The Court’s attack on the “ever-normal granary”

I’ve been celebrating like many of you over the marriage equality and Obamacare decisions last Thursday and Friday. But my own celebrations are tempered by the realization that these two cases don’t symbolize any shift on the Court. Kennedy’s libertarian philosophy has paid dividends in the gay rights controversy for years. But the decision last November to hear the case challenging whether federal health exchanges could provide subsidies to those without the money to buy a health plan unassisted, turned into a trap.[1] The scale of damage that would have been done by blocking the subsidies made it impossible even for opponents of the program to shut it down. Nothing in the decision suggests that Kennedy had a change of heart about having wanted to declare it unconstitutional, and nothing suggests that Roberts had a change of heart about narrowing the commerce power, even though he had approved the individual mandate in the statute as a tax. Twenty years ago, Thomas wrote he would consider going back to the Court’s very restrictive definition of federal powers before 1937 when President Franklin Roosevelt’s appointments changed the Court’s philosophy. Apparently Scalia and Alito are on Board with him.

That brings me to raisins.

Horne v. Department of Agriculture,[2] looks like the Supreme Court is maneuvering to get us back to the era when it throttled government economic policy. Horne held unconstitutional a program to keep the supply of raisins on an even keel.

Roosevelt’s New Deal Administration had the dream of an “ever normal granary” for farmers. Their prices were spiking in both directions, making farming very difficult especially for family farmers whose resources to endure periods of low prices were limited. The statute was passed in 1937 to create the “ever-normal granary,” in order to deal with the effects of the great depression, stabilize prices, preserve supplies against shortages from drought or other natural causes and to protect farmers against “disastrous lows” from bumper crops.[3]

The result was a program to store portions of crops in government facilities when supply exceeded demand and release them in periods when yields were too low. It was a program designed by farmers for farmers.

The Horne decision used the takings clause to overrule part of that nearly eighty year old statute which had been designed to help pull the country out of the great depression of the ‘30s.

If one simply reads the words of this Roberts Court decision, it looks easy to get around. Government could use a regulation or a tax. And there are other ways to make this decision seem appropriate and unthreatening.

But I don’t believe it. This case has been part of a decade long set of challenges looking for a way to take down federal agricultural marketing policies. The attorney for the Hornes was a well-known conservative activist, professor and former judge. I doubt he handled this case just because he sympathized with the Hornes.

Similarly, when the Rehnquist Court decided United States v. Lopez in 1995 on federalism grounds all the constitutional scholars said it was insignificant, a shot across the bow but portending nothing. Within a few years it was clear they were wrong. The Court started declaring civil rights statutes unconstitutional as violations of principles of federalism that are nowhere in the language of the Constitution.

This case is not a one off. The Court has been developing takings doctrine so that it can be used to block federal regulation of the economy and the environment. The conservative faction on the Roberts Court is trying to develop legal tools to return the U.S. to a period in which we are a congerie of 50 small states instead of a single proud country. And if that happens, family farmers especially may be sorry to be free of federal regulation.

— This commentary was broadcast on WAMC Northeast Report, June 30, 2015.

[1] Linda Greenhouse, The Supreme Court’s Reality Check, NY Times blogs, June 25, 2015, http://www.nytimes.com/2015/06/26/opinion/the-roberts-courts-reality-check.html?rref=collection%2Fcolumn%2Flinda-greenhouse

[2] Horne v. Dep’t of Agric., 2015 U.S. LEXIS 4064 (2015).

[3] Mordecai Ezekiel, Farm Aid-Fourth Stage, The Nation, February 26, 1938, Vol. 146, No. 9, p. 236-238, available at http://newdeal.feri.org/nation/na38146p236.htm.

Hallelujah! What a relief.

Copy editing finally done for Unfit for Democracy: The Roberts Court and the Breakdown of American Politics. It’s scheduled for publication in January by NYU Press – still a few months off but it feels like a big milestone.

Jeanette’s award

I haven’t been putting personal notes in my blog, but I had the pleasure, on the 9th, of attending a Red Cross Volunteer Recognition event where my wife, Jeanette, was presented with the J. Spencer Standish Community Service Award in Recognition of Outstanding Service, an award which is not presented annually, for her work as a trainer in safety services over a wide area of the state. Our daughter came in from Cincinnati for it and our son wrote from London. It was a very special evening and I was and am a very proud spouse.

Texas License Plates

What really matters about the decision about Texas license plates?[1] The conversation is all about the plates. That’s a part of what lawsuits do. They get us talking about the specific example, the thing that the plaintiff wanted to do.

Yet surely the plates themselves are no big deal. The Sons of Confederate Veterans could have advertised their treasonous admiration for the Confederacy on a bumper sticker and other signs. Their rebellion has hardly been scotched because they can’t get it on their plates.

One larger issue is the justification, the reasoning of the decision. Breyer says they can’t put it on their plates because the plates aren’t theirs at all. They are the plates of the great state of Texas. And Texas won’t put its confederate past on its license plates.

