Monthly Archives: March 2018

Jeff Sessions And His War On Pot

Given the daily headlines generated by this Administration–everything from porn star lawsuits and tariffs to the escalating exodus from the White House (Bill Maher opined that this is the largest rush to exit since the British burned it)– it may have escaped most people’s notice that various cabinet officials are making a valiant effort to take America back to the last century.

Nowhere is that effort more concerted than in Jeff Session’s Department of Justice.

Sessions has refused to enforce consent decrees with various police departments. He has rolled back anti-discrimination measures. He’s re-instituted civil forfeitures (one of the few measures uniformly condemned by civil libertarians, criminal justice experts, and politicians from both parties). His retrograde policies about immigration have led him to sue California for its sanctuary efforts. His “tough on crime” initiatives ignore 25 years of criminal justice research.

But it is his unrelenting insistence on reinvigorating the discredited War on Drugs that best illustrates his passion for returning us to the 1950s. So it will be interesting to see what eventually happens with a lawsuit first filed last November.

Alexis Bortell, along with her father and other plaintiffs, including former NFL player Marvin Washington, filed suit in the Southern District of New York against the attorney general as well as the Department of Justice and the Drug Enforcement Agency….

Alexis, whose family moved to Colorado from Texas to take advantage of the state’s legalization of recreational and medical marijuana, had been suffering since she was 7 from a form of epilepsy that cannot be safely controlled with FDA-approved treatments and procedures, the lawsuit says.

As a result, she often had multiple seizures a day. “Nothing she tried worked,” the suit states. When her family finally tried a form of marijuana, the girl found “immediate relief from her seizures.”

“Since being on whole-plant medical Cannabis, Alexis has gone more than two years seizure-free,” the suit says.

 Alexis won’t be able to return to her native Texas where she qualifies for free college, because she would be subject to arrest if she continued to use marijuana to control her seizures.

Unfortunately, in February, the Judge dismissed the claims, citing precedent.

The Second Circuit has already determined that Congress had a rational basis to classify marijuana as a Schedule I drug,” Hellerstein writes, “and any constitutional rigidity is overcome by granting the Attorney General, through a designated agent, the authority to reclassify a drug according to the evidence before it. … There can be no complaint of constitutional error when such a process is designed to provide a safety valve of this kind.”

However, Hellerstein immediately follows this conclusion with a paragraph suggesting that he is sympathetic to assertions that marijuana has medical uses.

“I emphasize that this decision is not on the merits of plaintiffs’ claim,” he points out. “Plaintiffs’ amended complaint, which I must accept as true for the purpose of this motion, claims that the use of medical marijuana has, quite literally, saved their lives, One plaintiff in this case, Alexis Bortell, suffers from intractable epilepsy, a severe seizure disorder that once caused her to experience multiple seizures every day. After years of searching for viable treatment options, Alexis began using medical marijuana. Since then, she has gone nearly three years without a single seizure.”

Alexis wasn’t the only plaintiff: she was joined by six-year-old Jagger Cotte, who treats with cannabis for Leigh Syndrome, a horrible, terminal neurological disorder; former NFL linebacker Marvin Washington, who makes cannabis-based products for head trauma; Iraq War veteran Jose Belen, who suffers from post-traumatic stress disorder and was given the option of “opioids or nothing” from the Veterans Administration; and the Cannabis Cultural Association, a nonprofit concerned with racial disparities in drug policy enforcement.

All indications are that the dismissal will be appealed to the Second Circuit, and no matter who wins there, probably to the Supreme Court. Meanwhile, Jeff Session’s Justice Department will continue to ignore both the overwhelming consensus of research and the undeniable, abject failure of the 20th Century’s drug war.

In Trump’s America, of course, evidence and expertise are irrelevant.

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And The Hits Keep Coming…

Every day, it seems, the Trump Administration sheds an advisor who is–whether or not one agrees with that person’s policy preferences–seemingly sane, and announces yet another appointee who is either deeply corrupt or factually-challenged or both.

