Mankind’s Suicide Pact – The Sixth Mass Extinction

April 24, 2018

Last time we talked about how influencing our politicians to do the right thing can be fun. So this time let’s talk about some very serious issues with an eye toward enjoying the process of moving our politics to do the right things, even though the issues, like climate change, sometimes feel out of our control. But we do have power. We live in a democracy and can demand that our representatives deal with these problems first and foremost. Motivating them is our job. So let’s look and then return to our responsibility. Two issues involve the likely suicide of humanity: what has been termed the sixth mass extinction, this time of us.

We know about major extinctions that killed some 86% of existing species approximately 444 million years ago; killed some 75% of existing species, about 70 million years later; killed some 96% of existing species, approximately 251 million years ago. killed some 80% of existing species about 200 million years ago. And the fifth, about 66 million years ago, killed some 76% of all species including the dinosaurs. Extinctions have been recurrent, catastrophic, and resulted from climate changes, including changes in temperature, and levels of oxygen and other gasses. Biologists are suggesting we are headed for a sixth and this one is aimed at mankind, at us.

Mankind’s actions are changing the climate. Climate change doesn’t just drive the waters higher, create extreme weather events and disrupt the climate worldwide. Changing biodiversity affects the fundamental cycles of nature. The Atlantic described mass extinctions as “global die-offs that killed the majority of animal life on earth” and it explained that they were not simply the result of external shocks, but were ultimately caused by “the internal dynamics of food webs that faltered and failed catastrophically in unexpected ways.”[1] We know environmental changes are heating up the globe and interfering with the food chain in the oceans. So we have to control ourselves before our environment is totally out of control.

Another form of impending mass suicide comes from the nuclear power plants. That’s not just about rogue nations like North Korea, but lots of companies, corporations, workers and others have access to nuclear fuel and could do great damage with it. If you haven’t seen the pictures or stories of the so-called “survivors” of Hiroshima and Nagasaki, it is worth doing to understand the seriousness of what we should be trying to protect our loved ones from. We have to stop that process before it destroys us all.

We should know by now that mankind is doing many things that are causing great damage to our world and our survival in it. Plastic bags and chemical run off are destroying sea life. Endocrine disrupters are all around us in the things we buy, eat and use and they affect our health, our ability to have children, and their growth without agonizing birth defects. Excess antibiotics are inviting super-resistant diseases and leaving us vulnerable to enormously destructive epidemics.

The over-arching issue seems to be the too widespread belief that civilization depends on allowing any of us to dump whatever we please into products, onto the ground and into the air and water until such time as someone is able to determine what damage it has been doing. There is a point when liberty becomes license.

As we talked about last time, influencing our politicians to do the right things can be fun. Enjoy.

— This commentary was broadcast on WAMC Northeast Report, April 24, 2018.

[1] Peter Brannen, “Earth Is Not in the Midst of a Sixth Mass Extinction,” The Atlantic,  June 13, 2017, https://www.theatlantic.com/science/archive/2017/06/the-ends-of-the-world/529545/.

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The Hidden Toll

April 23, 2018

In case you haven’t read it, I am attaching a link to Linda Villarosa’s article, Why America’s Black Mothers and Babies Are in a Life-or-Death Crisis, in the New York Times Magazine. Reading it had me in tears because it’s depiction of the patterns and stresses that afflict African-American women during and after childbirth are so typical of the things that happened to my own clients, and yet so little recognized or understood by the rest of us. Keep a box of tissues handy and read it with your heart open.


Impeachment for Corruption

April 14, 2018

We’ve discussed how impeachment organizes the disparate issues surrounding Donald Trump. We’ve focused on the poor political prospects of presidents who faced impeachment and the poor prospects of those presidents’ parties. We’ve examined the history of the constitutional language, especially “high Crimes and Misdemeanors.” We found that a major purpose of the language was to enable Congress to stop corruption in its tracks. Corruption of public officials was a major target of impeachments in both England and America, leading to our constitutional text.

