Sneaking Suspicions
Archives-- May 22-June 4, 2005

This page includes posts from May 22-June 4, 2005 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

June 3, 2005
Adventures in wonkdom

Yesterday I gave another speech to a group of folks about the City of Brighton proposal. They were pleasantly receptive, and asked several interesting questions.

Then again, I was talking to a group of Democrats about the need for more government, so perhaps that was to be expected.

You can read more about the talk here.

June 1, 2005
Wow—you too?

I didn’t realize that Slate writer Tim Noah and I had so much in common, until I read about it in the second sentence of his piece about Deep Throat, former G-Man W. Mark Felt.

It’s not so much the fact that Noah suggested a long time ago that America’s favorite snitch was Felt, or the notion that something other than patriotism and principle probably convinced Felt to leak to Woodward and Bernstein. Although, I must admit, the idea that turf protection and the prospect of potential personal advancement would inspire a whistleblower is not exactly a new one. In addition, it always made sense to me that Deep Throat would have a law enforcement connection, given the criminal elements throughout most of the Watergate mess.

I’m talking about something much more important—our mutual taste in alcoholic drinks:

For years the better class of Deep Throat sleuth—discriminating, Campari-sipping sophisticates like James Mann, Nora Ephron, Richard Nixon, Washingtonian magazine, Chase Culeman-Beckman, Ronald Kessler, and yours truly—have been fingering W. Mark Felt, former deputy associate director of the Federal Bureau of Investigation, as the likely anonymous source described by Bob Woodward and Carl Bernstein in All the President's Men.

My usual pre-dinner drink at most fine dining establishments is a Campari and soda with a lime twist, a request that usually is met something less than three times out of four. 

About every fourth time, the waiter comes back to the table and tell me that they don’t have the bright red Italian aperitif in stock. 

About every third time I order it, the drink appears on the table with a bright yellow slice of lemon rind on the rim of the glass—not exactly what I ordered.

Perhaps the bartender has his or her own convictions about the best way to drink Campari, and is not above forcing that opinion on others.

I readily admit that Campari is an “acquired” taste. No one else in my family will drink the stuff, in fact.

On the other hand, you can’t make me drink Scotch whiskey.

And so, to Mr. Noah, I simply say “Cheers—but please don’t accuse me of being sophisticated, just because I can sometimes be seen holding a drink that looks like a melted Christmas candle.”

May 31, 2005
Only partly oblivious

A good buddy and I went fishing yesterday, taking advantage of the gorgeous weather to sit quietly in the boat and do as little as possible. It's a winning combination.

There were a few interesting sights among the other boaters on Indian River Bay, though.

Not far from Burton's Island, for example, I edged our boat toward a disabled cuddy cabin cruiser. The outboard engine's cover was off, and a small cloud of white smoke sputtered from the exhaust as the man at the helm looked back at his companion, hovering over the engine.

We'd have come alongside, but I couldn't help noticing the would-be mechanic's lit cigarette hanging off his lip, not far from the fuel hoses and the top of the oily-looking, uncovered engine.

The helmsman noticed us, and waved as if to say they could handle it and didn't need any help. We were happy to oblige and move on.

The tide conditions weren't favorable, so it was a good while before we saw anyone catch a fish. Then we heard a slight commotion about a hundred yards away, and turned in time to see a man in a small skiff pull in what looked like a small snapper bluefish.

The man's golden Labrador retriever watched from his spot on the bow.

The man stood in the center of the rocking boat, and had a little trouble grabbing the prize at the end of the line. The fish dropped down to the deck, and the man leaned over to pick it up.

Just then we heard his disappointed voice: "Oh no! My beer!"

Apparently the fish had its revenge, if only for a second or two, before the man finally took hold of it, removed the hook, and dropped the fish into a cooler.

The dog didn't seem to care.

A catamaran and a pontoon boat pass each other in Rehoboth Bay, May 30, 2005.

