Avoiding The Merits Of The Case

My years as Executive Director of Indiana’s ACLU gave me the kind of education that schooling just can’t supply. It was during that time that I first recognized how few Americans knew even the most basic principles of the Constitution and Bill of Rights; for example, there was–and probably still is–a belief that the majority always rules.

I can’t count the number of Hoosiers I encountered who insisted that if a majority of citizens wanted a book banned or a public prayer said– why, that should be the law. The idea that the Bill of Rights enumerates things government cannot do –even if a majority wants government to do them–was both a foreign concept and an unpleasant surprise.

When the issue involved criminal procedure, people expressed widespread disgust at “stupid rules” (for example, the Fourth Amendment) that allowed an occasional defendant to “get off on a technicality.” (“Occasional” is the operative word; aside from television episodes of “Law and Order,” that’s a pretty rare occurrence.)

I thought about those negative attitudes toward “technicalities” a while back, while I was reading a New York Times column by Linda Greenhouse on the standing doctrine. Standing actually is a “technicality” in the sense that when the doctrine is too expansively applied, it allows a court to ignore the merits of a case–to sidestep the issue that is being litigated.

I’m copying a fair amount of the Greenhouse column, because the concept of standing is unfamiliar to most Americans, and its significantly expanded use by the Courts is far more dangerous than the likelihood that fidelity to the Fourth Amendment will free an accused felon.

Pop quiz No. 1: What do the following have in common: an abortion clinic in Louisiana; the county of El Paso, Tex.; and two individuals who don’t want to buy health insurance?

Answer: All are plaintiffs in federal court.

The Hope Medical Group for Women, in Shreveport, La., is the petitioner in the June Medical case now at the Supreme Court, challenging the constitutionality of Louisiana’s latest effort to shut down the state’s few remaining abortion clinics.

El Paso County is suing the Trump administration to stop construction of a new section of border wall on its southern border with Mexico that will be paid for in part by siphoning off millions of dollars that Congress intended for a project at the Fort Bliss Army base, the county’s biggest employer and economic engine. This case is not yet at the Supreme Court, but is most likely headed there.

And Neill Hurley and John Nantz, the two men who object to being told to buy health insurance? They and a group of red states led by Texas are in the Supreme Court defending the lower courts’ conclusion that the Affordable Care Act’s individual mandate, which no longer carries any penalty for noncompliance, is unconstitutional.

Pop quiz No. 2: Which of these are the only plaintiffs that the administration’s lawyers are not trying to throw out of court?

Answer: The ones who don’t like Obamacare.

And how are Trump’s lawyers trying to keep the other issues from being decided by the courts? By arguing that the plaintiffs lack standing —the right to bring the lawsuit in the first place.

Courts have developed a three-part inquiry for deciding whether a plaintiff has standing, designed to ensure that a lawsuit presents the “case or controversy” that Article III of the Constitution requires for the exercise of federal court jurisdiction. Did the plaintiff suffer a real injury? Was the injury caused by the defendant? And can a victory in court actually bring relief? These questions appear to invite simple yes-or-no answers. But a few minutes’ reflection shows that they are far from value-free, and finding the answers requires the exercise of judgment.

For example, El Paso County claims that even before a dime has been diverted from Fort Bliss and spent on the wall, it is already suffering damage to its reputation that will cost it business investment and tourist dollars.

The District Court Judge agreed with El Paso that “reputational and economic injuries”  were real, and sufficient to establish standing, and that the injuries were traceable to the government’s proposed action.The Court of Appeals for the Fifth Circuit, however, granted the administration’s request for a stay of the injunction, finding a “substantial likelihood that appellees lack Article III standing.”

Greenhouse goes through the arguments for and against standing in each of the other cases; the explanations demonstrate both the dishonesty of the administration’s positions and the pliability of the doctrine.

“Actual damage” is in the eye of the beholder, and when the beholder is an unqualified partisan put on the bench by Trump and McConnell, standing becomes a “technicality” that can be used to neuter constitutional guarantees.

Comments

Will Bribery Work?

Apparently, today’s Republicans–who sure don’t look like the Republicans I grew up with–are no longer bothering to hide their corruption from public view. All of America has witnessed the travesty of the Senate’s impeachment “trial,” and reports of the party’s operation “Redmap” and other efforts at gerrymandering and voter suppression have become ubiquitous.

