Archive for the ‘Constitution’ category

Policy Or Ethics?

January 19, 2017

As each of President-elect Donald Trump’s cabinet picks get their day in the sunshine before Senate Committees, the recurring questions before these committees involve the nominee’s policy direction and personal ethics.  Is the nominee free of obvious conflicts and conflicts of interest? And, what direction (what policies) would the nominee pursue if confirmed?

With Republicans holding sufficient votes to confirm any and all of Mr Trump’s selections, one wonders what purpose these hearings serve.

The Secretaries of State and Defense seemed qualified, free of conflicts, and ready to perform these important roles. Arguably one could question Rex Tilleson’s qualifications since he has no prior government experience but he was the CEO of the world’s largest corporation and there is a large, in place, civil service State Department staff ready to advise. Transportation Secretary, Elaine Chao, breezed through her hearing the easiest of all the nominees. Since there is little controversial about Transportation, other than the billions ($$$) an infrastructure renewal program might create, the Senate Committee treated her with kid gloves.

Betsy DeVos, Tom Price, and Scott Pruitt, nominees for Education, Health and Human Services, and the EPA, on the other hand, presented potential red flags. Each of them in prior public statements have strongly rejected current policies and accepted science.

Ms DeVos is an advocate for vouchers, Mr Price has been a harsh critic of the Affordable Care Act, and Mr Pruitt has questioned the validity of global warming.

The questioning of Ms DeVos revealed (IMO) a wholly unqualified nominee who is intent upon championing the use of vouchers to funnel public tax funding to religious schools. Ms DeVos is a self proclaimed evangelical, and who has never herself attended public schools and chose not to send her own children to public schools. This woman has an agenda.

Mr Price will be charged with implementing the “replace” part of “repeal and replace Obamacare”. Why was any time wasted on questioning his stock trades when there is still almost nothing known about what President Trump will ask Secretary Price to implement? While trading stock upon which the Senate is about to vote is unethical, everyone else in Congress seems to have done it.

But the “replace Obamacare” may also lead to “privatize Medicare” and to “block grant Medicaid”. Is Mr Price going to be comfortable leaving millions of Americans either without healthcare coverage, with second class coverage, or just the best coverage money can buy? (If you have no money, you get….)

Mr Pruitt is most likely qualified to run EPA, if only based upon past government experience. Which direction he will lead the EPA will be a matter of Trump Administration policy and it may be wise, neutral, or dangerously flawed. As the nominee, Price will initially be bound to follow existing law.

On ethics, questions have been raised about Pruitt’s close ties to the Oil and Gas Industries where he has championed Industry positions while receiving large campaign donations from these groups. Unethical? Or has everyone else in Congress done the same with donations from other groups?

These confirmation hearings have shed more light upon how far from “advise and consent”, the confirmation process has drifted. With Congress so conflicted with the need to raise obscene amounts of campaign funding, questioning the nominees appears too often like the pot calling the kettle black.

With respect to policy, elections have consequences. Republicans and President-elect Trump won, and now our Country’s governance is in their hands.

  • Vouchers should be a non-starter if only based upon the first Amendment.
  • If the Trump Administration steps back from the less than perfect Obamacare coverage and insures less Americans, or worse attempts to change Medicare or Medicaid, in two and four years voters will fix that mistake.
  • The EPA might represent the most significant trap for the new Administration. Sophisticated deemphasis which skilled politicians like Scott Pruitt can apply to daily EPA activities, over time, can make the Flint, Michigan lead in water tragedy look mild. Voters will also feel this impact, maybe as early as four years.

No one will remember in four years that Betsy DeVos donated $200 million to Republican candidates, or that Tom Price bought and sold stock while deliberating on legislation, or that Scott Pruitt, while taking large donations from the Oil and Gas Industry, sued the EPA over regulation limits targeting those industries.

What Americans will know is whether education has improved or not, whether their healthcare is affordable and adequate, or whether the air, water, and ground are more polluted or less so.

With respect to these nominees, there is no reason that they could not be successful. Success will not be measured, however, how many Republican check list items are accomplished, but rather by the state of life four years from now.

Unfit To Govern

June 21, 2016

There are two political races to be decided this November. One, the Presidential selection which offers an experienced, intelligent women versus an opportunistic political neophyte. The other race contests the legislative branch hopefuls, “just say no Republicans” versus “just say yes Democrats”. Polls currently favor Hillary Clinton but are inconclusive on whether Republicans will lose control of the Senate or both the Senate and House. Why should we care?

