March 23, 2023:- Today the Massachusetts Department of Public Health (DPH) responded to my recent request for records of breakthrough cases and breakthrough deaths from September 4, 2022, onward.
My purpose with this request (like the previous requests) was to find out how many people in Massachusetts got injected with products advertised as COVID-19 vaccines and then caught COVID-19 and, of these, how many died of the disease.
Readers of previous posts (e.g. this one) will recall that more than 3,000 “fully vaccinated” people had died of COVID-19 before DPH stopped publishing the figures last July. In the 69-day period June 26-September 3, 2022, the number of “fully vaccinated” people who died from COVID-19 was 314 (that’s in addition to the 3,000+ figure).
September 4, 2022, was more than 6 months ago. What information has DPH collated since then?
How many “fully vaccinated” people has DPH recorded as having caught and died from COVID-19 since September 4? Today’s response states:
At this time, the Department has no records responsive to your request beyond those that have been produced to you in response to prior requests numbered BIDLS-2022-79, BIDLS-2022-99, BIDLS-2022-110, and BIDLS-2022-117.
In other words, since September 4, 2022, DPH has created no records of breakthrough cases and breakthrough deaths. Nary a one. Zero.
Is it really looking for the data? The response from DPH states:
Please be advised that the Department conducts its data analyses periodically as deemed necessary and appropriate. Analyses of COVID-19 breakthrough deaths are conducted, in part, with consideration to current federal guidance. With respect to COVID-19 breakthrough infection, the U.S. Centers for Disease Control and Prevention (CDC) is reviewing its guidance.
What criteria DPH applies in order to determine whether some analysis of data has become necessary and appropriate is not something that DPH chose to share. But clearly, conducting any analysis after September 4, 2022, must have been unnecessary and inappropriate, in the opinion of whoever makes these decisions at DPH.
As for the CDC reviewing its guidance about breakthrough infection, I don’t doubt it. That review will probably take a good long time and conclude with a rock-solid commitment to convening a group of stakeholders who will think about it some more before resuming the reviewing process.
Remember, thousands of people lost their jobs because they would not or could not get injected with these products, products that public health officials, politicians, and corporate media told us were necessary to stop people catching and spreading COVID-19. Were those officials, politicians, and media mouthpieces telling the truth? Answering that question requires some analysis of the breakthrough data.
But DPH is giving that data a good leaving alone.
If you would like the Commonwealth’s public health officials to resume their analysis so as to find out how effective the vaccines are at preventing recipients from catching and dying from COVID-19, please tell them. Tell Margaret R. Cooke, the Commissioner.
And tell your State legislators. They’re the ones who pass the budget, which gives DPH somewhere north of $170 million, a few bucks of which you might think could go toward analysis of vaccine efficacy.
In the meantime, here’s a picture of the data that DPH has analyzed over the last 6 months about “fully vaccinated” people who caught and died from the disease that the public health officials told them they were “fully vaccinated” against.
March 5, 2022:- In April, the Supreme Court of the United States will hear oral argument in a case that may have a big impact on religious-discrimination lawsuits here in Massachusetts.
The case is Gerald E. Groff v. Louis DeJoy, Postmaster General, United States Postal Service, (here’s a link to Mr. Groff’s petition for certiorari) and a handy place to find the filings (including the amicus briefs) is scotusblog.com. For Professor Josh Blackman’s short overview in Reason magazine, click here and for Professor Eugene Volokh’s take in the same publication click here.
If the court rules the way I hope it does, we will have more cause than usual to give thanks. Either way, I will let you know.
At issue is the question of what constitutes “undue hardship” for an employer when an employee asks for an exemption to a workplace rule on the basis of religious belief. You may be familiar with this term already, but you may not realize that in this area of law it means much less than it should. To help explain how judges interpret the term right now – and how they may start to interpret it differently after the Supreme Court’s decision in Groff – let’s compare religious discrimination in employment to disability discrimination in housing.
Emotional Support Animals
Imagine a landlord with a no-pets policy in one particular building, and a tenant who signs the lease, agrees to the policy, moves into the no-pets building, and promptly adopts a large dog. Let’s say the tenant is wealthy and could easily relocate to the landlord’s other building, the one where all pets are welcome (dogs, cats, elephants, boa constrictors, whatever). But the tenant likes this building, the no-pets building, and does not want to move 100 yards across the street to the all-pets-welcome building.
In addition to being wealthy, our imaginary tenant suffers from anxiety. That’s a disability. If the tenant gives the landlord a letter from a psychiatrist stating that the tenant has a disability and the large dog helps alleviate one of the symptoms, the landlord has to exempt the tenant from the no-pets policy in the no-pets building, unless the landlord can show “undue hardship.”
To prove “undue hardship,” the landlord would need to show that this particular large dog would cause the landlord to suffer a significant expense or difficulty. Would the landlord succeed by showing that the exemption might cause some minor difficulty, something that would cost a trifling amount of money to address (e.g. scratches on the back door)? No, the landlord would have to show much more than that.
For the landlord, the “undue hardship” bar is high.
Devout Employee
Now imagine an employee who starts work for an employer. Let’s say that unlike our imaginary tenant our imaginary employee is poor; poor in money but rich in spirit. The employee devoutly adheres to a faith that prohibits the taking of certain drugs.
When the employee first got the job, the employer had no policies compelling its workers to take drugs of any kind, and absolutely no requirement that its workers be injected with experimental pharmaceutical products. But suddenly – at the behest of the pharmaceutical industry and the government agencies that purport to regulate said industry – the employer adopts such a policy.
If the employee shows that getting injected with the products would conflict with the employee’s religion, the employer has to exempt the employee from the policy, unless the employer can show “undue hardship.”
So far, the law about religious rights in the workplace looks the same as the law about disability rights in housing. Just like the tenant, the employee is asking to be exempt from a policy because of a legally-guaranteed right to be free from discrimination.
Here’s the difference.
Remember, for a landlord to successfully claim “undue hardship” the landlord would need to show that the accommodation (i.e. letting the tenant keep the big dog) would cause the landlord to incur significant expense. Minor inconveniences would not suffice.
How about the employer? Would the employer succeed with the “undue hardship” defense just by showing that granting the exemption might cause some minor difficulty that it would cost a trifling amount of money to address?
Yes. For the employer, any inconvenience, no matter how minor, constitutes an undue hardship.
For the employer, the “undue hardship” bar is low.
So how did it come to this? Why is it easier for a rich tenant with an emotional support dog to keep an apartment than it is for a poor public employee with an abiding devotion to God to keep a job?
The Hardison decision
Title VII of the federal Civil Rights Act prohibits discrimination on the basis of religion, as does Chapter 151B of the Massachusetts General Laws (courts tend to analyze these federal and State laws the same way). Under Title VII, to get out of accommodating an employee’s religious practices, an employer is supposed to prove that doing so would cause the business to suffer “undue hardship.” The statute says not merely “hardship,” meaning some expense or some difficulty, but “undue hardship.” Like “hardship,” the word “undue” has a pretty clear meaning, i.e. extraordinary or excessive.
