Category: Constitutional Issues

Dateline London — Banana Republicanism Edition

The Daily Escape:

Royal Albert Hall, London, noon sound check for tonight’s DJ Spoony’s Garage Classical show. The show is sold out – October 2019 iPhone photo by Wrongo

The yelling of Republicans in the House can seem muted when you’re 3,000 miles away in England. This, from the Guardian:

“House Republicans who tried to storm the secure area in the Capitol where Laura Cooper, the top Pentagon official on Ukraine was testifying, have effectively shut down the interview, according to a senior Democratic lawmaker…More than two dozen House Republicans, led by representative Matt Gaetz, tried to force their way into Cooper’s deposition, even though they are not members of the three committees leading the inquiry…”

The “secure area” is what’s called a SCIF, or Sensitive Compartmented Information Facility. These are sealed conference rooms that are protected from electronic intrusion. They exist so that members of Congress can receive highly classified information about how the nation collects information on its adversaries, and on very sensitive intelligence operations. They exist all over the government, in the military, and in the defense contracting industry. Meeting attendees have to leave their electronic devices outside of the room, under the supervision of a security-cleared attendant.

Some, but not all of Gaetz’s Congressional storm troopers surrendered their devices at the door of the SCIF. Those that didn’t caused a serious security breach. Despite their mob efforts, the deposition itself took place, but after a five-hour delay.

This single party effort to disrupt testimony is significant, and possibly symbolic of where the GOP is today. Cooper’s testimony is on the DOD’s response to Trump’s refusal to provide funds to Ukraine, funds that had been duly appropriated by Congress.

This is the effort by a mob to suppress evidence. From Marcie Wheeler: (brackets by Wrongo)

“In short, a bunch of Republican Congressmen (and a handful of [Congress] women) are staging a faux riot in order to prevent the DOD from telling Congress how the White House prevented them from following the law that prohibits the White House from withholding funds without a good reason….”

Rep. Bill Pascrell (D-NJ) tweeted this:

Hat tip to Rep. Pascrell for the term Banana Republicanism.

Marcie also reported that nine of the 43 rogue Congress critters actually sit on the committees that are conducting the inquiry inside the SCIF. Those nine are in the room all the time. They can ask questions of the witnesses. They can file minority reports if they disagree with the majority findings. So they can’t expect anyone to believe that they’re shut out of hearing the classified testimony.

In fact, it is most telling that they apparently aren’t leaking anything to the press, or to their colleagues!

Here in the UK, Boris Johnson, the British “Trump-light” head of government, reluctantly follows the dictates of the law despite his desire to force feed Brexit to his country. In the US, Trump and his Banana Republican cohort no longer bother to pretend.

Some of these rioters sit on the Judiciary Committee. Others apparently sit on the Armed Services, and Homeland Security Committees. Their actions should lead to getting booted from those committees and instead, being relegated to the Joint Committee on the Library of Congress, or to the Joint Committee on Printing.

The press should be asking GOP House Minority Leader Kevin McCarthy if he’s going to remove these people from the committees that handle sensitive information for violating security protocols.

A question for Mac Thornberry, (R-TX), ranking member of the Armed Services Committee:

“Should Matt Gaetz, Mo Brooks, Bradley Byrne lose their seats on Armed Services for the manner in which they violated security protocols?”

A question for Mike Rogers, (R-AL), ranking member of the Homeland Security Committee:

“Should Mark Walker, Debbie Lesko, and you, lose your seats on the Homeland Security Committee for violating security protocols?”

This kind of breakdown in the orderly function of the House represents an existential threat to this country. If an opposition party can freely intimidate witnesses and shut down depositions without consequences, then the Constitution’s power of impeachment is useless.

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The Supreme Court Goes Back to Work

The Daily Escape:

Pyramids viewed from Cairo Street, Egypt – photo by Hossam Abbas

The Supreme Court’s new term begins next Monday, and much of America’s culture wars will move in front of the bench for adjudication. Some of the issues being litigated include abortion, gay rights and gun control. It’s no secret that conservatives control the court, and its liberal wing is in retreat. This could be a momentous year in shaping the country’s socio-cultural future.

On Monday, October 7th, the justices will hear arguments in the case Kahler v. Kansas, regarding whether the 8th and 14th Amendments allow a state to abolish the insanity defense. Four states, Kansas, Utah, Idaho and Montana have abolished the insanity defense. It shouldn’t be a surprise that Kansas says yes, and so does the Trump administration.

