US Constitutional Issues – Page 9

Monday Wake Up Call – May 4, 2020

The Daily Escape:

Flathead River with Mission Mountains in background, MT – photo by Jay Styles

Can the Republicans force the economy to open? Bill Barr thinks so.

“Justice Department officials have spoken on conference calls with leaders of conservative groups, who have flagged individual cases as worthy of the department’s review. Some cabinet officials have signaled that they back the effort by participating in private calls with conservative allies, according to multiple people involved with the calls.”

The COVID-19 outbreak sparked many states and municipalities to order their citizens to stay at home and businesses to close in order to slow the spread of the illness, and to protect the public, but do the states have the authority to do it?

According to the Incidental Economist:

“Terms like isolation and quarantine have legal meaning, and relate to the government’s powers to act in the public’s interest. Isolation is a targeted approach for individuals already diagnosed with a disease while quarantine restricts the movement of individuals or groups exposed to an illness, some of whom may not be sick.

Both strategies restrict the movement of individuals and are considered a severe deprivation of liberty.”

Last Friday, New Mexico Gov. Michelle Grisham (D) quarantined the town of Gallup, at the request of the city’s mayor, because the city is a COVID-19 hotspot. Grisham invoked New Mexico’s Riot Control Act. The order shuts down all roads to and from Gallup.

We can expect that this will lead to legal battles over whether governors can close individual American cities.

Last week, AG Barr issued a memorandum directing an effort to monitor state and local shutdown policies. Barr wrote: (emphasis by Wrongo)

“We do not want to unduly interfere with the important efforts of state and local officials to protect the public…But the Constitution is not suspended in times of crisis.”

Actually, it has happened many times before.

Both GW Bush and Abraham Lincoln suspended habeas corpus.
John Adams helped pass the Alien and Sedition Acts of 1798, those four laws “restricted the activities of foreign residents in the country and limited freedom of speech and of the press”.
FDR built internment camps and imprisoned Japanese Americans.
Woodrow Wilson presided over the passage of the Espionage Act followed by the Sedition Act. People couldn’t say anything: “…insulting or abusing the US government, the flag, the Constitution or the military.” Violators could receive 20 years in prison.

And now, Barr barges in. Since Wrongo isn’t a lawyer, we’ll have to leave the arguments to those who are qualified. But it seems that in the past, all the Constitution-breaking has been done by presidents, not governors. What we have is a federal vs. state powers question.

So far, the DOJ has intervened in only one case, a “religious freedom” complaint, a lawsuit by a Baptist church in Greenville, MS.

Conservatives are perfectly willing to be inconsistent. They are champions of “states’ rights” until the state in question happens to lean blue. Speaking of inconsistency, remember that it was Trump who when asked why he wasn’t going to issue a nationwide ‘shelter in place’ order, said that it was up to the states.

The Trump administration delegated responsibility to the states with one hand, yet allows the DOJ to threaten governors with legal action. We also have religious conservatives who seem to forget the basis of Christianity, and are willing to put their neighbors at risk. Finally, there is a worrying increase in right-wing civil disobedience (while carrying weapons) that could easily ignite a real civil problem.

Once again, shopping is patriotism. Legitimate fear is unconstitutional. This isn’t unprecedented. After 9/11, GW Bush told everyone to go out and shop. Shopping is apparently how Republicans show their love of country.

Taken together, we as a nation have truly lost our way.

Wake up America! Insist that by November, the states have prepared well enough that it is safe to vote in huge numbers to get these birds out of office.

To help you wake up, let’s listen to Bruce Springsteen and his wife, Patty Scialfa playing two songs from their home studio, “Land of Hope and Dreams” and “Jersey Girl”. This was part of the Jersey 4 Jersey benefit for the New Jersey Pandemic Relief Fund.

This is dedicated to daughter Kelly, a former Jersey girl who can use a pick-me-up. Remember, dreams will not be thwarted!

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

Stimulus Money is Going to Churches

The Daily Escape:

View of Mt. Rainer from Reflection Lake WA – 2018 photo by NathanielMerz

Here is the 7-day look at the national numbers for COVID-19:

The rate of growth in deaths as a percentage of cases continues to rise, while the rate of increase in cases picked up slightly on 4/6, although overall, it is slowing vs. 7 days ago. Testing is still growing, although the rate of growth in tests is now about equal to the growth in cases.

A little-noticed part of the $2 trillion stimulus package allows the federal government to provide money directly to US churches to help them pay pastor salaries and utility bills. From NPR: (emphasis by Wrongo)

“…the $2 trillion economic relief legislation…includes about $350 billion for the Small Business Administration (SBA) to extend loans to small businesses facing financial difficulties as a result of the coronavirus shutdown orders. Churches and other faith-based organizations are among the businesses that qualify for aid under the program, even if they have an exclusively religious orientation.

