06 May 23
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Justices Ketanji Brown Jackson, Sonia Sotomayor and Elena Kagan are letting their love of the Supreme Court blind them to its problems.
In that letter, Roberts cited the separation of powers as barring his attendance but attached a “Statement on Ethics Principles and Practices” that all nine justices had signed. Ranking member Lindsey Graham, R-S.C., framed this on Tuesday as the justices all agreeing fully with the content of Roberts’ letter and rejecting the idea that congressional oversight was at all appropriate. This is at best a stretch of what Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson intended with their signatures; at worst, it is a sign that even the three “liberal” justices are willing to place the Supreme Court’s consolidation of power above any ideological disagreements with their colleagues.
As former federal judge Jeremy Fogel rightly pointed out in his testimony, two concurrent discussions were going on during Tuesday’s hearing. The first, which he was keen to participate in, dealt with how the Supreme Court could be more transparent and open about the ethical standards it follows and how those standards could be enforced. The other was almost entirely about the politics surrounding the recent revelations about Justice Clarence Thomas’ major ethical lapses and the lesser offenses by other conservative members of the court.
The committee’s Democrats, to their credit, used the latter issue as a launching point to highlight the necessity of the former. The committee’s Republicans, on the other hand, spent almost all of their time either counterattacking liberal criticisms of Thomas, pointing out times liberal justices like Jackson needed to file corrections to their financial disclosures or otherwise denouncing the hearing as a partisan hit job, frequently citing Thomas’ claim that his 1991 confirmation hearing was a “high-tech lynching.”
It was the GOP’s witnesses, not the elected officials, who offered the most salient rebuttals of proposed legislation to force the Supreme Court to adopt a code of conduct. Like Roberts, they argued that it would be unconstitutional for one branch of government, in this case Congress, to dictate the internal workings of another, the Supreme Court. Any bill that would force such changes would thus be an assault on the independence of the court.
But it’s a false distinction to say that the Supreme Court and Congress are completely separate. James Madison himself wrote in Federalist 47 that each branch “must have partial control over others,” University of Virginia law professor Amanda Frost testified. Meanwhile, the Constitution established the Supreme Court as a separate branch in Article III, but it left the structure and workings of the court up to Congress to establish, which it did in the Judiciary Act of 1789. Frost agreed with the rest of the panel that it would be better for the Supreme Court to set up its own formal methods for dealing with potential ethical lapses. And yes, protecting the “decisional independence” of the justices is paramount, ensuring that they are never punished for a decision — but barring that, Frost argued, it is fully within Congress’ power to regulate the administrative aspects of the court.
More broadly speaking, the refusal of Congress to treat the Supreme Court as an equal that could be dealt with directly rather than deferring to it on every level would have been anathema to the founders. It was darkly funny that Sen. John Kennedy, R-La., referred to the Democrats’ concern about ethics as a “federal power grab.” The reality is that the court’s conservative supermajority has in recent years “taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts,” as Stanford Law professor Mark Lemley argued in the Harvard Law Review last year. Saying that the justices should be more open about whom they’ve gotten money from and open to complaints to that effect doesn’t countermand the growth of the “imperial Supreme Court,” as Lemley dubbed it.
Unlike, say, Justice Samuel Alito, the three liberal women of the court have been quiet during the debate over ethics reform. Kagan agreed at a 2019 House Appropriations subcommittee hearing that the court should have a formal code of conduct, but those talks have reportedly stalled out. We also don’t know whether Roberts ever actually extended Durbin’s invitation to testify to any of them, but we can assume given their lack of outreach to the committee that they agreed with his declination.
The sad irony is that in their silence Kagan, Sotomayor and Jackson are acting more in concert with the founders’ intentions than any of the Republicans attending Tuesday’s hearing. The overwhelming presumption among the framers of the Constitution was that each of the spheres of power would act in its own interest and in doing so prevent the two others from gaining total dominance. Or, as Madison put it in Federalist 51, “ambition must counteract ambition.”
It should be common sense, then, that members of Congress would act to counter the Supreme Court, as it should counter the White House, as well. Once again, though, we see how the rise of hyperpartisan political parties has blown a hole in that theory. Rather than act to protect the prerogatives of Congress writ large, Republicans like Graham and Kennedy view the conservative members of the court, not their fellow senators, as their real allies.
If Kagan, Sotomayor and Jackson truly believe that it is only the Supreme Court that has the ability to govern itself, then they need to be more forceful in putting that self-regulation into practice. They need to be willing to tell Congress if, as it appears from the outside, there is no effective way for that to happen. And they need to be willing to speak out about whether they believe Thomas violated the ethics code that they have now signed onto. For now, the three of them are standing with their own faction in a way that only hurts the court in the long term.
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Protestors gather at Barclays Center Arena and march to the 7th police precinct to protest the NYPD's response to the killing of Jordan Neely in Brooklyn, New York, on May 4, 2023. (photo: Alex Kent/AFP)
ALSO SEE: A Man Was Strangled in the Subway. New York Leaders' Response Is a Joke.
