Healthcare: What’s Next?

As you’ve certainly heard, the Senate tax-cut-for-the-wealthy-at-the-expense-of-the-sick has met it’s death. Yes, Mitch will hold a “Repeal Only” bill next week, but that’s not going anywhere either. You may wonder why that vote is being held, and the answer is rather simple: Donald Trump is intellectually impaired. The White House has put a lot of pressure on Mitch to hold said vote because first, while #NotMyCheeto cannot name all 52 GOP senators, he holds out some hope that he can corral people to vote for it, and second, because he views the vote along the lines of a “loyalty” vote. He wants that opportunity to take names on who is “fir ‘im, and agin ‘im”. Also, Mitch would rather be a loser than a quitter.

So what’s left? Basically the option that cost John Boehner the speakership: bipartisanship. The other option would be for #NotMyCheeto to cease the insurance company payments, and dismantle the individual mandate via Executive Order, which would throw 32 million people off the roles of Exchange-based insurance as well as Medicaid as soon as the insurance companies could get new rate levels through the state insurance commissioners. While Trumpkin couldn’t care less, since his criminal family isn’t affected, and there’s no impact on Russians, the House and Senate DO care because the full house and a third of the Senate is up for re-election next year, and voters never forget who took something from them.

At the White House yesterday, Trumpkin said: “We’re not going to own it. I’m not going to own it. I can tell you the Republicans are not going to own it. We’ll let Obamacare fail, and then the Democrats are going to come to us.” Idiot. Continue Reading...

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The Fourth of July and Ancient Greece and Rome

One of my personal traditions for the 4th of July is watching 1776.  For those who are unfamiliar with this movie, it is based on the 1970s musical of the same name and starts the recently deceased Ken Howard as Thomas Jefferson.  In part because of the era when this musical was written, it takes a more open-eyed view of the events of the Spring of 1776 leading up to the Declaration of Independence — including the flaws of the founding fathers, the difficulty in getting the resolution on independence passed, and how slavery almost prevented independence.

Aside from its willingness to confront the history mostly head on — it acknowledges the existence of a faction in the Continental Congress that was more interested in compromise than independence but glosses over the large loyalist contingent in the country as a whole — another interesting thing about the musical numbers is that the last musical number — sung by John Adams — includes some allusions to the Roman Republic.  At the time of the framing, Rome and Athens were seen as models of ancient democracies and what could go wrong with them.  This admiration can be seen in Washington identifying himself with Cincinnatus — an early Roman statesman who was called to serve Rome in a time of crisis — receiving emergency powers — who resigned to return to civilian life when the crisis had passed and the three authors of The Federalist Papers using the pseudonym Publius.  Putting aside the fact that, in reality, both Rome and Athens were much less democratic than the United Kingdom, a major interest of the framers (discussed at length in their writings) was why Athenian democracy and Roman democracy ultimately fell and what that meant for the new country that they were building.   In both cases, the problem was that the small country became an empire.

In the case of Athens, Athens sought to use its preeminent position after the Persian Wars for its own benefit at the expense of its supposed allies (who quickly became client states) and its neighbors.  The result of this “Athens First” policy was to encourage revolts in the subject states and an anti-Athens alliance among its neighbors leading to constant warfare until another regional power crushed all of the Greek city-states.  In the end, putting Athens First did not make Athens Great Again. Continue Reading...

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The Supreme Court and Immigration

The Statue of Liberty stands as a symbol that this nation was built on immigration.  This past term (and apparently this upcoming term) immigration was a significant part of the Supreme Court docket.  Of the eight cases involving immigration or the border, the Supreme Court issued decisions in five, sent one back to the lower courts (in light of one of the four decisions), and set two for re-argument in the fall (as both were argued before Justice Gorsuch joined the bench, the implication is that there was a 4-4 split or that the majority lacked a consensus on the legal theory for the result).  In addition, the Supreme Court is going to hear argument on the travel ban.

