CALIFORNIA OR BUST!

Yesterday, Donald Trump, vowed to fight to make California, the state with the strictest auto emission standards, reduce them to meet his own lowering of national standards to increase the use of fossil fuels and ramp up pollution in the United States (not to mention climate change, which he continues to insist is a hoax). As both a physician and an attorney, I have two separate but connected opinions on this.

First, as a physician, I can virtually guarantee that with decreased emission standards in the US, the rate of lung cancer and especially debilitating COPD (“Chronic Obstructive Pulmonary Disease”) will dramatically increase. It will be like mandating that people start smoking again because quitting is hurting tobacco company profits. This will not only kill people (not a concern of Trump’s), but make people sicker, requiring increasing health care and hospitalizations which will substantially increase the cost of health care and thus insurance in the country. Moreover, without the mandate for coverage for pre-existing conditions that Trump wants gone, many more people will be bankrupted by their illnesses and severely limited in their lifestyles.

Secondly, as an attorney, I have no doubt that we are in for a flurry of expensive litigation regarding this move. We live in a country guided by a constitution which wisely established a federal system of government. It states, simply, that whatever power not specifically granted to the federal government is specifically relegated to the states, because they had just thrown off the yolk of a king and were wary of a strong central government. In most cases, therefore, while the federal government can establish national standards, states are mandated to meet them, but may exceed them if the wish. Plainly put, the issue is whether the federal government can set the floor, but not the ceiling for emissions. I firmly believe that to be the case.

When the Clean Air Act (“Act”) was passed, it “preempted the field,” meaning that states were not free to pass any other standards (presumably lower ones) without a “waiver.” Thus, it would seem that the federal government could withdraw the current waiver at its discretion. I do not, however, believe this to be true in this case. Within the Act it clearly states in section 209 that the EPA SHALL grant such a waiver unless it finds that the California standards:

• was arbitrary and capricious in its finding that its standards are, in the aggregate, at least as protective of public health and welfare as applicable federal standards;
• ​does not need such standards to meet compelling and extraordinary conditions; or
• such standards and accompanying enforcement procedures are not consistent with Section 202(a) of the Clean Air Act.

Having read the applicable portions of the ACT, I do not believe the EPA, under Trump control, could reasonably establish any of the above and therefore should be unable to withdraw California’s waiver. If you have another opinion (based upon fact or legal opinion, not just love of Trump), please comment.

AID AND COMFORT

On January 20^th, 2017, Donald John Trump took an Oath of Office which obligated him to protect the United States from all enemies, foreign or domestic, and preserve, protect and defend the Constitution of the United States. Yesterday, July 16^th, 2018, “a day which will live in infamy,” Donald John Trump did the one thing no President of the United States has ever done; gave “aid and comfort” to an enemy, Russia, which has been engaged in a cyberwar against the United States. It isn’t necessary to detail the myriad other things Trump has done to destroy everything this nation has stood for since its inception. It isn’t necessary to decide whether one likes or hates Mr. Trump, It is only necessary to read the Constitution, as it was adopted in 1789:

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.[1]”

Since most of the world was witness to Mr. Trump’s “aid and comfort” to Vladimir Putin, the President of a nation which declared itself our enemy when it committed an Act of War against the United States in 2016 (an act of which we have amassed ample proof), his behavior falls squarely within the shadow of that definition. The only question now is what can and must be done to try to reverse the damage to the United States and the world.

That answer, also, is given by the Constitution when it declares:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.[2]”

Since both houses of Congress are controlled by the President’s political party (Republican), and they have previously given in to his every whim as if they were a king’s parliament rather than the US Congress, will they fulfill their duty to act? Time is short and neither History nor the voters will look kindly upon legislators so filled with fear of the President that they, too, abandon their oaths of office. This is not a partisan issue. I am a Democrat, I am a Republican, and I am an independent and I call for the immediate action of Congress to rid the United States of the pestilence that is Donald John Trump. The last national leader to commit a similar act was British Prime Minister Nevil Chamberlain who, after meeting with Adolf Hitler in September, 1938 returned to England to declare that “Mr. Hitler has assured me that we will have peace for our time;” and we all know how that movie ended.