The Founders were very concerned about corruption. One constitutional clause barred public officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or Foreign State,” and a second clause barred presidents from receiving any emoluments other than pre-determined compensation from the U.S. or any state. They couldn’t accept gifts. And they couldn’t accept other benefits, emoluments, including as pay for service. We have elaborate laws about gifts to public officials. They cannot, they must not accept pay as public officials for what they have to do anyway. Judges are generally quite scrupulous. When my classmate, Judge José Cabranes, officiated over a wedding for our son, I asked other judges what I could do in response. They told me anything I did, even though we are old friends, had to be minimal. Justice Sandra Day O’Connor wrote a chapter for a book I edited years ago. I arranged for all the contributors to share whatever royalties the book produced. Justice O’Connor was adamant that she would not take a cent – we put her share of the royalties into a scholarship fund instead. And you may not know that when foreign officials do bring presents to American public officials, the American officials are required to turn those presents over to be warehoused for use in public offices but not given to any public official to keep privately.

There were reasons that the Founders were so concerned. One source of the American Revolution had been the colonists’ anger at all the perks and goodies heaped on officials appointed by the Crown, and the colonists also reacted to the airs those officials put on. But the problem goes much deeper into economic and patriotic reasons. Opportunities steered toward public officials act like a tax on trade as other businesses have to struggle all the harder for business. Opportunities steered toward public officials distort the market because business doesn’t go to the best, but rather to the powerful. The economies of countries where those practices are common do much worse than those free of that kind of corruption. Until recently it’s not been a problem here.

The patriotic problem is loyalty. People perceive that doing business with Trump or his enterprises is more likely to win Trump’s favor and therefore affect American policy. They perceive it because it is ordinary human behavior to bless those who bless us. But it is precisely wrong for a president – their job in the White House is to pursue the best for America, not the best for their own businesses. No one asks presidents to impoverish themselves. I believe Truman was the last to retire without a presidential pension. And they can put their assets in a blind trust as presidents have been doing for some time now so that they do not know and can’t tell what will be better for their business or who has benefitted their assets. Trump has done the opposite. No blind trust. No disclosure of his taxes or the businesses reflected on them. And he blatantly steers business to his own resorts and enterprises.

That’s about the president’s welfare, not the people’s. Corruption has no place in the White House and should be the first article of impeachment. To paraphrase his own language: Dirty Donald; lock him up.

— This commentary was pre-empted by the Facebook hearings but included on the WAMC blog, April, 2018.


Impeachment – The Legal Question

April 3, 2018

For the past two weeks we’ve talked about how impeachment changes the issues surrounding Donald Trump and the political impact of prior impeachments in America. Now we turn to the constitutional language: “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”[1]

Well before the Constitution was written, impeachment began as a wide-open power of the British House of Commons to prosecute people in the House of Lords. But the Commons largely limited themselves to statutory crimes so that the House of Lords would be more likely to convict.

Crossing the waters, colonial legislatures limited themselves to the behavior of public officials. Legislative impeachment of anyone other than public officials would encroach on the job of courts and give legislatures too much power over citizens at large. Impeachment, however, became an important tool in the colonists’ battle with the British Crown.

On independence, legislatures limited themselves to action that affected public duties or danger to the republic. The new governments were to be constrained by rules of fair dealing. Elections did not provide a sufficient check either against mob rule or official chicanery. And public officials were not entitled to dismantle the separation of powers among legislative, executive and judicial departments with separate and complementary duties.

By the time the Constitution was written, the basic elements of impeachment in the thirteen states were unethical conduct that endangered the public or the republic. Statutory penalties were for courts to adjudicate. Political penalties, like removal from office, would still be appropriate for impeachment even for statutory crimes. Impeachments prosecuted in that period included corruption, like bribery, breach of public trust like using powers for personal advantage or to injure others, misuse of power such as bullying private citizens, and undermining the republican character of government with its careful divisions into executive, legislative and judicial powers.

In the Convention, a committee suggested that officials could be removed “for neglect of duty, malversation, or corruption.” Malversation, somewhat redundantly, meant “improper or corrupt behavior in office.”  Before they could vote on it, another committee brought to the floor a proposal that officials could only be impeached for “treason or bribery.” George Mason believed that was much too narrow, and on September 8, 1787 he suggested adding maladministration as an additional ground. His proposal was defeated, but in response, he proposed the language we now have, “high crimes and misdemeanors,” and it passed. “Misdemeanors” had been mentioned but once during the Convention and only in the context of crimes at sea. A widely consulted legal text of the era, however, defined misdemeanor as “smaller faults and omissions of less consequence than ‘crimes.’” That definition seems broader than “maladministration” and could easily encompass “neglect of duty, malversation, or corruption.”[2] But then why were those terms taken out? In The Federalist, Hamilton explained that the grounds of impeachment came from “the abuse or violation of some public trust,”[3] essentially supporting Mason’s approach. Their view quickly became standard.