Going in chronological order, at the end of May, the Supreme Court issued a decision on the crimes that trigger deportation — narrowly interpreting the statute to limit the state offenses that trigger deportation.  The decision involved charges of sexual abuse against minors with the court defining minor as under 16 and requiring that the state offense be limited to minors under sixteen.  On the cases that were decided, as discussed in an earlier post, the Supreme Court struck down the law governing birth citizenship when a child is born abroad to parents with split citizenship (i.e. one is a U.S. citizen and the other is not) because the law discriminated based on the gender of the U.S. citizen.

In the next to last week of the term, the Supreme Court issued three more decisions.  The first case — involving a challenge to immigrants arrested after 9/11 — technically was not about immigration but about the right to sue the government and government official for civil rights violations.  While there is a federal statute authorizing individuals to sue state officials, there is no such statute for civil rights violations by federal officials.  While the Supreme Court has authorized such suits in a limited number of circumstances, the Supreme Court has been reluctant to expand that right.  The Supreme Court found that the claim in the most recent case were not similar to the previously recognized claims and decided that it was up to Congress to decide whether to enact a statute authorizing such claims.  That decision also led to the decision to send the second civil rights case (involving a cross-border shooting) back to the lower court to review whether it was the type of claim that could be brought.  (The lower court had originally decided the case on the issue of whether it was a civil rights violation.  In sending the case back, the Supreme Court raised doubts about some of that reasoning.) Continue Reading...

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Election Update

May and June were significant months for elections, both in the United States and Europe.  While the news media tends to overhype some elections and ignore others, there are some conclusions that can be drawn from those elections.

Starting with the United States, the big news has been a series of special elections — focusing mostly on three Congressional seats held by the Republicans.  Neither party can be particularly happy with the results at the Congressional level, but certain things need to be noted.

First, except when caused by death or sudden resignation due to scandal, most vacancies occur in what the parties consider to be “safe” seats.  With the exception of the upcoming special election in Utah, the special elections for the House are all the results of an executive of their own party “promoting” the member of Congress to an executive office.  In California, you have to go back to 2012 to see the last time that a Republican even ran in the 34th district.  The four Republican seats were solid wins for the Republican incumbents in 2016 with the closest margin being 16% in Montana.  All five of these districts were double-digit wins for their party’s candidate in 2012.  The only district that was arguably winnable by the “out” party was Georgia 6 and that is only if you looked solely at the 2016 presidential election.  By the partisan vote index, Georgia 6 is still R+8, meaning that the Democrats would need to get around 58% nationally to win that seat. Continue Reading...

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Free Speech Uber Alles

The late Supreme Court Justice Hugo Black was famous for a very literal interpretation of the First Amendment — that the language in the Amendment providing that “Congress shall make no law” meant that Congress should make no law.  While the current Supreme Court does not go quite as far as Justice Black, a consistent theme of the Roberts Court has been — with the occasional exception that proves the rule — a very broad interpretation of the First Amendment to strike down any law in which the government either directly (by banning it) or indirectly (by favoring other speech) regulates speech.  Simply put, if there is a free speech component to your case, the expectation has to be that the government will lose if the Supreme Court grants review and the only question is exactly how the justices will line-up in the decision.

This week saw the last two free speech opinions of the term (there is a remaining free exercise case that could incorporate some of the recent free speech cases into that sphere of law) — both issued on Monday.  In both cases, the ultimate decision was unanimous, but there was a liberal-conservative split in the reasoning.

