Corruption Overwhelming America

This commentary was drafted in anger when I learned that pig farmers are refusing to allow inspections to look for the microbes that are killing people. Upton Sinclair’s The Jungle exposed the filth of the meat-packing industry in 1906 and led directly to the Pure Food and Drug Act and the creation of the FDA, the Food and Drug Administration. Now they want to undo a century of relatively clean food by claiming regulation is bad – yes, particularly bad for filth in the food industry.

This country’s reputation for honesty and responsibility long gave us a huge market edge. American institutions check on errors and misbehavior. That drove our legal and corporate culture. Now we’re inviting the world to ditch its confidence in us, and inviting each other to be cynical about business and political claims, threatening our economic power and democratic system.

Everyone has a reason why you can’t check on them. China is more honest about their meat than our pig farmers. Police refuse to allow information to be made public about their behavior because the people might realize who is trustworthy and who isn’t. The President denies Congress’ authority to get information from him. Even George Washington turned papers over. Trump is the first President since Richard Nixon to refuse Congress his tax information, lest the American people get an honest look at his economic behavior, bankruptcies and unreliability.

Republicans lump everything under the title of regulation and, making no distinction, claim all regulation is bad. Regulation is a problem because they might have to take responsibility for the poisons they want to emit, the toxins and dangerous bugs in the food they want to sell us, and the financial shenanigans they use to fleece us of our money. No one has the right to poison or injure anyone else. That’s irresponsible at best, legally tortious and probably criminal.

The so-called Supreme Court authorizes corporations to force us into arbitration with arbitrators the corporations choose so that the arbitrators are only beholden to the corporations, and anyway, they have no power to cure corporate misbehavior. Heaven forbid corporations should have to own up for their sins. Why should they – no one else does.

We have fussed about the bribery rampant in other countries because it prevents law from working to produce decent and proper behavior that justifies reliance. Preventing investigations is almost as bad. We’re now allowing corporate and political America to behave like the Mafia where there is only accountability for hurting each other – the purpose of the organization is to fleece the public, impose protection rackets, and, where people object, kill. In this complex world it is increasingly difficult to protect yourself from dishonest business.

But the President does it – shouldn’t we follow his example? He failed to fire Mueller but he fires everyone else who might insist on honesty and accountability. Now he’s now moving federal agencies halfway across the country to encourage the staff to quit rather than relocate. What a step forward.

There’s a stench in the White House but who’s left to complain? Too many corporate officers can no longer be watched because Trump destroyed the civil service. Who’s to complain about what they do?

 

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At SPAC last night

The Philadelphia Orchestra with the Albany Pro Musica chorus and four international soloists kept my heart on fire and my eyes well watered at SPAC last night with Mozart’s Requiem. Wow. And thank you.

Greenhouse Gas Tax

Governor Cuomo recently announced a wind farm off of Long Island. Sounds big. But it made clear to me that we have to turn to a carbon or greenhouse gas tax. Big as that wind farm is, new government wind farms are rare. And government projects somehow have to compete with and make up for all the carbon released by private sources. As the economy improves, private sources just make more. That process has to stop.

Many people altruistically change their behavior. Others would if they could. But inevitably a lot of people take advantage of the freedom of countries like America to do what they please regardless of the harm they cause to others, to the country, our children, grandchildren and civilization. There is no good alternative to a greenhouse gas tax because nothing else affects the private behavior of those who refuse to change their behavior.

A carbon tax has to be universal – no exceptions – everyone and all businesses are involved in the problem and we all have to change. A tax can be revenue neutral with a tax cut to balance the expected revenue. Not only budgetarily neutral, but all of us can change behavior to reduce the impact of the tax on us. But no exceptions for favored groups. Everyone has to do their part or the program will deconstruct. It has to be universal to protect people from unfair burdens and unfair competition. Pogo’s comment that “we have met the enemy and they is us” is unfair to many of us. But we become the enemy if we resist change. Supporting a universal greenhouse tax should be something we do proudly and proclaim publicly, like flying the flag.

We’ve been talking about global warming since the 50s or the 80s depending on what we take as the starting point. Just to indicate how long we’ve been confronted with this problem, I worked with Barry Commoner and scientists working with him in the 70s, listened to James Hansen and major environmental reporters who came to and spoke at Albany Law School numerous times since I arrived here in 1979 – this stuff is not new. You can take that as meaning that the science is well established. Some may find that comforting. I find it terrifying because it indicates how slowly we’ve been moving.