Yesterday offered one example. Four proposals spurred on by the Orlando mass shootings were defeated. At least two of the proposals made common sense on their own merits without any added emphasis from Orlando. Yet the GOP majority was able to narrowly defeat the measures.

More and more political pundits are now writing about the “Republican Party is theparty with no clothes on”. The past 8 years and the recent GOP Presidential primaries have exposed the Republican Party as nothing more than a collection of single issue, the earth is flat, factions. Protecting the 2nd Amendment is one thing, but interpreting the 2nd Amendment to include rapid fire assault type weapons equipped with high capacity ammo clips defies common sense in all civilized countries outside the US.

Senator John Cornyn speaking after the Republican majority voted down these proposals said that the country needed to get back to eliminating the real cause of these mass shootings, ISIS, rather than pursing measures which attacked the 2nd Amendment. Hmmm.

Ones first reaction is “what did he just say”? Newtown, Columbine, and Virginia Tech involved no political motive at all, and the Orlando mass shooting did not involve foreign assistance at all. The Orlando shooter just went to a friendly gun store and bought his weapons of mass destruction.

House Speaker Paul Ryan is also speaking out. He is touting “A Better Way”, a saga in six parts. His message, to his credit, begins saying yes to some policies.

For example, Ryan says the GOP wants to end poverty, and that is Plank 1 in the 6 steps to A Better Way. Without a doubt this is a worthy target. Ryan’s plan, would make recipients be actively searching for work. Hmmm. Not much more details available unfortunately.

Plank 2, National Security while important is another non-starter for a party which seems not to recognize the US spends more on defense that all other countries combined. Ryan’s proposals would spend even more while still being against increasing taxes and in favor of cutting entitlements.

Plank 3, Tackling Excessive Regulations simply begs the questions which ones and in what manner. George W Bush tackled regulations and brought us a weak FEMA (Hurricane Katrina response) and ultimately the near 2009 depression. Today the GOP decries oil and gas regulations even while there are rising concerns about drilling operations and associated earth quakes. Hmmm.

Plank 4, Congress Reclaiming Its Constitutional Rights is a duh moment. For a party which voted near 50 times to repeal Obamacare without ever proposing what would replace it, one would not be out of place to think Congress (at least a GOP lead one) already has too much power.

Plank 5 and 6, Healthcare and Taxes are still to come. It is hard to believe these planks would be more than same old, same old.

Credit to Ryan for at least raising issues which would do well with serious review. Poverty is by far the number one issue weighing down America’s productivity, not to mention its conscience too. Healthcare and taxes have plenty of room for reform if done with all Americans (not the top 1/2 of 1%) in mind.

Pundits are recommending that Donald Trump toss out his great Mexican wall and open profiling of Muslims positions and get behind Ryan’s “A Better Way”. So far Trump has not seen this wisdom.

Sadly, I do not expect to see much better thinking from Hillary Clinton or the Democrat Party. The best they can offer is status quo and fewer promises that cannot possibly be kept.

Looking at the rest of the developed world and thinking that America can go back to some time in the past, “Making America Great Again”, or giving more latitude to flat earth religious groups, is simply emblematic of a political party caught on the wrong side of history.

The current version of Republican thinking inescapably paints the GOP as unfit to govern (at this time).

And Now There Are 80

April 18, 2016

The Department of Defense has announced the return to two Yemeni “detainees” to Saudi Arabia from the Guantanamo Bay Detention Facility. With their release, Guantanamo headcount drops 80. This number includes another 23 who have been cleared for release pending completion of the nitty gritty such as which country will actually receive them. Hmmm, 57 in a prison with a capacity for upwards of 700.

Anyone who worries about the foibles of big government need look no further than the fiasco of Guantanamo. Originally establish to house and process al Qaeda members and sympathizers, the Guantanamo detention facility vacuumed up a motley collection of nasty terrorists, questionable persons guilty of being in the wrong place at the wrong time, and a healthy dose of totally innocent souls turned in for the promised ransom payment.

Once housed in Guantanamo, the unfortunate detainees and the US authorities began to realize there was no recognized legal procedure to process the detainees.