Now Politico reports that even garden-variety bribery is out in the open.  

Allies of Donald Trump have begun holding events in black communities where organizers lavish praise on the president as they hand out tens of thousands of dollars to lucky attendees.

The first giveaway took place last month in Cleveland, where recipients whose winning tickets were drawn from a bin landed cash gifts in increments of several hundred dollars, stuffed into envelopes. A second giveaway scheduled for this month in Virginia has been postponed, and more are said to be in the works.

The cash giveaways are supposedly under the auspices of an outside charity, the Urban Revitalization Coalition. That stratagem permits donors to remain anonymous and make tax-deductible contributions. (That adds insult to injury–taxpayers are subsidizing partisan bribery.)

One leading legal expert on nonprofit law said the arrangement raises questions about the group’s tax-exempt status, because it does not appear to be vetting the recipients of its money for legitimate charitable need.

“Charities are required to spend their money on charitable and educational activities,” said Marcus Owens, a former director of the Exempt Organizations Division at the Internal Revenue Service who is now in private practice at the law firm Loeb & Loeb. “It’s not immediately clear to me how simply giving money away to people at an event is a charitable act.”

The CEO of the organization is a longtime Trump ally, and the rest of the Politico report is enough to turn your stomach.

But this is hardly the only evidence that the GOP is trading money for votes. Salon has an article documenting contributions to Republican senators in advance of the sham impeachment trial.

President Trump’s legal team made numerous campaign contributions to Republican senators overseeing the impeachment trial.

Former independent counsels Ken Starr and Robert Ray, who both investigated former President Bill Clinton ahead of his impeachment, contributed thousands of dollars to Senate Majority Leader Mitch McConnell last year before they joined the president’s team, according to data from the Center for Responsive Politics (CFPR)….

The contributions came months before McConnell bragged to Fox News host Sean Hannity that he would be in “total coordination with the White House counsel’s office and the people who are representing the president in the well of the Senate.”

It would also be enlightening to know how many projects were recently and generously funded by the federal government in states represented by Republican senators–especially purple states.

And I suppose promising that a senator’s head wouldn’t be “on a pike” might be considered a bribe as well..

Along with raising money for senators who will decide his fate, Trump has also been accused of threatening Republicans after a Trump confidant told CBS News that senators were warned: “vote against the president, and your head will be on a pike.”

In all fairness, Trump has never made a secret of his belief that bribery is just part of doing business. According to the Washington Post,

For years, President Trump has criticized a more than 40-year-old law banning companies from bribing foreign officials to win business.

In 2012, he told CNBC that the Foreign Corrupt Practices Act was a “horrible law.” In a 2017 Oval Office meeting, Trump ordered his then-Secretary of State Rex Tillerson to do away with it.

“It’s just so unfair that American companies aren’t allowed to pay bribes to get business overseas,” Trump said, according to “A Very Stable Genius,” a book by Washington Post reporters Philip Rucker and Carol D. Leonnig that published in January.

White House economic adviser Larry Kudlow said recently that the Trump administration is “looking at” making changes to the global anti-bribery law.

Because of course they are.

Honesty, morality and integrity are so last administration.

Comments

Subsidizing Bigotry

As the country’s diversity and tribalism have grown, America’s public schools have become more necessary than ever. The public school is one of the last “street corners” where children of different backgrounds and beliefs come together to learn–ideally–not just “reading, writing and arithmetic” but the history and philosophy of the country they share.

Today’s Americans read different books and magazines, visit different websites, listen to different music, watch different television programs, and occupy different social media bubbles. In most communities, we’ve lost a shared daily newspaper. The experiences we do share continue to diminish.

Given this fragmentation, the assaults on public education are assaults on a shared America.

Nevertheless, politicians and (especially) religious adherents who feel threatened by diversity and modernity have worked tirelessly to support voucher programs that allow parents to remove their children from public school systems and send them to private–almost always religious–schools, where they study with “their own kind.” The rhetoric around these programs typically defends them as “allowing children to escape failing schools”–although those “failing” schools are hardly helped by sending their already inadequate resources to private schools–despite consistent research showing that vouchers virtually never lead to academic improvement. (They do, however, lead to increased racial segregation.)

As an added indignity, voucher programs send tax dollars to schools that discriminate against LGBTQ children and children with LGBTQ parents. Here in Indiana, Cathedral High School, which received over a million dollars in 2018, fired a gay teacher;  Roncalli High School, which also has accepted vouchers worth millions fired a much-loved gay counselor who was in a same-sex marriage.

