Category: Law

Who’s Down with TPP

It aint your grandpa’s trade agreement. Though the proposed Trans-Pacific Partnership is attended by the usual chorus, featuring competing refrains of “International Trade Took My Job” versus “International Trade Got me a Better Job, plus some Sweet Deals at Walmart,” the controversial aspect of TPP isnt the opening of borders through the elimination of tariffs. It’s about strengthening the power of corporations over national governments, and limiting governments – democratic or otherwise – in their ability to regulate industry.

A relatively minor story just out of Congress serves as a good illustration. The House Agriculture Committee voted to repeal a US labeling law that requires meat to specify its country-of-origin. What’s interesting is why the committee moved to eliminate the law: not because they thought country-of-origin information was superfluous or irrelevant to consumers; but rather because the World Trade Organization decided that the labeling law discriminated against Canadian and Mexican firms. If the US fails to repeal the law, Mexico and Canada will be permitted to retaliate, and that will be costly.

Ignoring whether these labeling laws are actually good or bad for US consumers – we focus instead on the process. An international tribunal made a decision, and Congress is now likely to respond by changing US laws – not for the interests of their electorate (as if!), but without regard to their interests.

TPP goes even further. It would create new supra-national tribunals, in which firms could sue governments for their failure to respect TPP’s provisions. Prevailing firms could effectively collect their “lost profits” from taxpayers. And the tribunals would not be staffed by independent judges with lifetime appointments – but rather by corporate representatives on a rotating basis. Today you’re a plaintiff, tomorrow you’re a judge, and next week you’re a plaintiff again. Nice work if you can find it….

Tariffs have already been all-but eliminated across international borders by existing trade agreements. Modern-day trade agreements like TPP are much more concerned with dispute resolution processes and harmonization of national laws, to smooth things out for multinational corporations. That in itself isnt a bad thing. In past decades, the US pushed to make commercial laws uniform across the fifty states. The resulting Uniform Commercial Code has helped to facilitate interstate commerce.

But TPP would go even further, and may too much restrict the latitude of governments. For example, TPP takes aim at banking regulations. While we could all probably get on not knowing whether our pork chop hails from Texas or Manitoba, we should not be thrilled to see US banking reforms – passed in the wake of the 2008 financial crisis – undone.

Free trade is good – and freer is usually better. That the parties to a transaction may be based in different towns, states or countries isnt terribly important to the analysis. If everyone acts according to their individual interests, the net result is usually that everyone is better off. While things usually are that simple, circumstances arise when people, through their governments, should restrict trade to further a greater good.* And the problem with TPP is that it promises to run roughshod over democratic processes, by which individual nations tailor their laws according to their own values and their perception of the national interest.

 

Refs:

http://en.wikipedia.org/wiki/Trans-Pacific_Partnership

http://www.thenation.com/article/168627/nafta-steroids#

http://krugman.blogs.nytimes.com/2015/05/19/the-mis-selling-of-tpp/?module=BlogPost-Title&version=Blog%20Main&contentCollection=Opinion&action=Click&pgtype=Blogs&region=Body

http://www.washingtonpost.com/blogs/plum-line/wp/2015/04/30/battle-rages-over-key-obama-trade-policy/

http://www.bloomberg.com/politics/articles/2015-05-15/warren-claim-that-trade-bill-could-undermine-dodd-frank-is-right

http://news.yahoo.com/house-consider-repeal-meat-labeling-law-071204979–finance.html

http://www.azlyrics.com/lyrics/naughtybynature/opp.html

 

* For example, it doesnt much matter whether a factory releases carbon dioxide in Canton, Ohio or in Guangdong, China – the impact on global warming is the same. While people in one country might reasonably accept a dirtier local environment as a cost of having more local industrial jobs, their decision to not regulate carbon impacts people in all countries. And so it’s quite reasonable for other countries to limit trade with the polluting country, as a means of protecting their own environment.

Another example: Left to themselves, laborers tend to organize and demand better pay and working conditions. Therefore there is little pressing need for western countries to impose their own labor standards on the developing world. However some third world governments systematically harass and suppress labor movements in an effort to artificially maintain a competitive advantage. It is reasonable to respond with trade restrictions if only to ensure a level playing field, if not to promote human rights.