So if anyone is wondering how so many Americans can be Donald Trump supporters, Guantanamo is one reason. Congress, read the GOP leadership, has made keeping Guantanamo operating when any security or business analysis leads one to closing it and transferring the remaining inmates to super max prisons State side. Why?

The reason given (said with a straight face) is “to protect” Americans. Guantanamo is full of “crazy bastards” who are bent on killing us, Lindsay Graham says. You are immediately struck with the question “does he really believe that” or is this just another political smoke screen?

Bringing the Guantanamo detainees to US prisons would probably open the possibility of civil rights court actions since these prisoners have not been charged (a Constitutional guarantee for a speedy trial). And for most there is a reasonable chance they would be released.

But there is a bigger recognition that is being overlooked. There is no shortage of terrorists or persons willing to attack Americans and American interests around the world. No one should ever allege that the Guantanamo detainees are the worst of the worst. What about all those ISIS thugs who decapitated their prisoners? Are they somehow a grade less on the scale of worst of the worst.

Closing Guantanamo makes sense from a financial position, from a consistency with our laws and traditions, and demonstrating that Republicans and Democrats can make worthwhile decisions together.

The Republican intransigence is just one more proof to Trump supporters (and many others) that the GOP can’t govern.

Pandering To “Deeply” Held Religious Views

April 16, 2016

The Constitution’s first amendment guarantees that Government will not restrict expression of religion. But what is included in this presumed freedom? Can mothers prevent their children from being vaccinated to guard against a communicable disease if their brand of religion believes god will safe guard their child? Or, what if ones religion rules out blood transfusions? Could an individual refuse a transfusion? Could that individual refuse a life saving transfusion for his spouse or child? Hmmm.

Many religion are associated with certain wearing apparel. In America, there is fairly wide acceptance or probably better daid, an indifference) to religious dress such as Jewish Kippah, Muslim Hijab, or Amish traditional dress. And underlying this acceptance (or indifference) is that no one else is forced to wear these items.

The operating principle over the years has been religious freedom means that an individual can believe what they want providing their beliefs do not hurt others.

The secular world is another place altogether. Here is where the economy and daily living takes place. One would nowadays never expect to see a door at Walmart which said “Christians Entrance”, or another which said “Blacks Only”. Over the years, secular laws have evolved to provide a commercial world open to all.

The rub arises when religious worlds cross paths with the secular world. Christians normally have religious services on Sunday while Jews hold services Friday evening. In the recent past, there existed a set of laws restricting commercial activity on Sundays. These so-called “blue laws” attempted to discourage most commercial activity on Sundays.

Today there are no laws requiring a commercial establishment to operate on Sunday but more importantantly there are no laws preventing them from being open. Commercial businesses, even those associated with specific religious groups have a choice. No one is required to shop on Sunday and no business is required to be open.

Now a new conflict has arisen testing freedom of religion.

Over the past few years as the Country’s social conscience has evolved to where a majority of Americans accept the LBGT community and recognize same sex marriage.Unfortunately many religious organizations have brought forward objections under the headline, homosexuality, changing gender identity, and same sex marriage violate “deeply held religious views”.

While the law of the land might be that same sex marriage is legal in all 50 States, certain individuals holding “deeply held religious views” believe they possess a right (from the first amendment) to withhold service (during their work) from those who are in some way in violation of their “deeply held religious views”.

There is a cartoon circulating which shows a number of grocery store check-out lanes. In the first lane, the employee tells the customer that due to his “deeply held catholic beliefs” the condoms the customers wishes to purchase must be taken to another lane. In the next lane, a Muslim tells the customer that due to his “deeply held religious beliefs” he can not ring up the bacon and that the customer must take the product to another lane. Sound ridiculous?

Consider then the recent move by some Republican majority States to pass laws nibble away at rulings by the Supreme Court.  These individual instances are not isolated but reflect a broader effort by evangelical and fundamentalist religious groups to have it both ways. They want freedom of religion and they want the right to take certain freedoms from others. Hmmm.

These religious groups want the right to deny service to others whose life style they deem an offense to their “deeply held religious beliefs”. As private organizations, one might understand rules excluding others who can not meet religious tests but when members of these religious organizations are working in the public sector, this seems way over the line. What ever happened to “love thy neighbor as thy self”?

