Super Precedent or Too Big to Lose

It was difficult to sit through all the sanctimonious claims of doing law by adhering to precedent by a succession of Supreme Court nominees and then read its decision in BNSF R. CO. v. Tyrrell in which the Court overruled International Shoe v. State of Washington. Senators have been grilling the nominees for years about adherence to precedent. We heard about ordinary precedent, long standing precedent, and precedent that has been used and cited numerous times.

International Shoe was decided in 1945 by legendary justices. Chief Justice Harlan Fiske Stone wrote the opinion. He was joined by Justices Douglas and Frankfurter, as well as justices Reed, Murphy, Rutledge and Burton who are less well known to the general public. There were no dissents. Justice Hugo Black concurred on the ground that the attack on the jurisdiction of the State of Washington was so frivolous it should have been dismissed out of hand. Justice Jackson was a member of the Court but recused himself and took no part. Effectively it was unanimous.

If ever a case was used and relied on it was International Shoe. Lexis, a legal database reported that International Shoe had been cited by nearly 22,000 judicial decisions at all levels of the American legal system, plus some 13,000 other sources. It showed no negative treatment.

International Shoe provided that companies could be sued either where the claim arose or where they did sufficient business to make it fair to sue them there.

Montana’s Supreme Court held that the defendant corporation could be sued in Montana “because it has over 2,000 miles of railroad track and employs more than 2,000 workers in Montana.” It other words, the company is quite busy in Montana. But the U.S. Supreme Court held that the corporation could only be sued at its home office.

In their freshman year, law students are drilled on International Shoe. Endless pages in textbooks are devoted to International Shoe. A pretty important decision indeed. But the Roberts Court didn’t like it.

Justice Sotomayor, as she often does, explained:

The majority’s approach grants a jurisdictional windfall to large multistate or multinational corporations that operate across many jurisdictions. Under its reasoning, it is virtually inconceivable that such corporations will ever be subject to general jurisdiction in any location other than their principal places of business or of incorporation. Foreign businesses with principal places of business outside the United States may never be subject to general jurisdiction in this country even though they have continuous and systematic contacts within the United States. … What was once a holistic, nuanced contacts analysis backed by considerations of fairness and reasonableness has now effectively been replaced by the rote identification of a corporation’s principal place of business or place of incorporation.  The result? It is individual plaintiffs, harmed by the actions of a farflung foreign corporation, who will bear the brunt of the majority’s approach and be forced to sue in distant jurisdictions with which they have no contacts or connection.

In other words, these companies are too big to lose. The more places a company does business, the further it can make plaintiffs travel. Even if plaintiffs can get to court over the hurdles placed by this Court, they will have to sue far away in unfamliar places. No barrier is strong enough to protect those companies which are already wealthy enough to give back to the society that protects them.

These cases have been decided under the Due Process Clause of the Fourteenth Amendments. The word “due” means appropriate. It is an invitation to craft a jurisprudence that maximizes fairness to the parties. But the Court has been going the other way, grounding judicial power on happenstance, not fairness.

The Roberts Court is not doing law. Instead it has its own economic policy. It doesn’t seem to have noticed that voters in both parties have been demanding populism in economic policy. But who elected the Roberts Court?

— This commentary was broadcast on WAMC Northeast Report, July 18, 2017.

 

 

Should We Have a New National Constitutional Convention?

There have been calls for a new national constitutional convention. They are generally cast as calls for a convention to do something specific, rather than open-ended authority to propose changes. There is an argument about whether those calls fit the constitutional definition of state initiated calls for a convention and what such a convention might do, But clearly many states think they are valid and have proposed a new convention. Indeed such calls may be only a few states shy of the required two-thirds of the states, depending on how many calls are deemed valid. So I think we should talk about it. I’ll spare you the technical argument and focus on the issues.

It should be noted that small states have disproportionate voting power in the amendment process because it is based on the number of states agreeing to amendments, not the number of votes in the states which agree.

Conservative proposals to amend the Constitution suggest that they’d use a national convention to repeal the Supreme Court’s decisions on social issues like abortion, marriage, gay rights, religion, prayer, flag desecration and segregation. And some conservative proposals would cripple the national government with states’ rights amendments, like a balanced budget amendment, repeal of the income tax, mandatory revenue sharing, and letting states veto increases in the national debt. Other conservative efforts have included reinstituting state legislative selection of U.S. Senators, and reversing progress on school integration.

