May 23, 2017

Justice Kennedy has added some suspense regarding the future of gerrymandering, and therefore the future of Republican domination of state and federal legislatures. For my discussion on The Hill.com, click on Will the Supreme Court Draw the Line on Gerrymandering.


Freedom for the Boss; Drudgery for the Rest of Us

May 16, 2017

I keep looking for ways to talk with supporters of the Administration. President Carter started the deregulation frenzy. That has become half of the Republican cut-and-deregulate refrain ever since, consistently repeated by the current White House and the Republicans in Congress. I’d like to focus on the things that will affect those of us who are, financially speaking, ordinary, middle-class Americans.

Here are changes the Administration and congressional Republicans are considering that affect working conditions:

  • The White House Office of Information and Regulatory Affairs has been postponing and considering cutting down a Labor Department rule that limits “workers’ exposure [to] toxic material, which can cause a deadly lung disease.”
  • The same White House Office is also “considering a proposal to roll back protections for workers in construction and shipbuilding.”
    • Those rules allow our employers to save cash by risking our health.
  • The Working Families Flexibility Act … would give employees a choice between taking time off or being paid time-and-a-half when they work more than 40 hours in a week.”
  • Either way, Republicans oppose changing overtime rules to raise eligibility for overtime above the current $23,660 per year.
    • Those rules allow our employers to save cash by shortchanging us.

Here are some that affect the health of financially ordinary Americans:

  • The Administraton has already taken steps to “roll back healthy school lunch standards”
  • The new head of the FDA “has invested in or consulted for dozens of healthcare companies” which suggests that the Food and Drug Administration won’t be much help in preventing unnecessary complications and expenses.
  • The House health care bill would eliminate Obamacare requirements that insurance plans cover prescriptions drugs and mental healthcare. Like all insurance, drug and mental health care coverage are intended to protect people from unplanned changes in the costs of survival.
  • Senate Republicans narrowly lost an effort to roll back a regulation that “limit[s] methane emissions from oil and natural gas drilling.” Methane is even more damaging to the climate than carbon.
    • Those rules risk our health for the sake of other people’s profits.

On savings for retirement:

  • “Trump’s Labor Department delayed the so-called fiduciary rule, ordering financial advisers to act in … [your] best interest[s] … [if you] are saving for retirement.”
  • The CHOICE Act would allow the banks that brought us the crash of 2008 to opt out of regulations adopted after the crash and intended to prevent another. And the bill renames the Consumer Financial Protection Bureau and “reduces its power to enforce pre-existing consumer protection laws.”
    • Those rules risk our financial security for the sake of other people’s profits.

Meanwhile, Republicans on the Supreme Court show little respect for working men and women.

  • With Breyer’s help they have blessed “Professional debt collectors … [who] built a business out of buying stale debt, filing claims in bankruptcy proceedings to collect it, and hoping that no one notices that the debt is too old to be enforced by the courts.”
  • The Court continues to apply a 1925 statute intended for interstate business transactions to consumer contracts and the Court bars state regulation entirely.

What Republicans continue to give us is freedom for the boss and drudgery for the rest of us. As the old folk song has it, “same song, second verse, could get better but it’s gonna get worse.”

— This commentary was broadcast on WAMC Northeast Report, May 16, 2017.


What’s to blame for our divided nation? The cause can also be the cure

May 10, 2017

My views of the legal contribution to American polarization and what can be done about it have now come out as

“What’s to blame for our divided nation? The cause can also be the cure” [click here] on TheHill.com. Enjoy.


What should we expect of law, judges and judicial nominees

April 8, 2017

People often ask me whether something is constitutional. I often respond by asking what they mean. Our Constitution is only as good as the people handling it. Beyond that it’s a piece of paper, that bends, folds and tears. The Founding Fathers often referred to constitutional language as parchment barriers.

All law is about prediction. What will the Court, or a judgment do and will the president or the governors enforce what they decree? The 13th, 14th and 15th Amendments became meaningless for decades after President Hayes removed the troops from the former Confederate states. Brown really meant something when Eisenhower sent the troops to Little Rock.

Sure, I think the Constitution should mean more; it should protects us. But I have only the power of argument. When I argue in the courts, I don’t just tell them what I think is right – I argue in ways I think will influence the court I am addressing. I learned that lesson years ago after writing a brief on behalf of several political scientists to explain an aspect of the 1st Amendment. We were only appearing as friends of the court, but our views carried the day on the Court of Appeals. One of the judges wrote that his reasons were well stated in our brief. Of course I thought that judge was a genius. But though we won on the Supreme Court, the grounds of victory had nothing to do with our brief. Plaintiff’s attorney crafted his argument to fit the specific concerns of the justices who would support our position. We eked out a 5-4 victory but when those justices left the Court, it was quietly overruled. It all depends.

