Category: Governance

Is It Time to Lose the Concept of States Rights?

The United States of America is structured as a union of individual states. The United States Constitution purports to delineate the specific rights and powers the states granted to the central Federal government as part of the cost of forming a centralized structure. The 10th Amendment to the Constitution, passed at the insistence of the smaller states who otherwise would have blocked the nine main amendments of the Bill of Rights, says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

states_rightsOver the years, Congress, the Courts and the Executive have found reasons to override presumptive state authority in a number of areas by declaring the underlying conduct to be part of interstate commerce, over which the Federal government was given exclusive control in the Constitution. Also used in a similar manner is the “equal protections” clause that prohibits states from denying citizens of other states the equal protection of the law within their borders. But these mechanisms have proved unreliable as a way of leveling the playing field in some important ways. Particularly as the nature of the problems with which we as a society must grapple grows in complexity and transcends state-drawn borders, it has often been the safe harbor of reactionaries and others who would attempt to claim that their state’s traditions or history or mores or culture or religious preferences should be allowed to hold sway within their borders even when doing so disadvantages other American citizens.

As the population has grown increasingly mobile, as corporations have transcended first state and then national boundaries, the idea that any significant problem is properly the sole province of the state in which the problem arises or is being attempted to be enforced has lost its value and credence.

Texas may wish to have its own largely unregulated petroleum industry, for example, but the pollution it creates doesn’t stop at the Texas state line. Nor, it is now clear, does the other damage to climate and even seismic activity confine itself within that invisible line. Many other Americans living in other states have their rights infringed by a decision that Texas sees as affecting only its residents.

The same is true in California, which is now undergoing a severe drought. Decisions made about how to allocate and conserve water in California have tremendous implications for the food supply of the entire nation. It is difficult to argue with any reason that the drought and how it gets resolved — or the water resources when they are abundant and how they get managed — is strictly in California’s purview.

Elections are another place where state boundaries shouldn’t but do create radical difference in citizens’ rights and their ability to influence outcomes based on the state of residence. At least when it comes to electing the President and Vice-President — and I think a cogent argument could be made for including Senatorial races as well given the Constitutional role of that body — a single uniform national law about eligibility and process is clearly demanded by the way some states have chosen to corrupt the process for the benefit of a minority.

The United States could play a more significant role on the world stage and contribute far more greatly to the solution of national and global problems if it weren’t saddled with the notion of “states rights.” While it is clear that the concept of the state is never going away in our country, legislation and judicial rulings as well as executive decisions that can move the marker closer and closer to a unified nation and away from invalid differences between states would be a welcome shift. The default should make it necessary for a state to prove it has a vital right to its own policies and procedures in a given area of control and administration rather than the present assumption that the central government must prove its primacy.


Time to TP the TPP and the TPA

President Obama is just wrong. When it comes to what he wants to serve as a capstone on his eight-year term as President of the United States is bad for labor, bad for the middle class and bad for America. The Trans Pacific Partnership (TPP) trade agreement is a wrong-headed idea carried out in secret with only big business contributors allowed to see or comment on it. Giving him so-called “fast track” Trade Promotion Authority (TPA) to railroad the ill-conceived TPP through a toothless Congress would be a huge mistake.

There are so many things wrong with those very few portions of the TPP that have been leaked that these leaks alone justify it being torn up and started over in a public arena. But the fact of its secrecy ought to be enough to convince any right-thinking American that something about it smells. What we know is that there is no provision in the current draft covering currency manipulation, which is one of the biggest causes of trade deficits. The intellectual property chapter has been leaked and it would so badly weaken IP protection in this country as to override our Constitution and invalidate thousands of copyrights and patents, which could be stolen with impunity by our trade “partners.”

Obama has revealed himself to be no friend of progressives and a run-of-the-mill Corporatist Centrist Democrat of the worst stripe. On the great economic issues of our time, he is hardly better than the Republicans.

PLEASE sign the petition against the TPP. In fact, Google “top petition” and sign all of those petitions! Please write or call your Senators and your Congress Critter and let them know in no uncertain terms that TPP is just TP. Let’s strangle this thing in its crib before it has a chance to hasten the elimination of the Middle Class, which is always the agenda of the Right in this country.


When Actions Cross Borders, Whose States Rights Get Gored?

There’s an interesting feud brewing between California and Arkansas that has broad implications for a whole range of laws and state actions (and inactions) across the nation.