Liberals can use conservative proposals to scare liberal state legislatures away from calls for a new national convention, or they can try to scare conservative state legislatures off with liberal proposals.

Liberals proposals focus on equal rights and equal votes such as the Equal Rights Amendment, abolition of the electoral college, full representation for the District of Columbia,  and overturning Citizens United. There’ve been calls to abolish the death penalty. Liberals should also fight for a Black Lives Also Matter Amendment to hold public officials responsible for the harm they do and overturn exemptions and immunities that leave decent, unarmed Americans lying dead on our streets with no one “responsible.” Liberals should fight to remove rules that allow prosecutors to ignore constitutional obligations of fair play, rules that  immunize them from any responsibility for vicious and discriminatory behavior.

These very different visions reflect both core moral commitments of each side and tactical considerations. Neither liberals nor conservatives accept the bona fides of each others’ proposals. Worse, competing interpretation of the provisions of the Constitution for calling a new convention could deepen conflict over the legitimacy of whatever a convention produced. And I doubt we’d end up with a better country.

Nor does the problem ends there. The original substitution of the Constitution for the pre-existing Articles of Confederation “illegally” ignored the rules for change spelled out in the Articles. So suppose populous states now similarly announced they were forming a government to go into effect when a majority of the public agrees – a possibility with some academic support. By contrast to continued conservative admiration for Confederate traitors who made war on the U.S., that would be a relatively honorable route toward a new Constitution.

But the larger point is that a conservative attempt to make major changes followed by a strong liberal response could br dangerous. Competing constitutions once led to violence in Rhode Island and in Kansas. Violence, as we’ve been discovering in many countries in recent decades threatens democracy whenever armed groups refuse to put down their arms.

So I’m not confident that a new convention would improve the Constitution, solve problems among or unite us. I don’t think it’s a good direction to travel.

— This commentary was broadcast on WAMC Northeast Report, July 11, 2017.

 

The Courts Stand Up for Impunity

In one of the last cases to be decided this term of Court, the Supreme Court described the death of Sergio Hernandez as “a tragic cross-border incident.”[1] Indeed. I want to make clear that I care deeply about this case. Several friends and I helped write an amicus brief to the Court about it.[2]

Sergio Hernandez was 15 years old. The Court continued, “According to the complaint,” which the Court must accept as true at this early stage of the proceedings, “Hernandez and his friends were playing a game in which they ran up the embankment on the United States side [of the Mexican border], touched the fence, and then ran back down.” Border Patrol Agent Mesa caught and detained one of Hernandez’ friends but “Hernandez ran across the international boundary into Mexican territory and stood by a pillar that supports a railroad bridge spanning the culvert” between the c ountries. At a distance – the Court wasn’t precise but the culvert was up to 270 feet wide – Agent Mesa shot and killed Sergio Hernandez though the Agent was in no danger.

Notice the issues that the District, Appellate and Supreme Courts have been “struggling” with.

First, the Court had to deal with whether the Constitution itself authorizes a remedy when Congress has not provided one for the violation of constitutional rights. In other words, do our rights exist at the pleasure of Congress? That’s known technically as the Bivens question.

Second, do foreigners have any constitutional rights or may American officials kill them at pleasure? The Court of Appeals had decided that Sergio had no rights under our Constitution.

Third, even if Sergio’s rights were violated, did the Agent have “immunity … from civil liability.” They would have immunity if “their conduct ‘does not violate clearly established … constitutional rights.” So the fourth question is whether killing foreigners across the border violates any clearly established rights?

Along the way the Court commented that some of the issues in the case  are “sensitive and may have consequences that are far reaching.” Sounds like the Court was thinking about foreign relations. The Bible just says “justice, justice shalt thou pursue.”[3]

The Court finished by noting that the case “result[ed] in a heartbreaking loss of life” but thought the Court of Appeals should think about those issues before the Supreme Court reached any final resolution about the issues in the case:

• whether foreigners have any rights that American officials are bound to respect;
• whether there is any remedy for murder;
• whether murder by a government official is a clear violation of a constitutional right?

Abroad, and we use the same term when describing behavior in other countries, people who are protected from any responsibility for the harm they do are described as having impunity. It does not describe freedom. It describes lawlessness, in countries run for crime bosses and rapacious masters.

