There Goes the Sun…(apologies to the Beatles)

A recent article from The Republic, the Columbus, Indiana newspaper, sums up Indiana Senate Bill 309 admirably, in the very first paragraph.

Indiana Senate Bill 309, introduced by Sen. Brandt Herschman, proposes to fundamentally change Indiana’s solar energy policy. The proposed modifications to the state’s net energy metering program are based on a lack of evidence and faulty logic, and would severely undermine the future of solar power in the state. Indiana legislators should oppose this bill.

I have previously blogged about this bill, which is being mischaracterized by its sponsor.

Following the Senate committee hearing at which the measure was approved and sent to the House, the Indiana Distributed Energy Alliance (IDEA), accused the bill’s sponsor, Sen. Brandt Hershman, of making statements that were “simply not true” in order to obscure his real intent. In a letter to the committee chair, the IDEA wrote

In fact, some of [Hershman’s] misstatements are so egregious we think they may have unfairly influenced Thursday’s committee vote,” the letter read. “For this reason, we strongly urge the committee not to move forward on its report on SB 309 until these errors can be rectified. We also believe committee members should have a chance to change their vote after they receive the correct information.”

The Republic article states what the bill would actually do.

This change would reduce people’s economic incentives to install solar. The bill also proposes to cap the net metering program to 1 percent of an electricity supplier’s most recent summer peak load, and eliminate net metering altogether in 2027. Collectively, these changes would unnecessarily stunt the development of this clean energy source.

Among the misstatements IDEA accuses Hershman of making are that net-metering goes away when utilities hit 1% of their baseload generation under current Indiana Utility Regulatory Commission rules. IDEA also says Hershman lied when he said that if the 1% net metering caps were met the utilities could go to a “buy all, sell all” mechanism under existing law.

As pv magazine reported last month, SB 309 is a fascinating Trojan Horse of a bill, which purports to support solar while enacting policies that would damage the state’s rooftop solar industry – particularly the residential sector – immediately.

The article in the Columbus Republic summarized the issues involved:

Solar power also offers many additional benefits, particularly for a state like Indiana that relies disproportionately on a single source of fossil fuel energy for electricity generation; about 75% of electricity in Indiana is generated from coal-fired power plants. Solar power is a clean, renewable source that does not result in emissions of pollutants that threaten human health. In addition, studies have shown that net metering programs create thousands of jobs. According to one recent estimate from the Solar Foundation, more than 200,000 people (nearly 1,600 in Indiana) currently work in the solar industry. The net metering policy is especially important for Indiana, since the state lacks other common policy measures to encourage solar energy development.

Over the past several years, the majority of states have conducted solar valuation studies. These studies tend to include direct measures of costs and benefits associated with residential solar. Out of 16 recent solar valuation studies recently written or commissioned by utilities, utility commissions, or independent analysts, all found net positive benefits, and 12 of the 16 found net benefits that exceeded the retail rate of electricity.

Indiana is on a slower path than most other states toward developing cleaner sources of energy. The General Assembly should be looking for ways to hasten the development of solar, wind and other sources of renewable energy, rather than considering policies that impede the state’s transition to a cleaner energy future. Indiana Senate Bill 309 is clearly a step in the wrong direction.

Calling Senate Bill 309 a “Trojan Horse” is an apt description. It’s an effort to disguise the utility-owned  “army” with an innocent-seeming and distracting facade. Its passage would be yet another example of a special interest working with a compliant legislator to protect its bottom line at the expense of the public interest.

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Remind Me Again About That “Judge Not” Admonition?

Surely “Pastor Pence” is familiar with the biblical injunction about not judging other people “lest ye be judged.” But perhaps he missed that particular passage…

During the Presidential campaign, Pence constantly criticized Hillary Clinton for her use of a private email server, insisting that the issue was so serious it should be seen as disqualifying her from holding office.

Now we learn from the Indianapolis Star that Pence

routinely used a private email account to conduct public business as governor of Indiana, at times discussing sensitive matters and homeland security issues.