 

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No Freedom to Discriminate

The US Supreme Court seems poised to end state bans on gay marriage in the few states that still do not permit it. Under the 14th amendment, states are not allowed to deny “equal protection of the laws” to any person. As distinctions between traditional marriage and same-sex marriage wither under scrutiny, state bans on same-sex marriage become ever more apparently a bald denial of equal protection, and will very likely be declared unconstitutional by the Court when it renders its decision in the coming months.

But just as one form of discrimination is about to be stamped out, another is trying to emerge. Such discrimination occurs in a commercial setting – when, for instance, a gay couple goes to a baker for a wedding cake, and the baker refuses. (This is analogous to racial discrimination from the Jim Crow era, when a black person seeking a room in a whites-only hotel could be turned away by the manager.) Unlike bans on gay marriage, which are perpetrated by the government, this form of discrimination is committed by private citizens – and there’s no federal law against it.

While the Bill of Rights and the 14th amendment secure individual rights against federal, state and local governments, they are generally inapplicable to the rights we hold with respect to each other. That’s why the US needed the Civil Rights Act of 1964 to end apartheid. Under federal law, before the Civil Rights Act, the proprietor of a shop could turn away any prospective customer or employee for any reason whatsoever. One could choose to serve and-or hire blacks only, whites only, Catholics only, Jews only, etc. – and the US Constitution had (and still has) nothing to say about it. While the Constitution forbids governments from maintaining whites-only buses, or blacks-only universities, it allows private parties to do as their conscience (or lack thereof) dictates. It is because of the Civil Rights Act – not the Constitution – that private parties cannot discriminate on the basis of “race, color or creed” in the course of operating a business.

While red states lag far behind blue states in virtually every socioeconomic measure, they are great innovators of bigotry and intolerance. The Supreme Court’s unfortunate decision in Hobby Lobby gave conservatives a new not-so-bright idea. The Court held that closely-held corporations can refuse to provide their employees with health insurance coverage for birth control, if doing so ran afoul of their “religious beliefs.” In other words, a corporation’s Constitutional “religious freedom” takes precedence over a federal law requiring them to provide insurance coverage for family planning.

Enter the “Religious Freedom Restoration Acts” (RFRAs) now working their way through state legislatures across the country. On their face, they seem innocent – as was the original RFRA passed by Congress in 1993, and signed into law by Bill Clinton. The idea was to give people the right to refuse certain impositions on the part of the government, when they conflicted with their religious beliefs. But a few red states got the notion to expand the application of these laws to private parties as well. And so if a gay couple asks a baker to bake them a cake, the baker might be able to rely on a state RFRA to refuse. The analog to Hobby Lobby is unmistakable, as it should be. Conservatives thought they found a new lipstick for their pig: by dressing up bigotry in the garb of religious freedom, maybe they could sneak it past the courts, and engender a whole new era of discrimination.

Indiana and Arkansas seemed bent on passing RFRAs that facilitated this new form of discrimination. And then something remarkable happened: corporate America rose up in opposition, and the GOP in both states were cowed into amending their laws so that bigots could not rely on them to discriminate.

The US Supreme Court has yet to hear a case on whether one can invoke ones religious beliefs to discriminate against others on the basis of their sexual orientation. Many states afford no protections for gays from discrimination. And Congress has thus far failed to pass a Civil Rights Act for gays. But it is heartening to see this new form of bigotry beaten back by public opinion. The LGBT community assuredly needs a federal Civil Rights Act affording them full protection from commercial discrimination, nationwide. And the road to that destination just got a bit smoother.