Think now about shootings of Americans in America by police officers, shootings of Americans with their backs turned, with their hands up, with their house keys in their hands. Are we now a nation with impunity? Does freedom still live here or are too many people here forced to bow, scrape and beg those with the power to kill. If there are people who, in the language of Dred Scott, have “no rights which … [American officials are] bound to respect,”[4] does that mean that they and we are treated like the slave in Dred Scott?

[1] Hernandez v. Mesa, U.S. Sup. Ct. No 15-118, decided June 26, 2017.

[2] Brief for Amici Curiae Legal Historians in Support of Petitioners in Hernandez v. Mesa, U.S. Sup. Ct. No 15-118.

[3] Deut. 16:20.

[4] Dred Scott v. Sandford, 60 U.S. 393, 407 ((1856).

Is America For Sale? Is Trump Motivated to Sell Us Out?

Two lawsuits have now been filed over Trump’s violation of the emoluments clause.[1]

Emoluments is an eighteenth-century word rarely heard before Trump became president. It’s a rare president who ever came into office with assets that could motivate him to sell us out. And still rarer the president who refused to give up all interests in such investments. But Trump has refused to sell his assets or put them in a blind trust. His assets therefore are at risk here and abroad and their value is closely related to Trump’s dealings with foreign powers and domestic corporations and investors.

Foreign governments understand how to press his buttons. Like any lobbyist who curries favor with those in power, these governments understand that they may get better treatment if they patronize his enterprises. China granted numerous trademarks and other business advantages to Trump enterprises. Officials from China and many other countries use his hotels, lease or buy facilities from him, dine at his restaurants and thereby shift substantial amounts of money to him as well as help him publicize his Mar-a-Lago resort in Florida. All of this has raised the market value of Trump’s properties as all these foreign and domestic supplicants want to show Trump how they can feather his nest.

Now Trump has reversed positions he took during the campaign and his first weeks in office toward his foreign and domestic business partners and authorities. He reaffirmed the one-China policy, and backed off China’s expanding control over the South China sea. Trump abandoned his criticism of Saudi Arabia, and fell solidly behind it in a dispute with Qatar, where the U.S. has its largest regional base. Trump consistently excludes Saudi Arabia from his immigration bans though Saudis have dominated the terrorist events of the past two decades.

Was that because it was good for America or because foreign governments and officials gave him the rights he wanted for his enterprises abroad. With Trump we can never know.

The name for Trump’s behavior is corruption. Corruption includes using public power to gain personal wealth or profit, or accepting benefits that could lead a public official to take action contrary to the public interest. It’s almost impossible to prove a bribe – I’ll do this for you if you give me that. Politicians, lobbyists and other supplicants avoid the language of a deal and let the quid pro quo be inferred and implied. Numerous federal, state and local statutes prohibit public officials from accepting anything of value precisely because the quid pro quo is never stated but  always understood.

Whether Trump’s motives are pure or disgusting, he is in fact showing everyone how private advantage can be extracted from public office and laying America open to corruption. In many countries you get no help from government officials without bringing ever more costly “presents” to them. Trump’s behavior threatens to extract our energy and innovation for the benefit of Trump, his family and friends. That’s the essence of corruption and corrupt governments reduce their peoples to beggars.

This country worked hard to ensure an honest, dedicated, civil service. Despite all the jokes about government employees, our civil service has been the envy of most of the world. All of us will pay for Trump’s private empire.

— This commentary was broadcast on WAMC Northeast Report, June 20 2017.

[1] Citizens for Responsibility and Ethics In Washington v. Donald J. Trump, U.S.D.C., S.D.N.Y., Jan. 23, 2017, https://s3.amazonaws.com/storage.citizensforethics.org/wp-content/uploads/2017/01/23140054/CREW-DJT-Final.pdf and District of Columbia v. Trump, US.D.C., D.Md., June 12, 2017, https://www.nytimes.com/interactive/2017/06/12/us/politics/100000005161070.mobile.html. And see Jackson Diehl, China and Saudi Arabia have seduced Trump into being their sweetheart, Washington Post, June 11, 2017, https://www.washingtonpost.com/opinions/global-opinions/china-and-saudi-arabia-have-seduced-trump-into-being-their-sweetheart/2017/06/11/d4001330-4c67-11e7-a186-60c031eab644_story.html?utm_term=.dae3f8d62c7a, Sui-Lee Wee, Trump Adds More Trademarks in China, New York Times, June 14, 2017, B5, available at https://www.nytimes.com/2017/06/13/business/trump-china-trademarks.html, and David Marsh, Trump’s China First Policy, MarketWatch, June 6, 2017, http://www.marketwatch.com/story/trumps-china-first-policy-2017-06-06.