Daniel Penny, a 24-year-old Marine veteran, has been identified as the man who killed dancer Jordan Neely, 30, on a NYC subway train
On Monday, Neely, who was homeless and seemingly having a mental health crisis, was reportedly yelling and acting erratically on a New York Subway, when Penny put him in a fatal chokehold on a Manhattan subway train. Part of the incident was captured on video by Juan Alberto Vazquez, an independent journalist. Vazquez told the New York Times that Neely had not assaulted anyone before he was put in a chokehold for approximately 15 minutes.
In the nearly four-minute video, a white man the Times identified as Penny is seen holding Neely, who is Black, in a chokehold on the floor of a stopped train, while two people help him restrain Neely’s arms. When Neely stops moving, Penny gets up and multiple people turn Neely on his side. Police told reporters they took him into custody, questioned him, and released him.
The medical examiner determined Neely died via compression to his neck caused by the chokehold and ruled a homicide.
Penny has not been charged in Neely’s killing, and has retained criminal defense attorney Thomas Kenniff to represent him, according to the report, setting up a potential trial with former rival Manhattan District Attorney Alvin Bragg. Kenniff told the Times that his firm Raiser & Kenniff had been in contact with the district attorney’s office and the Police Department regarding Neely’s death.
“When Mr. Neely began aggressively threatening Daniel Penny and the other passengers, Daniel, with the help of others, acted to protect themselves, until help arrived,” attorneys representing Neely wrote in a statement to Rolling Stone. “Daniel never intended to harm Mr. Neely and could not have foreseen his untimely death.”
The family of Jordan Neely has hired Mills & Edwards LLP to represent them. “I took this case because 15 minutes is too long to go without help, intervention and without air. Passengers are not supposed to die on the floor of our subways,” said Attorney Edwards in a statement.
Neely was a performer and known in the city for his impersonations of Michael Jackson, dressing up as the singer and moonwalking in front of train commuters. “I was always in awe seeing him dance when I did,” said Brenna Crowley, who knew Neely, wrote on Facebook. Neely was autistic and began to suffer from mental illness after his mother was murdered in 2007, his father, Andre Zachery, told the New York Daily News. A New Jersey man was sentenced to 30 years in prison in 2012 for the murder of Christie Neely and “dumping her body in a suitcase in the Bronx,” the Jersey Journal reported.
“It traumatized him. He was not expecting that, the brutal way she was taken,” said Carolyn Neely, who has set up a GoFundMe page for her nephew. “That had a big impact on him. The brutality behind that.”
Neely’s death has drawn polarizing reactions from across the country, and follows the killing of BLM protester Garrett Foster and Texas Governor Greg Abbott’s plan to pardon his convicted murderer; the shooting of teen Ralph Yarl, who rang a neighbor’s doorbell; and the death of Kaylin Gillis, who pulled into the wrong driveway before the homeowner opened fire. In each instance, including Neely’s killing, debates on self-defense, Stand Your Ground laws, and the Second Amendment have become a point of contention for the nation.
In a statement on Wednesday, New York Mayor Eric Adams appeared to redirect blame to Neely’s mental health as a contributing factor to his death. “There’s a lot we don’t know about what happened here, so I’m going to refrain from commenting further,” he said. “However, we do know that there were serious mental health issues in play here, which is why our administration has made record investments in providing care to those who need it and getting people off the streets and the subways, and out of dangerous situations.”
Although Adams has paraded plans for future investments in mental healthcare, the city has continued to cut services for those in need.
U.S. Representative Alexandria Ocasio-Cortez has said Neely was “murdered” in a tweet Thursday, and criticized officials for their lack of action over his killing. “I have yet to hear a real explanation from any official hesitating to condemn the killing of Jordan Neely about what makes condemning this violence so ‘complicated,’” she wrote. “Killing is wrong. Killing the poor is wrong. Killing the mentally ill is wrong. Why is that so hard to say?”
Penny graduated from West Islip High School in 2017 and enlisted in the Marines in 2017. He served as a rifleman in the 22nd Marine Expeditionary Unit and separated from the service 2021, according to a Marine Corps spokesperson.
While the veteran has not been charged, prosecutors are reportedly considering potential charges against Penny, with the Manhattan district attorney’s office “weighing if the case should go to a grand jury to determine if charges should be brought.”
Eli Northrup, the policy director for the criminal defense practice at the Bronx Defenders, told the Times that the level of scrutiny given extended to filing charges in this incident is atypical. He said, “The practice is to arrest and charge first, ask questions later, especially when the person being arrested is Black, brown or poor.”
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Harlan Crow and Clarence Thomas. (photo: Chris Goodney/Bloomberg/Olivier Douliery/AFP)
The billionaire’s generosity to the Supreme Court justice and his family raise a whole lot of questions about whether the “gifts” were declared properly.
Recent reports indicate that Crow provided Thomas’ grandnephew with tuition to a pricey boarding school in the 1990s. Thomas did not report this gift from Harlan Crow as required on his annual disclosure forms. But that is nothing new. ProPublica had previously reported on multiple luxury vacations provided to Justice Thomas and his wife via Crow’s yacht and jets—including an island-hopping junket in Indonesia that ProPublica valued at $500,000.
That Thomas has made multiple lapses in ethical judgment in not reporting the receipt of such valued largesse from Crow is something for him, SCOTUS, and now Congress to muse over.
But what about Crow’s judgment? Did he file gift tax returns and pay gift taxes on any of the gifts he provided to the Thomas family?