The war being waged on public schools, the blithe disregard for the consequences of a trade war, the evisceration of HUD’s mission to help the poor, the reinstatement of a failed and flawed drug war–all of this is depressing. But the assault on the environment, the rollback of regulations that protect American air and water, is arguably the most sustained assault on science and sanity.

This morning’s media reported on a speech made by Interior Secretary Zinke, in which he asserted (without evidence) that wind power was largely responsible for global warming.

Last week, we learned that Trump and Pruitt had nominated a Dow Chemical executive to run the Superfund program.

Today’s report of rampant corruption comes, not surprisingly, from the EPA. Trump and EPA Administrator Scott Pruitt have nominated an attorney from Dow Chemical, one of the nation’s worst polluters, to run the Superfund program that cleans up after that company and many others.
In addition to his blog, Ed Brayton writes for a newspaper in Michigan, and his reaction to that nomination was based upon his reporting.

Dow is based here in Michigan and I’ve been reporting on them for many years. To call them environmental criminals is an insult to criminals. They are responsible for the enormous damage done by dioxins and furans, particularly in the Saginaw Bay area where their plants are located. The Tittabawassee River is massively contaminated, as are the soils around it. They have dragged their feet on cleaning it up for decades. Even the Bush-era EPA got so frustrated with them that they ended negotiations on just studying the problem in 2008. That contamination has spread from the Saginaw and Tittabawassee rivers into Saginaw Bay and Lake Huron, helping spoil one of the world’s most important freshwater reserves.

The Hill reports that the entire administration is being stacked with climate change deniers.

Even as leading scientists, environmentalists and most Democrats accept research that shows climate change accelerating — and as some see it contributing to the two mammoth hurricanes that have threatened the United States this year — some in Trump’s administration have openly raised doubts.

Administrator Scott Pruitt has questioned carbon dioxide’s role as a “primary contributor” to a warming climate, something accepted by most researchers. He’s also called for a public debate over climate change science, a proposal that has caused scientists, environmentalists and former regulators to bristle.

“I think it’s going to have a chilling effect on science overall because it’s going to elevate those scientists who are in the vast minority and give them a stage that, frankly, they don’t deserve,” said Christine Whitman, President George W. Bush’s first EPA administrator, who called the proposal “shameful” in a Friday New York Times op-ed.

“It’s wasting taxpayer money and making it an even more difficult issue for the average person to wade through, which I think is part of the political agenda, to make the case that we don’t need to do anything about this issue.”

The EPA has removed its climate science website. Pruitt has put a political appointee in charge of reviewing grants, and that official is reportedly targeting grants that focus on climate change. The EPA keeps rolling back regulations that protect our air and water. The list goes on.

What is it that Neil DeGrasse Tyson says? Reality doesn’t care whether you believe in it or not.

There’s another saying: Reality bites.  And that doesn’t bode well for our children or grandchildren–or for the planet.

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Predicting Outcomes? Or Producing Them?

A reader of this blog recently sent me a link to an article about prognostications, noting that its central message had application to the discussions that take place on this blog–especially in the comments.

She was correct.

The article began with a story about the author’s brother, who had been born with cerebral palsy, muscular dystrophy and other conditions that made the doctors believe he’d be unlikely to live past his first birthday; they informed the parents that there was a 95% probability that the baby wouldn’t make that birthday.

Nevertheless, year after year, the brother outlived the doctors’ predictions.

Jason’s ‘95 per cent’ wasn’t just an indifferent number. My brother’s life is evidence of the politics of probability: the life-defining feedback loop that exists between our values and the information that shapes them. What we know about the future depends, in part, on what we think is worth knowing – and what we think is worth knowing depends, in turn, on what we believe the future already holds.