 

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Refs:

http://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act

http://en.wikipedia.org/wiki/Employment_Non-Discrimination_Act

4 articles with comprehensive coverage of RFRAs: http://www.washingtonpost.com/blogs/govbeat/wp/2015/04/01/the-twisted-history-of-how-religious-freedom-laws-confused-everybody/

http://www.usatoday.com/story/news/politics/2015/04/02/arkansas-religious-freedom-bill/70831330/

http://www.huffingtonpost.com/2015/04/02/asa-hutchinson-arkansas-rfra_n_6995826.html

http://www.usatoday.com/story/news/nation/2015/04/02/indiana-religious-freedom-law-deal-gay-discrimination/70819106/

http://www.hrc.org/resources/entry/employment-non-discrimination-act

 

Bergdahl Rules

The successful effort to obtain the release of captured US Army Sergeant Bowe Bergdahl set a high water mark for idealism, and highlights the best of American governance. Though the subtleties of law and principle implicated in Bergdahl’s case are easily manipulated by cynics, and thus misapprehended by the unwitting many, a great deal of good, and a fine precedent, has nonetheless proceeded from a difficult situation.

The evidence strongly suggests that Bergdahl deserted. While he’s entitled to the presumption of innocence, for our purposes, we’ll assume that Bergdahl will be convicted of desertion, and that the Obama administration expected as much as they worked to obtain his release, ultimately paying a significant price. It’s also reasonably assumed that the five Guantanamo prisoners, whom the US gave up in exchange for Bergdahl, are indeed dangerous, simply because the Taliban wanted them. And so the threshold issue is why the US would give up so much to rescue a deserter, who has likely been brought back to the US for the sole purpose of standing trial, to thereafter serve a lifetime sentence in a military prison.

The rationale was best expressed in the terse phrasings of Army Chief of Staff Anthony Odierno: “It was always a high priority that every soldier deployed to Afghanistan would return home. We will never leave a fallen comrade behind.” Or as a US Admiral put it, “If a man goes overboard, we will go and get you – we wont stand around asking if you jumped.” The commitment of the US military to every one of its servicemen has no exceptions for poor performance. The policy of leaving no man behind has no asterisk after it.

Some have raised the issue of the US policy against negotiating with terrorists. However the Taliban has never been classified by the State Department as a terrorist organization, neither under the Bush nor Obama administrations. The US went to war against Afghanistan not because the Taliban – its rulers – were terrorists, but because they were harboring terrorists. The Taliban is better regarded as an especially brutal, repressive regime (and-or insurgency), in the vein of Hitler, Stalin, Pol Pot, Pinochet, Trujillo, etc. And the US has exchanged prisoners with many such regimes in the past, including Nazi Germany, the USSR, and even the Confederate States of America. Right-wing hysteria notwithstanding, the Obama administration’s decision to negotiate with the Taliban does not set a precedent or mark a departure from longstanding US policies.

A particularly silly criticism of the deal is that the US paid “too high a price” for Bergdahl – that after years of negotiating, the US in the end caved in and sent five enemy combatants for a single US soldier. Such critiques are particularly frivolous, advanced as they are in a factual vacuum, by people who were not privy to the negotiations. More absurd is the “problem” such critics seem anxious to head off: the US placing too great a value on the lives of its soldiers.

A more interesting issue is President Obama’s decision to flaunt the National Defense Authorization Act for Fiscal Year 2014, which mandates that 30 days notice be given to Congress before any prisoners are transferred from Guantanamo. That law, which Obama signed into effect, poses a separation of powers issue, and there is a very good chance that it is an unconstitutional usurpation of executive authority by Congress. (Obama said as much in his signing statement.) While in other countries the courts could resolve the matter with an advisory opinion, the US Supreme Court only has jurisdiction over live “cases and controversies” – i.e., the president cannot inquire as to whether a law is constitutional – he must make his own decision and act without the benefit of the Court’s opinion. And in such circumstances, very few conlaw scholars take the extreme viewpoint that the president must “faithfully execute” laws that seem to run afoul of the Constitution.

It would have been far easier for the Obama administration to do what some on the right-wing lunatic fringe suggested: try Bergdahl in absentia, obtain a verdict of guilt, and disown him. (Though it’s naive to imagine conservatives rallying behind the president as Bergdahl’s corpse was dragged through the streets by his captors.) Instead of taking an easy way out, the Obama administration stood fast to principle: faithful to the policy of bringing every man home; and to the presumption of innocence; and the commitment to due process, which affords the accused the opportunity to face his accusers and participate in his own defense. While the price paid for Bergdahl may have been dear, in the end it wasnt one soldier that the US was paying for, but a set of principles that go to the foundation of the republic.