The larger point is that the Founders sought a method to protect the republican character of the Constitution, enable the legislature to stop corruption, and to make sure that the president would faithfully execute the laws, respect the rights of citizens and obey the checks on official power built into the Constitution and principles of republic government. That forms the basic understanding of what the impeachment clause was designed to accomplish, and why some presidents would need to be impeached. Proposed articles of impeachment should be compared to those great purposes.

— This commentary was broadcast on WAMC Northeast Report, April 3, 2018.

 

 

[1] U.S. Const., Art. II, §4. Strictly speaking, impeachment refers to the charges voted by the House of Representatives for trial in the Senate. Removal is the result of conviction by the Senate. Art. I, §2, ¶5 and §3, ¶6.

[2] See Records of the Federal Convention of 1787, vol. 2 at 550 (Max Farrand, ed., Yale U. Press, 1966); Peter Charles Hoffer and N.E.H. Hull, Impeachment in America, 1635-1805 (Yale U. Press 1984).

[3] Alexander Hamilton, James Madison and John Jay, The Federalist, No. 65 (Hamilton) at 396 (Clinton Rossiter ed., New American Library 1961).


No War with Iran

March 27, 2018

The Peace Corps Iran Association (PCIA), to which I belong, is the organization of former Peace Corps Volunteers who have served there. I just received this bulletin from the PCIA Advocacy Committee and commend it to all of you:

PEACE CORPS IRAN ASSOCIATION

ALERT: SPEAK OUT FOR DIPLOMACY, NOT WAR WITH IRAN

Andy Mott and Kathleen MacLeod, PCIA Advocacy Committee Co-Chairs

ANALYSIS AND COMMENTARY

The Peace Corps Iran Association has for several years supported a diplomatic path of negotiation rather than the use of military force in dealing with Iran.  We supported passage of the Nuclear Agreement and have argued for continued US engagement, given Iran’s documented compliance.  Nonetheless, the Trump Administration has proven hostile to the Agreement and to diplomacy generally, gutting the State Department, calling for more military spending, and threatening use of force against Iran. On May 12 the President may well decide to withdraw from the Agreement. This is not only our loss: It repudiates the multi-national collaboration necessary to settle conflicts in this day and age.

The recent appointment of John Bolton as National Security Advisor, and nomination of Michael Pompeo as Secretary of State, bring the possibility of war with Iran and North Korea even closer.  It is time to act: Please speak out for peace and diplomacy.  We have several opportunities to weigh in:

Defend The Nuclear Agreement: The President, having denigrated the Nuclear Agreement as ‘the worst deal ever,’ has repeatedly said he would pull out. May 12 is the deadline he set for a decision. Addressing outstanding issues with Iran through diplomacy should begin by supporting the Agreement.

Question Michael Pompeo and John Bolton: Secretary of State nominee Michael Pompeo and newly appointed National Security Advisor John Bolton are both in line with the Administration’s position, which claims Iran is the primary bad actor in the region. (Bolton remains a champion of the Iraq invasion and has long supported an attack on Iran.) Use the Pompeo confirmation hearings to ask questions about U.S. policies and to support a fully staffed State Department.

Curtail Presidential power granted in the Authorization for Use of Force Act:  Currently no formal declaration of war through a vote of Congress would be needed to attack Iran: The President could take action unilaterally under the Authorization for Use of Military Force Act, the law that brought us into many conflicts since 9/11. The Senate Foreign Relations Committee is working on revisions to this Act, with a mark up set for mid-April. The Act’s broad and vague grant of power should be revoked.

Work towards a nuclear weapons ban: Security in the Middle East is not furthered by the presence of nuclear weapons.  While Iran is being pressured to permanently forego nuclear development, there has been talk of nuclear weapons for Saudi Arabia; Israel, known to have nuclear weapons, has not formally acknowledged its weapons program and is not party to the Non-Proliferation Treaty. It is time to renew efforts on a regional non- proliferation treaty.

