, and that Fish’s essay would not have been given the same outlet.

It would be a bit much to expect an NYT op-ed piece that wholly defends and supports the principles set forth by Justice Thomas in this dissent. On the other hand, Lelyveld does NYT readers a valuable service in showing that it’s entirely possible to provide an accurate description of the legitimacy of Justice Thomas’ arguments, as well as counter-arguments against them, without lapsing into unconstructive demonizing.

Thank you, Mr. Lelyveld.