 

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Case Closed in Ferguson

In the end, US Attorney General Eric Holder had to pass on Ferguson. Because of the way the law is written, it’s almost impossible to convict a cop who can reasonably assert that he feared for his safety. And so long as a victim isnt cuffed, a cop who claims he was afraid is going to get off.

However the public should be aware of the strength of the case against former Ferguson police officer Darren Wilson. While the Field Guide does not have access to the Department of Justice’s records for the investigation, we were able to find the informal testimony of 9 witnesses, one of whom says one thing, and the other 8 say something else. The odd man out, of course, is Wilson himself.

According to Dorian Johnson, Wilson exited the vehicle, and fired several rounds at the fleeing Brown, hitting him once in the back. Brown turned around with his hands raised and said, “I dont have a gun. Stop shooting!” Wilson then shot Brown several more times, killing him.

According to Michael Brady, Brown was “balled up” with his arms under his stomach and he was “halfway down” to the ground. As he was falling, Brown took one or two steps toward Wilson – presumably because he was hit and stumbling forward. Wilson then shot him three or four times.

Piaget Crenshaw said that Wilson chased Brown for about 20 feet before shooting him again. “I saw the police chase him down the street and shoot him down. When Brown then raised his arms, the officer shot him two more times, killing him.”

Tiffany Mitchell said that after the first shot was fired, Brown started to run away. “After the shot, the kid just breaks away. The cop follows him, kept shooting, the kid’s body jerked as if he was hit. After his body jerked he turns around, puts his hands up, and the cop continues to walk up on him and continues to shoot until he goes all the way down.”

James McKnight said that Brown held his hands in the air just after he turned to face Wilson. He stumbled toward the officer, but didnt rush him, and “the officer was about six or seven feet away” from Brown.

Phillip Walker said he saw Brown walking “at a steady pace” toward Wilson with his hands up and that he “did not rush the officer”, adding that Wilson’s final shot was from a distance of about four feet.

Emanuel Freeman stated that Wilson fired twice at Brown while he was running away, and five more times after he turned around to face Wilson.

A construction worker, whose reaction to the shooting was a youtube sensation, said that Brown began walking toward the officer with his hands up, at which point Wilson began firing at Brown and backing away. After the third shot, Brown’s hands started going down, and he moved about 25 feet toward Wilson, who kept backing away and firing. The worker was unable to discern if Brown’s movement toward the officer was “a stumble to the ground” or “okay, I’m going to get you, you’re already shooting me.” The worker disputed the claim that Brown rushed at the officer, “I dont know if he was going after him or if he was falling down to die. It wasnt a bull rush.”

There’s also a medical examiner’s report. While the ME says that her report is consistent with the scenario that Brown reached for Wilson’s gun, she added, “I’m not saying that Brown going for the gun is the only explanation.” In other words, her report is consistent with Wilson’s testimony, but also with that of the 8 witnesses above.

In the end, forensics could not resolve three key issues: (1) the range from which the head shots were fired, (2) whether Brown was approaching fast or slow, or (3) whether Brown had his hands up and extended from his body. Those issues can only be resolved by witness testimony – and not one witness, except Wilson, says that Brown was rushing. Not one says Brown was as close as Wilson claimed when he took the final shots. All say Brown was either approaching slowly, or stumbling. Most say his hands were out. Not one says that Brown reached for the gun.

The law is what it is, and we cannot complain if good laws sometimes produce undesirable results – all laws are imperfect in this way. But while the law has spoken, and the case is closed on Ferguson, let it not be suggested that justice has been done.

 

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Louisiana Conspiracy

The cases of Michael Brown and Eric Garner are about extreme abuses of power, not just in the unnecessary use of deadly force by the police, but in prosecutors sealing the miscarriage of justice by failing to obtain indictments afterward, despite an abundance of damning evidence.