It is a reasonable question to ask, and Sen. Ron Wyden (D-OR) appears to have formally done so, with a reported due date of a response May 8. In lieu of gift taxes, did Crow expense the value of the trips and tuition provided the Thomases on either personal or business income tax returns? Wyden wants to know.
If Crow took business expense deductions for the above referenced “gifts,” then he can’t claim they were gifts. And if that’s the case, he wouldn’t have had to file gift tax returns which—given a potential tax rate of up to 40 percent—would represent a pretty price for the billionaire real estate magnate.
The criteria for what constitutes an untaxed gift that exceeds the limit to avoid paying tax vary by year. For example, the limit was $13,000 per recipient in 2013, but $17,000 in 2023. The Indonesian junket—valued at over $500,000 by ProPublica—would generate gift taxes of approximately $200,000 for Mr. Crow.
Now, if Crow did take business deductions for the value of the luxury vacations provided to the Thomases, he would have opened up another can of worms for himself tax-wise. That’s because Crow has publicly stated he did not discuss any business before the court with Justice Thomas.
If that is true, then it is possible that Crow falsified his income tax returns by expensing the cost of the vacation provided the Thomases. It’s also possible the vacations provided the Thomas family could be viewed as income to Thomas—since he would be viewed as providing value to Crow through business discussions. To be very clear, this is speculative and none of this is proven, but the possibility alone makes it worth investigating.
What seems much more clear-cut is that Justice Thomas doesn’t seem to think he has to report gifts from wealthy businessmen, who also are generous corporate political donors, like Harlan Crow.
“Not reportable” is the phrase used by Thomas’ attorney/friend Mark Paoletta when he tweeted (incorrectly) about how the tuition payment by Crow to the school attended by the grandnephew was not reportable as a gift.
Oh my!
Such an admission by Paoletta suggests knowledge of gift tax requirements by both Thomas and Crow going all the way back to the 1990s. It also raises additional questions. Was Justice Thomas motivated not to disclose valuable junkets provided to him and his family in order to abet his buddy Crow’s non-filing of gift tax returns and/or expensing of the value of the trips on his tax returns?
Oh me oh my!
Now, Mr. Crow may think he has insulated himself by procuring a golden passport from St. Kitts and Nevis—which is a notorious tax haven and money laundering refuge in the Caribbean. Then there’s the fact that Crow’s yacht, the Michaela Rose, has a registered ownership under an entity called Rochelle Marine Limited—a company domiciled in Guernsey, another notorious tax haven located just off the shores of the U.K.
Mr. Crow clearly has employed some clever tax accountants and lawyers over the years. And we all look forward to the answers he provides to the questions posed by Sen. Wyden but, clearly, Crow has exhibited a predisposition for tax avoidance behavior. Did he cross the line into tax fraud? That is something to contemplate and discuss around the campfire.
But why is this question even significant?
It is murky as to whether any of Crow’s business dealings were ever subject to SCOTUS review—even indirectly. What is not unclear are the heavy-duty political campaign contributions made by Harlan Crow.
Has Mr. Crow donated to dark money PACs? We don’t know, because anonymity is the whole point of dark money PACs.
What about corporate political donations?
There is no limit to those given the Citizens United decision, wherein SCOTUS bestowed personhood on corporations and concluded that limiting corporate political contributions was tantamount to limiting freedom of speech—which was unconstitutional.
Might that issue have ever come up when Thomas was sailing on Crow’s yacht or flying on his corporate jet? Justice Thomas voted with the majority in Citizens United, which certainly had to make corporate executives everywhere in the U.S. pleased—even if it opened the door to contributions from overseas, and not just from Caribbean tax havens, and not just from dual passport holders.
That Justice Thomas was unethical in not disclosing receipt of luxury gifts provided to him is transparently obvious, though it seems inconsequential to date. But it does raise the question as to whether those who provide wealthy gifts to civil servants that hold positions of power should face any consequences, particularly when tax responsibilities are clear.
Should wealthy corporate executives who make large political donations to obtain results favorable to their business (or make luxury gifts to powerful people) be held accountable? Bottom line—does the wealth, power, and position of the wealthy insulate them from the consequences of their actions? (Normal tax-paying citizens would certainly face such a reckoning.)
These questions are bigger than just Thomas and Crow. They speak to the integrity of our political systems, and whether ordinary Americans should have to live by different rules than the wealthy and politically powerful.
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Anti-death penalty activists rally outside the U.S. Supreme Court in an attempt to prevent Oklahoma's planned execution of Richard Glossip. (photo: Larry French/Getty Images)
The Supreme Court granted Glossip’s application for stay of execution on Friday. Glossip filed the application following the Oklahoma Pardon and Parole Board’s split vote at his clemency hearing late last month, which resulted in no recommendation for clemency.
Glossip was given the death penalty after being convicted of the 1997 murder-for-hire of Barry Van Treese. However, recent investigations have found evidence which calls Glossip’s guilt into question.
Glossip has received an unprecedented amount of support from Oklahoma lawmakers and officials, including Attorney General Gentner Drummond, who supported both his application for clemency and for stay of execution.
The Supreme Court’s order stays the execution pending existing petitions from Glossip.