May 29, 2005
What our children can teach us

Sometimes folks ask me how I find the time to keep up with this blog, what with a full-time job, a part-time golf column, volunteer community stuff, and the usual demands on one's schedule.

I usually respond by saying you can get a lot done by limiting how much television you watch, a statement that not only has the benefit of being true as a general proposition, but which also happens to apply in this instance.

On the other hand, I must admit that this practice can impede one's ability to keep up with important cultural phenomena.

Fortunately, older daughter's return from college provided a golden opportunity to be introduced to what I've been missing.

In the last few evenings, for example, we've been watching and laughing our way through her DVD collection of the first season of Arrested Development.

This is a brilliant and very, very funny show. In fact, I have a newfound appreciation for the comedic talents of Liza Minnelli, a statement I never thought I would ever make--but it's true. The entire cast is a delight, and with their deadpan delivery there's not a single instance of overreaching.

We've finished the first of three discs, so blogging might be even lighter than usual for a while.

After all, it's important to remember that one can learn much from one's children. I'm fully prepared to take all the time that's necessary to understand why she says this is her favorite TV show, ever.

May 27, 2005
Four Claudes for a Tourism 101 headline

Sometimes the key to a top-ranking Claude award for a newspaper headline is to use such blatantly obvious phrasing that it actually repels potential readers instead of attracting them.

The News-Journal had one this morning, on top of a nicely done but fairly standard opening-of-the-Delaware-beach-season story:

Fair weather aids beach merchants

Well, gee.

Is the next piece going to be about how rain discourages the tourists?

This one is worth four Claudes, easy.

May 26, 2005
Ridgemont High East

We've had some big storms around here lately, and apparently several would-be Jeff Spicoli-types at our local high school have been noticing the enhanced surfing opportunities that result.

Younger daughter told us that one of her buddies told her he skipped lunch today "because the waves were good." Several other surfer dudes allegedly skipped the last couple hours of school today for the same purpose.

Totally awesome way to bring in the new summer season, eh?

May 26, 2005
Recommended reading

I highly recommend a richly detailed, largely convincing essay by Steve Sailer about three basic elements that tend to distinguish areas that vote Republican instead of Democrat.

His argument boils down to a three-word phrase to describe the attractive elements of GOP-friendly conditions: affordable family formation.

As with most such analyses, there's a danger of oversimplifying from election results that in many places could switch with only a modest shift in voting percentages. Still, the statistical and other evidence he gathers and thoughtfully discusses are well worth your consideration.

Hat tip: Mickey Kaus

May 24, 2005
Silver anniversary

Twenty-five years ago today, my bride and I began our joint adventure as husband and wife.

It's been a great ride, and we're both looking forward to the next twenty-five years.

This link will take you to a sound clip from the song we danced to during our wedding reception.

It's still true.

May 24, 2005
More on the Chevron takings case

For government attorneys seeking to defend against regulatory takings claims, there's a lot to like about yesterday's Chevron decision, in which the oil company sought to block the implementation of a rent cap law relating to retail gasoline outlets.

In addition to the points discussed in last night's post, I also thought another passage will be particularly useful in dealing with challenges to state regulations. Justice O'Connor repeated her prior point about how the language used in the Agins case suggested that state and local regulations should be subjected to a "heightened means-ends review...." 

Given her background as a former state legislator, it was perfectly understandable that for Justice O'Connor, this kind of analysis presented a significant problem when conducted by the judiciary:

If so interpreted, it would require courts to scrutinize the efficacy of a vast array of state and federal regulations—a task for which courts are not well suited. Moreover, it would empower—and might often require—courts to substitute their predictive judgments for those of elected legislatures and expert agencies.