[1] Constitution of the United States, Article III, Section 3

[2] Ibid, Article II, Section 4

An Initial Impression of Brett Kavanagh

In the world of the Donald Trump presidency, it is normally expected that anyone not a “Trumper” must necessarily oppose anything he does and anyone connected with him. Moreover, it is clear that in many, if not most cases, such opposition is appropriate. None the less, each action, or in this case appointment, should and must be viewed on its own merits. To be clear, I would certainly have liked a more liberal justice to balance out the Court, and am as concerned as anyone about the future decisions of the Court on hot topic cases, but since he is now the nominee, what can we expect from “Justice” Brett M. Kavanagh if confirmed?

First, and foremost, do not expect him to moderate his conservative positions. He will remain true to them, and thus tilt the Court inexorably to the Right. Still, listening to the pundits, both Right and Left, there appear to be expectations that will be unmet on both sides from whether he would vote to overturn Roe v. Wade to whether he would vote to allow a sitting president to be criminally indicted, or even sued in a Civil Action. Most assume that since he is clearly “Pro-life” in his personal beliefs, that he would overturn Roe and since he has written that a sitting president should be immune from prosecution or civil litigation while in office, he would vote to not allow an indictment by Mueller, or even the lawsuits against him to go forward. Maybe, but a close examination of what he wrote leaves room for doubt.

With regard to Roe, I begin by turning to the Harvard Law Review where he recently wrote in a book review;

To be sure, some may conceive of judging more as a partisan or policy making exercise in which judges should or necessarily must bring their policy and philosophical predilections to bear on the text at hand. I disagree with that vision of the federal judge in our constitutional system. The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be.[1] (emphasis added).

Clearly, Judge Kavanagh is a strict textualist when it comes to both statutory and Constitutional interpretation. But where does that leave us when it comes to Roe? Part of the answer comes in his dissent in Garza (Garza v. Hargan. 874 F.3d 735, 753) where the issue was whether a 17-year-old girl (an undocumented, unaccompanied alien minor), who only found out she was pregnant after she was taken into custody, should be provided with immediate access to an abortion, at her request, and at the expense of the government, or wait until she was transferred to her sponsor’s living environment and pursue it on her own; acknowledging that she would have to fight for her release from custody legally, if she were even able to. About this, Judge Kavanagh wrote; “All parties to this case recognize Roe v. Wade and Planned Parenthood v. Casey as precedents we must follow. All parties have assumed for purposes of this case, moreover, that Jane Doe has a right under Supreme Court precedent to obtain an abortion in the United States.“  (emphasis added). Whatever his personal objection to abortion, which he clearly has, it would seem he is stating that he would not allow it to interfere with his interpretation of the law. Hopefully, this is a correct interpretation of his writing.

Finally, one of the most consequential questions about Judge Kavanagh is his opinion as to whether a sitting president is liable for criminal or civil litigation. In his article for the Minnesota Law Review in 2009, he expressed an opinion that a sitting president should be immune from prosecution, both criminal and civil, until after his term of office, only after which any statute of limitations should begin to run.[2] On the other hand, referencing the Court’s decision allowing civil litigation to proceed in Jones v. Clinton, 520 U.S. 681 (1997), he stated that their decision “may well be right,” but continued later to quote from the Court that ““If Congress deems it appropriate to afford the President stronger protection, it may respond with appropriate legislation.” Id at 709. In other words, while he personally believes that it is destructive to effective government to occupy the President’s time with litigation (citing examples from both Presidents Clinton and Bush), and that such criminal or civil litigation should be postponed until after the President has left office, it is not now the law of the land. Thus, although he has never addressed the exact circumstances that exist with President Trump, he reiterates that because of the Constitutional Separation of Powers, the only recourse that should be available with a sitting President is impeachment, following which all criminal and civil litigation should proceed unhampered because no person, President or otherwise, is or should be above the law.