The more “traditional” case was Packingham v. North Carolina.  This case involved a North Carolina statute that barred registered sex offenders from accessing commercial social networking website if juveniles could also join that site.  (Under the very broad definition used by North Carolina, this site might qualify.)  All eight justices (the case was heard in February before Justice Gorsuch joined the Court) agreed that the statute was overbroad and not narrowly tailored due to the sheer number of sites covered by the statute that were not primarily designed to facilitate the type of one-on-one real world interaction that the Court saw as the legitimate purpose behind the statute.  The main disagreement in the case — between Justice Kennedy writing for the “liberal” majority and Justice Alito writing for the three conservative justices — was how to characterize the internet.  The majority described the internet as the functional equivalent of public streets and parks.  (In free speech law, streets and parks are considered “public forums” and the government’s ability to regulate is very limited — some content-neutral “time, place, and manner” restrictions like requiring parade permits are allowed, but such restrictions are closely examined to determine that they are not being used to prevent speech.)  From a factual point of view, this analysis is partly accurate.  The internet itself is arguably like a street, but the individual websites are more like private homes and offices.  The dissent — borrowing from language in the majority about the need to be cautious in applying existing legal categories to the internet to avoid inhibiting the speed at which the internet is changing — thought that it was not necessary to categorize the internet as a public forum.  (Because both opinions recognize that preventing crime is a legitimate governmental interest potentially supporting restrictions on sex offenders, there are likely to be future cases considering whether other restrictions — whether imposed on sex offenders on a case-by-case basis or statutes that apply to certain categories of sex offenders across the board — are narrowly tailored.) Continue Reading...

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Supreme Court 2016-17-Two Weeks Left

One of the unwritten rules of the Supreme Court is that, come hell or high water, the justices will get all of the opinions issued before the July 4th weekend.  (In the past, some justices actually maintained a summer home outside of D.C. and those justices were very keen on getting out of D.C. as soon as possible.  Even today, justices will spend a good part of the summer elsewhere giving presentations and lectures for various schools and groups.)  That will make for a very packed last two weeks.  It’s not just that the number of remaining opinions is slightly high, but the number is high after a very light term.  For the past decade or so, the Supreme Court has heard between 70 and 86 cases per term.  This year, they have only heard 64 cases.  The last two weeks of the terms have seen the court issuing between 9 and 17 opinions.  This year, we still have 17 cases waiting for opinions.  (The pace of grants of argument for the upcoming term is also a little light with 19 cases granted so far which would only take the Supreme Court through November but there tends to be a decent number of cases granted during the last two weeks of the term when the Justices run out of time to postpone making the decision to grant or deny argument in a case.)

Given the large number of cases, it is more likely than not that there will be multiple opinion dates during these two weeks.  In theory, all of the opinions could be issued on one day in each week — the decision on which opinions are final and ready to issue is made at the weekly conference (June 15 and June 22).  But last second “non-substantive” edits that delays the Court’s printshop from having all of  the opinions printed and the sheer number of opinions tends to result in multiple opinion days during this point of the term.  (In addition to the two regular conferences, there is always a wrap-up conference after the last opinion issues.  In the past, the wrap-up conference typically featured cases that had been “held” because they involved an issue raised in one of the argued cases.  Once the argued case has resolved the issue, the held cases can be sent back to the lower court — if necessary — to apply the ruling in the argued case.  In recent years, the practice of taking at discussing cases at two or more conferences before granting argument means that the wrap-up conference involves a final decision on several pending applications.)

As noted in past years, the Supreme Court has customs regarding the assignment of opinions that makes it somewhat possible to predict what Justice is most likely to have which opinion by this point of the term.  Of course, the number of outstanding opinions does make it a little bit harder this year.  The general rule of thumb is that the Supreme Court tries to keep the workload balanced.  With eight justices for the first six months of the term, that usually means that: 1) in any month with seven or fewer cases, no justice gets two opinions, and some justices do not have any opinions; 2) in any month with eight cases, each justice gets one opinion; and 3) in any month with nine or more cases, each justice gets at least one opinion, but no justice gets more than two opinions.  Additionally, this practice means that a justice who was skipped one month is likely to get two opinions in a following month and a justice who had two opinions in one month is likely to get skipped in a following month.  At this point, we do not know whether Justice Gorsuch will be getting one or two opinions from April (we already have one opinion from Justice Gorsuch).  If Justice Gorsuch only has one opinion, seven of the other justices will eight opinions and one will have seven opinions.  If Justice Gorsuch has two opinions, six of the other justices will have eight opinions and two will have seven opinions.  The two justices most likely to have only seven opinions would be the two junior justices — Justice Sotomayor and Justice Kagan — but there is always the possibility that the Chief might decide to count a complicated case as a two-fer to spread the burden of opinion-writing around. Continue Reading...