So, we’re not simply speaking of not-for-profit subsidiaries of churches such as charities. The Trump administration is saying churches themselves will qualify for direct loans. Apparently, the program is based on the average monthly payroll of a church school or the parish, which is extrapolated to eight weeks. The cost of maintaining staff for that period becomes the loan amount.

From the SBA’s statement:

“Faith-based organizations are eligible to receive SBA loans regardless of whether they provide secular social services….No otherwise eligible organization will be disqualified from receiving a loan because of the religious nature, religious identity, or religious speech of the organization.”…

The SBA’s regulations currently exclude some religious entities. Because those regulations bar the participation of a class of potential recipients based solely on their religious status, SBA said it will decline to enforce those subsections and will propose amendments to conform those regulations to the Constitution.

The SBA is quoting a 2017 Supreme Court decision, Trinity Lutheran v. Comer, which was the first time the Court said the government is required to provide public funding directly to a religious organization. Chief Justice Roberts wrote for the majority in the 7-2 decision. The key argument was that Trinity Lutheran faced discrimination solely because of its identity as a church. That, the Court decided, was discrimination. From the opinion:

“There is no question that Trinity Lutheran was denied a grant simply because of what it is….A church.”

The grant was for refurbishing the church’s playground.

But in this case, the SBA is offering direct funding of religious entities with money provided by tax dollars from the rest of us. We’re likely to see this in the courts soon.

This isn’t the first time that the Trump administration provided funds directly to churches, synagogues, mosques and other religious organizations. In 2018, the Federal Emergency Management Agency (FEMA) changed its rules to make houses of worship eligible for disaster aid.

First Amendment watchers have reacted. Alison Gill, legal and policy vice president of American Atheists said:

“The government cannot directly fund inherently religious activities….It can’t spend government tax dollars on prayer, on promoting religion [or] proselytization. That directly contradicts the Establishment Clause of the First Amendment.”

If they want Federal funds, shouldn’t they pay Federal taxes?

Saturday Soother – Bill Barr Edition

The Daily Escape:

Peyto Lake, Jasper NP, Alberta CN – 2019 photo by TheMilkMan26

America needs a Trumpectomy, and that won’t happen until January 2021. The problem is that Trumpism is like a metastasized cancer, and maybe even excising Trump won’t be enough to cure the country.

When the story broke that AG William Barr had intervened in the sentencing recommendation for Roger Stone, most of the country was in an uproar. Career DOJ prosecutors left the case, and most of us were angry and in disbelief that Trump was directing the DOJ’s case along with his accomplice, AG Barr.

The Justice Department was also in disbelief. NBC News’ Ken Delanian reported that Department of Justice employees almost walked out en masse on Wednesday over Barr’s actions. Barr responded to the criticism from inside and outside the DOJ by telling ABC News that Trump’s constant tweets “make it impossible for me to do my job.” The first blush reaction to Barr’s statement was that Barr was complaining about Trump getting in his grill.

A much more realistic (and troubling) take is that Barr is defending his action as “perfect”, and the only reason that he’s taking flack is a completely unrelated tweet from Trump.

Barr’s criticism of Trump is about as real as professional wrestling. He’s a fan of executive power, and too aware of Trump’s personality to have done this without coordinating with the White House.

And if that wasn’t enough, the NYT reported on Friday that Barr assigned yet another outside prosecutor to scrutinize the DOJ’s criminal case against Michael Flynn, Trump’s former national security adviser. This is yet another case of political interference by the DOJ into the work of its own career prosecutors.

Flynn pleaded guilty, but at the start of the sentencing phase, he hired a new attorney, Sidney Powell, a darling of the right wing media, who is also a FOX contributor. She is contesting his guilty plea.

Barr said just the other day that he would not be bullied or swayed for political reasons, and would only act in the name of maintaining the highest judicial standards. Now, the question for Barr is: How did he pick the Stone and Flynn cases for the DOJ to pursue?

Flynn’s judge, Emmet Sullivan, wrote a 92-page opinion in December laying out why the things that Barr just hired another counsel to second-guess won’t affect Flynn’s guilt. Why is the entire Right wing is going to the mats to defend Flynn, a guy who was secretly on Turkey’s payroll while acting as Trump’s NatSec advisor?

Their hero is a guy who was selling out the US for $600K.

It’s important to remember that Flynn, Manafort, and Stone broke the law repeatedly. Barr is working to undermine our judicial process on their behalf. Now, you can prosecute the bad guys, but don’t mess with the president’s friends. Do that and you’ll be out of work, or worse.