Taken as a whole, Judge Kavanagh’s views, while strictly Conservative and Constructionist, need not imply that he would vote against allowing such investigations and litigation to proceed, only that he believes it shouldn’t, but that the actual outcome should be left to Congress who may, or may not decide to enact a statute granting such temporary immunity. Thus, it is unclear, despite his well published views, that he may act as a Justice of the Supreme Court should and, in his own words, neutrally apply the law as it now is, and not inject his own beliefs and philosophy into his decisions.

 

 

 

[1] Kavanagh, B.  Fixing Statutory Interpretation, Harvard Law Review, Vol. 129:2118, 2120 (2014).

[2] Kavanagh, BM, Separation of Powers During the Forthy-fourth Presidency and Beyond, Minnesota Law Review, 93, 1454 (2009)

“MAGA” or APPOLYPSE?

After Justice Kennedy’s retirement, Trump Is likely to get to appoint another right-wing (not just Conservative) Justice to the Supreme Court giving us One-Party rule in the United States; one that follows the “personality cult” of Donald J. Trump. The Founding Fathers are not merely turning over in their graves but spinning! It’s what we fought a Revolutionary War to be rid of. With more than half of the people (roughly 30% Democrat and 40% Independent) no longer represented by this government, we are thrown back to the days of “Taxation Without Representation.” How did we get here and what can be done to restore democracy to the United States?

I will resist the urge to provide historical comparisons between the US and other authoritarian countries because it’s after the fact. Let’s concentrate on how we got here and what we can do to change things. Only about 35% of registered Democrats turned out to vote in 2016. It’s that simple. So, what can we do? VOTE IN NOVEMBER! If you refuse to participate in politics, you are doomed to be ruled by your inferiors. What else?

Step 1:  To the extent possible, prolong Trump’s SCOTUS nominee’s senate confirmation until after the election (probably not possible, but it’s worth a try).

Step 2: Democrats must put forth a comprehensive program to, as Trump put it, “Make America Great Again!” It isn’t enough to be anti-Trump or decry his policies and their disastrous effects on the economy, our allies, and the entire planet (e.g. climate change). We need to tell voters what we’re going to do FOR THEM. So here are a few issues around which Democrats and Independents can rally in November;

1. Immigration: We need to satisfy both sides on this issue. Perhaps adults can be charged, as Trump wants, with the misdemeanor of entering the country illegally, but then released with a tracking device until their hearing, keeping their children with them, rather than being kept in internment camps.
2. Guns: There is no quick fix for the gun culture in the United States, but it has been shown that where “assault” type weapons have been banned, gun violence has been reduced, especially mass shootings. A simple ban of the sale of these weapons, along with high capacity magazines would at least reduce the number killed.
3. Jobs: “It’s the economy, stupid!” First, we need to set the minimum wage at at least $15/hour so workers have a living wage. Next, we can take a page from FDR’s playbook and not only hire hundreds of thousands of people to help rebuild infrastructure but retrain those that are unemployed or “underemployed” because of changing circumstances, for the higher paying jobs in emerging (not dying) industries.
4. Education: Public education, now free through high school, should remain free through college (or trade school) at a public college, university, or trade school.
5. Healthcare: This one is simple – universal healthcare. We can do it, we can afford it if it’s done right, and make it better than what we, or other countries, have now. This would also include nationalization of professional licenses (medical, legal, accounting, etc.) so that professionals could go anywhere they are needed without new licensing examinations. Moreover, without this cost, business would not have to provide healthcare for workers, so they become much more competitive.
6. Tariffs: Trump was right about the need to level the playing field so that American business can compete around the world. Lacking understanding, however, he’s using a blunt instrument to swat a fly. Where trade is unfair, install specific tariffs. Otherwise, let’s stick with free trade; especially with our allies
7. Energy: We need to convert the US to renewable energy as soon as possible. This would not only lower energy bills, allow for increased energy consumption and provide hundreds of thousands (if not millions) of high paying jobs, but give the likes of OPEC and Russia less control over our foreign policy.
8. Criminal Justice System Reform. Stop the “War on Drugs” and do useful things to get people to stop or, better, not to start. We can begin by descheduling Cannabis so that it is legal federally, and allow the states to decide what they want, as we do with alcohol. Prisons should not be for-profit and since the death penalty cannot be applied in a non-discriminatory way it needs to be abolished.