But the courts have interpreted “undue hardship” to mean an inconvenience that is just a tad more than minimal.
In religious-discrimination cases, the employer only needs to show that the cost of accommodating the employee’s religion would incur a cost that is more than minimal. Any minor, trivial, piffling inconvenience will do, so long as it is more than minimal.
The term “more than minimal” is not at all the same as “undue hardship,” but that is the judge-made rule that the courts have been applying ever since the Supreme Court issued its ruling in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).
This rule may change when the Supreme Court decides the Groff case. There are two questions for the justices to answer, and the first one is this:
Whether the Court should disapprove the more-than-de-minimis-cost test for refusing Title VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).
Let’s hope that the court simply applies the plain words of the statute that Congress enacted back in 1972, i.e. undue hardship, and does away with the judge-made rule that strips that simple two-word term of its meaning. In his amicus brief, Senator Ted Cruz puts it this way:
In 1972, the word “undue” was ordinarily defined as “unwarranted” or “excessive,” The Random House Dictionary of the English Language (1968), while “hardship” was ordinarily defined as “a condition that is difficult to endure; suffering; deprivation; oppression.” The American Heritage Dictionary of the English Language, The Concise Oxford Dictionary of Current English, and Webster’s New Illustrated Dictionary all concur.
“De minimis” on the other hand, was defined by Black’s Law Dictionary at the time as “very small or trifling,” tantamount to a “fractional part of a penny.”
… It cannot seriously be contended that a “very small” or “trifling” cost is the same as one that causes “excessive suffering” and “deprivation.” In fact, “more than a de minimis” cost may not even cause suffering, let alone “excessive suffering.”
I agree, and I hope that at least five justices of the Supreme Court do as well.
If the court jettisons the more-than-de-minimis-cost test, the landscape of religious-discrimination litigation will change. An employer will have to show that accommodating an employee’s religious beliefs causes not just a minor inconvenience but a real “undue hardship,” perhaps the kind of extraordinary expense that a landlord would have to prove in a disability-discrimination case. That would be good news for religious freedom and liberty of conscience in genertal.
February 24, 2023:- Mayor Michelle Wu’s proposal to control the price of rental housing in Boston will not, in real life, control the price of rental housing in Boston. Why? Because, as Catherine Ruth Pakaluk explains in this article, politicians can control only something’s money price, not its real price.
Altering the number on a product’s price tag, without changing either supply or demand, does not make the product cost any less. The price of something is a signal of its value, not the value itself. Pakaluk likens price controls to trying to change reality by simply printing falsehoods about it; if you don’t like what you read in the news, just change the words on the page (a common phenomenon, you may have noticed).
Life would certainly be easier if you could alter what really happened just by hitting the Delete button and rewriting the story. But facts are not that flexible. Nor are the true values of products and services in a market consisting of millions of people making millions of decisions about millions of items.
That is one of the basic reasons that rent control will not work in Boston, just as it has not worked anywhere else.
February 9, 2023:- How many people got the shots then caught the disease? Once upon a time, the Massachusetts Department of Public Health (DPH) used to publish the numbers. But then (when the proportion of “fully vaccinated” people who later reported catching COVID-19 hit 11.4%) they stopped.
So I submitted a public records request and learned that the number of breakthrough cases in the 69-day period June 26-September 3, 2022 was 58,199.
What about breakthrough cases recorded after September 3, 2022? I submitted another public records request in order to find out. You can read about the response here.
Because there were still no new figures for breakthrough cases from September 3 onward, in January I submitted yet another request, and today I received the response:
The Department has not found records responsive to your request. The Department herewith informs you it has not stopped analyzing breakthrough COVID-19 cases but conducts this analysis on a periodic basis.
That was exactly what they said in response to my previous request, and the one before that. The DPH says that it conducts its analysis on a “periodic basis,” but clearly the periods are quite long: they have no figures for the last 4 months.
Undue hardship?
Here’s a reminder about why this matters to employees in Massachusetts. If you submitted a request for exemption from the mandate (the No Jab, No Job rule) you may have received a letter telling you that accommodating your request would impose “undue hardship” on the employer. That contention of undue hardship rests on the premise that the shots stop people from catching and transmitting the disease.
But if lots of people get the shots and then catch the disease anyway — and in Massachusetts we know that the proportion is at least 12% — that premise vanishes (it wanes, you might say).
We need to know what’s going on, and for how long these pharmaceutical products provide any degree of protection. Otherwise how can we make informed choices about whether to get ourselves and our children injected? Knowing how many breakthrough cases there have been is one important piece of information, information that the State used to deem important enough to publish on a regular basis.
If you would like to help find out what the numbers really are, please let me know. I am not looking donations, just volunteers. To get in touch, use the contact form or send me an email.
December 5, 2022:- Until July 2022, the Massachusetts Department of Public Health (DPH) used to publish a regular report that stated the number of “fully vaccinated” people who had been hospitalized from COVID-19 and the number who had died. Then, when the number of deaths passed 3,000, DPH stopped publishing its weekly report.
In November I submitted a public records request to DPH asking for the new numbers. Today I received the response.
[T]here have been 314 COVID-19 vaccine breakthrough deaths among vaccinated MA residents reported to the Department between June 26, 2022- September 3, 2022. A COVID-19 breakthrough case is defined as an individual who has tested positive for COVID19 at least 14 days after being “fully vaccinated” against COVID-19.
So there you have it. In the 69-day period June 26-September 3, 2022, 314 people died of COVID-19, a disease against which they were “fully vaccinated.” That number is in addition to the 3,000+ “fully vaccinated” people who had died before DPH stopped publishing the figures.
A reminder of why these numbers matter to those of us who do not know the victims or the families and friends they left behind: Hundreds of people in Massachusetts were discharged from their jobs because their religious beliefs prevented them being injected with products advertised as “COVID-19 vaccines.” Their employers, including State government agencies, contend that letting them continue working without being injected would have been an “undue hardship,” i.e. the un-injected workers were more likely to catch and spread COVID-19 than the injected workers.
That contention rests entirely on the premise that the injections stop you catching the disease. When, if ever, will employers just admit the obvious falsity of this belief? That’s a rhetorical question, by the way.
As Allysia Finley points out in today’s edition of the Wall Street Journal:
But by last fall it was clear that vaccinated Americans were catching and spreading the virus. Then the administration rolled out third doses it claimed would strengthen individual and collective protection.
To many Americans, the boosters came as a bait-and-switch. They’d been led to believe vaccines offered a lifelong warranty against infection. Public-health officials at the outset should have set more realistic expectations.