Also on Monday, they will hear Ramos v. Louisiana, regarding whether the 6th Amendment guarantee of a unanimous jury verdict to convict someone applies to the states. Currently, Louisiana and Oregon permit non-unanimous juries.

On Tuesday, the court hears a case concerning whether gay and transgender people are protected by federal civil rights laws that bar employment discrimination. Three workplace discrimination cases will be heard. Two of the three cases ask whether “because of sex” in Title VII of the Civil Rights Act of 1964 prevents an employer from disadvantaging employees on the basis of their gender identity or sexual orientation. Fewer than half the states have laws against firing workers because they are gay or transgender. Now the Supremes will decide if the federal civil-rights laws protect the 8.1 million LGBT workers in America.

It may not surprise you that the Trump administration says Title VII doesn’t apply to gay and transgender workers, contrary to the view of the Equal Employment Opportunity Commission.

On November 12th, they will visit Trump’s effort to end DACA, the Obama program that protects mostly Hispanic young adults from deportation. The case is Department of Homeland Security v. Regents, University of California, where three cases were consolidated for argument in which lower courts decided that the Trump action violated the federal Administrative Procedures Act.

Also scheduled for Nov. 12 is a case in which a US border patrol officer shot and killed an unarmed Mexican teenager who was not on US soil, but hiding in a culvert between the US and Mexico. The question is whether federal courts can award damages to the family for the agent’s actions.

On December 2nd, they are scheduled to hear a major gun rights case. The case is NY State Rifle and Pistol Assn. v. City of New York. The challenge is to the city’s ban on the transport of licensed and unloaded guns outside the city limits. But the city amended the law, and is arguing that the case is now moot, since it has given the challengers what they sought. The case may be dismissed.

Among possible cases that have not yet been scheduled are two appeals regarding Republican-backed abortion restrictions enacted in Louisiana and Indiana. If the court were to take either or both of those cases, it would raise the possibility of a ruling that further curbs abortion rights.

The Louisiana case concerns a challenge by an abortion clinic to state requirements that doctors who perform the procedure must have “admitting privileges” with local hospitals. It is similar to a Texas law that the Supreme Court struck down in 2016, when Justice Anthony Kennedy sided with the court’s liberals. But last year, Kennedy retired and was replaced by Bret Kavanaugh.

It would be extraordinary if they take up this case and then overrule a precedent set just three years ago. The only thing that’s different is the composition of the court.

Looking further ahead, we may see contentious arguments on the limitations of presidential power. Likely subjects include the president’s push for the power to remove the director of the Consumer Financial Protection Bureau; executive privilege in battles over Trump’s tax returns; and use of a national emergency designation to use money appropriated elsewhere to fund the border wall.

And finally, there’s impeachment. In April, Trump tweeted that if “the partisan Dems ever tried to impeach”, he would “first head to the US Supreme Court”. There is little doubt that the Supremes would move quickly to hear such a case.

It wouldn’t be smart for Trump to expect them to come to his rescue during impending impeachment proceedings. In 1993 Chief Justice William Rehnquist wrote for a unanimous court that impeachment authority “is reposed” in Congress, “and nowhere else”.

Then, if the House of Representatives actually impeached Trump, Chief Justice John Roberts will find himself playing a constitutionally required role: presiding over the president’s removal trial in the Senate.

All in, a pivotal term for the Supremes and for America.

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Partisan Gerrymandering Overturned in North Carolina

Daily Escape:

Colchuk Lake in the Enchantments, part of the Cascade Mountains, WA – August 2019 photo by atgctgtt

This summer, the Supreme Court decided 5-4 in the case Rucho v. Common Cause that federal courts could not invalidate maps based on partisan gerrymandering, although states might still do so.

At the time, Wrongo snarked about the decision:

“Wrongo’s shorter John Roberts: The federal government can’t do anything about your state stripping you of representation. You have to go back to the people who stripped you of representation and ask them.”

Despite Wrongo’s skepticism, on Tuesday, the North Carolina (NC) state Supreme Court put an end to eight years of Republican partisan gerrymandering when it ruled against NC Republicans who had installed it in 2011. From the Daily Kos (DK):

“On Tuesday, a three-judge panel delivered a major blow against Republican gerrymandering when it struck down North Carolina’s state Senate and state House districts for violating the rights of Democratic voters.”