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Birth Citizenship — Supreme Court sends issue back to Congress

There are two ways that a person can be a natural born U.S. citizen.  First, under the Fourteenth Amendment, they can be born in the U.S.  Second, they can be born to U.S. citizens.  For this second category, Congress has established some conditions that must be met related to how long the U.S. citizen parent has resided in the U.S.

Looking at this second categories, there are eight possible combinations of three crucial factors — is the mother a U.S. citizen; is the father a U.S. citizen; and are the parents married.  (Actually, there are six, if neither parent is a U.S. citizen, the child can’t inherit citizenship from her parents.)  Having six different combinations in which at least one parent is a U.S. citizen, Congress has enacted different rules based on which parent is a U.S. citizen.  In particular, an unwed U.S. citizen mother has to spend less time in the U.S. than an unwed citizen father or married couples in which one member is a U.S. citizen.  Earlier this week, the Supreme Court issued an opinion on the constitutionality of these rules.

The case involved a man facing deportation.  That man’s father was a U.S. citizen but had left the U.S. twenty days before meeting the statutory requirements for conveying citizenship to his children.  As such, even though the father had returned to the U.S. with his family (including the person seeking citizenship in this case), the man was not entitled to automatic citizenship and — because he had not sought naturalization — could be deported. Continue Reading...

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Keeping the Light of the Paris Agreement Alive

There was a lot of consternation and sadness when #NotMyCheeto pulled the US out of the Paris agreement, thus putting us in the company of Nicaragua and Syria. BUT! Take heart that 30 states, cities and an ever growing number of corporations have said that they will still work towards getting us off fossil fuels and saving the planet as best we can for our children and grandchildren, and those to come after them.  Mike Bloomberg is in for $15 million to help with the effort.

Just because #NotMyCheeto says no does not mean that all the rest of us cannot say yes. And there is a lot that we can do as individuals to help the planet .

  • First, what kind of car do you drive? What kind of mileage does it get? Did you know that close to 30% of all domestic carbon emissions come from transportation? This is almost the amount from electricity production. 24 pounds of emissions per gallon of gas. A little math – if you drive 12,000 miles a year (which is about average) and your vehicle gets 20 miles to the gallon, that’s 14,400 pounds a year. Switch to an efficient car getting 40 miles to the gallon and that drops in half. As an aside, along with your car payment and your car insurance since littler cars are cheaper to buy and own.  Further, make sure your tires are properly inflated, drive the speed limit, and if possible, avoid traffic.
  • If possible, walk, bike or carpool. Since this doesn’t often work in the suburbs, at least plan your errands in a circle so you’re not backtracking in your car.
  • Next, your house – it’s not just swapping out your light bulbs, but setting your thermostat a little higher in summer, and a little lower in winter. Make sure that curtains are closed facing east in the morning and especially facing west in the afternoon to decrease summer heat. Leave curtains open all day in the winter to get the benefit of warming sunshine.  Make sure your house if properly insulated. If you have electric outlets on outside-facing walls, you can get little pre-cut insulation pads for even that small space. If you can afford it, consider solar panels.
  • When you fly, buy carbon offsets. You can do this for a variety of things, but the most common is air travel. Also, as you probably know, for the same reason that public transportation is a better way environmentally to get around, avoid private planes.
  • Don’t forget the carbon impact of food. Local food is always best (especially if it’s from your own garden.) Buy local if you can: the further a food travels, the more carbon involved in transporting it.
  • Eat less beef and dairy. Especially imported beef. Eating lower on the food chain is not only better for the environment, but better for you.
  • When you buy food, seek out less packaging. All that plastic is made from fossil fuels. It’s just not that hard to bring your own tote bags. And those thin plastic bags in the produce aisle for things that need to be bagged, like green beans, peas and cherries? They’re reusable, too.
  • In your garden, seek out native plants. They take less water and are better for the birds and bees.
  • Decrease your trash! Recycle everything you can. And that goes for bigger things, too, not just the packaging from items you purchase. Electronics, appliances, and a whole variety of things can be recycled, or reused by someone else.
  • Learn your carbon footprint. There are a variety of calculators, just Google “What’s my Carbon Footprint” – the best calculator depends on where you live, and what level of detail you want to calculate.