… The CDC’s website in September showed that, since April, Americans who got the original boosters were testing positive at higher rates than those who had only two doses.
Employers — government agencies in particular — that imposed the No Jab, No Job policy under false pretenses should own up and admit that they either did not know the products did not work, or knew and lied about it. Is that really too much to ask? That’s another rhetorical question.
November 9, 2022:- According to the Massachusetts Department of Health’s latest figures, there are 5,555,220 people in Massachusetts classified as “fully vaccinated” against COVID-19. How many have caught COVID-19?
If you have read my recent post, you will know that I asked the department to disclose the number of breakthrough cases that occurred after the department stopped publishing the data, which was when the number hit 617,337 (11.4% of the “fully vaccinated” population).
By way of a reminder, breakthrough cases are people whose healthcare provider reports them as having caught COVID-19 more than 14 days after having been injected with the products advertised as COVID-19 vaccines.
Today the department sent me the latest breakthrough figures, which I added to those that they produced in September in response to a previous public records request.
More than 12%
The number of breakthrough cases in the 69-day period June 26-September 3, 2022 is 58,199.
So the total number of breakthrough cases so far in Massachusetts is approximately 675,000. That represents about 12% of the “fully vaccinated” people in Massachusetts.
October 27, 2022:- How many Massachusetts residents are on record as catching COVID-19 after having who been injected with the products advertised as “COVID-19 vaccines”? Perhaps we will find out soon.
Readers of this post will recall that the Department of Public Health stopped publishing the number in July 2022, when the number hit 617,337, i.e. 11.4% of all the “fully vaccinated” people in Massachusetts. I submitted a public records request asking the Department for records showing the number of COVID-19 breakthrough cases from July 6 to the date of the response.
According to State Epidemiologist Catherine Brown, the number of breakthrough cases reported in the period June 26-August 6, 2022 (41 days) was 38,015.
But what about after August 6? They could not say, because:
The Department does not have a responsive record for data after August 6, 2022, as the analysis is not performed routinely, and no analysis has been performed beyond that date.
Not regular, but periodic
Why has the Department not analyzed data beyond August 6, 2022? To find out, I submitted another public records request. Today I received the response, which says:
The Department herewith informs you it has not stopped analyzing breakthrough COVID-19 cases. The Department conducts this analysis on a periodic basis.
The Department, you see, no longer performs the analysis on a “regular” basis but it does still does so on a “periodic” basis. Naturally, I have submitted a new public records request asking for the latest numbers (how many “fully vaccinated” people has the Department recorded as having caught COVID-19 since August 6, 2022).
But it is worth noting that the Department is still keeping count of breakthrough cases (periodically, not regularly) but no longer publishing the numbers. To be clear: It has the numbers; it’s just not telling us what they are.
Why stop publishing?
Back in July I submitted a public records request asking why the Department had stopped publishing the numbers of breakthrough cases (something it continues to analyze on a “periodic” basis, apparently). The department told me that it would take a while to collate those records.
I am still waiting. And I can keep waiting. And then, when I have waited long enough. I will ask a judge to tell the Department to hand over the public records.
On Saturday, October 22, 2022, in Springfield, Massachusetts, I will be teaching part of the MassLandlords Crash Course.
This fast-paced course is strictly limited to 16 participants to allow for detailed discussion and Q&A. Course tuition includes:
Small group session with the Executive Director, a trained presenter and experienced landlord, and Peter Vickery, Esq..
A comprehensive agenda, see below.
Your choice of two books:
Every Landlord’s Tax Deduction Guide by NOLO,
The Good Landlord by Peter Shapiro,
Getting to Yes by Roger Fisher, and/or
The Housing Manual by H. John Fisher.
A bound summary of all material presented.
Breakfast pastries, coffee, tea.
Lunch sandwiches, sodas, chips, cookies; all dietary requirements satisfied, please notify us when you purchase a ticket.
A MassLandlords ballpoint pen.
A MassLandlords certificate of completion and permission to use “MassLandlords Crash Course graduate” on your marketing material.
You will receive a box packed with your personalized signed certificate, your choice of two books, course notes, pen, and half a dozen other pieces of literature.
The Crash Course is a program of MassLandlords, Inc., the statewide membership organization of housing providers that I am proud to serve as Legislative Affairs Counsel.
October 11, 2022:- This post is about the Massachusetts Public Records Law but also about something even more important. What could be even more important than the Massachusetts Public Records Law? I hear readers asking. The answer: Whether it should be (a) you and your conscience or (b) the government that gets to define your beliefs as religious or non-religious.
What sort of beliefs can be religious, or philosophical, or both?
Here is an example. I believe (among other things) that there is such a thing as evil, by which I mean the innate human desire to obtain pleasure by causing suffering. I am a Christian, so perhaps I should call this a religious belief. But I believed the same thing when I was not a Christian. I did not believe in the survival of the individual human personality beyond death and I did not believe in God, but I certainly believed in evil. Does that make the belief philosophical instead of religious?
How to go about putting my belief in the existence of evil into one of those two categories, as if they were mutually exclusive, continues to puzzle me, even though the belief in question is my own and I have spent considerable time pondering the subject. How much harder, then, to neatly taxonomize someone else’s beliefs about the nature and purpose of life; right and wrong; sin, forgiveness, and redemption. What an extraordinarily ambitious undertaking. But State government has decided that it is up to the task.
No Jab, No Job
Governor Baker’s No Jab, No Job order required State employees to be injected with products advertised as “COVID-19 vaccines.” The order allowed public employees to request exemptions from the mandate on the basis of their religious beliefs. When approximately 600 employees of the Department of Corrections requested religious exemptions, I gather that nearly all of them received letters telling them that they had “articulated a philosophical viewpoint not a religious belief.”
The difference between philosophy and religion is not obvious. As the United States District Court for the District of Massachusetts stated:
Few beliefs are entirely isolated from a belief system, and in any event there are not always bright lines that would readily permit beliefs to be sorted into the categories of “religious” and “non-religious.”
Together Emps. v. Mass Gen. Brigham Inc., No. CV 21-11686-FDS, (D. Mass. Nov. 10, 2021), aff’d, No. 21-1909, 2022 WL 1236952 (1st Cir. Apr. 27, 2022).
Never mind not always; are there ever “bright lines” between beliefs that are religious and those that are philosophical? Distinguishing the one from the other requires some grounding in metaphysics and the opportunity to discuss the matter at length and in depth with the individual whose beliefs are at issue.
Because the nature of ideas is complex, classifying any given statement of belief in a binary manner as either (a) philosophical or (b) religious presents a challenge. But with enough time and skill I suppose a reasonably competent professor of philosophy or theology could pull it off. Classifying approximately 600 such statements from employees of the Department of Corrections in just a few weeks would present more of a challenge, I should think. Just how did the folks in HR manage it?