For Congressional offices contact the switchboard: (202224-3121

For the Senate Foreign Relations Committee: https://www.foreign.senate.gov/

For additional perspectives on the issues discussed above:

https://www.foreign.senate.gov/press/chair/release/corker-urges-senators-to-oppose-bypassing-committee-process-on-yemen-resolution

https://theintercept.com/2018/03/17/new-york-times-iran-israel-washington-think-tanks/

https://www.nytimes.com/2018/02/05/opinion/trump-iran-war.html


Impeachment – The Political Question

March 27, 2018

Last week I commented that the issue of impeachment refocuses the flood of presidential moves. The possibility of impeaching the president raises another critical political question – would impeachment so annoy the public that Democrats would be defeated for trying to impeach Trump? Or will the focus in the impeachment process on Trump’s misbehavior leave the public sufficiently disgusted that the next election would go to his opponents? There have been attempts to remove presidents by impeachment. They resulted in two trials in the Senate and one resignation to avoid impeachment. That’s too few cases to draw firm conclusions but they deserve a look.

President Andrew Johnson was impeached by the House and tried by the Senate in a dispute over how to implement the Union victory in the Civil War and to require the South to live under rules providing for equality without regard to race. It came to a head when Johnson attempted to fire abolitionists he’d inherited from Lincoln’s cabinet. By a single vote, the U.S. Senate decided not to remove Johnson from office. But General Grant won the election that followed and reversed Johnson’s policies. The Republicans who had fought to remove Johnson from office had the next eight years under Grant to consolidate their victory in the Civil War. Eight years later, the contested election of 1876 was settled in favor of Rutherford Hayes when the Republicans agreed to withdraw federal troops from the South and end Reconstruction.

President Richard Nixon resigned in 1974 before the House of Representatives could vote to impeach him over the cover up of the Watergate burglary by people working for the Committee to Reelect the President, or CREEP. The underlying burglary threatened to distort the electoral process. The cover-up threatened to prevent prosecutors and courts from enforcing the law. When Nixon resigned, he was succeeded by Vice President Gerald Ford. Two years later, Republican Gerald Ford was defeated by Democrat Jimmy Carter.

In 1998, the House impeached Democrat Bill Clinton on charges related to sexual encounters and Clinton’s denial under oath that he had sex with a woman not his wife. This was certainly an extension of the idea of impeachable offenses to the private morality of the president rather than his discharge of public duties. But Clinton’s misbehavior has been trumped by the present president whose pornographic language, boasts, actions and affairs have gone much further than anything that Clinton was charged with.

In 1999 a Senate majority acquitted Clinton on one of the charges and the Senate split 50-50 on the other. Since the Constitution requires a two/thirds vote to convict, the result wasn’t close. In the following year, Democratic candidate Al Gore, despite trying desperately to avoid any connection to Clinton during the campaign, was defeated by Republican candidate George W. Bush for President. Gore won the popular vote but not the electoral college.

Thus, in the twentieth century, the party impeaching the challenged president won the next election – the Democrats after Nixon resigned and the Republicans after the impeachment of Clinton. In the nineteenth century, the next election went to General Grant, who was very much opposed to the behavior of the impeached president Andrew Johnson.

We have no experience with a president who lost the trial in the Senate. The risk to the president’s objectives has been from impeachment itself. The public’s reaction so far has been to condemn presidential misbehavior and change parties. That history is illustrative but certainly not conclusive of what the public would do now. On the other hand, there are so many serious issues that it’s fair to paraphrase the current president: Dirty Donald; lock him up.

— This commentary was broadcast on WAMC Northeast Report, March 27, 2018.

 

 


Heads-up for Paperback Edition and local appearance

March 24, 2018

On April 1, 2018, NYU Press will release a paperback edition of my Unfit for Democracy: The Roberts Court and the Breakdown of American Politics. The paperback is planned for release at about half the list price of the original hardback.

On April 21, 2018, I will be signing copies at Barnes & Noble Local Authors Day at Colonie Center in Albany, from 1 PM – 4:00 PM. Would love to meet some of you there.


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