Face it, there’s a lot we can do as individuals. And of course – make sure to vote out the idiots that got us here. There is an election this year, on the first Tuesday after the first Monday in November, as there has been every year since 1791. Go support a candidate running locally over the summer and commit to getting 10 friends to vote for your candidate in November.

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A June to Remember/Fear?

There are times when, through the normal cycle, and discretionary decisions, events start to come in rapid procession.  June is shaping up to be one of those month between elections (both in the U.S. and abroad), the end of the Supreme Court term, and the matters currently on the plate of Congress.  We have already had the first major event of June — the decision by the Trump Administration to make America weaker by playing to his misinformed base on climate change and withdrawing from the Paris Accords.  It’s almost impossible to count the reasons why this decision is wrong,  here are a few:  1) the agreement was non-binding; 2) being a signator gave us a seat at the table in future discussions; 3) withdrawing makes China and the European Union more powerful; 4) state laws requiring an increasing percent of energy to come from renewal sources are still in effect and will contribute to the U.S. meeting its pledge anyway; 5) the federal courts have held that greenhouse gases are a pollutant requiring federal action under the Clean Air Act (even though the precise terms of the regulations to reduce greenhouse gases are not yet final) which means that we may have to meet or exceed the pledge anyway.

Moving to the Supreme Court, June is looking like immigration month.  May ended with a decision in the first of four immigration cases heard this term.  The case involved what types of sexual offenses against a child trigger deportation hearings for authorized immigrants (e.g., permanent residents).  The Supreme Court narrowly interpreted the statute, meaning that — for some sexual offenses (those that can be committed against a 16 or 17-year old — the first offense will not trigger deportation.  Two of the other three also directly or indirectly concern deportation.  In addition, with the lower courts having barred enforcement of the travel ban, the Trump Administration is asking the Supreme Court to stay those injunctions.  (The real issue is the enforcement of the restrictions on visas and entry.  It is likely that the Supreme Court will grant relief to some overbroad language in those bars that could be read as suggesting that the Trump Administration can’t begin work on revisions to the vetting process.)  There are 22 other cases to be decided this month, so immigration will not be the only big news this month.  And, even aside from the decisions in cases already argued, the Supreme Court will be deciding what cases to take next term and there are some potentially major issues that could be on the agenda for 2017-18.

Moving to U.S. elections, there are still three special elections — all of which will occur this month.  Two — in Georgia and South Carolina — involve vacancies created by the Trump cabinet appointment.  The other — California — arose from a vacancy created by filling the vacancy in the California Attorney General position created when the former AG won the U.S. Senate election last fall.  Because California uses a “jungle primary” (i.e.  one in which all candidates from all parties run in one primary with the top two advancing to the general election), we already know that the Democrats will keep this seat and the only question on Tuesday is which Democrat will be elected.  For the most part, both parties in choosing members of Congress to fill vacancies have followed the rule of only choosing people from “safe” seats.  As such, while the Democrats have so far — in the first round in California and in Montana and Kansas — run around 10% ahead of 2018, this success has not changed the winner of any seat. Continue Reading...

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Memorial Day: Bought and Paid For…

Vietnam Memorial Wall

This is my post from 2015. Nothing to add.

Today is Memorial Day. It seems bittersweet to say “Happy Memorial Day” as this day was bought and paid for with the blood of those men and women (and dogs) who gave their lives so that the rest of us can breathe free. Continue Reading...

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