To find out, I submitted a public records request in which I asked for:
any and all public records created in the period March 10, 2020, through the date of the response reflecting or embodying the standards the Department of Correction relied on or used in any way in determining whether requests by employees for religious exemption from Executive Order 595 (EO 595) articulated a philosophical viewpoint as opposed to a religious belief.
I added this explanatory note: “I am requesting documents that show the criteria that the Department used in assessing the nature of the beliefs of those employees who requested religious exemption from the EO 595 vaccine mandate, in particular the documents the Department employed so as to: (1) define religious beliefs; (2) differentiate between religious beliefs and philosophical viewpoints; and (3) assess whether any given employee had articulated a philosophical viewpoint vis-à-vis a religious belief.”
The request, unlike the subject matter, was simple.
First Response
On June 8, 2022, the first response from the Department arrived. It stated:
For the following reasons, the response to your request for records will require more than ten (10) days. The Department needs to search numerous records, segregate them, and redact non-public information pursuant to G.L. c. 4, § 7, cl. 26. Additionally, the Department will calculate charges for production, if any, and send an estimate to you. It is anticipated that the production of the requested records will be completed within eight (8) weeks. If the records are not produced within eight (8) weeks, you will be contacted in writing to advise you about the status of your request.
That same day I replied with a short letter stating that the response fell short of what the Public Records Law requires (the law gives the record-holder 15 days, not 8 weeks). But then the Department’s lawyer asked me to wait, so over the summer I did just that; I waited. But nothing arrived.
In September, I sent a couple of reminders that elicited no replies. Then I submitted a second public records request, identical to the first. This time I received a different response.
Second Response
This time, instead of saying that it would take 8 weeks to collate the records, the Department said that I would not be allowed to see the records at all. Why not? Because an individual whom the Department referred to as my client (he is not) had made a similar request and has an ongoing case against the Department. Here is the relevant quote (I have redacted the name of my non-client):
The Department understands that your client, [NAME REDACTED], requested the same documents from the Department and the Massachusetts Human Resources Division. General Counsel Michele Heffernan responded for HRD [Human Resources Division] and the Department as follows:
Records of the names of those individuals involved with the exemption process, training materials and criteria are not public record as they are part of the deliberative process undertaken by Executive Department agencies. Pursuant to M.G.L. c. 4, § 7, cl. 26 (d), records that relate to interagency or intra-agency memoranda, work products or letters relating to policy positions being developed by the agency may be withheld. Records related to policy deliberations are protected from disclosure. DaRosa v. New Bedford, 471 Mass. 446 (2015). In addition, your client has litigation pending against the Commonwealth, as such, a records request is not the appropriate vehicle information that may be subject to a discovery request.
Mr. [NAME REDACTED] appealed this response. The Supervisor of Public Records responded and decided to close the appeal.
The Department says that it can keep these records secret because they fall within one of the 20-plus exemptions to the Public Records Law’s disclosure requirements that the Legislature carved out, namely the deliberative-process exemption, in that the documents “relate to policy positions being developed by” the Department.
I have appealed this decision to the Supervisor of Records, and will update this post when I learn the outcome.
In the meantime, I remind readers what it is, exactly, that I am asking to see: Documents showing the standards that the Department of Correction used in determining whether employees had articulated a philosophical viewpoint as opposed to a religious belief.
There must have been some kind of rubric, a conceptual sieve for sorting the religious wheat from the philosophical chaff; passages from the Summa Theologica by St. Thomas Aquinas perhaps, or from the Kabbalah or the Hadith. The HR folks cannot have just pigeonholed all those individuals’ beliefs without reference to some articulated standards. Can they?
If the Department has any such documents, they do not want to disclose them and they claim that they can keep these documents secret because they relate to “policy positions.” That is the exemption set forth in General Laws chapter 4, section 7, clause 26 (d).
The Department legal team had more than 20 statutory exemptions to choose from, and this is the one they picked. It is a curious choice. After all, whether a belief is religious as opposed to philosophical is surely a matter of religion and philosophy, not of policy.
If government officials honestly think that religion is a policy matter, we all need to step back and take a breath.
Why this matters
Deciding whether our beliefs are religious is not something that government should do. The phrase “wall of separation between Church and State” appears nowhere in the free-exercise and establishment clauses of First Amendment to the Constitution of the United States, but it helps remind us of the reason for those clauses. We do not want government officials regulating our religious beliefs and practices.
By way of contrast, in ancient Rome there was a public official whose very job was to regulate religious beliefs and practices, and his title was Pontifex Maximus. After the decline of the republic, the emperors adopted the title and the role. The emperors became the arbiters of religion, deciding which religious beliefs and practices were legal and which were not.
The French dictator, Napoleon Bonaparte, rather envied the powers of the caesars. At his coronation, he wore a laurel wreath like the Roman emperors used to wear and he tended to emulate their approach to governing and propagandizing, commissioning paintings and sculptures of himself in classical Roman outfits and poses. To illustrate, here’s a statue of him playing dress-up.
Photo by author
The caesars and Napoleon Bonaparte were dictators. It is a sign of the times that I feel compelled to point out that they are not good role models for our public employees. This should go without saying. But nowadays in the American republic, governors and human resource managers are unabashedly assuming the role of Pontifex Maximus, arrogating to themselves powers that they should not wield, the power to decide what is, and what is not, a religious belief.
And they seem to have no shame in describing what they are doing as “developing policy positions.”
Conclusion
The Supervisor of Records is reviewing my appeal. If and when I obtain the public records that show how the Department of Correction was able to take human beliefs about the nature of existence and the meaning of life, and pour them into two distinct buckets, one labeled Religious and the other Philosophical, you will be able to see those documents here.
P.S.
October 24, 2022:- Today the Supervisor of Records issued an order:
[T]he Department is ordered to provide this office with an un-redacted copy of a representative sample of the responsive records for in camera inspection without delay.
After inspecting the sample, the Supervisor will issue an opinion as to whether the records are (a) public, or (b) exempt.
Of course, this all depends on the documents actually existing.
September 27, 2022:- It’s amazing what you can not find out when you don’t try. And the Commonwealth of Massachusetts is definitely not trying to find out something that most of us would find quite helpful, especially if we wanted to learn how to protect people against COVID-19.
Today I learned that the Commonwealth’s public health agency no longer tracks the number of people who are “fully vaccinated” against COVID-19 who have gone on to catch COVID-19 anyway (the disease that the vaccines were supposed to stop them catching).
A good leaving alone
Today I learned that instead of tracking those numbers, the Commonwealth is giving them a good leaving alone, as Howie Carr would say.
What does this lack of curiosity on the part of State government have to do with the practice of law? I will tell you.
Readers may know that I represent a number of people who worked for agencies of the Commonwealth until the Governor ordered them to be injected with products advertised as “COVID-19 vaccines.” For religious reasons, my clients were not able to comply, so they requested exemption from the mandate on religious grounds. The State denied their requests. And then the State discharged them.