In Louisiana, an even more outrageous case has failed to get the attention it deserves. However it seems that justice has a good chance to prevail.

In front of the local courthouse, Douglas Dendinger served a subpoena on Chad Cassard, a one-time Louisiana police officer. Shortly after arriving home, Dendinger’s house was surrounded by police, and he was hauled away on felony charges for assaulting and intimidating Cassard. The charges were backed up by seven eyewitnesses, all policemen and attorneys, including a police chief and two local prosecutors, all of whom asserting in sworn statements that Dendinger violently struck Cassard as he served the subpoena.

A year passed, and District Attorney Walter Reed was set on pressing ahead with the case against Dendinger – when Dendinger produced a video of the entire transaction between him and Cassard. It was taken by his wife and nephew from a car, to document service of process for a civil suit his nephew was pursuing against Cassard for police brutality. The video shows Dendinger harmlessly handing something to Cassard and departing. The video leaves no room for the imagination. The accusations against Dendinger are, quite obviously, utter fabrications.

But when presented with this video evidence, Reed refused to drop the case. Dendinger’s attorney got the state Attorney General involved, and forced Reed to recuse his office from the prosecution. The Louisiana AG summarily dismissed all charges. New federal civil rights charges are now pending against Reed and several of Dendinger’s false witnesses, who may face felony prosecution as well.

The recitation of this story isnt meant to impugn police and prosecutors generally, but to observe that they are ordinary people, some better and some worse, and that their testimony is not necessarily worth more than anyone else’s. In the case of Michael Brown, there were a total of ten witnesses, nine of whom asserted that Brown did not charge Officer Wilson or reach for his weapon. The tenth witness, Wilson himself, told a different story to justify his shooting of Brown several times, including twice in the head.

Civil society requires a dependable police force – but the police have as much potential for bad as they have for good. Our takeaway is to remain ever vigilant about keeping the power of police and prosecutors in check – and to give equal weight to the testimony of our fellow civilian citizens.

 

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GHWB’s Gallery of Irony

You could fairly ask why the National Constitution Center – a museum devoted to the US Constitution – would name a new gallery for George H.W. Bush. This, after all, is the president who irresponsibly appointed Clarence Thomas, the Supreme Court’s least qualified appointee since at least WWII, whose signature contribution during 20 years on the bench is his ongoing effort to legitimize prison beatings. (Really.) VP while the Reagan administration was running roughshod over the Constitution during the Iran-Contra affair, Bush, as president, pardoned everyone implicated, arguably to obstruct investigation into his own law-breaking.

But the salient facts are that GHWB is a former chairman of the Center, and that his son Jeb is the current chair – and so with nauseating irony GHWB is getting his eponymous gallery. According to Center president Jeffrey Rosen, the George H.W. Bush gallery will for the next three years, “be the focal point… of debate and education about the meaning of the Bill of Rights.” Barf bags, anyone?

As if to double-down on the grotesque, the task of obfuscating George Bush’s antagonistic relationship to the Bill of Rights was given to Justice Samuel Alito, who Bush appointed to the Third Circuit in 1990. Alito, after all, has himself been hard at work eviscerating the Bill of Rights since Bush Duh put him on the Supreme Court in 2006. It’s kind of like adding a George Wallace wing to a Black History Museum – with the dedication ceremony conducted by Charles Murray.

Conservatives like Alito cannot sing the praises of the Bill of Rights without irony. Speaking at the dedication ceremony, Alito distinguishes the American Bill of Rights as “having teeth” – as compared to other declarations of human rights that, through history, have not been so readily enforceable. The joke is that Alito has made a career of knocking those teeth out at every opportunity.

Three Constitutional cases were deadlocked 4-4 at the time Alito was seated on the Court, each implicating the Bill of Rights. Solely for Alito’s benefit were they reargued, so that he might cast the tie-breaking vote. Alito went 3-for-3: his was the fifth vote to undercut liberties protected by the 1st (speech), 4th (search and seizure) and 8th (cruel and unusual punishment) amendments in those three cases, respectively.