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Donald Trump. (photo: Erin Schaff/NYT/Redux)
In a new filing, the lawyer for the eight electors accused prosecutors of knowingly making false accusations in an effort to have her removed from the case.
Prosecutors with the office of Fulton County District Attorney Fani T. Willis (D) told the eight that they will not be charged with crimes if they testify truthfully in her sprawling investigation into efforts by Trump, his campaign and his allies to overturn Joe Biden’s victory in Georgia, according to a brief filed Friday in Fulton County Superior Court by defense attorney Kimberly Bourroughs Debrow.
Willis has said that the meeting of Trump’s electors on Dec. 14, 2020, despite Republican Gov. Brian Kemp’s certification of Biden’s win, is a key target of her investigation, along with Trump’s phone calls to multiple state officials and his campaign’s potential involvement in an unauthorized breach of election equipment in rural Coffee County, Ga.
Georgia was among seven states where the Trump campaign and local GOP officials arranged for alternate electors to convene with the stated purpose of preserving legal recourse while election challenges made their way through the courts. Among the questions both Willis and federal investigators have explored is whether the appointment of alternate electors and the creation of elector certificates broke the law. Another question is whether Trump campaign officials and allies initiated the strategy as part of a larger effort to overturn Biden’s overall victory during the counting of electoral votes on Jan. 6, 2021.
The news that some — but likely not all — of the electors will not be charged raises new questions about the scope of Willis’s examination of the meeting of electors, all of whom she previously identified as criminal targets in her investigation. The electors who accepted immunity did so without any promise that they would offer incriminating evidence in return, and they all have stated that they remain unified in their innocence and are not aware of any criminal activity among any of the electors, Debrow said.
“In telling the truth they continue to say they have done nothing wrong and they are not aware of anyone else doing anything wrong, much less criminal,” said an individual familiar with the investigation who spoke on the condition of anonymity to discuss the case.
Among the electors who appear to remain targets are David Shafer, the chairman of the Georgia Republican Party who presided over the gathering, and Shawn Still, a state senator who at the time was state finance chair for the party, and who told congressional investigators he played a role confirming electors’ identities and admitting them into the room at the Georgia Capitol, where they convened.
None of the electors responded to efforts by The Washington Post to reach them. Shafer has denied that convening to cast electoral votes for Trump was improper, saying repeatedly — including during the gathering itself — that the electors were meeting on a contingency basis to preserve Trump’s legal remedy in the event that he prevailed in an ongoing lawsuit challenging the Georgia result.
Under federal law, electors for the winning presidential candidate in each of the states must meet on the first Monday after the second Wednesday of December to cast their votes. The Republican electors said that if they had not met and voted, and if Trump had prevailed in his lawsuit, Biden’s electoral votes would have been invalidated but there would have been no Trump votes to replace them.
Friday’s filing was the latest in an escalating back and forth between prosecutors and attorneys for the Republicans electors, who have traded allegations of unethical conduct since last summer.
In the latest volley, Debrow accused prosecutors of misrepresenting the facts — a reference to an April 18 motion from Willis asking a judge to block Debrow from “any further participation” in the case, claiming the attorney did not tell her clients they had been offered potential immunity in the investigation.
That motion also claimed Debrow had committed an ethical breach by representing so many clients simultaneously, including some that prosecutors said had incriminated others that Debrow represents in interviews with prosecutors conducted last month. Willis argued that was a conflict of interest.
In her response Friday, Debrow vehemently denied both allegations — and accused prosecutors of knowing that their allegations were not true. She cited a letter to her clients dated last August that laid out early discussions of potential immunity offers. She also said that all eight of her current clients have accepted immunity, making it impossible for them to implicate one another. She added that after reviewing audio recordings and transcripts of her clients’ interviews with prosecutors, which she attended, she has found no evidence that any of them implicated anyone else.
“This statement is categorically false, and provably so,” Debrow wrote. “None of the interviewed electors said anything in any of their interviews that was incriminating to themselves or anyone else, and certainly not to any other elector represented by defense counsel.”
She added that Willis’s motion was “reckless, frivolous, offensive, and completely without merit” — and she asked the court to impose sanctions on prosecutors in the form of payment of the cost of responding to the motion.
Debrow also accused Nathan Wade, a special prosecutor in the case, of attempting to mislead at least three of her clients by asking “confusing” questions about when they had first been presented with offers of immunity.
Debrow claimed in the filing that when she sought to clarify Wade’s questions about immunity during an interview with one of her clients, identified in the filing as “Elector E,” Wade ordered a prosecution investigator in the room to shut off a recording device before engaging in what she described as “overt threats and attempted intimidation” against both her and her client.
According to the filing, the exchange was captured on Debrow’s tape recorder, which continued to run.
“Here’s the deal. Here’s the deal,” Wade said, according to a partial transcript included in Debrow’s filing. “Either [Elector E] is going to get this immunity, and he’s going to answer the questions — and talk (inaudible) wants to talk — or — or we’re going to leave. And if we leave, we’re ripping up his immunity agreement, and he can be on the indictment. That’s what can happen.”
A spokesman for Willis’s office declined to comment.
The dispute touches on a key uncertainty about Willis’s investigation, which is exactly what crimes she and her team believe may have been committed. In her April 18 filing, Willis indicated her belief that some electors, but not all of them, broke the law. Those who planned and helped manage the elector meeting — including Shafer and Still — appear still to be targets.