Which came first, the chicken or the wine?

Which came first, the chicken or the wine?

This particular brouhaha centers on a decision by the California State Legislature in 2010 to extend a law requiring the relatively humane treatment of chickens to states from which California would be permitted to import eggs. The law in question was passed by votes in 2008. It requires that chickens whose eggs are to be harvested for import to California “be able to stand up, turn around and fully extend their wings.” By way of retaliation, the Arkansas State House has passed and sent to the Senate a bill banning imported wine from California, an action I suspect will have a much broader negative impact on Arkansas wine drinkers than it will on California growers and bottlers.

This little tempest in a henhouse is a small instance of a much larger problem. In reacting to this proposed retaliation, one Arkansas lawmaker asked rhetorically, “Is it chickens tomorrow or cattle on down the road? Is it air quality restrictions?” It was that last one that caught my eye.

I’ve long wondered why states are allowed to set their own standards for air and water quality. Last I checked, air didn’t recognize or stop at state lines. Rivers that course through more than one state provide another example where a state’s actions or inactions could severely harm the rights of those in other states downriver or downwind.

I applaud the California law’s efforts to bring humane treatment to egg-laying chickens. At the same time, I’m not sure it’s within our right to tell another state how to treat animals whose flesh or products might find their way into our state. California might be justified in demanding clear labeling to inform California buyers of the maltreatment (by California standards), but I’m not sure a ban is legal or appropriate.

But I also don’t think it’s appropriate for states to set their own rules and regulations governing the quality of air and water that isn’t confined to their borders.

As I see it, this is yet another place where the right outcome is for the federal government to intervene and impose some basic principles of interstate commerce (which, as I recall, is the Feds’ province) so that all states are required to take into consideration the needs of the citizens of other states. Otherwise, a mishmash of state rules inevitably leads to feuds, trade wars and other unseemliness.

Potential Double-Edged Precedent in Ohio Oil Drilling Suit; Why Do States Have Such Authority?

An Ohio State Supreme Court ruling today that slammed the door on local communities’ rights to prohibit or license tracking that was permitted by state law could be a double-edged sword if it gains a national judicial following.

In the case, an openly fragmented state court ruled 4-3 that the town of Munroe Falls, a suburb of Akron, could not require an energy company to get local drilling permits before proceeding with a well for which it had already obtained state licensing. Ohio’s constitution, somewhat unusually, has a “home rule” provision that gives cities and counties more say in such matters than is true in most other states (though, notably, not Texas, where they can exert even greater control).

If municipalities can’t overrule states in such matters, it could be argued that by analogy states shouldn’t be allowed to overrule Federal regulations. That would result in a uniform national policy on oil drilling and particularly the dangerous practice of tracking.

I’ve often wondered why states are permitted any regulation over natural resources and related phenomenon which clearly do not recognize state boundaries. For example, when a state writes its own rules about air pollution that undercut those of the federal government, the dirty air their states’ manufacturers and cars are then permitted to generate doesn’t stay in their states; it flows over into adjoining states…and even those beyond immediately adjacent. So why should they have any authority to impose their filthy air on the residents of other, more appropriately behaving states?

Using the logic of this court ruling — which is obviously not legally binding outside Ohio — it may someday become possible for the Feds to regulate clean air and water for an increasingly mobile and national society.

And that would be a good thing indeed.


In Montana, Nudity Can Bring You a Life Sentence

I’m not making this up. You can’t make up this kind of stuff.

A story came across my Inbox this morning about a Montana legislator who introduced a bill extending the definition of “indecent exposure” in his state to encompass yoga pants. Rep. David Moore, a Republican (I know; redundant, right?) David Moore introduced the bill, which a committee of the legislature immediately tabled among much chuckling. Moore, however, was undaunted. He allowed as how he wouldn’t be opposed to arresting people for “wearing such provocative clothing such as tight-fitting beige garments.”

As strange as I found that account, I was stunned by the closing sentence on the AP wire story on the incident. “Currently, a person convicted of indecent exposure three times in Montana can be sentenced to life in jail and up to $10,000.”

See? Not all of the backward thinking in this country takes place south of the Mason-Dixon Line. Big Sky Country can get into the act as well.


Unofficially, Net Neutrality Scores Huge Win

While it’s not yet official public policy, FCC Chair Tom Wheeler’s op-ed piece in Wired signals the strongest possible government support for Internet neutrality. It has advocates of the Open Net jumping and dancing and shouting with glee. If my knees weren’t so bad, I’d join them!