In defending itself against charges of religious discrimination, the State says that letting workers carry on working without being injected would have caused undue hardship because these un-injected workers posed a threat. Of course, that defense rests entirely on the premise that the injections would have stopped the workers from catching and spreading the disease. It falls rather flat if it turns out that the injections do not really do that.
August 6: The day the calculator stood still
The Massachusetts Department of Public Health (DPH) used to publish regular reports that showed the growing number of “fully vaccinated” people who have caught COVID-19 (the disease that the vaccines were supposed to stop them catching). Public health officials refer to these as “breakthrough cases.”
Those regular reports stopped in early July when the number of breakthrough cases reached 617,337, i.e. 11.4% of all the fully vaccinated people in Massachusetts. As I mentioned in a previous post, that figure only includes the cases that people report to their healthcare providers.
For most people who display some symptoms, those symptoms are mild (e.g. sore throat, slight cough, and runny nose) and do not require a visit to a healthcare provider. If a person with COVID-19 does not report the infection to a healthcare provider, nobody enters the case into a healthcare provider’s database, and it does not appear in the department’s figures.
So the official figure does not does not include people who are fully vaccinated and then contract COVID-19 but do not report the fact to a healthcare provider. This means that the number 617,337 (11.4% of the fully vaccinated population) is an undercount.
The last report was dated July 5, 2022. Because I am curious (which, in and of itself, probably disqualifies me from a job in the upper reaches of State government) I asked DPH for records showing the number of COVID-19 breakthrough cases from July 6 to the date of the response.
Today the Department responded. According to State Epidemiologist Catherine Brown, the number of breakthrough cases reported in the period June 26-August 6, 2022 (41 days) was 38,015.
That’s a lot of new infections in just 41 days. But what about after August 6?
The Department does not have a responsive record for data after August 6, 2022, as the analysis is not performed routinely, and no analysis has been performed beyond that date.
Why? Why has the Department not analyzed data beyond that date? The letter does not say. And that is why I just submitted another public records request.
A simple question
In my new public records request, I am asking for records that embody or reflect the reason why, after August 6, 2022, the Department stopped analyzing COVID-19 breakthrough cases. Why seems like such a simple question.
September 21, 2022:- Another volume of the Western Division Housing Court Law Reporter is available online.
The reporter is an unofficial compilation of decisions and orders issued by the Western Division Housing Court. It is a collaborative effort by and among several individuals representative of the Court, the local landlord bar, the local tenant bar, and government practice.
August 29, 2022:- The latest volume of the Western Division Housing Court Reporter is available. The reporter is the unofficial compilation of decisions and orders issued by the Western Division Housing Court
August 11, 2022:- Here is an update to my previous post about the lack of new data on so-called breakthrough infections in Massachusetts.
When the State stopped publishing the number of “fully vaccinated” people who are on record as having caught COVID-19 (the stoppage occurred when the number reached 617,337, i.e. 11.4% of the fully vaccinated population), I was curious. So I submitted a public records request. Today I received the response from Monica Mitteness, Epidemiologist at the Bureau of Infectious Disease and Laboratory Sciences. Or rather, I received a response telling me that an actual response will cost me $175..
Letter from Monica Mitteness, Epidemiologist at the Bureau of Infectious Disease and Laboratory Sciences
Apparently there are 440 responsive records, and reviewing them will take 11 hours.
“At a rate of $25.00 per hour, the total estimated fee for reviewing, redacting, and electronically producing records in response to your request is $175 ((11 hrs. – 4 hrs.) x $25 = $175).”
How long does it take to perform 11 hours’ work?
OK, once they get the check will I get the documents right away? No. The letter states:
“Upon payment of the fee, DPH will require an extension of time to respond to this request given the volume of records.”
I wonder how much time they will need to perform 11 hours of work. If there are any mathematicians out there reading this, perhaps you could chime in with an estimate.
Anyway, should I cough up the sum of $175 to see at least some of the 400+ documents in which public employees discuss why their employer (the public) should no longer be privy to this information about the efficacy of medical products advertised as “vaccines”? Money well spent, in my opinion.
Footnote 1
By the way, take a look at the footnote in the excerpt of the letter posted above:
“Please note that dates may be extended one day in either direction to account for time zone conversions.”
Needing to take account of time zone conversions suggests that the decision involved correspondence with people in other time zones. Massachusetts, the other New England States, and Washington, DC, are all in the same time zone. Officials in what other States (or countries) could have had a say in the decision to withhold this data from the residents of Massachusetts? I look forward to finding out.
July 26, 2022:- To celebrate the notion of open government, in the month of March we have “sunshine week.” March has come and gone. We are in July and, weather notwithstanding, it is most definitely not sunshine week.
As of mid-July the Massachusetts Department of Public Health is no longer publishing the number of COVID-19 breakthrough cases, i.e. people who got the shot and then caught the disease. The number of such cases has been rising steadily. At the beginning of July that number was 617,337, which is 11.4% of the population the State classifies as fully vaccinated, up from 8.4% in February.
Keeping track of the number of reported COVID-19 cases among people who have had the jab helps all of us gauge the efficacy of the products and to make informed choices about whether to keep getting injected with them. But making informed decisions just became harder; the department’s site now states:
Yes, the “data on vaccine breakthrough cases in Massachusetts are no longer being updated.” The department does not say why.
Perhaps the data were becoming just too embarrassing. After all, the No Jab, No Job policy in Massachusetts that forced many State employees out of work rested on the claim that receiving the products would reduce the spread of COVID-19. You may remember Rochelle Walensky assuring us that the data (“real world data,” as she put it) show that “vaccinated people do not carry the virus and don’t get sick.”
One of the facts that undermines that claim is the increasing number of vaccinated people who who do carry the virus and do get sick.
Undercounting
The most recent figures from the Massachusetts Department Health show that of the Massachusetts residents classified as “fully vaccinated” at least 11.4 % have caught COVID-19.
As of July 2, 2022 there were 5,408,359 fully vaccinated people and there were 617,337 cases in vaccinated people
10,121 of those 617,337 cases resulted in hospitalization and 3,213 cases resulted in death based on information reported to date
The department classifies as “fully vaccinated” people who reported testing positive for COVID-19 more than 14 days after receiving their final dose. Below the figures, the department includes this note about undercounting both of cases and hospitalizations:
Identification of cases in vaccinated people relies on matching data between the system of record for cases and vaccinations. The number of cases in vaccinated people may be undercounted due to discrepancies in the names and dates of birth of individuals, resulting in an inability to match records across systems. Hospitalization data is likely also undercounted as identification and reporting of hospitalized cases relies on that information being obtainable by case investigators through patient interview.
