Political Dissent or Law and Order

Protests against racial injustice continued across the country over the weekend in cities including Austin, Texas, Portland, Oregon, Louisville, Kentucky, Seattle, Washington, Aurora, Colorado, Oakland, California, and Chicago, Illinois. Before all of those though, there were protests in Boston where a group of protesters were yelling at and threatening a government agent guarding a government building when he’d had enough he struck one of the protesters with is weapon. The other protesters took exception and began throwing clods of dirt at the agent who then for reinforcements further inflaming the situation and shortly after the agents fired their weapons at the protesters killing five and injuring six others. More recently Boston protesters met at the harbor and destroyed merchandise being delivered.

Now if you sided with the government agents in Boston, congratulations you’re a Tory supporting King George as those were the events of the Boston Massacre in March 1770 and the Boston Tea Party in December 1773. The agents were British troops protecting a customs office.

The Boston protesters were fighting what they saw as tyranny, being taxed without having a voice in the government unlike landowners in England who elected their representatives to Parliament. Current protesters are fighting injustice perpetrated by officers of the law too often killing unarmed people, sometimes completely innocent ones such as Emergency Medical Technician Breonna Taylor shot to death when police invaded her home, while rarely being punished for it.

My conservative neighbors are quite boisterous in about their right to keep and bear arms as provided for in the Second Amendment. Unfortunately they seem to have forgotten the provisions of the First Amendment specifically freedom of assembly in their desire to see protesters arrested. Yes, there has been some looting in areas where protests are held, as in any group there will be bad apples. My neighbors should know as that’s the excuse they give for police shooting unarmed people and other abuses.

We should all be aware that the Black Lives Matter protests in Portland were winding down when the president ordered federal agents to the city ostensibly to protect government buildings and businesses. The presence and actions of those agents have incited greater furor and brought out even more people than the original protests including far more white protesters.

Among the actions taken by federal agents that have reactivated the protests have been the heavy handed use of force including blinding one individual who was simply standing holding a speaker over his head and snatching people off the street at gunpoint and without identifying themselves as federal agents, holding them for many hours and then releasing them without charges or questioning. These federal agents are not trained in riot control or de-escalation and are in fact using tactics reminiscent of authoritarian governments like Spain’s Francisco Franco in the 1930’s and the military junta that held power in Argentina in the 1970’s.

In a Fox News interview with Chris Wallace a couple of weeks ago, the popular vote loser in the White House refused to say he would accept the results of the 2020 election, adding that he will “have to see” and claiming without evidence that mail-in voting will “rig the election.”

All this has led former members of the federal government from both parties to wonder what will happen if this president loses in November and refuses to leave office. Eighty of those people met via online conference to discuss and game out what might happen and how to mitigate the damage. One conclusion is that there are no provisions in law for a president who won’t leave gracefully.

 Published in the Seguin Gazette - July 29, 2020

SCOTUS Good and Bad 2

Last week I reviewed several important Supreme Court decisions from earlier in the month which brought both good news and bad news. This week we’ll look at a few more.

Chief Justice joined the reasonable members of the court in the case of Department of Homeland Security v. Regents of the University of California. The 5-4 decision holds that the Department of Homeland Security’s move to rescind the Deferred Action for Childhood Arrivals program was arbitrary and capricious under the Administrative Procedure Act. This means that immigrants who fall under DACA provisions are still protected against deportation. It doesn’t mean that the administration can’t try again but at least they have to follow procedure which may delay final action until the election and possibly until after the inauguration.

In a win for Americans of all political stripes the 6-3 decision in Barr v. American Assn. of Political Consultants, Inc. The court held that the Telephone Consumer Protection Act of 1991, known as the TCPA, generally prohibits robocalls to cell phones and home phones. What this means to you and me is that those annoying robocalls are indeed illegal under federal law and now we just have to get the Federal Communication Commission to take it seriously and start prosecuting people for it.

I think most Americans would also agree with the 9-0 decision in Chiafalo v. Washington in which the court held that a state may enforce an elector’s pledge to support their party’s nominee – and the state voters’ choice – for president in the Electoral College. This is in regard to what is commonly known as faithless electors or presidential electors that don’t vote as they committed to once the electoral college meets to actually vote on who will be president. Remember that while we use short hand and say we are voting for president, we’re actually voting for members of the electoral college who will cast the actual vote for president. In the 2016 election 4 electors voted for someone other than the candidate that the voters sent them to support. This decision says doing so is illegal for electors from states with laws prohibiting that.

Many are disappointed with the court in its 7-2 ruling in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania,  which held that Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania – ACA exception to insurance coverage of contraception the Departments of Health and Human Services, Labor and the Treasury had authority under the Affordable Care Act to promulgate rules exempting employers with religious or moral objections from providing contraceptive coverage to their employees. Justice Ginsberg’s dissent points out that accommodations like these have never before “allowed the religious beliefs of some to overwhelm the rights and interest of others who do not share those beliefs.”