Emails released to IndyStar in response to a public records request show Pence communicated via his personal AOL account with top advisers on topics ranging from security gates at the governor’s residence to the state’s response to terror attacks across the globe. In one email, Pence’s top state homeland security adviser relayed an update from the FBI regarding the arrests of several men on federal terror-related charges.

Cyber-security experts say the emails raise concerns about whether such sensitive information was adequately protected from hackers, given that personal accounts like Pence’s are typically less secure than government email accounts. In fact, Pence’s personal account was hacked last summer.

Let’s see…Clinton used a private server that appears to have been more secure than the State Department’s official server (the State Department server has been hacked, while hers never was.) Pence used an AOL email account (raising the possibility that he also continues to have dial-up and a modem…).

Paul Waldman considers Pence’s hypocrisy to be “only a part of the story.” He begins his column in the Washington Post with an appropriately snarky observation:

I have some disturbing news to share: Republicans might not be as deeply committed to proper email management as you’ve been led to believe.

Waldman quoted Pence’s remarks criticizing Clinton’s private server during the Vice-Presidential debate, and his repeated insistence that cybersecurity concerns prohibited such carelessness, and asked the obvious question:

did he consider adding that he knew what he was talking about since he used an AOL account to talk about sensitive security matters and had himself been hacked?

The parallels don’t stop there…“Pence’s office said his campaign hired outside counsel as he was departing as governor to review his AOL emails and transfer any involving public business to the state.” Which was exactly what Hillary Clinton did — and what Pence and Trump so vehemently criticized her for. When Trump invited the Russian government to hack Clinton’s email to recover what had been deleted, it was those personal emails he was talking about.

Waldman references reports that the Trump administration is not only leaving significant amounts of sensitive information vulnerable, but that it is not in compliance with the Presidential Records Act, which mandates that White House staff members retain their communications — including their emails.

In late January, we learned that top White House officials, including Steve Bannon, Kellyanne Conway, Jared Kushner and Sean Spicer, were using email addresses from the Republican National Committee — with a private server! Once the story broke their addresses were deleted, but presumably had it remained secret, they would have continued to use them.

The New York Times reported late in January that Trump was still using his old, unsecured Android phone, which–as Waldman observes– is unbelievably reckless for the president of the United States.

As Wired magazine put it, “All it takes is clicking on one malicious link or opening one untoward attachment — either of which can appear as though it were sent from a trusted source — to compromise the device. From there, the phone could be infected with malware that spies on the network the device is connected to, logs keystrokes, takes over the camera and microphone for surreptitious recording, and more.”

I doubt that these obvious security breaches are intentional. It’s far more likely that they are further evidence–as if we needed any–that America’s government is firmly in the control of the Keystone Kops (or perhaps the Gang That Couldn’t Shoot Straight). After all, this is the group of whiz kids who couldn’t figure out how to turn on the lights in the White House cabinet room.

In the aftermath of the disclosures about his own reckless email use, Pence has angrily insisted that his own behavior was “nothing like” Clinton’s.

That’s true. Her server was secure. As a post to Mashable put it,

the real crime here is the fact that Pence still uses an AOL account. Does Pence still use dial-up? Does he rub two sticks together to make a fire? I mean, where does it end?

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Are We Headed Toward a Constitutional Crisis?

What, exactly, constitutes a “constitutional crisis”? It is a term we are hearing more frequently, and over at Vox, they made a pretty good stab at defining it.

Dylan Matthews writes that he

decided to ask eight leading experts — six constitutional law professors and two political scientists — for their thoughts. They were unanimous that the situation as it exists now doesn’t count as a constitutional “crisis”; some cast doubt on whether that term, which has no firm definition, is even useful.

As one of the experts noted, the fact that something tends to undermine respect for constitutional institutions–like calling a judge a “so-called” judge, or showing lack of respect for the courts–can be a bad idea, yet not amount to a constitutional crisis. (As I tell my students, the fact that a policy is stupid or even dangerous doesn’t automatically make it unconstitutional.)

Matthews quotes constitutional scholar Keith Whittington for the definition of a genuine crisis.