Although the instant case is only the tip of the proverbial iceberg, it foreshadows the hazards of placing courts in this role. To resolve Chevron’s takings claim, the District Court was required to choose between the views of two opposing economists as to whether Hawaii’s rent control statute would help to prevent concentration and supracompetitive prices in the State’s retail gasoline market. Finding one expert to be "more persuasive" than the other, the court concluded that the Hawaii Legislature’s chosen regulatory strategy would not actually achieve its objectives. See 198 F. Supp. 2d, at 1187–1193. Along the way, the court determined that the State was not entitled to enact a prophylactic rent cap without actual evidence that oil companies had charged, or would charge, excessive rents. See id., at 1191. Based on these findings, the District Court enjoined further enforcement of Act 257’s rent cap provision against Chevron. We find the proceedings below remarkable, to say the least, given that we have long eschewed such heightened scrutiny when addressing substantive due process challenges to government regulation. See, e.g., Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 124–125 (1978); Ferguson v. Skrupa, 372 U. S. 726, 730–732 (1963). The reasons for deference to legislative judgments about the need for, and likely effectiveness of, regulatory actions are by now well established, and we think they are no less applicable here.

Works for me.

As I see it, the Chevron opinion reminds potential litigants to focus on actual, significant negative effects of regulatory action in order to bring a takings claim, as opposed to mounting an attack based primarily on competing policy arguments.

Certainly there are legitimate places for presenting those alternative points of view, both in the legislature and in commenting upon drafts of implementing regulations. Nonetheless, this decision strongly suggests that once new rules are adopted, those who don't like the final decisions should focus their efforts on seeking a political resolution in their favor, instead of relying upon the judiciary.

May 23, 2005
Walking back a bit from what we said before

The Supreme Court today issued what on first reading looks like an attempt to walk away from some potentially slippery language in a takings case dating back 25 years.

In writing for the unanimous Court, Justice Sandra Day O'Connor won't be confused with Emily Litella, whose famous "Nevermind" ended her monologues based on a fractured understanding of reality. Nonetheless, the opinion should lead those who've been keen to claim a regulatory taking has occurred to be a bit more careful with their arguments.

The issue in this case dealt with a rare bit of direct legislative interference in the petroleum market--a rent cap imposed by the State of Hawaii. Chevron challenged the limitation, while also agreeing on stipulated facts that the financial impact of the rent cap did not threaten the continued viability of their business in Hawaii.

Chevron's argument relied upon a reading of the 1980 Agins case, where the Court held that

"[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests, see Nectow v. Cambridge, 277 U. S. 183, 188 (1928)..." 447 U. S., at 260.

After 25 years, this phrasing appeared to the current Court as presenting more problems than solutions:

[T]he language the Court selected was regrettably imprecise. The "substantially advances" formula suggests a means-ends test: It asks, in essence, whether a regulation of private property is effective in achieving some legitimate public purpose. An inquiry of this nature has some logic in the context of a due process challenge, for a regulation that fails to serve any legitimate governmental objective may be so arbitrary or irrational that it runs afoul of the Due Process Clause. See, e.g., County of Sacramento v. Lewis, 523 U. S. 833, 846 (1998) (stating that the Due Process Clause is intended, in part, to protect the individual against "the exercise of power without any reasonable justification in the service of a legitimate governmental objective"). But such a test is not a valid method of discerning whether private property has been "taken" for purposes of the Fifth Amendment.

[T]he "substantially advances" inquiry reveals nothing about the magnitude or character of the burden a particular regulation imposes upon private property rights. Nor does it provide any information about how any regulatory burden is distributed among property owners. In consequence, this test does not help to identify those regulations whose effects are functionally comparable to government appropriation or invasion of private property; it is tethered neither to the text of the Takings Clause nor to the basic justification for allowing regulatory actions to be challenged under the Clause.

There's more to discuss about this case, but it's also the night of the last high school band concert for younger daughter.

I'll update this post soon.

Hat tip: Howard Bashman (of course!)


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Fritz Schranck
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© Frederick H. Schranck 2002-2005