More:

“The state court ruled that these maps, designed to entrench Republican rule, ran afoul of the state constitution’s guarantee of free and fair elections. These illegal districts were so extreme that they helped Republicans to maintain their legislative majorities in 2018’s elections even though Democratic candidates won more votes statewide. If fairer districts are implemented for 2020, they could put Democrats in striking distance of a majority in one or both chambers.”

NC’s current state-district maps had to be redrawn again in 2017, after the US Supreme Court affirmed a lower court’s ruling that they constituted an unconstitutional racial gerrymander.

Now, NC’s voters will be voting in new state election districts for the third time since 2011.

This decision is similar to one in PA in 2018, where a state court ruled that PA’s congressional map was unconstitutionally gerrymandered. It also relied on the PA state constitution, so its decision was not reviewable by the US Supreme Court.

When SCOTUS decided not to rule on the constitutionality of partisan gerrymandering, it said quite clearly that state courts could rule on the question based on the individual state constitutions. NC now joins PA as states in which this strategy has succeeded.

The NC and PA decisions are reminders that we can challenge bad laws under state constitutions. States are free to recognize more rights than those enumerated in the US Constitution, they just can’t recognize fewer rights. This is the sort of “federalism” that conservatives hope you never learn about.

More from DK:

“While this case only concerns the maps in one state, every state constitution has provisions similar to North Carolina’s that could be used to challenge partisan gerrymanders so long as there’s a receptive and fair-minded state Supreme Court majority to hear such a case. This ruling therefore underscores the importance of Supreme Court elections in key swing states next year, including Michigan, Ohio, and Wisconsin. Progressive victories in these races would go a long way toward blocking the GOP’s lopsided control over redistricting as we head into the next round of redistricting following the 2020 census.”

The NC court decision was 345 pages long. The opinion really makes it clear how there’s just no possible defense for what the GOP was doing in NC. In addition, the opinion might as well have had “John Roberts is an embarrassing hack” stamped on every page.

This doesn’t mean that Democrats can relax between here and 2020. Michigan, North Carolina, Ohio, Texas, and Wisconsin are states where 2020 state Supreme Court elections could either give Democrats a majority, or set them up to gain one in subsequent elections. That will be crucial in the next decade, since the Census will also take place in 2020. There will be new voters to count, or to disenfranchise, depending on your Party’s ideology.

This war must be won in the trenches, not by the national candidates.  Wisconsin gave us a bad example in April. Although Democrats in Wisconsin won the popular vote in 2018, they didn’t work hard enough to get their state Supreme Court nominee over the finish line in 2019, despite having a progressive plurality.

Democrats have to realize that they won’t win if they think only certain elections are important enough to get out and vote.

These battles are local, not national, and now that the US Supreme Court will be sitting on its hands for a decade or more, these are fights we must win.

Democrats can’t afford not to contest local judicial elections.

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Saturday Soother – August 24, 2019

The Daily Escape:

Ground Swell – 1939 painting by Edward Hopper

In news you most assuredly haven’t seen, the 10th District US Circuit Court of Appeals in Denver ruled that “Faithless Electors”, people who do not cast their votes in the Electoral College for the winner of their state’s presidential election, are now free to vote for anyone they want.

This Colorado case came about because in 2016, one elector refused to vote for the state’s winner, Hillary Clinton, and instead, voted for John Kasich. The Colorado Secretary of State ordered him to cast his vote for Clinton, or be replaced. He refused and was subsequently replaced with an elector who voted for Clinton.

The faithless elector sued, and the 10th Circuit decided in his favor, saying that the Constitution provides:

“…Presidential electors the right to cast a vote for president and vice president with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right.”

The court traced the history of faithless electors back to 1796, when Samuel Miles voted for Thomas Jefferson instead of John Adams. Congress counted his vote. In the 2016 election, there were 13 anomalous votes from three states, and Congress also counted those votes.

This decision could have major ramifications for future presidential elections. The attorney for the faithless elector, Jason Wesoky, said the Court’s ruling essentially makes the laws requiring electors to vote for the state’s winner unenforceable. That impacts 16 states today.