The benefit of democracy is that the people can decide. But the problem of democracy is how difficult it can be to turn the ship of state, to convince everyone that needs to be convinced, and overcome all the people who have an interest in fouling up the works, through lobbying, political contributions and the real fake news, the repeated climate change denials when scientists who are not on the take all around the world have already had time to come together to try to warn us of impending disaster.

Come on folks. It’s time to insist on action. As a crowd of angry people chanted in Dayton, “Do something.” They’re both issues of mass murder. Do something. Now.

 

The Administration Attack on Anti-Discrimination Laws

It was reported recently that the current Administration is trying to eliminate so-called disparate impact cases under the Fair Housing Act.[1] The press reported it as forcing plaintiffs to prove intent to discriminate. Actually it would make it all but impossible to prove housing discrimination in any form. So, even though the regulations haven’t been finalized, I’d like to get out ahead of it.

Think about the problem from the point of view of an attorney. A client tells you he or she has been discriminated against. What evidence do you look for?

You can look for an admission – “I refuse to give you a job or sell you a house or rent you an apartment because you are Black, brown, or yellow, or because you pray to the wrong God.” There are occasions when people will scream out such language. Maybe an email. It’s rarer on paper. But their lawyers have told them to shut up with the racist language because it will open them to litigation. So you keep your eyes and ears open but don’t expect such gifts to land in your legal file.

The alternative is circumstantial evidence. Circumstantial evidence is a pretty ordinary method of proving things whether in a criminal case, racial discrimination case or many others. Discrimination is easily defined, and Congress has legislated that there is discrimination where the impact on people of one race, sex or religion is very different from those of another race, sex or religion and there is no decent justification for that behavior.

The late Justice John Paul Stevens, concurring in the case that first demanded evidence of intent,[2] made it clear:

“Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor.”

And he continued:

“the line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court’s opinion might assume.”

Because, to put it clearly, evidence of unjustified impact is evidence of intention. So what the Administration and its conservative supporters are saying is that there shouldn’t be a way to prove a violation of the Fair Housing Act or the 14^th Amendment Equal Protection Clause. Discrimination happens, get over it. Just another example of people with the power to act with impunity, injuring others without fear of paying the price.

Put it another way, prejudiced judges and administrators will have a fig leaf – you couldn’t prove misbehavior because all you have is consequential evidence. And, with the exception of Kennedy and occasionally O’Connor, the conservative justices on the Rehnquist and Roberts Courts have made the most of that fig leaf, blind to discrimination in front of their faces.

There are people who believe they have no stake in the welfare of African-Americans. But they do. When communities decay, they affect us all. They bring down wages, cost us for the services needed because of the problems in those communities, and cost us the benefits that people in functional communities provide the rest of us – the doctors, scientists, teachers, people in all the professions that serve us all. There is a huge cost in substituting disfunctional for functional communities. Undermining people’s ability to take care of themselves and their families undermines the ways communities work, and we all pay the cost.

[1] Chris Arnold, A New Trump Rule Could Weaken A Civil Rights Era Housing Discrimination Law, All Things Considered, July 31, 2019, 5:20 PM, available at https://www.npr.org/2019/07/31/747006108/a-new-trump-rule-could-weaken-a-civil-rights-era-housing-discrimination-law.

[2] Washington v. Davis, 426 U.S. 229, 253, 254 (1976) (Stevens, J., concurring).

The Special Prosecutor Did Not Exonerate the President

In the hearings on the Mueller Report, some of the President’s supporters tried to describe “innocent until proven guilty” as meaning that the president is innocent of any crime and that the special prosecutor made that finding.

“Innocent until proven guilty” is a slogan with important purposes – we must not punish people who haven’t been found guilty. The presumption of innocence bars any form of punishment before a guilty verdict. We have to make sure that we don’t catch and punish the wrong people. But there is no negative implication here. “Innocent until proven guilty” doesn’t mean that someone who hasn’t been proven guilty is therefore actually and certifiably innocent. Even people who are held not guilty after criminal trials are sometimes found responsible in civil cases, where the penalty is money, not time in jail. “Innocent until proven guilty” is a presumption, not a conclusion about a person’s actual behavior.

In some cases, prosecutors do conclude that a defendant was innocent, but their judgment is not binding on anyone if something else turns up and changes the impact of the evidence.