 

Can American Democracy Survive Trump?

Will democracy in America survive?

First remember that democracy matters. No human institutions are perfect but democracy makes it possible to remove officials without going to war. Democracy doesn’t mean anyone alone can make good things happen. Democracy reflects the collective power of people. Collectively, if the rules are followed that protect speakers, publishers, candidates and fair elections, democracy gives us the possibility – though nothing is certain – of throwing the bastards out. That’s important.

The survival of democracy depends on leaders, institutions, and the circumstances that bring out the best and worst in us. What chance do we have?

We should have been warned when Trump repeatedly expressed admiration for dictators in Russia, the Near East and Eastern Europe, when Trump invited an enemy to break into a candidate’s email and interfere in an American election, and suggested his supporters use their “Second Amendment rights” to put him into power. We should have been warned when Trump put people with strong ties to hostile powers at the top of his Administration and gave them access to American military and intelligence secrets. We should have been warned when Trump put an attorney hostile to justice in charge of the Justice Department and installed many military leaders in his government. We can’t rely on this casino mogul turned would-be strongman to preserve American democratic government.

It’s unclear whether our institutions will protect us. The Turkish military protected Turkish democracy for a century, but that tradition is now gone. Members of Trump’s party control both houses of Congress where their commitment to their party compromises their commitment to democracy. Congress seems unlikely to protect us. The Court is dominated by members of the President’s party and their treatment of the Constitution’s due process clauses has been more a threat to decent citizens than a limitation on the powers of would-be dictators.

The circumstances in which we find ourselves have ripped democracies apart across the globe. The concentration of wealth and power we have long seen and condemned abroad has become a reality here. The more that wealth and power are concentrated, the more that the wealthy and powerful circle their wagons to protect their ill-gotten gains against the rest of us, spewing nonsense about supposed trickle-down economics as if it were fact and counting on people’s gullibility. Concentration also makes people desperate, and desperation fuels the mirage of lies and makes too many of us complicit in our own subjugation.

Without reason to rely on the leaders, institutions, or circumstances, that leaves us. Can we square our shoulders and steady our minds to resist the steady babble of nonsense and not just listen to the words but watch what those in power are doing?

When you look at behavior instead of giving a pass to the mogul in the White House, you begin to notice that his actions belie his words. He has no sympathy for coal miners or others who have been shunted aside by changes in the economy but only to protect his friends’ wealth and power from us. Birnie put his finger on the problem and Trump now aggravates the concentration of wealth and power that are taking apart the lives we thought we’d built. So-called “free markets” protect the marketeers. So-called “trickle down economics” protect the concentrations from which the trickles are supposed to flow. And the flood of inconsistent tweets boggle the mind and conceal the reality.

Can we uncover the deceptions with strong minds and clear eyes while the casino mogul in the White House gambles our birthright.

— This commentary was broadcast on WAMC Northeast Report, June 13, 2017.

Trump and the Swamp

Trump promised to drain the swamp. We can agree that the swamp is the predominance of special interests over Americans of ordinary means. Bernie Sanders won many hearts and minds by refusing to take big money. Trump claimed independence from big money because he had so much. Clinton lost many votes because she accepted large speaking fees and contributions. A large populist wave by financially ordinary Americans swept the country.

People credited Trump’s promise to drain the swamp. With Trump in power, we’re entitled to look at his actions. Indeed we should.

Most Democrats long tried to take big money out of political campaigns. With some exceptions, like John McCain, Republicans worked to protect the use of money in politics. In the McCain-Feingold Act, Congress managed to compromise between their positions. But the Supreme Court, dominated by Republican appointees, invalidated restrictions on campaign contributions, and held in Citizens United, that corporations could contribute funds straight from corporate treasuries. Heard anything lately from the White House about campaign finance regulation? I didn’t think so.