This note about undercounting is important, but it leaves out something equally important. It has been clear since soon after the outbreak that a large proportion of people infected with COVID-19 are asymptomatic. Approximately 25-45% of people who are infected with COVID-19 show no symptoms at all, according to Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, speaking on Good Morning America on June 10, 2020.
For most people who display some symptoms, those symptoms are mild (e.g. sore throat, slight cough, and runny nose) and do not require a visit to a healthcare provider. If a person with COVID-19 does not report the infection to a healthcare provider, nobody enters the case into a healthcare provider’s database, and it does not appear in the department’s figures.
Accordingly, the case count of 617,337 does not include people who are fully vaccinated and then contract COVID-19 but do not report the fact to a healthcare provider. So the number 617,337 (11.4% of the fully vaccinated population) is an undercount.
Reasons?
It is not clear whether the department is now (a) keeping track of the breakthrough cases but keeping the figures to itself or (b) just no longer counting them. Choosing not to publish the data is one thing, but choosing not to even collect it would be something else. It is hard to say which would be worse.
In either case, why is State government keeping these cards so close to the vest rather than tipping its hand? This is not a game.
If the public servants in the Department of Public Health have a legitimate reason for either not collating the data at all or collating it but not publishing it, that reason must be written down somewhere, e.g. a memorandum or at least an email. Using the Public Records Law, I will try to find out the State’s rationale for keeping this important information from the public.
If and when I can drag the relevant documents out into the sunshine, I will post them here.
P.S.
July 28, 2022:- Today I submitted a public records request to the Massachusetts Department of Public Health asking for the documents that reflect or embody the decision to stop publishing the data on breakthrough infections.
On the subject of breakthrough infections, here is Dr. Deborah Birx, former White House Coronavirus Response Coordinator, stating:
“I knew these vaccines were not going to protect against infection and I think we overplayed the vaccines.”
May 31, 2022:- The latest volume (number 14) of the Western Division Housing Court Reports is available online. It is the unofficial compilation of decisions and orders issued by the Western Division Housing Court, published for the benefit of lawyers, landlords, tenants, and the public at large.
May 20, 2022:- In a development that will be of interest to people discharged because of the No Jab, No Job policy (e.g. 1,000 or so State employees in Massachusetts) a congressional report has revealed that approximately 400 million doses of COVID-19 vaccines had to be destroyed for “quality control reasons.”
The House Committee on Oversight and Reform’s Select Subcommittee on the Coronavirus Crisis just issued a report titled The Coronavirus Vaccine Manufacturing Failures of Emergent Biolsolutions. It describes cross-contamination in Emergent’s production of Johnson& Johnson and AstraZeneca vaccines. For the report click here; for the subcommittee, click here.
If you were one of those State employees who thought you had the right to consider this sort of information (contamination at the vaxx plant) before deciding to receive or decline a COVID-19 shot, you quickly learned that your boss had other ideas.
In Executive Order 595, which mandated vaccines for executive-branch employees, Governor Baker wrote:
WHEREAS, COVID-19 vaccines are safe and effective, as evidenced by the fact that COVID-19 vaccines have satisfied the U.S. Food and Drug Administration’s rigorous scientific standards for safety, effectiveness, and manufacturing quality needed to permit widespread use and distribution, and to date, more than 357 million doses of COVID-19 vaccines have been safely administered in the United States, with more than 9 million safely administered in the Commonwealth, and negative side effects have proven exceedingly rare…
You didn’t get to decide whether to receive the jab. Governor Baker made that decision for you when he issued Executive Order 595 on August 19, 2021. Meanwhile, according to the congressional report:
Due to poor quality control approximately 240 million vaccine doses had to be destroyed in late 2020 and early 2021— significantly more than revealed previously. Following the discovery that Emergent had cross-contaminated vaccine doses in March 2021, the Biden Administration halted Emergent’s manufacturing from April to July 2021.
The discovery about the contamination was in March 2021. So that was before August 19, 2021. The report continues:
After Emergent was permitted to resume manufacturing in July 2021, an additional 90 million newly manufactured coronavirus vaccine doses had to be destroyed for quality control reasons, and 135 million remain sequestered pending further testing.
Was the trouble with the vaccines top secret? Not at all. Here’s a quote from an article published in April 2021 (four months before Governor Baker issued E.O. 595):
An FDA report cites multiple failures in an Emergent BioSolutions plant tapped to produce vaccines for Johnson & Johnson and AstraZeneca. The vaccine plant had been forced to discard up to 15 million doses of Johnson & Johnson’s COVID-19 vaccine in a single manufacturing batch.
Here’s a quote from another article published in April 2021:
An FDA report has illuminated problems at Emergent BioSolution’s Baltimore manufacturing site, where the CDMO recently had to scrap up to 15 million Johnson & Johnson COVID-19 vaccine doses over a production error.
Thing is, the FDA flagged Emergent for very similar issues almost a year ago to the day. During an April 2020 inspection of the CDMO’s contract testing laboratory, the FDA said Emergent failed to adequately prevent data tampering or deletion, neglected to follow its quality control procedures or put them in writing and, notably, didn’t do enough to stop contamination or mix-ups.
I mention all this because the State, whether acting as government or as employer, should allow people to make their own decisions about medical interventions. Is this my quirky personal predilection? No, it’s a principle that the United States endorsed as part of the Universal Declaration on Bioethics & Human Rights, article 6 of which provides:
Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.
Consent is not “free” when your lack of consent leads to lack of your job. And I think loss of one’s job counts as a “disadvantage or prejudice.” Is the consent “informed” when your Governor issues an official order proclaiming the product’s safety? Answers on a postcard, please.
If you or someone you know lost a State job because of Executive Order 595, please feel free to contact my office for a free consult.
By the way, for the latest figures on COVID-19 hospitalizations in Massachusetts, click here. Spoiler alert: the percentage of COVID-19 patients who are fully vaccinated against COVID-19 is 65%.
At 6:00pm, Wednesday, June 1, 2022, I will be giving a Zoom presentation to MassLandlords members — and potential members — on the subject of relocation assistance agreements (cash-for-keys in the vernacular).
If the prospect of Housing Court litigation has you reaching for the TUMS®, a cash-for-keys agreement offers a healthy alternative, but it is not to everybody’s taste. I will discuss some of the essential ingredients, and why this item on the menu proves appetizing to some but unpalatable to others.
May 2, 2022:- Two new decisions arrived today, one from a unanimous Supreme Court of the United States (SCOTUS) against the City of Boston’s refusal to let an applicant fly a Christian flag from a municipal flagpole, and the other from the Supreme Judicial Court (SJC) of Massachusetts regarding the City of Lynn’s insistence that a busines owner conduct her business be-masked.
For Shurtleff v. City of Boston click here, and for City of Lynn v. Murrell click here.