As disappointing as these religious groups behavior, even more disappointing, yet not that surprising, are the political leaders who are pandering to these evangelicals and fundamentalists.

So it should be no surprise that States like Indiana, North Carolina, Georgia, Mississippi, and Alabama have all proposed or implemented State laws which in some way attempt to “guarantee” religious freedom and protect individuals who discriminate from civil suits…  anyone, that is, who withholds services due to “deeply held religious views”.

For these religious groups, it takes very small people to think and act in a mean and discriminatory way.

For these political officials, the bar is even lower. Politicians only seek enough votes to remain in power while feeding off the public trough.  Votes are just votes.  Et tu Ted Cruz.

Equal Protection Under The Law

March 24, 2016

Yesterday the Supreme Court heard oral arguments on Zubik v Burwell, or better said the Catholic Church against women’s right to reproductive health.

The legal argument briefly stated is that Catholic (or any religious) affiliates should not be forced to violate their deeply held religious beliefs if so required by some Federal law. In this case the issue is Obamacare and its requirement to provide cost free birth control methods as part of an employee’s healthcare plan.

The Sisters of the Poor said “we can’t” and Health and Human Services Secretary Burwell said there is a “work around”, use it. Legal counsel, of course, used more complicated arguments but the plaintiffs argue that their religious rights were “hijacked”. Hmmm.

There is no question that the Catholic Church (other religious organizations) have a perfect right to hold whatever beliefs it deems important. And there should be no question that the Catholic dogma has consistently opposed birth control, even though most Catholic women today welcome and use birth control.

The question before the court is whether the Sisters in observing the Church’s ban on contraception can overlook the ACA’s birth control requirements. Please note the law does not require anyone to use birth control.

This conflict need not have been necessary. When the Affordable Care Act was being constructed, a strategic decision was made to retain the array of private health care insurance companies and to attempt to use employers as the major means to underwrite the cost of health care. A single payer, universal healthcare could have taken the Catholic Church out of the equation (although the Church probably would have lobbied against such a universal health plan simply because birth control was available.)

In news reports it is striking how little attention is being given to the rights of employees being denied birth control coverage, many of whom are not even catholic.

The Catholic Church’s position does not reflect the behavior of its parishioners and is socially and medically out of date. Clinging to the Constitution’s provisions on religious freedoms while the Court closing its eyes to equal protection under the law is difficult to explain.

Pundits predict the Court will vote 4-4 and ironically the lower Court ruling (affirming Burwell) will hold. Regrettably other lower Court rulings against Burwell will also be allowed.

What a national mess a 4-4 Supreme Court decision would present.  The law of the land is not the law of the land.

Marketing Strategy

February 20, 2016

Apple has declared that it does not know how to unlock a “locked” Apple smart phone and further considers helping unlock one a disservice to its customers.  Hmmm.

Apple’s remarks were in response to a Justice Department requests for assistance in unlocking the cell phone of the San Bernardino terrorists. Justice Department spokespersons describe Apple’s actions as a “marketing strategy”.

The Government’s position is simple, there may be information on the cell phone which could shed light on how the husband and wife terrorists planned and prepared for the December 2, 2015 mass shootings. Officials say the phone could contain very valuable leads to who else supported the terrorists. Sound like a matter of national security?

Apple is indeed facing a difficult marketing strategy. Following the NSA’s wholesale collection of cell phone communications aided by the existence of cell phone software “backdoors”, companies such as Apple faced a distrustful foreign country’s reception. Consumers as well as governments suspected collusion between Apple (and other tech companies) and the NSA. Apple could expect onerous restrictions including “backdoor” requests from foreign governments too. Apple feared this would significantly reduce the iPhone’s demand and value. Hmmm.

As a consequence Apple adopted encryption on all iPhones and installed software code which permanently disabled any phone which failed to open within 10 attempts of unlock. Government investigators have the terrorist cell phone but are reluctant to try guessing its password.

So, the big question revolves around personal privacy and government’s needs in investigating crimes (or suspected wrong doing).

The San Bernardino terrorists are both dead and there have been no indications that they were part of a larger group with further attacks imminent. As a consequence, the Justice Department’s request of Apple may seem nice but unnecessary.

But what about the proverbial terrorist who plants a powerful bomb in some unknown place and all the authorities have is his locked cell phone. Or, reimagine 9/11 and authorities find a locked cell phone and by being unable to unlock it, fail to detect the greater 9/11 plot?