While the last Supreme Court issue isn’t a ruling it’s a failure to protect voting rights. The State of Florida is doing its best to avoid following the will of the people who voted overwhelmingly to restore the right to vote to felons who served their sentences. The state decided that in order to register that all fines and court costs must be paid but the state admits that it is unable to determine how much each person owes, not to mention that the proposition that was voted on had no such requirement. I district court ruled in favor of voting rights activists and then the state appealed to a higher court which issued a stay leaving about a million potential voters unable to participate in a state election in August.

Published in the Seguin Gazette - July 22, 2020

SCOTUS Good and Bad

The last couple of weeks brought good news and bad news from the Supreme Court. In an example of the old adage that “even a stopped clock is right twice a day”, Justice Neil Gorsuch agreed with the four reasonable justices in McGirt v. Oklahoma and declared that yes, treaties between Native American nations and the United States government are indeed still in force, therefore in the eastern half of Oklahoma remains a reservation for the purpose of a federal statute that gives the federal government exclusive jurisdiction to try certain major crimes committed by “any Indian” in “the Indian country.” 

Here’s the critique of the opposition view from the end of the decision: “The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”

In Trump v. Vance, Chief Justice John Roberts repeatedly referenced John Marshall, the first Chief Justice of the Supreme Court, who wrote an opinion in a case also involving presidential papers and agreed that the President is not above the law and is therefore subject to subpoena of documents. “ Article II and the supremacy clause of the Constitution do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting president.” Most of the justices agreed with only Thomas and Alito dissenting. This ruling enables Manhattan District Attorney Cyrus Vance to go forward with the investigation of the president’s financial misdeeds under New York state law by allowing the subpoena of documents from various financial institutions to proceed.

In Espinoza v. Montana Department of Revenue the court held that the application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families whose children attend or hope to attend them in violation of the free exercise clause. In effect the five conservative justices said that your tax money must support religious schools. If you send your child to a local Lutheran or Catholic school you might find this decision appealing but if you aren’t religious and don’t want your taxes supporting such schools you’re out of luck. Evangelicals and others who disparage Islam might want to think twice about this decision also because it also means that their tax dollars must also fund Muslim schools which including Madrassahs. This court has punched a big hole in the wall of separation between church and state, I can only hope that this decision is rescinded when a more reasonable group of justices sits in the majority.

There were a number of other important decisions in the last few weeks and so next week I’ll review a few more decisions from this term.

Published in the Seguin Gazette - July 15, 2020

Trumpers In Denial Over COVID-19

Many of my Libertarian leaning as well as some Trump following neighbors are up on arms over Gov. Abbott’s day late and dollar short executive order issued July 2, that “Every person in Texas shall wear a face covering over the nose and mouth when inside a commercial entity or other building or space open to the public, or when in an outdoor public space, wherever it is not feasible to maintain six feet of social distancing from another person not in the same household”. The order contains some reasonable exceptions and one I that angers me, that being: “any person who is voting, assisting a voter, serving as a poll watcher, or actively administering an election, but wearing a face covering is strongly encouraged”. Why of all things is it OK to spread the virus to other voters and election staff?

One of the ridiculous reasons for the anger of the yahoos is based on a “personal liberty” argument. One wrote: “I think disease risk is an ever present reality that comes with human contact and individuals should be left at their own discretion to what extent they want to leave the house and put themselves at risk during a pandemic.” They contend that public health concerns should not override their right to their own unsafe behavior. If this were a matter of whether not the non-mask wearing buffoon contracted a potentially life threatening disease I’d be OK with that after all the Darwinian principle of survival of the fittest would root out the idiots. Unfortunately for us, the requirement to wear a mask is to protect everyone else from the mask wearer who could unknowingly be infected and spreading the virus with every breath they exhale. They won’t say they would defend Typhoid Mary, but that’s what it amounts to. For those unfamiliar with the story; Mary Mallon, was a New York cook who spread typhoid to her employers and their families sickening over 50 and causing the deaths of 3 directly and perhaps hundreds more indirectly in the early 1900’s. When public health authorities finally caught up to her the newspapers named her Typhoid Mary.

Another of my neighbors wrote “Until we know true numbers, it is all about control and fear. What are total deaths compared to last year? How many were due to the nursing home debacle in 5 states? Why did they switch from death count to case count?” In reality there is plenty of information available from federal and state public health agencies as well as the media that confirms the 130,000+ deaths due to COVID-19 which wouldn’t have occurred without it. Yes, many of those deaths occurred in nursing homes and killed those already in poor health but that doesn’t make those premature deaths any less significant. The naysayers also seem willing to ignore the high numbers of health care professionals who have succumbed to COVID-19 after being exposed to sick patients. My sister is a nurse at a hospital in Mississippi and was sickened by COVID-19 she was exposed to there. Fortunately she had a mild case and was able to recover at home while quarantined from her family for two weeks. It’s a shame that not all health care providers have been so lucky.

The anti-mask crowd also seems to ignore the fact that roughly 20% of confirmed cases require hospitalization and oxygen, think about the whopping hospital bill. Of those requiring care in an intensive care unit there is a high incidence of long term lung damage and a possibly other organs as well. Consider those long term costs.

Published in the Seguin Gazette - July 8, 2020