Wheeler, who had earlier indicated strongly that he was leaning against full support for Net neutrality and even favored some restrictions on the long-sought policy, planted both feet firmly on the side of President Obama and advocates in his piece. He said he would bring the Internet under Title II of the Communications Act, which means it will be treated as other public utilities in the same space.

That sounds the death knell for cable companies, phone companies and other major ISPs who wanted the right to provide multiple tiers of service based on who was willing to pay for priority access. In essence, it was a pay-to-play strategy that would ultimately make it all but impossible for smaller content providers to deliver their products and services over speed-restricted Internet connections while the Big Guys got their content sped through on wider pipes.

I have soured on President Obama as a Chief Executive in the past couple of years but this one goes squarely to his credit. He did the Right Thing and that pushed his appointed chairman to the right side of the regulatory decision-making.

It’s the harbinger of a grand day for the Internet!

Driven by Fear, American Leaders Did Unspeakable Things. But Should They Be Punished?

Clicking on the above image will download a PDF of the 525-page unclassified executive summary of the report.

Clicking on the above image will download a PDF of the 525-page unclassified executive summary of the report.

Now that the nation and the world have had some time to read and digest the Senate Intelligence Committee’s massive report on the U.S. use of torture in the wake of the 9/11 attacks, it seems clear that grievous and heinous international war crimes were committed. These crimes were known and sanctioned by President George W. Bush, Vice-President Dick Cheney and other high-ranking Administration officials.

As the New York Times opined on today’s editorial page:

These are, simply, crimes. They are prohibited by federal law, which definestorture as the intentional infliction of “severe physical or mental pain or suffering.” They are also banned by the Convention Against Torture, the international treaty that the United States ratified in 1994 and that requires prosecution of any acts of torture. (Emphasis added)

We have participated many times in recent decades in the hunting down and prosecution of other nation’s leaders for committing acts of torture. Our — and specifically President Barack Obama’s — refusal to even consider conducting a criminal investigation into these outrages is unconscionable and indefensible.


On the other hand, the situation with our former President and his Administration may well qualify for somewhat different treatment. Where others who have been prosecuted for such crimes sought personal power and gain, there is little doubt in most peoples’ minds — including this fairly strongly Leftist writer — that what was done by Bush et al was done primarily out of fear and from a complete lack of understanding of how to react to terrorism on our own turf. We, uniquely among nations, had seldom been the victims, historically, of such attacks. There were no clear precedents for our dilemma.

In the days and weeks following 9/11, the intelligence community in disarray as it played a collective game of CYA to avoid the blame for the attacks that it collectively richly deserved, there was undoubtedly a sense in the White House that these attacks could well be the precursor of many more and harsher onslaughts. As we should have but didn’t learn in Vietnam, fighting an invisible enemy who shines your shoes by day and bombs your barracks by night is an almost impossible thing to be called upon to do.

Charged with protecting what has now become — frighteningly, for historical reasons — known as the “Homeland” against further terrorist attacks was first and foremost in the minds of Mssrs. Bush and Cheney. They reacted rather than pausing, thinking and planning. They almost certainly felt they didn’t have the luxury of time. In the process, they missed a huge opportunity to gain global support and admiration, but that was not their focus: they were intent on one thing and that was stopping another attack.

While it is clear that these men knew precisely that what they were doing were war crimes and illegal even under U.S. law, they undoubtedly felt pushed to the wall where the call of duty overrode their sense of legality.

None of that excuses what they did. But it does make it more understandable.

President Obama should order a full-scale investigation of these war crimes. Anyone found criminally liable should be convicted and sentenced. And then he should grant full pardons to those at the top out of an understanding for the horrible dilemma they faced, the lack of information and experience on which to base horrifically difficult and complex decisions, and their presumed good, unselfish motivations.

But it is important that we as a nation uphold the treaty on torture or we lose all credibility in criticizing and prosecuting other nations’ leaders for such conduct. It’s important that we establish ourselves as a nation governed by laws even when those laws produce difficult or rancorous results in our ranks.

President Obama has said repeatedly that, “we need to look forward as opposed to looking backwards,” which is an empty statement with no meaning or purpose. It is possible to do both, as the Times points out. I would argue that it is necessary to do both.