Republicans pronounce that sympathy is no part of law, but then where is justice? They claim bound to follow only ancient dictionaries to tell us how two-century old language should be read now, assuming the ancients wouldn’t lift a finger about our problems. Or they claim to rely on precedent. But precedent isn’t self-justifying. We distinguish the authority of Brown v. Board of Education from the  horror of Dred Scott or Plessy v. Ferguson because Brown accurately stated enduring values and the others did not. That’s a judgment about decency and has nothing to do with balls and strikes. This is not a baseball game; language interpreted without decency and humanity slanders the people who wrote and adopted it. Nominees hiding behind precedent hide their heartlessness behind smokescreens and deny the obvious, that their values, or lack of them, will determine how they see and shape the law.

Gorsuch could not tell you that because his sense of good and evil are far from what most Americans would accept. So he and his supporters rely on empty jargon about precedent. But judges exercise judgment about precedent just as they do about language. That’s why we need judges with good judgment, not judges claiming to be logicians with computers who derive answers automatically, unthinkingly and without reference to consequences. That refusal to care is the bastardization of law. When Justice Blackmun protested a decision that left no one  responsible for the helplessness of a small boy, he wrote “Poor Joshua” with understated eloquence. Poor Joshua indeed. Law, like the Tin Man in the Wizard of Oz, needs a heart.

— This commentary was broadcast on WAMC Northeast Report, April 4, 2017.


The Legacy of Barack Obama

January 3, 2017

Barack Obama has been one of our most decent and intelligent presidents. I’ll miss him. Instead of simplification and slogans, Obama explained the complexities of everything from medical treatment to foreign policy. Instead of shooting from the hip, he studied problems carefully and reached mature, intelligent decisions.

But what will stick?

Starting with foreign affairs, Obama got most of the boots off Muslim lands. When Obama took office in 2008 we had close to 200,000 soldiers in Iraq and Afghanistan. Now we have about 15,000 troops, combined, there and in Syria.

ISIS seems to have refocused on Europe but that’s still a problem for us. Europeans’ objectives are compatible with our own, so they are crucial allies, unlike the Russians. But Europe confronts many times more refugees than we do, with backlash and threats to democracy in several countries. American action in Syria added to the refugee flow, but much resulted from revolutions independent of us. More American militarization in the Arab world would inflame the refugee crisis and increase the terrorism directed at us.

Terrorists are fueled by militarization; nations are much more vulnerable to our military – that’s the difference between defeating Saddam Hussein, having him executed and trying to remain there. Trump may talk tough, but will he be fool enough to wade back into those trouble waters?

In Guantanamo, fewer than 60 prisoners remain of the nearly 800 who were imprisoned there.

Republicans dislike the Iran nuclear deal but so far they’ve nothing to show for their fears. Objections from the other signatories may prevent Trump from disavowing it. This may be the first real test of whether Trump has any grip on reality.

At home, Republicans have been yelling for years that they will tear Obamacare down the first chance they get. But their friends in the insurance industry will howl if they do, especially if Republicans leave features Americans like – a guarantee that you can get insurance, coverage for pre-existing conditions, tax credits for small businesses, etc. So it’s not clear what they’ll actually do. Obama took his health care plan from Mitt Romney’s Republican plan. I can think of improvements to the left of Obamacare, but not any that are more consistent with Republican free-market philosophy. Republicans are in a pickle.

Obama got a small stimulus soon after taking office. Terrified it might actually work, Republicans fought to keep it small. Obama’s stimulus worked, slowly, satisfying the cynicism of Congressional Republicans willing to hurt the country in order to make Obama look bad.

Dodd-Frank financial regulation still stands, reigning in a financial system that gambled with everyone else’s money and made a large number of us much worse off.

Obama nominated Sonia Sotomayor and Elena Kagan to the Supreme Court. One has become the conscience of the Court, the other quieter and more conciliatory. Together, they’ve made a the Court much more fair. The future depends on how long Ginsburg lives and how long Trump is in office. The difference Ginsburg, Breyer, Sotomayor and Kagan made could disappear in a heartbeat.

So, there’s a lot to celebrate in what Obama did or tried to accomplish. But I have real fears of what could be done in the effort to discredit him instead of making things better for the people of America.

— This commentary was broadcast on WAMC Northeast Report, January 3, 2017.


Is Democracy in America Coming Apart?

December 6, 2016

I wrote Unfit for Democracy to warn that American democracy could collapse in coming decades. But the problems are coming home to roost sooner than I expected.

How the economy treats people matters. That was the starting point for my work and, since World War II, for political scientists studying the survival or breakdown of democracy. But the American economy has been leaving lots of people behind. In my book I argued that the Supreme Court was diluting the value of ordinary Americans’ economic rights in favor of the wealthiest people and corporations. I feared the danger to democracy as people became more and more desperate.

I also worried the Court wasn’t enforcing the Bill of Rights for ordinary people and feared would-be dictators could take advantage of it. And I worried because the Court permitted politicians to fix the voting mechanisms to make fair elections almost impossible.  Changes made after the 2010 census allowed Republican-dominated legislatures to lock Democrats out of Congress and the majority of state legislatures for the foreseeable future. That Court-sanctioned gerrymandering now blocks fair representation in Congress and in many states. Trump kept claiming that the system was fixed, implying that it was fixed against him, but the Court allowed the Republican Party to block access to the polls in many states.[1] The election was partly fixed, in favor of the Republicans and Mr. Trump.