There are many more issues that could be addressed including our military and veterans, homelessness, food, etc. but these are a good beginning.

TELL PEOPLE WHY THEY SHOULD VOTE FOR YOU, NOT WHY THEY SHOULD VOTE AGAINST SOMEOENE ELSE.

Finally, we need civility to return to the country. Aristotle once said, “it is the mark of an educated mind to be able to entertain a thought without accepting it.” Politics is the “art of the possible,” and we can only fulfill the Founders’ dream of a liberal democracy if we are willing to listen to the other side and compromise. Do these things, and we actually can;

“Make America Great Again!”

 

On the Retirement of Justice Kennedy

A Supreme Court needs balance to function. Trump’s Party now effectively controls both houses of Congress and, of course, the White House; “one party rule,” where most Americans are not represented in Congress or the White house at all. The last recourse has been the courts. Without a balanced Supreme Court, though, that majority of Americans would have nowhere to turn for justice. Even the ballot box is not immune. Joseph Stalin famously quipped that, “those who cast the votes count for nothing, but those who count the votes count for everything.”

With that said, let’s not prepare for Armageddon quite yet. History has seen many great countries; empires stretching for thousands of miles, begin as a democracy of some sort and devolve into autocracy. From ancient Athens, to Rome, and right up to our present day with the demise of the Soviet Union, autocratic regimes have eventually meandered back into some form of democracy. Moreover, even if we look at the absolute worst-case scenario, the rise and fall of Adolf Hitler and NAZI Germany, hope remains.

After World War I, an armistice agreement was forced upon the loser, Germany, that stuck in the throats of most Germans. When the economy crashed in the 1930s, those people at the bottom of the socioeconomic ladder searched for an answer, which came in the form of Adolf Hitler. He promised to strengthen the military and bring prosperity back to the people; to “Make Germany Great Again!” Perhaps most importantly, however, he told them that their problems were not their fault. It was the Jews, Gypsies, homosexuals, and a few others that brought it upon them and therefore they had to be “removed.” As Chancellor, Hitler asked for and received emergency powers from the Reichstag after his own people set fire to the Reichstag building and told the public and members of the Reichstag it was done by “Terrorists.” After that, there were, effectively, no more elections.

If that story sounds familiar, it should because we’re reliving it right now. To be clear, I am not equating Donald Trump with Hitler. I am, however, equating his narcissism, hunger for power and lack of morality with Hitler’s and his political and media tactics were children of Joseph Goebbels, Hitler’s Minister of Propaganda. Unfortunately, even without the Holocaust, our path may continue as theirs did. A Military, once dramatically increased in size, budget and influence must eventually go to war, if only to prove their value. A cabinet of Oligarchs, as Trump has surrounded himself with, will remain dependent upon him for their increasing billions and virtual immunity from the law, and thus strengthen his position.

As bad as this sound, and even though it could be triggered by Justice Kennedy’s retirement (at the suggestion of Trump?), hope remains. First, a truly “BLUE WAVE” in November would not change things back because of Trump’s veto power, but it could limit the damage. An election in 2020 of a Democratic (or even a moderate Republican) President could begin to reverse the damages as well. The most comfort, however, comes from looking that the original “Axis Powers” today. Japan is prosperous, modern and helping to lead the world in fields like Robotics. Italy returned to the “Lay-back” country they always were, and are part of the US inspired European Union. Finally, Germany, now a liberal democracy, leads all of Europe economically and politically. Angela Merkle is one of the most respected people in the world and most importantly, Germany is leading the fight for human rights and the human condition. We can return stronger and more free than ever, and ready to lead the world once more.

HOPE FLOATS