Today, the American Civil Liberties Union and Human Rights Watch are to give Attorney General Eric Holder Jr. a letter calling for the appointment of a special prosecutor. I would strongly urge President Obama to approve the idea and make that appointment. The new Republican Congress will, of course, oppose him and ultimately no prosecution or investigation may take place. But let the blame for that inaction, that tacit sanctioning of anti-human crimes fall where it belongs and not on this President whose only fault so far is to conclude wrongly that we as a nation couldn’t weather such a probe.

It is time, Mr. President, to act as the leader and Constitutional lawyer you are.

In a Victory for Sanity, Obama Restores Relations With Cuba

In an historic move, President Obama today announced the restoration of full diplomatic relations with Cuba, a nation we have shunned mostly out of spite for a full half-century. The decision is akin to Richard Nixon’s June 1972 recognition of the People’s Republic of China.

cuba-embargoEver since the Cuban Missile Crisis of 1961-2, the United States has blockaded the island Communist nation, believing against all evidence that it could topple the Fidel Castro regime. Fidel gave way to his brother Raoul and still the blockade continued. The people of Cuba suffered in many ways but they also boasted some of the best health care and education systems in the world. In lifting the completely ineffective blockade and opening up mutual relations, the President closed an ugly chapter in American history. The tide of public opinion has been running against continuing the chill for the past 15-20 years according to polls conducted by Florida International University. Their 2014 poll shows 52% of Cuban-Americans in Miami-Dade County opposing the embargo and 68% favoring establishing diplomatic relations. (You can download a PDF of the report summary here or the full report here.)

Sen. Marco Rubio (R-FL), a real, live anachronism

Sen. Marco Rubio (R-FL), a real, live anachronism

The only thing that kept the Cuba embargo alive as long as it did was the strong opposition of the powerful Cuban-American lobby. Until this generation, that community was bitterly opposed to anything that would help the country from which many of them were exiled, forcibly or voluntarily. No politician — and particularly those with a Florida constituency — could support diplomatic relations with Cuba and live politically to tell about it. True to form, Florida GOP Senator Marco Rubio — a hard right-winger whose name is on the medium-long list of prospects for the 2016 Presidential nomination — immediately denounced Obama’s decision and vowed to see that Congress never allocates funds to build an embassy in Havana or support one there. He is obviously out of touch with his own constituents (see the FIU poll, above), and such a militant, combative person that he can’t be dragged kicking and screaming into the 21st Century.

Clearly, Cuba still has a long way to go on the human rights front. The Department of State will review the nation’s status as a state sponsor of terrorism (a label that was probably never deserved but served a political purpose) and, presumably, revoke that ill-considered and unfounded ruling. This does not mean, of course, that we should decrease our pressure on Castro to live up to human rights commitments of the United Nations, but rather it gives us a better and clearer channel through which to pursue those concerns and pressure for appropriate reforms.

There was a token prisoner exchange bundled into the deal but the real purpose was simply to restore sanity.

I have found more and more to disagree with Obama about as his Presidency has lurched along in the past four years particularly, but I heartily applaud this humane and intelligent decision. And I join with several members of my family who were born in Cuba or had Cuban parents in rejoicing over this resolution. It is a wonderful day for peace on Planet Earth.



Could Elizabeth Warren Be the Beneficiary of the New Realpolitik?

warren-for-president-signAfter I wrote yesterday about what I see as the near-term political landscape, conservative new York Times columnist David Brooks penned an op-ed in which he tossed in one of the wild cards I alluded to in my prognostication. In a piece entitled, “Warren Can Win,” he posited that Sen. Elizabeth Warren (D-MA), a populist of the first rank who is also a firebrand and a fighter for what she believes in, could win the Democratic Party’s nomination for President next year.

He concluded his essay with this paragraph:

The history of populist candidates is that they never actually get the nomination. The establishment wins. That’s still likely. But there is something in the air. The fundamental truth is that every structural and historical advantage favors Clinton, but every day more Democrats embrace the emotion and view defined by Warren.

The “emotion” defined by Warren is, as Brooks says, an “emotional register of the Democratic Party [that] is growing more combative. There’s an underlying and sometimes vituperative sense of frustration toward President Obama, and especially his supposed inability to go to the mat.” I can attest to that sense of frustration, though I’d up the fire a bit and call it disappointment bordering on outright anger. And the view Warren defines? Pure populism with a healthy dose of anti-big-finance born from her childhood roots and honed on the battlefields of regulatory necessity.