“Constitutional crises arise out of the failure, or strong risk of failure, of a constitution to perform its central functions,” he wrote. That didn’t happen in the impeachment (which unfolded according to the procedures laid out in Articles 1 and 2) or in the 2000 election (in which decisions of executive branch officials in Florida were challenged through normal legal channels and all actors respected the ultimate decision of the US Supreme Court, whether or not they thought it was rightly decided).

So what would qualify? Whittington divided constitutional crises into two categories. Operational crises occur “when important political disputes cannot be resolved within the existing constitutional framework.” That is, the Constitution itself is failing, and is allowing people engaged in a political conflict to each behave in ways that together can result in calamity. A “crisis of constitutional fidelity,” by contrast, occurs when, “important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions.” That’s when what the Constitution prescribes is clear, but one or more politician or branch of government willfully defies it.

The article is interesting, and (given the chaos that is today’s White House) worth reading, but it didn’t directly address a question that I’ve begun mulling, given the “drip, drip, drip” of new revelations (most recently, the scandal surrounding Sessions): What if it turned out that Russia really did “elect” Trump? In other words, what if investigations turned up evidence that Russia’s tampering really did “rig” the election?

The Constitution has no remedy for an illegitimate election, at least not that I am aware of. Trump’s electoral college victory rested on fewer than 80,000 votes spread among three states, giving him paper-thin margins in those states–and the win. If those votes were suborned or improperly counted, then neither he nor Pence would really have been elected.

What then? Would we follow the constitutional line of succession, and install Ryan–giving the Republicans a “win” they didn’t win?

Let me emphasize that I have absolutely no evidence that this actually happened; my guess is that the Russian efforts to influence the election were just that–efforts at influencing public opinion, rather than actually falsifying results. I raise the question because it is becoming clear that there are aspects of our current political life that neither our national charter nor our governing institutions anticipate or address. I doubt the Founders could have foreseen the nature of today’s democratic distortions caused by the Electoral College, or the way in which gerrymandering has deprived millions of Americans of meaningful votes, or the current iteration of the filibuster that requires Senate super-majorities in order to pass even routine legislation.

If a central function of a Constitution is to prescribe fair and transparent processes by which citizens govern themselves, we may need to do some repair work on ours.

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About Those Threats…

Trump has issued a number of threats against so-called “sanctuary” cities and states, and his supporters (most of whom, ironically, would be considered “states’ rights” supporters) have declared such local designations illegal.

So it was interesting to read a recent column by Ilya Somin, a conservative legal scholar, analyzing the relative constitutional rights involved.

President-elect Donald Trump has repeatedly promised to engage in large-scale deportation of undocumented immigrants. In order to accomplish that goal, he is likely to need the cooperation of state and local governments, as federal law enforcement personnel are extremely limited. But numerous cities have “sanctuary” policies under which they are committed to refusing cooperation with most federal deportation efforts. They include New York, Los Angeles, Chicago, Seattle, and other cities with large immigrant populations. Sanctuary cities refuse to facilitate deportation both because city leaders believe it to be harmful and unjust, and because local law enforcement officials have concluded that it poisons community relations and undermines efforts to combat violent crime. They also recognize that mass deportation would have severe economic costs.

The arguments and links in the foregoing paragraph, of course, are policy arguments. They detail why the proposed policy is stupid, but (as I frequently remind my students) just because something is stupid and/or mean-spirited and/or counterproductive doesn’t mean it is also unconstitutional.

After listing the reasons the policy is ill-considered, however, Somin does address the question of constitutionality.

Under the Constitution, state and local governments have every right to refuse to help enforce federal law. In cases like Printz v. United States (1997) and New York v. United States (1992), the Supreme Court has ruled that the Tenth Amendment forbids federal “commandeering” of state governments to help enforce federal law. Most of the support for this anti-commandeering principle came from conservative justices such as the late Antonin Scalia, who wrote the majority opinion in Printz.

But what about Trump’s threat to withhold federal funds from cities and states that refuse to help him implement his deportation program? According to Somin, while the President may be able to withhold some funds, the threat is far less “formidable” than it may seem.