Shurtleff v. City of Boston
SCOTUS held that the City of Boston’s refusal to approve Harold Shurtleff’s request to raise a Christian flag on a City flagpole abridged his right to freedom of speech. The City had allowed people to use the City flagpole to fly the flags of other countries, e.g. Venezuela, and various secular organizations, e.g. Metro Credit Union, but claimed that flying this particular flag could constitute “government speech.” Justice Alito’s concurrence addresses this succinctly:
The flags flown reflected a dizzying and contradictory array of perspectives that cannot be understood to express the message of a single speaker. For example, the City allowed parties to fly the gay pride flag, but it allowed others to fly the flag of Ethiopia… a country in which “homosexual act[s]” are punishable by “imprisonment for not less than one year.”
The prize for the pithiest observation, however, goes to Justices Thomas and Gorsuch in their concurrence. To see what I mean, scroll down to page 40.
City of Lynn v. Murrell
In this case, the City of Lynn fined business owner Ariana Murrell for her no-mask policy, which defied the Commonwealth mask mandate. How did the City find out? Here are the words in the decision that made my heart sink:
The Lynn police department received multiple complaints about Murrell’s no-mask policy. The Lynn police investigated and corroborated these complaints with their own independent and documented observations of Murrell’s practices at Liberty Tax. Members of the public also contacted the city’s board of health (board) to notify it of Murrell’s no-mask policy.
This practice (ratting, snitching, informing, whatever you want to call it) was the sort of thing that the bien pensant still seemed to care about as late as 2019, judging by this article in the Atlantic. But no longer.
The habit of informing on one another is now suitably engrained, but the mask mandates themselves have gone, at least for now.
And because the mandates are no more, the SJC decided that the issues were moot. But, in a somewhat encouraging response to Ms. Murrell’s argument that the issues remain alive because the State can reimpose a mask mandate whenever it feels like, the SJC implied (albeit ambiguously) that the widespread availability of treatments makes new mask mandates less likely. In addition, the court cited the SCOTUS decision on the OSHA vaccine-or-mask mandate, stating with sub-optimal clarity:
In light of this decision, we cannot say with any degree of certainty that our understanding of OSHA’s authority to issue general COVID-19 regulations, and the interrelated issue of preemption, would be the same if the Governor were to issue another Statewide mandate.
In a glass half-full frame of mind, I think that the SJC was signaling that in reviewing any new mask mandates, it would take into account the changed jurisprudential landscape and would determine whether the facts (remember those?) really justify the mandates. Or perhaps I am getting carried away with hope.
Every rental agreement in Massachusetts — whether written or unwritten — contains an important clause. It will remain as part of the agreement even if both parties, landlord and tenant alike, want to waive it. No matter how hard you try, you cannot erase it.
What is this ineradicable clause? It is the warranty of habitability. It is the landlord’s guarantee that the landlord will, at a minimum, keep the premises in compliance with the State Sanitary Code, more particularly Chapter II of the Code titled Minimum* Standards of Fitness for Human Habitation.
So one easy way for landlords to breach the warranty of habitability, and land themselves in expensive trouble, is to ignore the State Sanitary Code. Ignoring the Code could result in the landlord having to pay the tenant damages (possibly multiple damages) plus the tenant’s legal fees.
On the other hand, by paying attention to the State Sanitary Code, and making sure that each and every rental unit complies with it, landlords are more likely to live up to the warranty of habitability, stay out of trouble, and maintain a healthy business relationship with their tenants.
State government has posted a synopsis of the responsibilities of landlords in Massachusetts. It is well worth a look. In the meantime, here are some — just some — of the requirements of the State Sanitary Code. The following five items are just a starting point, not an exhaustive list. Landlords and aspiring landlords should familiarize themselves with the Code in its entirety.
1. The Code applies to every dwelling
The State Sanitary Code states:
No person shall occupy as owner-occupant or let to another for occupancy any dwelling, dwelling unit, mobile dwelling unit, or rooming unit for the purpose of living, sleeping, cooking or eating therein, which does not comply with the requirements of 105 CMR 410.000
That is a clear rule. If you provide rental accommodation, you must comply with the State Sanitary Code. There are three exceptions to the rule for landlords to know about: (1) dwellings on campgrounds that comply with the applicable State regulations for campgrounds, and (2) dwellings used exclusively as civil defense shelters. Those two exceptions are very narrow. The other exception? If the dwelling is covered by another part of the Code.
What if the would-be tenant says, “Don’t worry about the warranty of habitability. I’m happy to sign a contract waiving it. Or we can say that I’m using the apartment exclusively as a civil defense shelter. Just knock $50 off the rent.”
No. The warranty of habitability is not something a tenant can waive. And if the apartment is an ordinary rental unit, it not exclusively a civil defense shelter. A lease provision cannot transform an ordinary apartment into a civil defense shelter, even if both parties apply the George Costanza Doctrine of Truth. Housing Court judges do not take kindly to such ruses.
2. Minimum living space
The State Sanitary Code establishes the minimum amount of living space that each dwelling unit must consist of:
Every dwelling unit shall contain at least 150 square feet of floor space for its first occupant, and at least 100 square feet of floor space for each additional occupant, the floor space to be calculated on the basis of total habitable room area.
This does not include: rooms containing toilets, bathtubs or showers; laundries; pantries; foyers; communicating corridors; closets; and storage spaces. These parts of the unit do not count toward the square footage of floor space.
There is a separate square-footage requirement for rooms used for sleeping. For one occupant, the sleeping room has to contain at least 70 square feet. For more than one occupant, the sleeping room must have at least 50 square feet for each person, e.g. for two occupants, 100 square feet; for three occupants, 150 square feet.
A unit that is less than 150 square feet, excluding closets and storage spaces, is not a Code-compliant unit. An owner who rents such a unit to a tenant is breaching the warranty of habitability.
What if the unit is 145 square feet, just 5 feet under the minimum, and the would-be tenant says, “I don’t mind. Just knock $50 off the rent?”
No, the landlord is not able to contract out of the warranty of habitability.
3. Kitchen facilities
The unit must contain a kitchen sink and space to store, prepare, and serve food in a sanitary manner, and there must be a stove in good repair. Unless the written agreement puts the obligation on the tenant to provide a stove, the landlord must provide one. In addition, there must be space and connections for a refrigerator.
The kitchen must have at least one lighting fixture and at least two electrical outlets (for the kettle, coffee-maker, toaster, etc.) in “convenient locations.” In practice, this means that the tenants should not have to plug in the toaster down at the skirting board or up by the picture rail!
The Code also requires a kitchen window:
For each kitchen over 70 square feet, transparent or translucent glass which admits light from the outdoors and which is equal in area to no less than 8% of the entire floor area of that kitchen.
What if the would-be tenant says, “I don’t mind not having a kitchen. Just knock $50 off the rent.”
No, the landlord is not able to contract out of the warranty of habitability.