It is even more significant, since a growing number of states are rethinking their Electoral College systems in response to the 2016 election. The 16 states that have passed laws that award all of their electoral votes to the winner of the national popular vote, currently equal 196 electoral votes.

If states representing another 74 electoral votes pass it, the so-called National Popular Vote bill will control the majority of votes in the Electoral College. The bill has passed at least one chamber in 8 additional states with 75 additional electoral votes.

This Appeals Court’s decision means that yet another crucial issue to  the future of our democracy will be in the hands of the Supreme Court, once the appeal gets to them.

Enough of news you won’t ever use, it’s time for your Saturday Soother!

Start by brewing up a mug of Honduras Marcala coffee ($19/12oz.) from Santa Barbara’s Handlebar Coffee Roasters. The founders are professional cyclists who met while riding in the Amgen Tour of California, America’s best bike race.

Now, settle back and listen to something very different, a guitar band from Mali called Tinariwen. They are Tuareg musicians from northern Mali. They play rolling melodic lines and loping rhythms that evoke the desert sands of the Sahara. The band’s name literally means “deserts” in their language, Tamasheq. Here they are playing “Kel Tinawen” from their upcoming album “Amadjar”, available on September 6th:

The video is of a road trip along Africa’s Atlantic coast as the band and crew cross the Western Sahara. They will be touring the US in September. For an early date in Winston-Salem, NC, some locals on social media are leveling violent, racist attacks against the musicians. Welcome to America!

Here is a translation of the lyrics:

Evil tongues – you can keep talking.

The uprising will be impossible to suppress.

The treachery of your evil words has sold out your brothers for your own interests.

You’ve locked them up in a prison, every last one of them.

You fine talkers, tell us what road you plan to take to avoid us if we remain rooted.

You’ve forgotten the suffering of our parents,

The suffering they have experienced since birth,

Unable to find water, unless they dig wells with their own hands.

Those who read the Wrongologist in email can view the video here.

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Monday Wake Up Call – August 5, 2019

The Daily Escape:

Crater Lake NP viewed from Watchman Lookout Station, Oregon – 2016 photo by atheleticamps

Wake Up America! With El Paso TX, Dayton OH, and Gilroy CA last week, we’re starting to see what Red Hat Hatred means in the US. We’ll soon hear that these are more lone wolves who snapped, and that’s why we need to spend more on mental health, and to keep guns away from those sickies who really just need meds and counseling.

But, “lone wolves” should not be acting in lockstep with the Trump regime. Zealots and militants do that. In real life, wolves hunt in packs, so the term “lone wolf” makes no sense whatsoever.

From sociologist Kieran Healy: (emphasis by Wrongo)

“It’s traditional to say that there are ‘no easy answers’, but this is not really true. Everywhere groups face the problem of holding themselves together. Every society has its enormous complex of institutions and weight of rituals that, through the sheer force of mutual expectation and daily habit, bring that society to life. But not every society has successfully institutionalized the mass shooting. Only one place that has done that, deliberately and effectively. The United States has chosen, and continues to choose, to enact ritual compliance to an ideal of freedom in a way that results in a steady flow of blood sacrifice. This ritual of childhood is not a betrayal of “who we are” as a country. It is what America has made of itself, how it worships itself, and how it makes itself real.”

This is the society we’ve become. Will Republicans do anything? Of course not. Shooting at St. Ronnie didn’t get them to act. Shooting at Steve Scalise and other Congress persons didn’t help. The common factor is no modern-day Republican politician (since Lincoln and Garfield) have actually been killed. So, unless targeting Republicans becomes the norm, they’ll never budge.

OTOH, look at this billboard about the Squad! Have at it, boys! More guns! The fact that American voters countenance this double standard is beyond disgusting. At this point, the right wing’s reaction to this endless carnival of mass murder by angry white dudes comes in a few cascading flavors:

  • The ‘thoughts and prayers reaction, which is the shortest and slipperiest response, but if pressed, they’ll offer up: That’s just the cost of freedom.
  • Or, that mass shooting deaths are less than 1% of gun deaths, let alone actual murders, in the US, so what ya gonna do? They say that the vast majority of people killed by guns in the US are shot one or two at a time, not in large groups.

But, that’s not something any reasonable person should consider a winning argument. And as for Trump, there’s really nothing for him to say. He can’t play the role of healing the nation that we have normally expected from our leaders, because he bears real responsibility for the violence.