I also worried that legal changes underlying changes in the media and the primary systems were contributing to the polarization of America. As Jim Hightower once titled a book,  There’s Nothing in the Middle of the Road but Yellow Stripes and Dead Armadillos. I thought that was dangerous.[2]

Now we are finding out that only a quarter of Americans still believe that it is important to live in a democracy. And we’ve elected a president who befriends autocrats – autocrats who destroyed democratic governments, censored the press, put opponents in prison, and took over.

Once that happens, the people who wanted to break the system down have no voice in what the new system does. Autocrats around the globe become kleptocrats – they steal from everyone for themselves and their friends. In commentary earlier this year I described that as the Sheriff of Nottingham syndrome – the sheriff from the Robin Hood legend who took from the poor to fill the pockets of King John. Corruption in democracies doesn’t hold a candle to what autocrats do to their people financially, how opportunities suddenly depend on the dictators’ favor, how freedom disappears, real freedom, the freedom to walk around out of prison and take care of one’s family. Those folks who were so ready to break the system are likely to be among the first broken by it.

The Court won’t protect us. Those with power have no motive to protect us, but only to keep their own advantages. The rich will have more, not less control. Just look around at how Trump is deepening the threats:

  • His worldwide set of conflicts of interest become opportunities for Trump enterprises in the pattern of third-world kleptocracies;
  • He proposes to cut benefits for ordinary Americans, leaving more for himself and friends;
  • He selects America’s wealthiest to run our economy;
  • He rants about asserting “Second Amendment rights” at the polls as if menacing people at polling places advances democracy;
  • He rants about throwing people in jail – starting with his political opponent – though that threatens democratic competition;
  • He seems to think that winning means he can do whatever he wants.
  • And he and the Republicans seem to believe recounts are legitimate only for themselves – not to protect and enforce the voters’ choices.

If American democracy collapses, it will be the biggest victory for the world’s worst people. As Trump pounds on the pillars of democracy, we will have to do all we can to preserve the American democratic way of life.

[1] Unfit for Democracy, at 195-204.

[2] Id.  at 153-67; Law and the Polarization of American Politics, 25 GEORGIA STATE L. REV. 339 (2008).

— This commentary was broadcast on WAMC Northeast Report, December 5, 2016.

 


Postmortem

November 15, 2016

I feel like I’m in mourning. The presidency has been taken by a con man and we all deserve better – those he’s duped as well as the rest of us.

  • Trump was “elected” by an “electoral college” system designed in the 18th century to protect slaveowners by augmenting their votes with 3/5 of their slaves.
  • He was “elected” by a Court unwilling to protect the voting rights of all American citizens.
  • As in 2000, when Al Gore won the popular vote but George Bush became President, the 2016 popular vote went to Mrs. Clinton. President Bush proceeded to make colossal mistakes in foreign affairs for which this country will spend a century paying.
  • Trump was elected with the votes of people who had suffered financially over the past two decades – but they voted for the very people who refused to lift a finger to provide jobs, people who don’t believe government should do anything, including good and important things, and for whom blocking anything Obama wanted to do was more important than helping fellow Americans. With Republicans benefitting from that cynical and deceitful strategy they are back in control of Congress. Good luck to the coal miners, autoworkers, steelworkers and others – they’ll need it.
  • We will now have a dirty old man in the White House as a “role model” for the worst behavior toward women.
  • And his rhetoric threatens to take apart the signal achievement of America – our mutual respect across faith, national origins, class, race, and counting – an achievement central to the status and future of the very people who voted for hate.

I am worried, crestfallen and embarrassed. What is there to do?

First, I have become a supporter of Supreme Court term limits. Rehnquist spent 34 years at the Court, Stevens 35, Scalia 30 and Thomas has been there 25. Erwin Chemerinsky, widely respected dean at the University of California at Irvine School of Law wrote:

The idea is that each justice would be appointed for an 18-year, non-renewable term. A vacancy thus would occur every two years. Vacancies that occur through resignation or death would be filled by appointing someone to serve the unfinished part of the term.

That way the Court would not be dominated by political decisions made decades ago.

Second, I would not confirm any new justice until there is agreement to reverse the decision that allowed states to monkey with their election rules to disenfranchise voters, and until there is agreement to adopt one of the mathematical rules that precisely measure gerrymandering, the level of favoritism to either party – known as symmetry or wasted voters. Some will object that those decisions are for the justices. Nonsense – the appointments clause is the political check and those decisions put the justices’ prejudices ahead of self-government and assured Republican victories, roles no judge should be playing. Those decisions were partisan, self-serving and should be ruled unconstitutional.

Third, we need to get across to people that refusing to vote because there is someone else we like better is a very bad choice because it has very bad consequences. In a democracy, to live and work together we have to be willing to compromise. It’s part of the deal.

Finally, we need to organize. 2018 is two years away and Congress will be at stake again. True patriots don’t give up.

— This commentary was broadcast on WAMC Northeast Report, Nov. 15, 2016.


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