That actually is troubling. We decide lots of issues of free speech by deciding whether the speech belongs to government. That troubles me because it doesn’t ask what the free marketplace of ideas needs. Not that the decision about the plates should have been any different but the explanation is different, and in law, explanations matter. They tell you about many cases.

Free speech doctrine is driven by the needs of the system of free speech. But the distinction between our speech and government speech is all about property. I get very suspicious when the boundaries of freedom are decided by rules and discussions unrelated to free speech, and instead about what belongs to the government.

If the clinic belongs to the government it can tell the doctor what to say.[2] If the legal aid society belongs to the government, can government tell the lawyers what to say?[3] Justice Stevens tweaked Justice Souter in the middle of the argument about legal aid lawyers over Souter’s position in the decision about doctors and whether they could say anything about abortion. And if the government likes the speech of one group more than another, can government decide to make it their speech and subsidize it while penalizing the other? Well actually the Court said yes even though it also says government has the obligation to treat everyone equally.[4] So that comes out as just as equally as the government wants. That’s some equality. But that’s how government, courts and law can speak out of two sides of their mouths.

So the Court claims a big blow for free speech – a blow so hard it’s no more than a joke. Why is it worth anyone’s while to bring a case like that to the Supreme Court? That’s very expensive, especially the time it takes of a team of attorneys to put the papers together and prepare for the argument. It costs a lot more than the paltry sum for the vanity plates or even the $8000 for a new plate design. People sometimes bring suits like that for the impact it will have on the law if they win. And people sometimes bring suits like that for the publicity. Now everyone knows the Texas secessionists are fighting mad. The goal isn’t the plates. It’s the PR. You win by losing as much, maybe more, than by winning.

But now there’s another brick in the insidious doctrine about how government owns the opportunities for private speech. How about corralling demonstrators in pens where they can’t be seen during a political party’s convention? After all, the streets are public.[5] And how about throwing citizens into the same pasture with giant corporations to see if they can be heard?[6] After all, if corporations are people, then they have minds, mouths and rights. That’s what happens when important decisions are based on irrelevancies.

— This commentary was broadcast on WAMC Northeast Report, June 22, 2015.

[1] Walker v. Tex. Div., Sons of Confederate Veterans, 2015 U.S. LEXIS 4063 (U.S. June 18, 2015).

[2] Rust v. Sullivan, 500 U.S. 173 (1991).

[3] Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001).

[4] Regan v. Taxation with Representation, 461 U.S. 540 (1983).

[5] Cf. United States v. Kokinda, 497 U.S. 720 (U.S. 1990).

[6] Citizens United v. FEC, 558 U.S. 310 (2010).

Iranian-American Diplomacy

My wife and I are back from a reunion of Returned Peace Corps Volunteers (RPCVs) who had served in Iran, and a conference with some of this country’s experts about Iran.

Our first plenary speaker, Bill Beeman of the University of Minnesota, is a very well-known scholar about Iran. He described the complexity of their system of manners and the ease with which foreigners misunderstand Iran. I asked about Iran experts in the State Department. Beeman explained that Secretary Kissinger attacked what he called clientitis, where experts sympathize with the country they study and resist what political leaders want to do. Following Kissinger, the foreign service routinely rotates diplomats to prevent too much specialization. That has advantages and disadvantages; dialogue between experts deeply steeped in a culture and generalists with other concerns is important.

Beeman added that many in Washington claim expertise about Iran, connected with think tanks with axes to grind. Scholars independent of ideological organizations can afford to see reality without coloring it with what they want to happen. Certainly independent scholars need to be heard.

I am convinced that Beeman’s message about the complexity of Iranian culture and the ease of misunderstanding it is accurate. All former Peace Corps Volunteers, and others who have immersed themselves in a foreign culture, can attest to the ways that cultural signals are easily misunderstood in both directions. In diplomacy that can spell disaster.

Our headline speaker was former Ambassador John Limbert, the last U.S. ambassador to Iran and a hostage for 444 days. Limbert now teaches at the U.S. Naval Academy.

I brought Beaman’s comments to Ambassador Limbert. He responded that the State Department has some knowledgeable people and a seasoned negotiator like Secretary Kerry can pick up a great deal by listening closely. I teach interviewing and I know the importance of active listening that seeks to understand without substituting one’s own assumptions. But I couldn’t shake concern that decades of detachment from Iran will handicap negotiators on both sides. It’s too easy to see each other as hostile and assume the worst, or to miss what is really important to them and misunderstand what they are actually offering. That’s especially difficult because so many people claim to know what Iran intends.

As an example of the complexity of our and Iran’s interests, Ambassador Limbert described the U.S. expectation after the Revolution that Iran would be hostile toward the Soviet Union. The Russians had treated Iran as part of its empire for a long time and there were good reasons for Iranian hostility. But Iran did its best to maintain friendly relations and trade with the USSR. Had they suddenly become pro-Soviet? Or were they defending themselves by trying to avoid incurring Soviet wrath. Limbert’s point was that we have to learn to see their actions through their eyes, not our own, to understand and respect their own Iranian nationalism just as they must respect ours.

We have many overlapping interests. But Iran also cares about the mistreatment of Shi’a populations in the Middle East. Iran sees that as defensive and about justice, not about conquest or aggression. It is easy for Iranians to see the US as supporting a ring of Sunni dynasties around Iran.