This of course, changes how prosecutors will do their jobs.

Successfully performing the Trumpectomy will be an all hands on deck effort. We can’t give up hope. Wrongo returned from his military service in 1969, and protested the Vietnam War until it ended in 1975.

We need to resist Trumpism until it ends. Let’s close with two excerpts from Thomas Merton’s “Letter to a young activist”, written during the Vietnam War in 1966:

“This country is SICK, man. It is one of the sickest things that has happened. People are fed on myths, they are stuffed up to the eyes with illusions. They CAN’T think straight. They have a modicum of good will, and some of them have a whole lot of it, but with the mental bombardment everybody lives under, it is just not possible to see straight, no matter where you are looking.”

Sound familiar? Merton goes on to say:

“Vietnam is the psychoanalysis of the US. I wonder if the nation can come out of it and survive. I have a hunch we might be able to. But your stresses and strains, mine, Dan Berrigan’s, all of them, are all part of this same syndrome, and it is extremely irritating and disturbing to find oneself, like it or not, involved in the national madness.”

We’ve been here before, and with huge voter turnout, we can beat Trumpism.

We really need today’s Saturday Soother. To help you begin, let’s brew up a mug of Kona Bourbon Pointu Laurina, ($62.50/8oz.). Wrongo know that’s expensive, but use some of your Trump winnings to buy it from Hula Daddy, an artisanal coffee grower in Kona, Hawaii.

Now put on your headphones and listen to “21^st Century USA” by the Drive By Truckers from their new album “Unraveled”. This isn’t designed to soothe you, but to fire you up:

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

Saturday Soother – January 18, 2020

The Daily Escape:

Polar Bear, Churchill, Manitoba CN – October 2019 photo by Colin Hessel

For a lot of people, this will be a long weekend with the federal holiday for Dr. Martin Luther King, Jr. on Monday (his actual birth date was Wednesday, the 15^th).

Thousands of pro-gun fanatics are expected to march at the Virginia state capital on MLK Day. Prior to VA governor Northam’s declaration of a state of emergency, those pro-gun lobbyists were expected to brandish weapons and look as menacing as possible to lawmakers who want to reform the state’s gun laws. Now, the state of emergency means the state capitol grounds at least, should be gun-free.

Naturally, the choice of MLK Day for a pro-gun march wasn’t a coincidence.

MLK Day was carefully chosen for the rally, since many of the people hyping it are white nationalists. The Virginia Citizen Defense League says its motives for choosing MLK Day for its annual pro-gun rally are innocent. They say the date was picked because it’s a federal holiday, which allows more gun owners to be able to come.

But King was assassinated in 1968 by a gun-wielding right-winger, so it’s difficult to imagine there’s no ulterior purpose in using the same day for gun-wielding right-wingers to celebrate themselves.

Maybe they think it ought to be James Earl Ray day.

On top of that, Tuesday brings “All Impeachment, All the Time”, so we won’t get much of a break from the Lev Parnas show this week.

Charlie Pierce talks about how low and grubby high crimes can be: (emphasis by Wrongo)

“The proper historical analogue to this event is not the impeachment of Bill Clinton, but the impeachment of Andrew Johnson. The Clinton impeachment was the isolated case of one man’s clumsy foibles within the confines of the civil and criminal justice systems. No other constitutional principle was under discussion. No constitutional institution was at risk. The balance of powers was not in danger of coming unraveled unless Clinton had been removed from office for such relatively flimsy charges, political accelerants aside.

Andrew Johnson disobeyed an act passed by Congress specifically to rein in his powers. This was a full-speed collision between Article I and Article II powers. That’s what the impeachment of this president* is, too. If anything, the actions addressed by this impeachment are even cruder than Johnson’s were, and Johnson was drunk a lot of the time. The current impeachment is shot through with actions that remind you how closely cupidity and stupidity rhyme. When the House managers walked the articles across the Capitol, the Founders walked with them, although many of them were probably astonished at how low and grubby high crimes can be.”

We’ll see what the next week brings in both Richmond, and in the Senate. Keep your powder dry.

It’s pretty cold here in New England, and we expect substantial snow on Saturday afternoon. So, now’s the time to make sure we take a break from another trying week, and spend a few moments in peace before the snow storm. IOW, it’s time for another Saturday Soother!

Let’s start by brewing up a mug of organic Conscientious Objector Coffee, created for those who follow their conscience ($17/12 oz.). It comes from Oakland, CA’s Highwire Coffee, who says it has sweet creaminess and fruitiness upfront, with a cocoa finish. Yum!