Researchers who measure various physical phenomena frequently worry that the act of measuring  may affect the behavior of what is being measured, leading to inaccurate results. The author of this article has a similar concern about the act of prediction:

In other words, if a condition is thought to result in a low chance of survival, it translates into less care for the person with it. Invoking probabilities can create a fatal cycle that shapes how people understand the range of options at their disposal, and even the value of their children’s lives. Disability communities know this all too well. The idea that disability implies disadvantage is regrettably widespread, as loose talk about ‘tragedy’ and ‘struggle’ suggests. A wealth of research suggests that doctors routinely misjudge the quality of life that people with disabilities enjoy. If one judges such a life not worth living – as even Socrates ignominiously suggested – there’s no point fighting for treatment or questioning the conditions that generate the chances of success. Probability, far from being neutral, can directly contribute to injustice.

The political application of this observation is obvious: if we believe that the district in which we live and vote is “safe” for the other party, we are much more likely to skip voting; if enough of our neighbors do likewise, we have created the predicted result.

If the public response to yet another mass shooting is limited to bemoaning the “fact” that the NRA’s influence is too strong to overcome, Americans will fail to do the organizing and agitating that can counter that influence.

There has been a wake-up call prompted by the election of Donald Trump; many, many  people who previously didn’t follow political news have become aware of the “brokenness” of America’s government. If they respond with angry acceptance–if majorities of Americans believe that the country is so far down the road to corporatism and corruption that a return to more democratic, ethical governance is unlikely–then we will fail to organize, agitate and vote in numbers sufficient to effect that change.

Being human, we will always engage in prediction. But we need to be careful that we don’t act in ways that reinforce–or even bring about– our gloomiest prognostications.

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Rejecting The Enlightenment

And here I thought Scott Pruitt was just a bought-and-paid-for member of the “mafia” wing of today’s GOP. His long history of combatting environmental regulations while representing fossil fuel industries seemed adequate to explain his (toxic) presence in the Trump Administration.

Now, however, we discover that he is also a True Believer in the Pence mold. According to Politico, Pruitt has a history of statements that would do Pence and the rest of the “cult” wing of the party proud.

Environmental Protection Agency Administrator Scott Pruitt dismissed evolution as an unproven theory, lamented that “minority religions” were pushing Christianity out of “the public square” and advocated amending the Constitution to ban abortion, prohibit same-sex marriage and protect the Pledge of Allegiance and the Ten Commandments, according to a newly unearthed series of Oklahoma talk radio shows from 2005.

Pruitt, who at the time was a state senator, also described the Second Amendment as divinely granted and condemned federal judges as a “judicial monarchy” that is “the most grievous threat that we have today.” And he did not object when the program’s host described Islam as “not so much a religion as it is a terrorist organization in many instances.”

The six hours of civics class-style conversations on Tulsa-based KFAQ-AM were recently rediscovered by a firm researching Pruitt’s past remarks, which provided them to POLITICO on condition of anonymity so as not to identify its client. They reveal Pruitt’s unfiltered views on a variety of political and social issues, more than a decade before the ambitious Oklahoman would lead President Donald Trump’s EPA.

This is the man who is charged with safeguarding the nation’s air and water, the man whose agency is our first line of defense against climate change. Never before has the EPA been headed by a person who actively dismisses and ridicules science and scientific evidence.

When the taped conversations emerged, an EPA spokesman was asked whether Pruitt’s skepticism about evolution– one of the major foundations of modern science– could conflict with the agency’s mandate to make science-based decisions.

Spokesman Jahan Wilcox told POLITICO that “if you’re insinuating that a Christian should not serve in capacity as EPA administrator, that is offensive and a question that does not warrant any further attention.”

Obviously, that was not the “insinuation,” although I for one would agree that a person espousing Pruitt’s particular version of Christianity and its mandates should be kept as far away from the EPA as possible.

Some polls show that less than 30 percent of white evangelical Protestants believe that human activity is the driving factor behind climate change.

And Pruitt has echoed that sentiment, telling CNBC last year that he did not believe carbon dioxide was a primary contributor to climate change. Last week, he told the Christian broadcaster CBN News that he supports developing the nation’s energy resources, a stance that he believes aligns with Scripture’s teachings.