“During these interviews, some of the electors stated that another elector represented by Ms. Debrow committed acts that are violations of Georgia law and that they were not party to these additional acts,” Willis’s filing said.
According to two individuals with knowledge of the elector interviews with prosecutors, many of the questions centered around Still’s role restricting admission to the room in the state Capitol, and also around who mailed the signed electoral certificates to Washington. Debrow made clear in her response Friday she does not believe either action broke any law.
In testimony last year to the U.S. House committee investigating the Jan. 6, 2021, attack on the Capitol, Still said he had been asked to verify electors’ identities before admitting them to the room. The meeting itself was open to the public and the press and was reported, with video, that day.
The legal back-and-forth comes days after Willis said in letters to state and local law enforcement that she expects to announce a charging decision in the case between July 11 and Sept. 1 and urged “a need for heightened security and preparedness in coming months due to this pending announcement.”
The letters were the strongest indication yet that Willis may file criminal charges in the high-profile case, which not only has cast scrutiny on the actions of Trump and his closest allies but also has ensnared several prominent Republicans, including former New York mayor Rudy Giuliani and Sen. Lindsey O. Graham (R-S.C.).
The fireworks between Willis and defense lawyers began last summer, when she first sought electors’ testimony before a special purpose grand jury convened to investigate alleged election interference in Georgia.
In July, Debrow and Holly Pierson, her then-co-counsel, asked a judge to quash those subpoenas, revealing their clients had been informed they were targets of the investigation after some electors, including Shafer, had already voluntarily spoken to prosecutors.
They accused Willis of “improper politicization” of the case and later asked for her office to be blocked from investigating their clients — requests that Fulton County Superior Court Judge Robert McBurney, who oversaw the special grand jury, denied.
In October, Willis sought to disqualify Pierson and Debrow from the case, claiming it was unethical and a conflict of interest for them to represent so many clients simultaneously.
Pierson and Debrow have strongly denied a conflict. In a November filing, they said even if a judge were to determine there was a conflict, their clients had been “fully apprised of the necessary information to make an informed choice to waive any such conflicts and remain in the joint representation.”
They insisted their clients were innocent of any crimes and pointed to the 1960 presidential election in Hawaii, when Democrats created an alternate slate of electors while the state conducted a recount. The recount flipped the outcome in the state from Richard M. Nixon to John F. Kennedy, and Congress ultimately accepted the Democratic electors’ votes, which could not have occurred had they not convened and voted in December.
McBurney later ordered Pierson and Debrow to split up their 11 clients — ruling that Shafer was “substantively differently situated” than the other 10 GOP electors jointly represented by attorneys.
“He is not just another alternate elector; his lawyers’ repeated incantation of the ‘lawfulness’ of the 2020 alternate electoral scheme and invocation of a separate electoral process from 60 years ago and 4,500 miles away do not apply to the additional post-election actions in which Shafer engaged that distinguish him from the ten individuals with whom he shares counsel,” McBurney wrote. “His fate with the special purpose grand jury (and beyond) is not tethered to the other ten electors in the same manner in which those ten find themselves connected.”
Pierson remained with Shafer, while Debrow took on the other 10 clients. Last week Cathy Latham, one of Debrow’s clients, indicated she had retained a new attorney in the case.
Latham, a former chairwoman of the Republican Party in Coffee County, Ga., has drawn scrutiny for her role as an alternate elector but also for her alleged involvement helping Trump allies copy sensitive election data information from voting machines in the county.
On April 28, Kieran Shanahan, a North Carolina attorney, gave notice that he was representing Latham in the case and filed a motion joining Trump’s attorneys in their recent request to remove Willis from the case and block evidence gathered as part of the special grand jury from being used any future legal proceedings.
Shanahan did not respond to a request for comment.
Another elector formerly represented by Debrow is also seeking a new attorney, according to Friday’s filing, but it did not say which one. That leaves Debrow with eight electors as clients, all of whom have immunity.
On Monday, McBurney gave Willis and her team until May 15 to respond to the Trump motion, which also claims Willis violated “prosecutorial standards” and Trump’s constitutional rights in part by publicly commenting on the case.
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Migrant children in Roma, Texas. (photo: Kirsten Luce/NYT)
It’s not just about a labor shortage.
Wisconsin is not the only state looking to loosen labor laws affecting minors, and over the last few months there have been been Republican-led bills in states like Arkansas, Ohio, and Iowa aimed at making it easier for teenagers to work in more jobs and for more hours in the day. Some labor experts say the proposed changes pose little threat to workplace safety, but they’ve overlapped with shocking exposés in the New York Times and Washington Post that uncovered exploited migrant children working illegally in American jobs. On Tuesday, the US Labor Department announced it had found two 10-year-olds working at a McDonald’s in Louisville, Kentucky, sometimes until 2 am.
As the Wisconsin lawmakers suggested, these new bills are partly a reaction to the competitive labor market and struggles businesses have been facing to fill open positions. But they’re also rooted in longstanding conservative opposition to workplace regulation, and some labor advocates worry they’re just the opening salvo to a broader attack on government safety rules.
What are the new state laws being proposed?