The Second Amendment has failed America, says Joel Mathis of The Week:

“The Second Amendment of the US Constitution is a failure because the right to bear arms — the right it so famously defends — is supposed to protect Americans from violence. Instead, it endangers them…. Data shows that people who own guns legally are more likely to kill themselves than they are to kill an intruder. People who own guns legally are more likely to kill a family member — on purpose or accidentally — than they are to kill an assailant. And people who own guns legally don’t actually use those weapons in self-defense all that often.”

Mathis goes on to say that: (emphasis by Wrongo)

“On balance, guns do more harm in America than good. The damages are easily measured, while the benefits are mostly theoretical and rare. This means the Second Amendment, as currently observed, doesn’t actually work under the terms of its own logic.”

Wake up! Americans should be able to gather at places like churches, schools, shopping malls, and concerts without fear that they’ve made themselves easy targets for the latest angry man possessing the tools to kill dozens of people within a few minutes.

To help you reflect on the Second Amendment, here is CPE Bach’s Cello Concerto in A Major, Largo movement, with Tanya Tomkins on a 1798 baroque cello. She’s playing along with San Francisco’s Voices of Music. This is a very somber piece, seemingly perfect for reflecting on mass shootings:

Those who read the Wrongologist in email can view the video here.

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Trump Still Wants His Citizenship Question

The Daily Escape:

Sandia Mountains, New Mexico – 2019 photo by cameforthegames

On June 27, the Supreme Court held that Commerce Secretary Wilbur Ross’s March 2018 order directing the Census Bureau to add a citizenship question to the 2020 Census questionnaire could not go forward. At the time, we all thought that there would be no such question on the census.

Now, that’s no longer true.

“President Trump and Attorney General William P. Barr began working to find a way to place a citizenship question on the 2020 census just after the Supreme Court blocked its inclusion last month, Mr. Barr said on Monday, adding that he believes that the administration can find a legal path to incorporating the question.”

More from Barr:

“I felt the Supreme Court decision was wrong, but it also made clear that the question was a perfectly legal question to ask, but the record had to be clarified…”

The ruling left open the possibility that the citizenship question could be added to the census if the administration came up with a better rationale for it.

Here’s a way to look at what the Administration means: The Supreme Court said we couldn’t do this. Our reasoning was stupid and insulting. So now, we have to come up with something better. Yeah, we said it was too late for that, but we’re working on a brilliant new reason.

And you shouldn’t make anything of the fact that the lawyers the DOJ had working on it just quit:

“Barr also acknowledged that the career Justice Department lawyers who had worked on the census question had little appetite to continue on the case after Mr. Trump inserted himself into the process…. The Justice Department announced a day earlier that it was replacing them, a nearly unheard-of move.”

On Monday, the plaintiffs in the case asked a NY judge to block the DOJ lawyers’ withdrawal because they did not demonstrate “satisfactory reasons” for the change. On Tuesday, the judge denied the request, except for two DOJ attorneys.

Barr also said that the Trump administration would soon reveal how it plans to add the question, but he wouldn’t detail exactly how it would be justified.

On Monday, Speaker Pelosi announced that she intended to schedule a full House vote “soon” to hold Barr and Commerce Secretary Wilbur Ross in contempt of Congress for defying subpoenas for documents related to the census question. This had been recommended last month by the House Oversight and Reform Committee.

If Barr goes forward, the question will be provisionally added, and a new time clock for the case starts again.

But, Trump may have screwed the pooch. He admitted that the whole point was to favor Republican redistricting, which was exactly what his lawyers have said is not the case, because that’s unconstitutional. Trump said we need the census citizenship question for many reasons:

“Number one, you need it for Congress — you need it for Congress for redistricting,” he said Friday. “You need it for appropriations — where are the funds going? How many people are there? Are they citizens? Are they not citizens? You need it for many reasons.”

Trump apparently doesn’t realize that America bases redistricting on the population of the district, not the citizens in the district. Yet, there’s still a strong possibility that his question will be part of the census.

In the case mentioned above, four Supreme Court justices said they would vote for literally any position the administration takes on the issue. And a fifth vote (Chief Justice Roberts) searched in vain for any possible fig leaf that would allow him to join them. When he couldn’t, he sided with the liberals.