Alito was just warming up. His subsequent decisions have undermined women’s right to choose, expanded the police power, and reduced free speech protections; his dissents have often advocated even greater violence toward the Bill of Rights. So perhaps it’s unsurprising what his short talk on the history of the Bill of Rights included – and excluded.

Alito began by asserting that the Bill of Rights is a “codification” of those “unalienable rights” alluded to in the Declaration of Independence. He conveniently fails to mention that, as a codification, it is explicitly incomplete. Which is probably why, in his discussion of the views of the late 18th century supporters and opponents of the Bill of Rights, he fails to mention one of the Bill’s most important objections: that the absence of a particular right from the Bill might be used as evidence that that right does not exist. This problem was cured by the 9th amendment, which forbids that specific form of reasoning. But go try finding a conservative like Alito who has ever used the 9th amendment to expand the protections of the Bill of Rights.

Alito goes on to discuss the importance of the defeat of fascism in WWII for the spread of human rights worldwide. Ever more ironically, he fails to acknowledge that the Bill of Rights itself was not generally operable against state governments until the 1960s. Before then, the state police could break into your house without a warrant, arrest you and beat you for a confession, and the Constitution had nothing to say about it. That only changed when liberal justices changed the law, over the objection of the Court’s conservatives.

If the National Constitutional Center were enhanced by a gallery dedicated to efforts to undermine the Bill of Rights, it could hardly have a more fitting name, nor a more apt individual to introduce it.

 

The Simmering Pot Movement

Seems hardly an election cycle passes without several marijuana initiatives on the ballot. This season’s players are Washington, Alaska and the District of Columbia. The states would allow for retail pot shops, like those recently established by law in Colorado. D.C.’s ballot measure would merely legalize possession. And for what it’s worth, Oregon Senator Jeff Merkley recently announced he would himself vote for the Oregon ballot measure – to become the first US senator to ever support marijuana legalization.

The tide for pot legalization is rising nearly as fast as that for gay marriage – and, reassuringly, it doesnt depend on the learned liberalism of federal judges; it is rather the consequence of its popularity in an increasingly liberal electorate. Medical marijuana is now legal under state law in nearly half the states, and possession has been decriminalized in about one-third of all states.

Opposition to marijuana legalization is as lovely a dunce cap as a conservative ever wore. People who claim to fear government power, and who eschew a state’s paternalism toward its adult citizens, should arrive easily to the policy position of marijuana legalization. Not so for conservatives, whose fear of government power is somehow not triggered by the American gulag system, which has given the US the highest incarceration rate in the world, driven significantly by drug prohibition. Conservative esteem for “personal responsibility” is somehow inapplicable to the idea of letting adults decide what’s best for their minds and bodies. One hears conservatives babble about the need to “protect society” from the scourge of individual drug use, and wonders why they dont have a similar desire to protect society from individual decisions to go without health insurance, acquire firearms, or not save for retirement.

Conservatism, after all, is defined by its lack of principles. Compared to real political philosophies, such as liberalism, conservatism is ten pounds of crap crammed into a five-pound bag, thrown together by historical accident, and bound together by the perspicacious philosophical insight that everything was better in the old days. Except for slavery, women’s subjugation, Jim Crow, witch burnings, the Japanese internment, the eugenics movement and the McCarthy hearings, America’s past is a veritable touchstone of enduring values and right-mindedness – ah, the good ol’ days….

One day – hopefully soon – people who come out opposed to slam-dunk liberal policies like gay marriage and marijuana legalization will sound as loony as advocates for slavery and the repeal of women’s right to vote – policy positions so extreme that they have become publicly unspeakable, relegated to extremist movements like the Taliban or white supremacists. This is why elements within American conservatism are branded as the “American Taliban”: they espouse policies as comparably baseless, venal and backwards. Opposition to science – whether on the subject of evolution, global warming, or the safety and efficacy of medical cannabis – is indistinguishable from opposition to rationality itself. And once untethered from reality, human belief systems are free to wander among the fields and streams of mythology, leaving infinitely every viewpoint as valid as any other.