Now settle back in a comfy chair by a window and listen to André Rieu and his Johann Strauss Orchestra play “The Beautiful Blue Danube” by Johann Strauss II. It was recorded live at the Schönbrunn Palace in Vienna. If you watch, you will see marvelous dancing by members of the famous Austrian Elmayer Dancing School, the orchestra having fun, and the audience enjoying a bit of schmaltz:

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

Saturday Soother – December 7, 2019

The Daily Escape:

Crater Lake, OR on Thanksgiving, 2019 – photo by hglwvac9. This is the fourth time we’ve featured Crater Lake.

An issue that gets no traction in the US media is what should be done with ISIS fighters who have been captured in the fighting in Syria and Iraq. In November, a federal judge ruled that a New Jersey-born woman who joined the Islamic State five years ago, was no longer an American citizen, and would be denied re-entry into the US. She had burned her US passport in 2014, and declared herself to be a part of the caliphate. She used social media to encourage others to join. She then married an Australian-born ISIS fighter who was killed in 2015, and then married a Tunisian-born fighter who was also killed.

GZero has an article by Willis Sparks that reviews the pros and cons of allowing ISIS members to return to their home country. They come from more than 100 countries, many thousands are held by Turkey, while there are more than 10,000 women and children (mostly family members of ISIS fighters) still living in camps inside Syria.

Turkey says it intends to send most home. Syria won’t keep them either. This creates a policy dilemma: Should these terrorists and/or their families be allowed to return to their native countries? Or should countries refuse to allow them back? Sparks offers the arguments on both sides. First, arguments to bring them home:

Repatriated fighters and their families should stand trial as terrorists at home. That’s better than allowing them to remain at large.

Some of the women were coerced to join the fight. Yes, many who claim to be victims may be lying, but it’s better to allow a guilty person to return home to stand trial than to leave an innocent person to a potentially terrible fate they don’t deserve.

Thousands of children were born into ISIS fighter families in Syria. They’re guilty of nothing. Many are sick and/or at risk of death inside refugee camps, where they can also be radicalized.

Governments must abide by their own laws. Many of the fighters and family members are still citizens of the countries they left, and therefore have the rights of citizens. In many countries, like the US, the children of citizens are also citizens, even if they were born elsewhere.

Arguments to reject them:

A citizen who declares war on his or her own government and carries out or enables the murder of innocent people should forfeit some rights — especially the right of citizenship.

While some of them may have been tricked or coerced to go to war, how are courts expected to separate fact from fiction so far from the battlefield?

It is not the responsibility of governments to rescue people from their bad decisions.

Government’s responsibility is to protect all its citizens, not just those who chose terrorism. The greater good argues for protecting all against the few.

The debate will become more important in the near future, because the detention of thousands of people in camps in countries that don’t want them can’t be sustained.

Wrongo’s view is that it isn’t our government’s responsibility to rescue people from their bad decisions, but is it right to abandon them? We have a few ethicists and religious among our readers. Hopefully they will weigh in.

But enough! Xmas is just around the corner, and there is work to be done, menus to dream up and for the non-Scrooges among us, presents to buy. We need to turn our attention away from impeachment and Bidenpartisanship to preparation for the onslaught. First, let’s take a few minutes for ourselves in our weekly Saturday Soother. Start by brewing up a fine cup of Panama Esmeralda Geisha Portón Oro Yeast ($69.95/60z. Sure, it’s expensive, treat yourself for the Holidays!) It’s from Klatch Coffee of Los Angeles, CA.

Now settle back in a comfy chair, and listen to the wonderful Anna Netrebko sing “Solveig’s Song” from Grieg’s Peer Gynt Suite No.2 accompanied in 2008 by the Prague Philharmonia conducted by Emmanuel Villaume:

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

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.

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 7^th, the justices will hear arguments in the case Kahler v. Kansas, regarding whether the 8^th 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 6^th 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 12^th, 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 2^nd, 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.

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.”

“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.

Saturday Soother – August 24, 2019

The Daily Escape:

Ground Swell – 1939 painting by Edward Hopper

In news you most assuredly haven’t seen, the 10^th 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 10^th 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 6^th:

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.

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.

The Wrongologist

Geopolitics, Power and Political Economy

Category: US Constitutional Issues

Monday Wake Up Call – May 4, 2020

Stimulus Money is Going to Churches

Saturday Soother – Bill Barr Edition

Saturday Soother – January 18, 2020

Saturday Soother – December 7, 2019

Dateline London — Banana Republicanism Edition

The Supreme Court Goes Back to Work

Partisan Gerrymandering Overturned in North Carolina

Saturday Soother – August 24, 2019

Monday Wake Up Call – August 5, 2019