Recently, in a welcome announcement, two major contributors to Florida’s voucher program announced that they would no longer be contributing to that state’s program, which also allowed recipient schools to deny admission to gay students.

Two of the largest banks in the U.S. say they will stop donating millions of dollars to Florida’s private school voucher program after a newspaper investigation found that some of the program’s beneficiaries discriminate against LGBTQ students.

In a statement to NBC News and CNBC on Wednesday evening, Wells Fargo confirmed that it would no longer participate.

“We have reviewed this matter carefully and have decided to no longer support Step Up for Students,” the San Francisco-based bank said of the voucher program. “All of us at Wells Fargo highly value diversity and inclusion, and we oppose discrimination of any kind.”

In a tweet to a Florida lawmaker Tuesday, Fifth Third Bank, based in Cincinnati, said it has told officials with the voucher program that it will also stop participating.

An investigation by the Orlando Sentinel found 156 private Christian schools with anti-gay views that participated in Florida’s program. Those schools educated more than 20,000 students whose tuition was paid by Florida taxpayers–including, obviously, LGBTQ taxpayers.

The investigation found that 83 of the 156 schools with anti-gay views refuse to enroll LGBTQ students, and that some number of those schools also exclude students whose parents are gay.

“Florida’s scholarship programs, often referred to as school vouchers, sent more than $129 million to these religious institutions,” the Sentinel reported on Jan. 23. “That means at least 14 percent of Florida’s nearly 147,000 scholarship students last year attended private schools where homosexuality was condemned or, at a minimum, unwelcome.”

So much for the American “street corner” and our commitment to civic equality.

We taxpayers are subsidizing segregation and bigotry–without realizing the promised improvement in academic outcomes.

Comments

Evan McMullin Sums It Up

David Evan McMullin–for those of you who have forgotten his brief emergence during the 2016 Presidential campaign– is the former Central Intelligence Agency operations officer and former Republican who ran for President as an independent that year. He is currently the Executive Director of Standup Republic.

In the wake of the shameful vote by Republican Senators in which they refused to call witnesses or demand documents, McMullin’s tweets have been short, not sweet and very much to the point.

Immediately following the vote, he tweeted:

Republican leaders in Congress believe—and privately say—that they fear the country is quickly changing in ways that may soon deprive them of power, and that they must use the power they have now to delay it as long as possible, even by harming the Republic if necessary.

That was followed by other, equally pointed observations.

For anti-Trump Republicans—a small but electorally significant segment—it’s been uncomfortably possible to oppose Trump but remain affiliated with the party, looking instead to more reasonable Republican senators for leadership. The witness vote may mark the end of that for many…

In a single bogus impeachment trial, Senate Republicans will have made Trump’s pursuit of foreign backing and obstruction of Congress unimpeachable. It’s hard to ignore the fact that they benefit from both, especially at a time when they’re facing increasing electoral headwinds….

We’re watching extreme Republican partisanship dismantle the separation of powers.

McMullin also retweeted an eerily apt quotation from Alice in Wonderland, from someone named Stuart Stephens.

 Who are you?” said the Caterpillar. Alice replied, rather shyly, “I—I hardly know, Sir, just at present—at least I know who I was when I got up this morning, but I think I must have been changed several times since then.”

People tweeting responses to McMullin’s observations are primarily former Republicans who share his disgust and dismay, although there are a few comments from folks who clearly think the GOP hasn’t changed–that the party has merely stopped pretending to be something other than the disgraceful collection of sycophants and moral cowards who have made a joke of constitutional checks and balances.

America faces existential questions that won’t be answered until November–and only tentatively answered then.

How many other former Republicans will join the Evan McMullins, David Frums, Max Boots, George Conways and other “Never Trumpers” at the polls? How many genuine conservatives–i.e., those who are neither theocrats nor plutocrats– will join or contribute to the Lincoln Project? 

We keep seeing polls that show Trump with solid Republican support; what we don’t see is how many Republicans remain, given the steady shrinkage of the percentage of voters who still identify with the party. (To belabor the obvious, eighty percent of twenty-two or twenty-four percent isn’t the same as eighty percent of 35 or 40 percent.)