In other cases, prosecutors conclude that they can’t convince a jury that a defendant is guilty beyond a reasonable doubt, sometimes called a moral certainty. If not, they can put the case aside, hoping or trying to get more evidence. They may still believe the defendant probably committed a crime, even though they understand there is still a reasonable doubt. They have evidence that points toward guilt, but it isn’t strong enough to convince a jury to imprison someone.

Or, and this seems to have been the case with Trump, they believe they might have sufficient information to convict, but they don’t have the authority to prosecute. The rule in the Justice Department against indicting a sitting president barred Mueller from proceeding.

But none of those possibilities imply a finding of innocence as a fact.

Special Counsel Robert Mueller tried to make it clear. There is no finding of innocence in the Report. Instead, the Report described evidence that points toward obstruction of justice, and concluded:

“[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

It’s not clear who first said, “I must follow them; I am their leader.” That is clearly Nancy Pelosi’s position. To get too far out ahead of the public is dangerous. It could close minds rather than open them, increasing the danger for our country. Lawyers like myself, need to be very conscious of whether and when a jury will be receptive to a charge even though we have evidence. My own view is that Mr. Trump has committed impeachable offenses. But I also agree that the moment to pursue impeachment has not arrived because too much of the public and too many of their Senators are not yet ready to hear the charges, much less follow where the evidence leads. I’m hopeful that the ongoing hearings will help to prepare the public and the Senate. But it isn’t patriotic to go ahead blindly.

John Paul Stevens

I lot of us will miss Justice Stevens. As a judge on the Seventh Circuit Court of Appeals, based in Chicago, Stevens had a reputation as the sharpest mind on the Court. President Ford’s nomination of Stevens for the Supreme Court was widely hailed as an excellent appointment.

Stevens was always sensitive to the consequences of his decisions on those who had the least resources to deal with it. Dissenting in an antitrust case, Stevens wrote:

The transparent policy concern that drives the decision is the interest in protecting antitrust defendants–who in this case are some of the wealthiest corporations in our economy–from the burdens of pretrial discovery.[1]

As he gradually became beloved by liberals, he kept repeating that the Court had changed around him but he himself had not changed. One thing had changed. Stevens learned what was actually happening in the real world outside the Supreme Court building. He realized that the criminal justice system was not nearly as accurate as one would want when the question is whether to put someone to death, turning him from a supporter to an opponent of the death penalty.[2] He came to understand the role that affirmative action played in overcoming discrimination against people with black and brown skins. In a 1995 case about giving black contractors a leg up in government contracting, Stevens wrote: “The consistency that the Court espouses would disregard the difference between a “No Trespassing” sign and a welcome mat.”[3]

After his appointment he refused to discuss politics and followed neither party’s views consistently. In Bush v. Gore, he voted against the Court’s decision to stop the recount, the centuries old solution to disputed elections, writing that: 

the Florida court’s ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted.[4] 

But in a case from Indiana, he upheld identification requirements that, as Justice Souter detailed in dissent, clearly burdened the poor, the aged and the infirm.[5] Stevens later realized that the fear of fraud was made up, described it as “a fairly unfortunate decision,” and described Souter’s dissent as “one of his best opinions.”[6] 

In gerrymandering cases, Stevens became an advocate for “the symmetry standard, a measure social scientists use to assess partisan bias, which is undoubtedly ‘a reliable standard’ for measuring a ‘burden . . . on … representative rights’ ….”[7]

He was not perfect. I represented a group of political scientists as friends of the Court in a 1986 case. There was an issue that plaintiffs’ attorney and I both thought such transparent nonsense that we didn’t bother to brief it. Sure enough Stevens fell for it, though the majority of the Court went our way. It wasn’t Stevens’ last mistake but it proved he was human.

I’ve always felt that the term “Justice” in the title of members of the Supreme Court is a term that needs to be earned. During one argument in the Supreme Court, a woman lawyer kept referring to William Rehnquist, who was then the Chief, as Judge, and Rehnquist kept lambasting her for it. Stevens interrupted, “It’s all right counsellor; the Constitution makes the same mistake!” It does, indeed, in Art. III, sec. 1.

Stevens was not only smart. He was a judge; not a partisan. He cared about the effect of his decisions and showed a willingness to learn. Stevens clearly earned the term Justice.

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[1] Bell Atl. Corp. v. Twombly, 550 U.S. 544, 596 (2007).