Few if any federal grants to state and local governments are conditioned on cooperation with federal deportation efforts. The Supreme Court has long ruled that conditions on federal grants to state and local governments are not enforceable unless they are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.” In ambiguous cases, courts must assume that state and local governments are not required to meet the condition in question. In sum, the Trump administration can’t cut off any federal grants to sanctuary cities unless it can show that those grants were clearly conditioned on cooperation with federal deportation policies.

It’s been truly  heartening to see how hobbled Trump has been by his complete ignorance of the way American government actually works. (For that matter, his obvious ignorance of the way law in general works helps to explain why he has been involved in–and lost–so many lawsuits.)

In an update to his original column, Somin highlights a “states’ rights” irony that might be filed under “be careful what you ask for.”

It is worth noting that if Congress were to pass a law stripping sanctuary cities of all their federal funding unless they help facilitate federal deportation efforts, it would be unconstitutional under the Supreme Court’s decision striking down the Obamacare Medicaid expansion in NFIB v. Sebelius (2012), which forbids funding conditions so coercive that they amount to a “gun to the head” of a state or local government.

Short version: If the federal government can’t force states to expand Medicaid, neither can it force states to help deport undocumented people.

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Walking in that Other Guy’s Shoes

Martin Marty is an eminent religious scholar at the Divinity School of the University of Chicago. He also issues a weekly newsletter, called Sightings because it “sights” public reports with religious or spiritual dimensions. His most recent reflection was thought-provoking, to say the least:

What if the Sioux Nation decided to build a pipeline through Arlington Cemetery? This question from Faith Spotted Eagle—who lacks a Ph.D. in comparative religion and who would never be employed to teach the phenomenology of burial ritual—got at the heart of at least one of the three main issues in the prolonged debate over the Dakota Access Pipeline project.

The other two issues, of course, were environmental degradation and the behavior of Big Oil, and those issues certainly generate a significant percentage of the opposition to the pipeline. Marty’s focus, however, was on the religious importance of the site to the Sioux–and the lack of appreciation of its sanctity by Americans who would have been horrified by a similar proposed desecration of their holy sites.

Why the comparison to a sacred place like Arlington Cemetery? Or the Tomb of the Unknown Soldier, or key monuments at Gettysburg? What makes this Sioux site sacred, inviolable in the eyes of those for whom this place in North Dakota has drawn so much national attention? The environmental concerns alone would have been ominous enough to agitate the Native Americans on the scene. But the Cannonball River, which flows nearby, and the complex of tributaries connected to the Missouri River, are not merely sources of water. No, Spotted Eagle has said, water is “the best medicine,” the sustainer of life from a mother’s womb until its issue, years later, breathes no longer. Water is necessary for the sweat lodge, so important in Sioux worship, and it serves as a purifier and calmer in sacred ceremonies. And much more.

What motivates her and her fellow worshippers, above all, is concern that the pipeline will profane the burial sites over and around and through which it will flow. All of the governmental action is thus, in the eyes of the Native Americans, a profanation.

Sightings spends so many lines on this one out of many contested revered sites in the “flyover country” of the Great Plains—my homeland—in the interest of giving attention to the rites of some of the peoples who have been plundered, exploited, silenced, and murdered for more than 500 years by us newcomers, who now make the rules, establish the rituals, and bring the edicts and the guns to enforce them. Weekly, if not daily, we hear and read of the ins and outs, the ups and downs, of this most recent conflict. We observe how readily disdained the protesters are. But we are moved by the fact that leaders and sympathizers of many religious bodies, including Jews and Muslims, Catholics at the highest level, mainline Protestants, and some Evangelicals, have publicly sided with the Sioux.

There may be perfectly valid, even persuasive arguments for building the pipeline and for  its chosen route. I don’t know enough to evaluate those arguments. Ultimately, however, those arguments are irrelevant to the injustice being perpetrated here.

The undeniable fact is that a pipeline routed through a site designated as holy by a more privileged, more powerful, more “established” religious constituency would have received far different–and far less dismissive– treatment. At the very least, the claims of such a constituency would have met with more official respect.

It has been–and remains– difficult to ensure the constitutionally-required equal protection and application of the laws. I wonder if we will ever achieve–or even approach– equal civic respect for the rights of people who don’t look or worship like us.

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