What if the landlord says to the would-be tenant, “There is no light fixture in the kitchen. I could install one if you pay for it.”
“Sure, I’ll pay for it,” says the would-be tenant.
No, the Code says that the owner must provide the fixture and outlets and it defines the word “provide” as “supply and pay for.”
4. Maintaining facilities
Everything that the owner installs, the owner must maintain. For example, the owner has the duty to maintain the toilets, sinks, wash basins, water pipes, sewer lines, and gas lines free from leaks, obstructions, and defects. If the owner installed the stove and refrigerator, the owner must keep them in good repair. When the tenant tells the owner that the faucet is leaking, the owner has to repair it.
Does the Code say what standard the owner must live up to? Yes, the owner must install and maintain facilities “in accordance with accepted plumbing, gasfitting and electrical wiring standards.”
So who should do the plumbing? A licensed plumber. The wiring? A licensed electrician.
But let’s say the kitchen sink has always leaked. It leaked when the landlord bought the place, and it has leaked ever since. During the showing, the landlord says to the would-be tenant,
“The kitchen sink leaks. It’s leaked from the get-go. Somehow I never get around to fixing it.”
“That’s OK,” says the would-be tenant, “I don’t mind a leaky sink. Just knock $10 off the rent.”
No, the landlord is not able to contract out of the warranty of habitability.
5. Windows must be secure
The Code states that in every habitable room other than the kitchen there must be:
transparent or translucent glass which admits light from the outdoors and which is equal in area to no less than 8% of the entire floor area of that room
It also says:
The owner shall provide, install and maintain locks so that… Every openable exterior window shall be capable of being secured.
A habitable room needs a window of sufficient size. If the window is capable of being opened it needs to have a mechanism to keep it from simply sliding or falling open or from being opened from the outside (by an intruder, for example). It needs a lock.
What if the latch on the living-room window fell off?
“I see that the living room window doesn’t have a lock or even a latch that works. Could you knock $50 off the rent?”
“Sorry,” says the owner, “I can’t buy my way out of the warranty of habitability. I’ll install a lock tomorrow. And I’ll send you the bill.”
No, the owner is not allowed to charge the tenant for the cost of making the exterior window secure. The owner’s duty is to provide the lock, and the word “provide” means “supply and pay for.”
Conclusion
Anyone who intends to become a landlord in Massachusetts should become familiar with the State Sanitary Code, and consistently comply with it. Failing to comply with the Code and breaching the warranty of habitability could be a very expensive mistake.
*This is the word to focus on. The State Sanitary Code establishes the minimum standards of fitness for human habitation. Think of it as a floor, not a ceiling.
April 12, 2022:- Rent control has a new moniker: It now identifies as “rent stabilization.” You know when a policy is unpopular when its advocates give it a new name. Even today, when face-masking, mind-closing, and line-toeing are all the rage among the bien pensant, a policy with the word “control” right there in the title just doesn’t sit well, I guess.
But the reason for the policy’s unpopularity is not the name but the aim. And what is the aim of rent stabilization (née rent control)? An article in Jacobin explains. It has the headline “New York Needs Universal Rent Control Now,” and a sub-headline that tells you why: “Rent control can build tenant power and undermine the logic of speculative neighborhood investments.”
The phrase “undermine the logic of speculative neighborhood investments” is a reasonably to-the-point way of expressing the idea “abolish private property.” You can count on a forthright explanation from a magazine named after the movement that was responsible for the Reign of Terror during the French Revolution.
Lest readers doubt that the editor responsible for writing the headlines and sub-headlines at Jacobin got it wrong, here is a quote from the article itself:
By discouraging speculation and lowering the value of investment properties, it lays the groundwork for an expansion of alternative housing models, like social housing and community land trusts.
Discouraging speculation? That speaks for itself, as does “lowering the value of investment properties.” Similarly, the expansion of social housing (in plain English, government housing) and community land trusts (in plain English, government housing) means the contraction of something else, i.e. privately owned housing.
Why is this expressly Statist, anti-market policy of rent stabilization (née rent control) back on the political agenda in Massachusetts and elsewhere? In short, because the politics of the people who write for Jacobin are the politics of the people who are setting the agenda for the Democratic Party in Massachusetts, namely the supporters of Democratic Socialists of America (DSA).
DSA stalwart State Representative Mike Connolly of Cambridge has a bill, H. 1378, that includes an option for towns and cities to enact rent control. The Joint Committee on Housing is scheduled to vote on it next month.
Myself, I believe that affordable good-quality housing is more likely to emerge through markets than through policies such as rent control. That is a belief that some committed socialists share, and it is exactly why they want rent control. From the perspective of a dedicated revolutionary, if rent control reduces the amount of affordable housing, thereby exacerbating the situation, fomenting discontent, and stimulating revolutionary conditions, so much the better.
From the standpoint of the true socialist, in the long run no housing reforms are safe without a wholesale socialist transformation of society.
But reasonable people who wish to address the need for more affordable housing (and are not revolutionary socialists or even gradualist socialists) may find the arguments for and against rent control evenly poised. They may be on the fence about it.
There are plenty of reasons to oppose rent control (click here for a few) but here’s one that the fence-sitters might — just might — think about:
Rent control artificially reduces housing units’ value, forcing housing providers to offer their properties at below-market rates. This dramatically reduces developers’ incentive to construct new units, as the artificially deflated rental market offers a lower return on investment. In cities that implement rent control, new construction decreases dramatically, producing substantial declines in the availability of rental housing.
That’s a quote from an op-ed by Drew Hamrick, senior vice president of government affairs and general counsel for the Colorado Apartment Association, writing in Colorado Politics. The bill Mr. Hamrick opposes would impose rent control on Colorado’s mobile-home parks.
Yes, it’s not just Massachusetts. Even in Colorado — longtime home of Hunter S. Thompson, birthplace of Duane “Dog the Bounty Hunter” Chapman, and where it is illegal to lend your vacuum cleaner to your neighbor — questionable ideas sometimes find their way onto the agenda.
To be fair, the socialists have a response to people like Drew Hamrick. To the claim that rent control reduces the amount of new rental housing, they say “oh no it doesn’t.” For an article in Jacobin countering the pro-private property argument with data, click here. For arguments from the libertarian-leaning Cato Institute in favor of private ownership and against rent control, also with data, click here.
Please do me a favor and read the arguments for and against rent control.
As a former socialist whose mind changed after much experience, reading, and reflection, I am grateful for the liberty to read works that express ideas that differ from my own. Of course, that very liberty depends entirely on another liberty: the liberty to own and sell property. If one entity (the State) controls your ability to make the money with which you can buy food, shelter, and whatever else you need and desire, your ability to criticize that entity will be very constrained. Without that liberty to criticize through writing and speech, dissent sounds like this. And that, fundamentally, is why rent control is a bad policy.
Peter Vickery, Esq., 