Trump wants to lower the tax and regulatory burdens on the wealthiest people and companies. He claims in justification that the extra costs harm American workers. I recognize the heated debates about those claims. I’ve repeatedly explained in this commentary that putting more money in the hands of the wealthiest people and corporations is unlikely to spur investment or improve the position of American workers. It won’t help American workers because corporations can and do spend extra money everywhere, including abroad. It won’t help American workers because extra wealth can be and is spent on nonproductive goods or investments. And it won’t improve the position of American workers because there is no shortage of capital in this country, so putting more in in wealthy or corporate pockets is like pouring mud into the Mississippi.

Eliminating regulations will also put money in wealthy and corporate hands but hurts everyone else. Unions have been big proponents of safety regulations because they protect the health and safety of workers, and, we should add, of consumers and citizens.

Trump’s proposed budget also pulls up the safety net and hands the savings to corporations and the wealthy. The safety net protects people when they fall on hard times, when illness drains their bank accounts and strains their budgets, when corporate decisions leave workers struggling to find new jobs and forced to feed families on minimum wage jobs. These have direct and indirect costs for all of us. Losing a job can be temporary but it can also be a fall into a rabbit hole that sucks out everything we’ve invested in our homes, our retirement, and stresses, even breaks up our families. In 2008 those factors spread and took a lot of us down. The safety net was intended in part to help slow or stop economic downturns. 2008 overwhelmed what was left of the safety net but Trump would make it worse.

And health care decisions don’t just affect the most vulnerable. None of us want people spreading serious or medicine-resistant strains of TB, Zika, MRSA and other communicable diseases. Effective strategies against communicable disease involve keeping the diseases out of the population to the extent possible.

In Trump’s budget, the savings from all these cuts go to the 1/10 of 1%, the wealthiest of the wealthy, the very people who should be giving back rather than sucking at the public til. Trump promised to drain the swamp. But Trump IS the swamp.

— This commentary was broadcast on WAMC Northeast Report, June 6, 2017.

Iran, Hardliners and Peacemakers Here and There

Our love for our country and recognition that we have many big-hearted citizens sometimes lulls us into assuming that we act appropriately on the world stage. But ignorance too often breaks the connection between good intentions and smart behavior. Iran emerged from World War II with a parliamentary government and a democratically selected Prime Minister. But the British and Americans didn’t like his stand on oil – he wanted a larger share of the profits for his own country. At Britain’s urging, we helped stage a coup that took him down and reinstalled the Shah of Iran. Initially, the Prime Minister got wind of the coup and defeated it. But, in the American Embassy, a second coup was planned and executed. In 1953 the Shah of Iran was reinstalled and this country took credit for it.

That was too bad. There was and is a lot of admiration in Iran for European and American ways. The very fact that they had a democratic government reflected that. The legal system and the school system reflected French approaches. But the Persians did not admire our unseating Prime Minister Mosadegh. And they knew and did not forget the role of the American Embassy in bringing that plot to fruition.

Americans in Iran felt the crosswinds. There was a great deal of respect for this country and our ideals. Americans were largely welcome. Women in the Peace Corps covered up and men they knew often protected them from any inappropriate behavior by others. Some of the men in the cities were more conflicted but villagers I met were particularly welcoming.

The Revolution in 1979 had little or nothing to do with America despite some of the language coming from the clerics. Americans had felt the rising anger toward the Shah in the years before the Revolution and Peace Corps postings ended three years before the Revolution.

With the Revolution secured, it should have been easy to arrange freedom for the American hostages. But unlike former presidents who dealt with hostages, Carter magnified the event instead of cooling it off, which gave Reagan the opportunity to arrange the delay of their release until his inauguration. The result has been a much more fraught, angry and distrustful relationship than it should have been. In effect, the American role in the 1953 coup is still having repercussions in Iran and in the Middle East.

Obama took a step toward cooling down the enmity with the nuclear deal. And most recently, the Iranian people have rejected the desire of the clerics for the second national election in a row in favor of a president who is more open to working with the West.

But the background of hostility makes that hard. They remember Mosadegh and we remember the hostages. The rhetoric coming from hardliners in each country remains very harsh. The House has just voted to impose new sanctions just when Iranians have rejected their hard-liners and the Senate may be preparing to follow suit. But Trump has an opportunity if he is aware enough to see and grab it. He can strengthen the pro-western public in Iran by toning down the rhetoric, engaging in tactful diplomacy and taking advantages of opportunities to make mutually beneficial deals with Iran, or he can be Trump, call names, and burn the enmities in for another century.

— This commentary was broadcast on WAMC Northeast Report, May 30, 2017.