Americans should be outraged that the Trump administration willingly engaged in an illegal action, and then lied about it in federal court. They should be outraged that four members of the Supreme Court thought that was just fine. The Chief Justice thought it could have been fine, had they come up with a less blatant pretext, which he invited them to provide. Any Chief Justice worthy of the title would have simply ruled that the process couldn’t be salvaged.

The big story here isn’t the census question. It’s the DOJ’s legal team refusing to continue working on the case. This is unprecedented, and a really big deal.

The most plausible explanation for their quitting is that they told the Supreme Court it had to decide by June 30th, or the question couldn’t be included. If they now have to go back to SCOTUS, they would have to admit that was a lie.

We have to hope that the administration’s malevolence will be ruined by their incompetence.

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Sunday Cartoon Blogging – June 23, 2019

Iran’s solution to possible war with the US. If this happened, Trump would say he got a love letter from the Ayatollah:

Little-known technology shows Pentagon the best story to use about its reasons for war:

This week, the Trump administration argued in court that detained migrant children do not require basic hygiene products like soap and toothbrushes in order to be held in “safe and sanitary” conditions:

Mitch ain’t willing to discuss reparations:

Reparations are a difficult subject. As the historian Howard Zinn said, “You can’t be neutral on a moving train.” He meant that you either abide the status quo, or you oppose it. You either commit yourself to be the best anti-racist you can be, or you don’t. Whichever you choose, you should be honest in how you frame your choice. Saying that reparations are not worth pursuing, or simply doing nothing about them, is an implicit defense of the policies and systems that have created our present-day racial inequities.

The Supremes held 7-2 that a cross located in a war memorial could be displayed on public property (at a traffic circle). They said that some crosses are merely historic icons. Their decision favors one religion over others, and it seems hostile towards religious minorities. And why won’t Christians act like Christians?

How the Capitalism game actually works:

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New Evidence: Citizenship Question Added to Suppress Minority Voting

The Daily Escape:

Wallis Sands, NH – 2018 photo by CaptainReptar

“If conservatives become convinced that they cannot win democratically, they will not abandon conservatism. They will reject democracy.” – David Frum

Sometimes, the proof you need shows up just a little late. The Supreme Court will rule in June on whether or not a citizenship question can be added to the census in 2020. The case, Department of Commerce v. New York was argued before the Court back in April. At the time, most observers felt that a majority of the justices seemed inclined to support the administration’s position that there was no political agenda behind asking the citizenship question.

On Thursday, the NYT reported about a related lawsuit filed in the Southern District of New York, which shows that all of the relevant information to decide the case was not available. The new evidence was obtained from Thomas Hofeller. Hofeller was the Republican Party’s guru on redistricting of electoral districts for political advantage. After Hofeller died, his estranged daughter found his computers and hard drives, and her mother gave them to her. She discovered files that demonstrated quite clearly that her father had been central to the creation of the census citizenship question.

From The New York Times: (emphasis by Wrongo)

“Files on those drives showed that he wrote a study in 2015 concluding that adding a citizenship question to the census would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats. And months after urging President Trump’s transition team to tack the question onto the census, he wrote the key portion of a draft Justice Department letter claiming the question was needed to enforce the 1965 Voting Rights Act — the rationale the administration later used to justify its decision.”

This article on Thomas Hofeller offers evidence of the vote suppression intent of the census citizenship question that the Supreme Court is likely to approve in a few weeks. The new court filing shows that Hofeller’s digital fingerprints are all over the US DoJ actions to add a citizenship question:

  • The first was an Aug. 30, 2017 document from the Hofeller hard drives. The document’s single paragraph cited two court decisions supporting the premise that more detailed citizenship data would assist enforcement of the Voting Rights Act. That paragraph later appeared word for word in a draft letter from the Justice Department to the Census Bureau that sought a citizenship question on the 2020 census.
  • A second instance involves the official version of the Justice Department’s request for a citizenship question. It was a more detailed letter sent to the Census Bureau in December, 2017, presenting technical arguments that current citizenship data falls short of Voting Rights Act requirements. The plaintiffs in the new case show those arguments are presented in exactly the same order, and sometimes with identical descriptions as in a 2015 study by Mr. Hofeller. In that study, Hofeller concluded that adding a citizenship question to the 2020 Census “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites” in redistricting.