“The biblical worldview with respect to these issues is that we have a responsibility to manage and cultivate, harvest the natural resources that we’ve been blessed with to truly bless our fellow mankind,” he said.

To suggest that criticism of Pruitt is tantamount to saying that religion disqualifies people from heading the EPA is not only appallingly dishonest, it flies in the face of the agency’s history.

Pruitt isn’t the first EPA administrator to openly express his or her religious faith, of course. His immediate predecessor, Gina McCarthy, was a Roman Catholic who visited top officials at the Vatican in 2015 as church officials worked to write Pope Francis’ climate change encyclical. She oversaw the creation of the major climate change and water regulations that Pruitt’s EPA has started to unwind.

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Activist Courts And Unintended Consequences

The Supreme Court recently heard oral arguments in the case of Janus v. American Federation of State, County and Municipal Employees. As a recent op-ed in the New York Times put it, unlike other cases that find their way to the country’s highest court, we already know how this one is going to be decided.

The Supreme Court is widely expected to rule in favor of Janus on a party line 5-to-4 basis and overturn a 1977 precedent, Abood v. Detroit Board of Education. Abood permitted fair-share fees, which cover only organizing and collective bargaining and do not include social or political activities in the public sector.

Why are we so sure about the Janus outcome? The court heard a similar case in 2016, and it split 4-4 after Justice Antonin Scalia’s sudden death. Neil Gorsuch has proved himself more conservative than Justice Scalia on most issues, so there is little hope that labor will win this time around.

I will, for purposes of this post, omit my diatribe about stolen Supreme Court seats and the erosion of time-honored democratic norms.

The  plaintiff in this case is asserting a First Amendment right not to be compelled to support unions, even when that “support” is limited to payment for services from which he benefits. The op-ed to which I link focuses on the unintended consequences of his likely victory–consequences that would give pause to justices less ideologically rigid than those currently serving.

The popular understanding of the case is limited to recognizing that, if the court bans fair-share fees, it will hurt unions. It will deprive them of funds and (more insidiously) encourage “free riding”–non-contributing workers’ ability to benefit from the contributions of others. Those are intended consequences of what has been a concerted, well-funded effort to destroy workers’ ability to bargain collectively.

But fewer people have considered what conservatives are risking: Union fair-share fees do not exist in an employment vacuum; the same logic and legal framework that permits the government to mandate these fees allows the government to conduct itself as an employer. Janus is largely being discussed as a case that is likely to defund and disrupt labor unions, but the case cannot simply injure unions and leave everything else intact.

At last count, federal, state and local governments employed over 21 million workers, so the courts have had to develop a framework for governments to be able to manage their work forces without constantly confronting the Constitution. Imagine if a teacher called in sick, and an administrator had to procure a warrant before searching her desk drawer for a text book, or else risk violating the Fourth Amendment. Or imagine if a police sergeant who tells an officer that he didn’t have time to listen to a complaint about the break room now has to worry that he violated the First Amendment.

Over the years, the Court has carefully balanced the government’s legitimate needs as an employer against the equally compelling need to protect public employees when they exercise their constitutional rights in the workplace. A “victory” for Janus in this case threatens to turn every workplace dispute into a constitutional issue.

The prominent conservative legal scholars Eugene Volokh and William Baude went further and filed a brief supporting the unions. They argue that the government compels subsidies of others’ speech all the time and that there is nothing constitutionally suspect about that. Mr. Volokh and Mr. Baude point to the fact that we don’t have a right to opt out of paying a portion of our taxes for issues we disagree with.

Furthermore, the government regularly requires people to purchase speech related to services that they may not want, such as doctors and lawyers having to enroll in continuing education courses. Or even the general requirements that people purchase car insurance or vaccinations, despite the fact that some may disagree with that mandate. To recognize a general First Amendment right to not fund things that one may disagree with, despite the government’s interests in mandating such payments, would completely upend many areas of life that are necessary for our society to function.

The Court used to be wary of decisions that would “unleash a floodgate of litigation.”  The likely Janus victory will be evidence that it no longer cares.

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