That doesn’t create any clear picture of what should happen. Limbert’s point is that diplomacy is both necessary and difficult. Seeing it simply as us against them misses the complexities and the opportunities. In other words, give diplomacy a chance.

— This commentary was broadcast on WAMC Northeast Report, May 16, 2015.

Bernie

I have been an admirer of Senator Elizabeth Warren for many years, ever since she spoke here at Albany Law School some time back in the 90s. But I respected her decision not to enter the primaries to contest the nomination of Hillary Clinton. Obviously I never had to decide whether I would choose to vote for Warren or Clinton, but I came to the conclusion long ago that the candidates I liked best had no real chance of winning. So I have tried to keep my picks within the realm of the people I thought could win.

But Bernie Sanders is forcing me to rethink what to do. Simply put, the Democrats have lost much of the constituency for real, liberal, politics, politics for Americans with average incomes, politics for people who are being given the shaft by business as usual. Those folk have been part of the constituency of the Democratic Party for years. But many of them have been staying home and not voting. Or deserting.

The Occupy movement showed that there is still some life in that constituency. And it showed that American politics and Democratic Party politics can be rejuvenated. Except that it collapsed – not for lack of support but because it was never organized for the long haul.

Bernie gives hope to those of us who care about giving people real opportunity and a fair shake. He gives us a symbol we can rally around. Putting it in the political process is very different from opening a tent on Wall Street. Bernie is trolling for votes. His success will measure the possibility of returning to an America that is fair to all.

Years ago a congressman by the name of William Fitz Ryan represented a liberal district in Manhattan. His brother served on the Board of Directors of the program I worked for and commented that for Congressman Ryan, pushing Congress from the left, created opportunities for his fellow legislators to shift the battleground.

I think Bernie is in that tradition. If he can arouse the mass of us who care about each other’s fate, and arouse the many whose lives are crushed by the disinterest and hostility of those who have power and money, then Bernie can shift American politics from the rut it’s been rattling around in for several decades.

In that way, Bernie is more than a candidate. He represents a cause. He can be the beginning of a movement and an organization. The crucial thing we have to do is to take advantage of his candidacy, win, lose or draw, and build on it toward a stronger, fairer politics, and a stronger America, whose future is not limited to what may be good for a few big donors but is premised on the ways that investing in our country and its people can make a stronger, wealthier, more successful America for all of us.

Go Bernie. And may the rest of us come along, to push the campaign cart, organize for a long push, and celebrate a greater America.

Democracy’s Future in America

The Court has now decided that states can stop judges but only judges from personally asking for campaign contributions. It left all the rest of its protections of economic privilege in place.[1] Corporations can use treasury funds to flood the airwaves with political ads. Donors can hide their contributions behind a variety of specialized corporate entities. The one-tenth of one percent of the wealthiest Americans can dominate American politics directly and through their domination of corporate treasuries.

As I explained last week, inequality in the United States is making democracy increasingly unsustainable. When the wealthy and powerful take control of the whole shebang – political money, jobs, the media – the mass of the public is left with few resources to control their government, while the wealthy and powerful have enormous resources at their disposal to control the people.

In addition, democracy is fairly explicitly under attack. Conservatives attack the voting rights of any who might vote against them. Corporations use arbitration clauses in consumer contracts and international treaties to sidestep democratic decisions and make it easier for them to tear down environmental, labor and any other regulation that the people want but the corporations dislike. Their argument against regulation of markets is a euphemism for rules that favor whatever they want to do. But their point is that democracy has no right to interfere. And they hide their contempt for democracy behind Reagan’s claim that government, democratic government, is the problem.

Both these direct attacks and the distortions of wealth on the political process create a real threat that this government of, by and for the people could perish from the earth, undermined by control over speech, press and politics and squeezed out by untouchable markets and the exclusion of democratic decision-making from anything corporations care about.

Only the Tea Party seems prepared to rebel and their exclusionary politics adds to the problem. The gun rights folk will, if anything, protect the current distribution of wealth, enforcing their prejudices. Liberals – race liberals, economic liberals, big money liberals – are hardly united.

Under domination from powerful corporate interests, we could hope at best for the crumbs off their tables. Welcome to the many so-called democracies in Central and South America, Asia and Africa, where hirelings and sycophants help control the public for the benefit of their wealthy patrons.

We could try to pull the Supreme Court off the ramparts of privilege and regain control over the use of money in politics. We could fight back by supporting independent radio stations like WAMC. Or we could hope for the best ‘til Brutus assassinates Caesar – though that could lead to the consolidation of tyranny as it did for the Romans and is now doing in the Middle East.

Can we rally to save the planet and save democracy before we have lost them both? As we used to say in Brooklyn, before the Dodgers finally won the Series, “ya gotta b’lieve.”

Next week, the primaries.

— This commentary was broadcast on WAMC Northeast Report, June 2, 2015.

[1] Williams-Yulee v. Fla. Bar, 2015 U.S. LEXIS 2983 (U.S. Apr. 29, 2015).