Seems damning, but why should the Supremes need more evidence? Three federal district courts had already decided this question without seeing this additional evidence. They were able to see through the transparent attempt by the GOP to undermine voting rights.

The 14th Amendment, Section II says:

“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

The founder’s intent there seems pretty clear: The whole number of persons. And since when is it the responsibility of a member of Congress to only represent the eligible voters in his or her district?

The new smoking-gun evidence shows that government officials lied when they used the Voting Rights Act as their excuse for including the question. But, that will likely be seen by the SCOTUS as irrelevant, assuming they believe that the actual reason is a permissible action by the Commerce Dept.

Republicans love to complain about those Democrats who are now advocating for eliminating the Electoral College, saying that doing so would amount to “changing the rules because Democrats lost.” What should be obvious is that Republicans are constantly, and relentlessly changing the rules. See Mitch McConnell’s rewrite of his Merrick Garland policy just this week.

Over and over, Republicans gerrymander and suppress the vote in whatever way they can. They do this as part of their effort to shore up the voting power of their white voter base, while diluting the voting power of minorities.

They know demographics are not on their side, so they are willing to take extreme measures to solidify their position, regardless of the impact on the nation.

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Monday Wake Up Call – May 6, 2019

The Daily Escape:

Torres del Paine NP, Chile – 2016 photo by Andrea Pozzi

After our granddaughter’s graduation in PA (summa cum laude), we had a few wines and beers, and talk turned to politics and the mess America is in now. Son-in-law Miles, (dad of next week’s grad) asked a very good question. “Is now really the worst of times? What about when Martin Luther King was assassinated?”

Wrongo immediately flashed back to JFK’s assassination. He was a DC college student when JFK died. But his focus wasn’t on the loss of a president, or what that meant to the country. His focus was on what the loss of JFK meant personally.

That changed in 1968 with the assassinations of MLK and RFK. Wrongo was in the Army, stationed in Germany when Dr. King was killed. There was great tension in the enlisted men’s barracks. For a few days, it took a lot of effort in our small, isolated unit to keep anger from boiling over into outright fighting between the races.

By the time we lost RFK, it was clear that the Vietnam War would drag on, killing many of Wrongo’s friends. But, Wrongo’s job was to defend America from the Russians, with nuclear weapons if necessary.

It was difficult to see how or when Vietnam would end. It was hard to imagine Richard Nixon, Henry Kissinger, or Robert McNamara doing much to stop young Americans from dying in Asia.

The year 1968 also included the Tet Offensive. Mark Bowen in his book, Hue 1968, says:

“For decades….the mainstream press and, for that matter, most of the American public, believed their leaders, political and military. Tet was the first of many blows to that faith in coming years, Americans would never again be so trusting.” (p. 507)

When Americans finally saw the Pentagon Papers in 1971, they learned that America’s leaders had been systematically lying about the scope and progress of the war for years, in spite of their doubts that the effort could succeed. The assassinations, Vietnam, and Watergate changed us forever.

Our leaders failed us, it was clearly the worst of times. We were in worse shape in 1968 than we are in 2019. Back then, it felt like the country was coming apart at the seams, society’s fabric was pulling apart. Then, May 4th 1970 brought the killings of college kids at Kent State, which was probably the lowest point in our history, at least during Wrongo’s life time.

Last week, we acknowledged the 49th anniversary of America’s military killing American students on US soil. We vaguely remember the Neil Young song “Ohio” with its opening lyrics:

“Tin soldiers and Nixon coming, we’re finally on our own…”

That’s why the decade from 1960-1970 was the worst of times. We got through it, but we have never been the same.

In 1968, we saw that change can arrive suddenly, fundamentally, and violently, even in America. Bob Woodward spoke at Kent State last week, on Saturday, May 4th. He offered some brand-new information about Nixon’s reaction to the student shootings: (emphasis by Wrongo)

“In a conversation with his chief of staff H.R. Haldeman in September 1971, Nixon suggested shooting prisoners at New York’s Attica Prison riot in a reference to the Kent State tragedy. “You know what stops them? Kill a few,” Nixon says on a tape of the conversation.”

Woodward continued:

“We now know what really was on Nixon’s mind as he reflected…on Kent State after 17 months….Kent State and the protest movement was an incubator for Richard Nixon and his illegal wars.”