Over the last two years, at least 10 states have introduced or enacted laws to change the rules governing teenage work requirements.
In 2022, New Hampshire and New Jersey passed laws extending the hours teenagers could work. New Hampshire lawmakers also relaxed rules for busing tables where alcohol is served, allowing 14-year-olds now to do it, down from the previous minimum of 15 years old. New Jersey lawmakers bumped up the number of hours teens can work during the summer (to 40 hours a week for 14- and 15-year-olds and 50 for 16- and 17-year-olds.)
This year lawmakers have advanced more bills in states like Georgia, Missouri, Nebraska, Ohio, and Iowa.
Some rule changes — like allowing teens to work later in the summer — sound fairly innocuous, but others have caused more concern, like a proposal in Minnesota to allow 16- and 17-year-olds to work on construction sites, and one in Iowa that would allow 14-year-olds to work in meat coolers. Others worry about a general slippery slope of loosening child labor laws, and sending a message to employers that enforcement will be even more relaxed than it already is.
For example, even though a federal labor investigation recently found 10 children working illegally in Arkansas for a company that cleans hazardous meatpacking equipment, in March, Republican Gov. Sarah Huckabee Sanders signed the “Youth Hiring Act” — a law eliminating Arkansas’ requirement that 14- and 15-year-olds get work permits. The work permits, which Republicans called an “arbitrary” burden, had required proof of age, parent permission, and an employer’s signature.
While work permits are not mandated under federal law, critics of the Youth Hiring Act said they provided an important paper trail of youth employment, and reminded Arkansas businesses of their legal obligations.
In Iowa, lawmakers are advancing a controversial bill that allows young teens to work in some currently prohibited fields, if it’s deemed part of a school or employer training program. Supporters of the bill say more hazardous jobs like heavy manufacturing and construction would still be barred from teen employment, but new exceptions for minors would include fields like demolition and manufacturing. The bill would also permit 16- and 17-year-olds to serve alcohol in restaurants, if their parents granted permission. Democratic lawmakers have voiced concern about the risks this poses to youth workers, especially since the bill would also extend the hours a teen could work into the night.
Michael McGrorty, a veteran wage-hour investigator, thinks the proposed state changes “are not really very important.” McGrorty predicted schools will likely still require parental permission for work-study credit even if states no longer mandate it, and said even if minors are approved to work in hazardous occupations, most firms still won’t allow it because their insurance won’t provide liability coverage. “This is the reason that construction apprenticeships don’t permit entry of minors, though the federal government allows this,” he told Vox.
The federal government provides a floor of protection against child labor, and that hasn’t changed — yet
The federal government regulates youth employment primarily under the Fair Labor Standards Act (FLSA), a law Congress passed in 1938. The FLSA bars “oppressive child labor” and sets a floor on standards, wages, and hours for teen jobs. Those standards include:
- Minors of any age can work in virtually any business that’s entirely owned by their parents, except for youth under age 16, who can’t work in mining or manufacturing.
- No minor can work in an occupation deemed hazardous, like roofing or forest fire fighting.
- Children under 14 can work in FLSA exempt-jobs like delivering newspapers, acting, and babysitting.
- On school days, 14- and 15-year-olds can work for up to three hours outside of school hours. On days when school is not in session, they can work up to eight hours.
- During the summer months 14- and 15-year-olds can work until 9 pm, though during the traditional school year they can only work between 7 am and 7 pm.
The FLSA doesn’t regulate things like job breaks or benefits, but does allow for an employer to pay youth workers a minimum wage of $4.25 during their first 90 days on the job. The FLSA also has a much weaker set of protections for children working in agriculture.
Most minors are covered under FLSA, and states can pass their own protections on top, so long as they don’t conflict with the federal government’s. For example, it’s common for states to limit the hours 16-year-olds can work, and require all minors to get “work permits” to get jobs, but these are not federal rules.
Many of the legislative fights lately concern efforts to roll back some of those state protections, or to impose changes that apply to the narrow set of employers exempt from FLSA. However, there have also been some conservative rumbling about changing the federal rules, too. In Ohio, for example, Republican lawmakers approved a bill allowing 14- and 15-year-olds to work until 9 pm, rather than 7 pm, during the school year with parent permission, and passed a concurrent resolution urging Congress to amend the FLSA to bring it in line with Ohio’s change.
Enforcement of federal youth labor laws hasn’t been great
The Department of Labor is responsible for enforcing the FLSA, but the underfunded agency has been struggling greatly on that front. Earlier this year the agency announced the number of minors employed in jobs that violate child labor laws in fiscal year 2022 increased 37 percent over fiscal year 2021, and 283 percent over fiscal year 2015.
Congress has held the Labor Department’s budget flat for years, leading to a 12 percent loss in Wage and Hour division staff between 2010 and 2019. The department’s Office of the Solicitor has also lost more than 100 attorneys over the last decade, for these same budgetary reasons.
In February the Labor Department reported findings from 14 separate child labor investigations, including one that found Packers Sanitation Services, Inc. had been illegally employing over 100 teens between the ages of 13 and 17 in hazardous occupations. Federal investigators found the use of child labor “systemic” across eight states.