Privacy versus national security is not trivial. Regrettably, governments are notorious in getting an inch and turning it into a mile. A government known “backdoor” could be exploited for non-terrorist actions as well. Maybe the IRS or the EPA or the SEC might like to have a look into private cell phones for information pertinent to their work.

And still more insidious, maybe politicians might like to uncover some “dirt” on opponents by using the back door of opponents doctors, lawyers, or accountants’ phones.

Smart phones are much more than telephones. They are more akin to personal computers which contain bank records, personal files, daily agendas, and contact lists. A court subpoena to enter a smart phone’s backdoor in search of terrorist information could lead to data useful in a tax evasion or securities fraud investigation. Hmmm.

This quandary is not a new one. The government expressed strong disagreement with Apple’s decision several years ago. It appears the Justice Department has waited until it had just the right opportunity to make its case. If Apple should prevail in this case, no big deal because the stakes seem pedestrian. If the Justice Department should win, law enforcement will be next in line wanting access to the backdoor.

And in addition to other law enforcement agencies wanting to use the backdoor, cyber criminals will be just as eager to crack a smart phone’s defense. Hmmm.

Democracy At Work

February 14, 2016

A classic lesson on whether a nations or group of people are ready for a democratic form of government can be found in Egypt’s recent past. Former President Hosni Mubarak was turned out of office following Egypt’s Arab Spring. The US Government had just issued calls for Egypt to embrace democratic reforms. An election followed.

A “free and open” election led to the Muslim Brotherhood narrowly gaining a majority in parliament and Mohamed Morsi elected President. The dust had hardly settled before Morsi announced there would be a new Constitution written. As you might easily guess, the new Constitution would enshrine most of the Muslim Brotherhood’s beliefs and greatly restrict the rights of others. Hmmm.

Over two hundred years ago, Americas founding fathers struggled with similar problems. How could a nation have democracy and still provide a home for people of differing views. In a strict democracy, majority rules. With one more vote than the opposition, a new law applies to everyone. Hmmm.

Our founding fathers mulled this quandary and decided that our Government should contain checks and balances on each branch of government (executive, legislature, and judiciary), and extra protections for minority views.  While one vote majority must be observed if there is to be a democracy, a process where minority views are heard and respected (Bill of Rights) was necessary.

The Federal Judiciary was a critical part of this protection. Justices in the Federal Court system were to be appointed by the executive and confirmed by Congress. Confirmation has traditionally been based upon competency, experience, and independence of views. Republican Presidents appointed Republican jurists while Democrat Presidents appointed Democrats.

For most matters which come before Federal Courts, the matter of law can be seen from a conservative or a progressive viewpoint. More interestingly, most matters are decided by a plurality of the court with no indication of Democrat or Republican affiliation.

For the Supreme Court, the appointment process begins with a Presidential nomination. Law associations including major universities and the ABA issue opinions on the qualifications and readiness of the appointee to serve. The Senate Judiciary Committee reviews the available information and holds hearings to further vet the appointee. Finally the committee issues and opinion and the whole Senate votes.

Over the years there have been controversial nominees and some nominees have withdrawn their names during the confirmation process. A few have been rejected by the Senate for specific reasons. Most, however, have been confirmed regardless of whether the Congress is of the same party as the President.

Justice Antonin Scalia died over the weekend. Before his body was even cold, Senate Majority Leader Mitch McConnell and most all the GOP Presidential Primary Candidates all issued statements rejecting President Obama’s (Constitutional) right to nominate a replacement Justice. Hmmm.

These are all individuals who incessantly call for this or that to be rejected because the law or regulation was not “constitutional”. These individuals regularly complain that President Obama has overreached his “Constitutional Authority”. But at this time, with almost one full year remaining in President Obama’s term, most of the GOP want to ignore his right to nominate and Congress’ duty to confirm.

America has long practiced a special form of democracy. Inherent in America’s take was an unwritten principle of “fairness” and “playing by the rules ( based upon past practices)”. No one should argue that past practices cannot change, times change and so must our government practices evolve.  Change, however, should not have the smell of “unfairness”.

The Muslim Brotherhood sought to use a narrow majority to completely change the rules denying all sorts of rights to the minority. In a way, the GOP is doing the same if it follows through with its threats on appointing a Scalia replacement.