Woodward meant that what was coming was a war on the news media, creation of the “Plumbers” unit to track down leaks, and attempts to obstruct justice with the Watergate cover-up.

Many of us see 2020 shaping up as another 1968. Some see Nixon reincarnated in Trump.

We haven’t faced this particular set of circumstances before, so we can’t know just how it will go. Will it be worse than the 1960s, or just another terrible American decade? Is it the best of times, or the worst of times?

Are we willing to fight to preserve what we have anymore?

Wake up America, you have to fight for what America means to us. Constitutional liberties are under attack. The right to vote is being undermined. Extreme Nationalism has been emboldened.

To help you wake up, listen once again to “Ohio” by Neil Young in a new solo performance from October, 2018. He’s added some documentary footage and a strong anti-gun message:

You may not know that Chrissie Hynde, the future lead singer of The Pretenders was a Kent State student, and was on the scene at the time.

Those who read the Wrongologist in email can view the video here.

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Barr May Never Face the House Judiciary Committee

The Daily Escape:

Sunset at Malin Head, Donegal, Ireland – 2019 photo by jip

(There will not be a Saturday or Sunday column this weekend, or next. Wrongo and Ms. Right are traveling to two different states, attending the college graduations of grandchildren Elise and Conor.)

After the contentious Senate Judiciary Committee hearing on Tuesday, AG Bill Barr has canceled his scheduled appearance before the House Judiciary Committee. There is plenty of speculation about what happens next.

House Judiciary Chairman Jerry Nadler (D-NY) had previously said that he would subpoena Barr if he refused to testify. If Barr ignores the subpoena, as the Trump administration has done regarding document production, Democrats on the committee have indicated that they will move to hold the AG in contempt of Congress. From the LA Times:

“A contempt finding is how Congress may respond when someone refuses to testify or provide information as part of a House or Senate investigation. The Supreme Court has repeatedly upheld that Congress has a right to compel people to comply with its oversight efforts.”

In the past, just the threat of being held in contempt (not to mention Congress’ power over funding the government) was usually enough to convince an administration to comply with a request, or at least negotiate a compromise.

No longer. The Trump administration has no intention of complying with subpoenas from Democrats.

If Barr was held in contempt of Congress, what happens next? Congress has a few options. The most common is that it can send a criminal contempt referral to a US attorney. If prosecuted and convicted, the punishment is up to a $10,000 fine and a year in jail.

The last administration official to be held in contempt of Congress was Anne Gorsuch, Neil Gorsuch’s mother, who was head of the EPA in the 1980s. The House issued a subpoena, Ms. Gorsuch said “no thanks”. Congress referred it to the DOJ for enforcement, and the US Attorney refused to carry it out.

So the finding of regular contempt is enforced by the DOJ, and the DOJ has the discretion to not prosecute the finding.

If they fail to do it, the House would fall back on their inherent contempt power. Yes, there is such a thing. The long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison someone who is held in contempt until the individual complies with congressional demands.

Problem is, the inherent contempt power hasn’t been used since 1935. The inherent contempt power is not specified in a statute or constitutional provision, but has been deemed implicit in the Constitution’s grant to Congress of all legislative powers.

The Sergeant At Arms is Congress’s proper arresting authority, however, there is no jail in the Capitol. There are holding cells at the Capitol Police Dept., but they are not appropriate for a long term detention. And even if the Sergeant At Arms did arrest Barr, it is likely that he would quickly be released.

Here’s what we’ve learned this week: Congressional enforcement of a subpoena has no teeth if it is used against a member of the Trump Administration. So, there will never be a consequence for Barr, or any other member of the Trump administration disobeying a subpoena.

Democrats need to think very clearly about their messaging in the face of their anger at William Barr. Saying that “Trump is terrible and we are powerless” is not a winning message.

Saying “vote for us and we’ll fix this when we win in 2020” is better, but doesn’t sound like a great message either.

The Mueller Investigation game has already been won by Republicans. Democrats can try to test the system. If it works, we still have a country.

But, if they try, and it doesn’t work, we’re back to saying: “Trump is terrible and we are powerless”.

Things are moving a lot faster than most Democrats realize. It isn’t clear that traditional politics (compromise, etc.) will survive. And it’s even less clear what is going to replace it.

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