While the Department of Labor has over 600 additional child labor investigations open, critics note the penalties for violating FLSA are weak, thus the law itself may be a weak deterrent. The penalty for Packers Sanitation, for example, was a mere $1.5 million.
In the wake of the New York Times investigating companies illegally employing youth migrant workers in dangerous jobs, the Departments of Labor and Health and Human Services launched a new joint task force to investigate the problem, and pledged to try and better vet sponsors of unaccompanied children.
Lawmakers are also scrambling to react with bills in Congress to increase civil penalties for child labor law violations, though for now nothing has moved forward.
Conservatives and business groups have long objected to youth employment restrictions and they’re behind the new bills today, too
Some conservatives have long seen child labor laws as government overreach, dictating rules for minors that should be left up to individual families. Others simply oppose most forms of government regulation. And still others see youth labor restrictions as an unnecessary barrier at a time when companies are struggling to hire workers.
Conservative billionaire Charles Koch and his late brother David Koch have long used their fortunes to support rolling back child labor restrictions. In 1980, David Koch ran for vice president on the Libertarian Party ticket and pledged to “abolish” child labor laws, income taxes, and Medicare. In 1982, Ronald Reagan’s administration proposed the first major change to federal child labor laws in 40 years, to expand the hours and types of jobs 14- and 15-year-olds could work, and make it easier for employers to pay students less than minimum wage.
Tesnim Zekeria from Popular Information highlighted some of the more recent Koch-funded efforts to weaken support for child labor laws, including an essay, “A Case Against Child Labor Prohibitions” published in 2014 from the Koch-funded Cato Institute that argued depriving work opportunities to poor children in developing countries “only limits their options further and throws them into worse alternatives.”
In 2016, a Koch-funded conservative nonprofit, the Foundation for Economic Education, published “Let the Kids Work” where the author argued children taking jobs would help them develop a work ethic, a professional network, and skills and discipline to build character. In 2019, another academic tied to the Koch-funded Commonwealth Foundation argued in Forbes to eliminate the minimum wage for teenagers.
Last week the Washington Post reported on a Florida-based conservative think tank, the Foundation for Government Accountability, that has played a leading role in the recent spate of bills winding through state legislatures. In March, the Arkansas state representative who sponsored the state’s “Youth Hiring Act” said the bill “came to me from the Foundation [for] Government Accountability.” The Post also found the Florida think tank helped a Missouri lawmaker craft and edit their child labor bill.
Other conservative causes the Foundation for Government Accountability focuses on include blocking Medicaid expansion and adding new restrictions to welfare programs like food stamps. On their website they proclaim they help “free individuals from the trap of government dependence and to let them experience the power of work.”
Yet another conservative group pushing new bills to weaken child labor rules is the National Federation of Independent Business (NFIB), the primary lobbying arm for small businesses. The American Prospect and Workday magazines reported on its advocacy role and its reliance on the tight labor market as justification. “Our members’ inability to fill workplace vacancies has catapulted to the top concern currently facing the success of their businesses,” said NFIB in 2021 testimony it submitted in support of Ohio’s proposed bill.
The Foundation for Government Accountability also points to the worker shortage as justification. In a white paper the group published in 2022, they emphasized that teenagers “are a critical source of labor for businesses struggling to find help” and underscored that parents should get to decide whether their kids worked or not, linking their advocacy to a broader political push on the right for “parents’ rights.”
According to an analysis by the left-leaning Economic Policy Institute, between 2001 and 2021, the share of 16- to 19-year-olds not working increased by 22.4 percent, which the think tank said is “almost entirely explained” by the higher share of young people prioritizing education during those years.
The risks of loosening youth employment rules
Immigration advocates say the loosening of child labor rules poses the greatest threat to migrant children, who are already more vulnerable to exploitation. The number of unaccompanied children entering the United States rose to 128,904 in 2022, per federal data.
Ending work permits, some advocates warn, will make it even harder to track the landscape of child labor in the United States. The Census Bureau’s American Community Survey only asks about employment status for those 16 and older. Some children are paid in cash, and the available data on youth employment — especially in agriculture — is notoriously incomplete.
“We don’t have very good estimates of the number of independent child migrants that are working in the United States,” Eric Edmonds, an economist at Dartmouth who studies youth trafficking and child labor, told The Dispatch in March. “My guess is that the number of independent child migrants that are working are a fraction of a percent of the number of children working in the United States.”
Labor experts warn that the weakening of child labor laws also threatens other workplace regulations, as well as the wages of all workers. Many of the same conservative organizations pushing these rules have also taken aim at union rights and environmental safety standards.
For now, many of these efforts have picked up steam by skating under the radar, and seizing on the fact that many parents hold favorable opinions generally of teen work. A recent national poll led by the C.S. Mott Children’s Hospital National Poll on Children’s Health found only 29 percent of parents considered themselves very informed about their state’s laws for teen employment, but over 60 percent said teen jobs helped promote time management skills, and over 75 percent said they help teach money management.
In March the Des Moines Register/Mediacom Iowa Poll surveyed state residents on the bill pending in the Iowa legislature to relax child labor laws, and found 50 percent favored the bill, 42 percent opposed it, and 8 percent were unsure. Republicans and men were likely to support the bill, while Democrats and a plurality of women opposed it. Among parents of those with children under 18, the pollsters found 57 percent backed it.