[2] Linda Greenhouse, Supreme Court Justice John Paul Stevens, Who Led Liberal Wing, Dies at 99, https://www.nytimes.com/2019/07/16/us/john-paul-stevens-dead.html

[3] Adarand Constructors v. Pena, 515 U.S. 200, 244-45 (1995). He continued: “It would treat a Dixiecrat Senator’s decision to vote against Thurgood Marshall’s confirmation in order to keep African Americans off the Supreme Court as on a par with President Johnson’s evaluation of his nominee’s race as a positive factor. It would equate a law that made black citizens ineligible for military service with a program aimed at recruiting black soldiers. An attempt by the majority to exclude members of a minority race from a regulated market is fundamentally different from a subsidy that enables a relatively small group of newcomers to enter that market. An interest in “consistency” does not justify treating differences as though they were similarities.”

[4] Bush v. Gore, 531 U.S. 1046, 1048 (2000) (Stevens, j., dissenting)

[5] Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 211-12 (2008) (Souter, J., dissenting).

[6] Robert Barnes, Stevens says Supreme Court decision on voter ID was correct, but maybe not right, Washington Post, May 15, 2016.

[7] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 466 (2006) (Stevens, J, dissenting). Stevens continued, “The symmetry standard ‘requires that the electoral system treat similarly-situated parties equally, so that each receives the same fraction of legislative seats for a particular vote percentage as the other party would receive if it had received the same percentage.’ This standard is widely accepted by scholars as providing a measure of partisan fairness in electoral systems.”

 

Trump’s attack on refugees

Just received a letter worth passing on, given that the US has made many of the world’s refugee problems worse: by our history of throttling democracy and supporting dictators in Central America who have ruined the lives of their people; by  our share in global warming that has destroyed the ability of many areas to support themselves; and by our resort to arms especially, recently, in the Middle East.

From: capital-district-coalition-against-islamophobia@googlegroups.com <capital-district-coalition-against-islamophobia

Please join me in doing everything/anything  you can to  fight against this latest effort to destroy our fundamental American values.    Yes, we have US Senators and Congressmen who will fight hard to ensure this does not happen, but I’m sure they would be grateful for a call of support from their constituents.

Please share with your networks.

Charles Schumer: E-mail:  https://www.schumer.senate.gov/Contact/email-chuck Albany Office:  (518) 431-4070 Wash. D.C. Office: (202) 224-6542

Kristen Gillibrand E-mail: https://www.gillibrand.senate.gov/contact/email-me Albany Office: (518) 431-0120 Wash. D.C. Office: (202) 224-4451

Paul Tonko E-mail: https://tonko.house.gov/forms/writeyourrep/?zip5=12202&zip4= Albany Office: (518) 465-0700 Wash. D.C. Office (202) 225-5076

Please share with your networks.

Thank You,

Dahlia Herring

Co-Chair, Capital Region Refugee Roundtable

From: Eskinder Negash, USCRI <uscri@uscridc.org>
Sent: Friday, July 19, 2019 1:05 PM
To: Dahlia <dmazengia@nycap.rr.com>
Subject: BREAKING: Refugees not welcome here?

BREAKING: Trump Administration Considers Slashing Refugee Admissions to Zero News just broke on Politico that the Administration is considering shutting down the U.S. Refugee Admissions Program.  According to the report, for the first time since the program was established in 1980, we would close our doors to refugees. Officials are proposing to allow ZERO refugees into the United States of America. This would amount to a functional shut down of this vital program for refugees and eliminate our historic role as a humanitarian leader in the world. This is a defining moment in our country’s history. How can we turn our back on the world’s most vulnerable people—refugees who cannot go home? How can we toss aside the fundamental values that built this country from the ground up? Right now there are thousands of refugees in the U.S. waiting for their family members to join them. Will we keep these families separated forever? Right now, TODAY, is the time to stand with USCRI and mount a robust opposition to this proposal. We are asking you to amplify our message to the Administration to change course and continue this time-tested humanitarian program. How can you help? Call your members of Congress today and let them know you support increasing, not decreasing, the number of refugees admitted to the U.S. Locate your members of Congress here. Speak out in support of refugees. Use your social media and other platforms to follow USCRI and let this Administration know you are one of the many Americans who welcome refugees into this country. Donate to USCRI and support our efforts on behalf of the world’s most vulnerable people. As a nonprofit organization, we can’t do it without you. Help us continue our work as advocates and allies for refugees and immigrants. Donate now at refugees.org. It is critical that we join together and make our voices heard. Eskinder Negash President and CEO P.S. USCRI’s official statement may be seen here.