How likely is it that the Democrats will disband their usual circular firing squad and “vote blue, no matter who” in recognition that the future of the nation depends upon ousting the criminal conspiracy that is raping and polluting our country?

And how likely is it that enough “blue no matter who” voters–whether Democrat or Republican or Libertarian or Independent or usually apathetic– will recognize the incredible importance of this election, and turn out in numbers sufficient to swamp the GOP’s predictable vote suppression tactics?

Because make no mistake: Evan McMullin is right when he says the remaining Republicans will use whatever means are at their disposal to cling to power–no matter the damage to America.

Comments

Picking Winners And Losers

One of the most common–and persuasive– arguments posed by so-called “conservatives” against government regulation is that government should not be “picking winners and losers,” that the market should make those determinations.

So what about the enormous subsidies government provides to fossil fuel interests–subsidies that those same “conservatives” defend?

Paul Krugman had a recent column in which he discussed both the subsidies and the discredited economic theories offered to justify them.The column was prompted by the arrogant response of Stephen Mnuchin to Greta Thunberg’s speech at Davos. Thunberg  had called for an end to investments in fossil fuels; Mnuchin suggested that she go “study economics” before making what he implied were uninformed and childish recommendations.

(Krugman also noted that Mnuchin “doubled down” on his claim that Trump’s 2017 tax cut will pay for itself — despite the fact that, just a few days before, his own department had confirmed that the budget deficit in 2019 was 75 percent higher than it was in 2016.)

Krugman explained why “Mnuchin was talking nonsense and that Thunberg almost certainly has it right.” He began with basic economics:

One can only surmise that Mnuchin slept through his undergraduate economics classes. Otherwise he would know that every, and I mean every, major Econ 101 textbook argues for government regulation or taxation of activities that pollute the environment, because otherwise neither producers nor consumers have an incentive to take the damage inflicted by this pollution into account.

But what about those subsidies?

The International Monetary Fund makes regular estimates of worldwide subsidies to fossil fuels — subsidies that partly take the form of tax breaks and outright cash grants, but mainly involve not holding the industry accountable for the indirect costs it imposes. In 2017 it put these subsidies at $5.2 trillion; yes, that’s trillion with a “T.” For the U.S., the subsidies amounted to $649 billion, which is about $3 million for every worker employed in the extraction of coal, oil and gas. Without these subsidies, it’s hard to imagine that anyone would still be investing in fossil fuels.

Krugman points out that, while Thunberg may be young, her views come “much closer to the consensus of the economics profession than those of the guy clinging to the zombie idea that tax cuts pay for themselves.” And he then concludes:

But could the economics consensus be wrong? Yes, but probably because it isn’t hard enough on fossil fuels.

On one side, a number of experts argue that standard models underestimate the risks of climate change, both because they don’t account for its disruptive effects and because they don’t put enough weight on the possibility of total catastrophe.

On the other side, estimates of the cost of reducing emissions tend to understate the role of innovation. Even modest incentives for expanded use of renewable energy led to a spectacular fall in prices over the past decade.

I still often find people — both right-wingers and climate activists — asserting that sharply reducing emissions would require a big decline in G.D.P. Everything we know, however, says that this is wrong, that we can decarbonize while continuing to achieve robust growth.

Given all this, however, why are people like Mnuchin and his boss Trump so adamantly pro-fossil fuel and anti-environmentalist?

Part of the answer, I believe, is that conservatives don’t want to admit that government action is ever justified. Once you concede that the government can do good by protecting the environment, people might start thinking that it can guarantee affordable health care, too.

Given the scale of subsidies we give to fossil fuels, the industry as a whole should be regarded as a gigantic grift. It makes money by ripping off everyone else, to some extent through direct taxpayer subsidies, to a greater extent by shunting the true costs of its operations off onto innocent bystanders.

And let’s be clear: Many of those “costs” take the form of sickness and death, because that’s what local air pollution causes. Other costs take the form of “natural” disasters like the burning of Australia, which increasingly bear the signature of climate change.

In a sane world we’d be trying to shut this grift down. But the grifters — which overwhelmingly means corporations and investors, since little of that $3-million-per-worker subsidy trickles down to the workers themselves — have bought themselves a lot of political influence.

And so people like Mnuchin claim not to see anything wrong with industries whose profits depend almost entirely on hurting people. Maybe he should take a course in economics — and another one in ethics.

Krugman’s being silly. No one in this administration can even spell ethics.

Comments