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Pollution from a factory. (photo: Science Focus)
Chevron and ExxonMobil are among the companies in a ‘sustainability council’ countering grassroots activists
In recent years, the activists have successfully fought construction of two multibillion-dollar plastics facilities and what would have been the nation’s largest methanol plant. The growing concerns have caught the attention of the Environmental Protection Agency, which earlier this year sued a manufacturer of neoprene in the state for not doing enough to reduce its cancer-causing air emissions.
Now, those same groups are receiving millions of dollars from Michael Bloomberg and his Beyond Petrochemicals campaign, and the Louisiana energy and chemical companies along with the states’ business-boosting groups have, in turn, created the Louisiana Industry Sustainability Council – originally called the Industry Defense Council.
“If they could do this with no money, imagine what would happen if they in fact had money,” said Beverly Wright, founder and executive director of the Deep South Center for Environmental Justice, one of the recipients of money from the Bloomberg campaign, an $85m effort in Louisiana, Texas and Pennsylvania targeting 120 new proposed petrochemical facilities. “They should be scared.”
Matt Wolfe, vice-president of communications at Greater New Orleans Inc, one of the groups leading the sustainability council, said the council wasn’t created in response to any specific project.
“The members of the group are not acting out of fear, but rather, the recognition that it is important that we inform a balanced, fact-based discussion, and one that recognizes that the best future for Louisiana is one that takes into account both the economy and the environment,” Wolfe wrote in an email to Floodlight.
When asked if the council was created out of fear because of the activists’ recent successes, a representative of the Baton Rouge Area Chamber, one of the other groups leading the council, said: “Not that we’re aware of.”
“We believe that it would be a horrible missed opportunity for the people of Louisiana to lose out on this brighter economic and environmental future because of the efforts of some to halt this progress,” said Michael DiResto, executive vice-president of the Baton Rouge Area Chamber, who also highlighted that $20bn of energy transition and carbon emission reduction investments are in development for the region.
But slides and strategies from early meetings of the group, shared with Floodlight, specifically highlight Bloomberg and efforts to counter the “small, but influential groups”.
Proposed development includes dozens of proposed carbon capture and storage, hydrogen, and ammonia projects. Opponents of those proposals question their effectiveness to reduce carbon emissions and their impact on the communities that have already been harmed by the petrochemical industry.
According to a 21 April presentation by Greater New Orleans Inc, the mission of the council is to “protect and grow safe and responsible community jobs and prosperity in Louisiana”.
The group consists of about 60 representatives, including from Chevron, Dow, Entergy, BASF and ExxonMobil, alongside leaders of parishes in Cancer Alley. Other members include economic development groups, law firms and public relations agencies, according to a list that was posted on the website of Greater New Orleans Inc.
The list also includes a representative from LCMC Health, a regional nonprofit hospital chain that owns the children’s hospital of New Orleans. A spokesperson from LCMC says the chain does not have representation on the council, and the member listed, Bub Millet, is representing a local chamber of commerce.
The sustainability council, according to documents shared with Floodlight, says the opposition comes from a “small universe of vocal industry opponents” that have caught the media’s attention and are creating an echo chamber of misinformation.
Asked to characterize the misinformation, Wolfe said, in general, the activist groups and the media focus “only on the negative, and not on the positive impacts of industry on jobs, or on improving environmental outcomes”.
One presentation highlighted the industry’s economic impact in the state. “Moreover, industry has committed billions to investing in further improvements in environmental outcomes,” Wolfe said.
But, as Wright of the Deep South Center points out, the state also has some of the worst pollution in the US, and it has the second-highest rate of new cancers in the nation.
At the 21 April briefing, a Greater New Orleans Inc representative told those in attendance: “We want to provide a pathway for industry to continue to operate.”
According to that presentation, the group wants to create and mobilize supporters, promote Louisiana’s industry impact, counter anti-industry initiatives, and dispel and correct misinformation.
The Greater New Orleans Inc representative explained the group plans to put up billboards and create TV and radio ads and a social and web media presence to demonstrate how industry provides value to the state.
According to documents shared from from earlier meetings, the council’s outreach is intended to inform the public and educate industry employees and retirees “and point them in the right direction to do something”.
Some of the council’s documents say the group will not be able to put forth its own reciprocal $85m to counter Bloomberg’s money. But the group has laid out $1m-plus in an effort to not only advertise, but also support political candidates and create online polls.
Another strategy, according to the document, is to “reinforce the resolve of parish officials”. Wolfe says the intention of that strategy is to make sure that elected officials have all of the information necessary to make decisions.
The Bloomberg money was an early target of the sustainability council and, according to a slide showing its key messages, it planned to promote the message that “Louisianans are the best people to decide what’s right for Louisiana – not Michael Bloomberg.”
Wolfe says the suggested message point about Bloomberg has been rejected by the council.
Another early council strategy highlights that “Louisiana’s future comes first. Point out repeatedly that these are out-of-state interests trying to punish Louisianans into submission.”
Jo Banner, co-founder and co-director of the Descendants Project in St James Parish, and a Bloomberg grantee, finds any concerns of out-of-state interests ironic.
“You can go and stand on the levee and look at all the outside money and all of the pollution up and down the river,” she said. “Why is that outside money now a knock against us?”
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