If Warren can wrest the nomination from the presumptive candidate, Hillary Clinton (who has little fight and no legitimate claim to populism), then she alters the political equation fundamentally. By not being a “Republican Lite” Democratic candidate, Warren might ignite large numbers of previously inactive folks along with those who are fed up with Obama’s lack of progressivism and pull off a win in the General. In that event, the overall situation could look much different than I predicted yesterday. By forcing the Democrats back to their roots and creating a strong opposition to the Republicans’ obstructionism, she could shift the debate and the power struggle back toward the people in ways no other candidate I can see on the scene right now could.


The Next Decade of Titanic Constitutional Power Struggle in America

It seems to me that the following broad outlines of the American political scene are clearly visible and likely to remain in place for at least 10 years:

  • The Republican Party, dominated by its ultra-conservative wing, will continue to hold majority positions in both Houses of Congress.
  • The Democratic Party, dominated by its centrist wing and largely ignoring its progressive base, will continue to carry the White House.
  • The Federal Government will, as a consequence of the above two conclusions, continue to malfunction, staggering along with very little actual governance, which is precisely in accord with the agenda of the conservative movement broadly.

Tactically, if the Progressive Movement in this country hopes to regain any of its former power and influence to carry out policies with which broad swaths of the population concur when polled on the issues themselves outside the context and baggage of labels, it must immediately shift its emphasis away from attempting to regain control of the Congress and toward regaining control of state governments. Only by doing so will the Democratic Party and its coalition partners (see below) be in a position to take advantage of the 2020 Census. That Census, reflecting as it inevitably must the broad shifts in demographics taking place in this country and which further enhance the governability of the Progressive Movement, will determine the makeup of Congress from 2022 and beyond.

Near-Term ‘Governance’

During the next 8-10 years, a struggle of increasingly titanic proportions will be waged between the conservatives and the progressives. Unlike previous such struggles, the center will not hold as it continues to be diminished in economic and political power by virtue of its own fatigue with a stagnant holding action that passes for governance. In stark terms, the Presidency will seek to take on more and more authority via Executive Orders and other direct execution tactics while Congress attempts to assert its power by using the purse strings and veto overrides to impose legislatively what the Framers intended to be done by the Executive.

That will be the underlying theme of politics in America in the next 10 years.

liberals-vs-conservativesAs a result, the political process in this nation will continue to fragment. The two-party system cannot hold. The centuries-old idea of Republicans and Democrats will realign into Conservative and Progressive. I predict a viable three- or four-party system with coalition governments reminiscent of the Europe of the last century.

The Tea Party will either take over the Republican Party completely or splinter off into an alternative conservative power. On the Left, the Democrats will either expand their tent to embrace Greens, Working Families Party members, and Socialists, or those parties will create their own leftist party. I see this as inevitable. If this shift happens, as I believe it will, before the 2020 Census, then party realignment will completely reshape the governing landscape within four years after that Census.

The two-party system is an anachronism. It is not possible — if indeed it ever was — to define the spectrum of American political opinion into two camps. The current system will crack under the strain of a global problem set that neither wing of the political parties can solve without aligning with elements of the other.

The Longer View

Eventually, this country must shift its energy and its governance from “me” to “we”, from a completely selfish form of capitalism to a regulated and managed form of social democracy with heavily modified capitalism. Short of that, America will either fall of its own weight as the needs of the less fortunate overburden the hoarded means of production or open insurrection — not necessarily but possibly violent — will topple its systems and chaos will rule for some period of time before an adjustment takes place. I do not see any other alternative. The system is too fundamentally broken.

The likelihood of the peaceful insurrection — a more or less sudden transformation — increases to the exact extent that leaders emerge who govern with compassion, vision, a clear understanding of the vital necessity of the Middle Class, and the ability and willingness to be bold in implementing extensive and fundamental change in the underlying structure of things. And the likelihood of that happening is directly connected to the degree to which progressive social policies can be brought to bear to solve the immense global problems of poverty, climate change, sectarian warfare and violence. Note that these are all problems that the conservative elements in our society do not value as serious problems worth solving. Indeed, they either argue for their non-existence, claim they are overstated or explicitly support them for selfish economic reasons.

Nothing less than a spiritually based evolution of consciousness provides any hope for humanity here. The good news is that there are many indications that such a transformational tipping point could well be in the offing. It is incumbent on each of us who would prefer that we all rise together to greatness to take an active role in this process.