Article II, Section 1, Clause 7 and Standing To Sue

With all the reporting of late on the taxpayers paying money into Trump’s pocket when he plays golf at one of his resorts (which he has done over 250 times since being sworn into office), I should have thought that someone should have been able to put a stop to those payments under Article II, Section 1, Clause 7 by going to court and even seek to have the funds paid to his businesses returned (with interest). However, under the guidelines for “standing to sue,” which I spent some time yesterday reading about and with the recent case the DC Appellate court threw out relative to the foreign emoluments clause in Article I that was filed by Democratic Members of Congress, I am guessing that other than a clear resolution passed by both house of Congress asking the court to intervene, there is probably no current way for anyone to establish standing to sue to enforce Article II, Section 1, Clause 7 of the Constitution. While after my short stint of reading yesterday, I am by no way an expert on “standing to sue” in federal courts, it is apparently the case that one must suffer immediate and significant harm and not a minuscule amount such as one’s prorated share of the expense involved to establish standing. I suppose a government employee might sue his immediate superior for asking him or her to violate his or her oath to uphold the constitution by issuing a check to one of the President’s business, but even that is iffy. In general to peruse a court case to enjoin disbursement officers from issuing checks to the president’s businesses I am guessing it will take some very creative arguments to get a court even to consider taking such a case.

This all reveals yet another pair of little glitches in the government under our Constitution. The first is that there is no inherent enforcement mechanism built into the document. So pieces like the Article II, Section 1, Clause 7 prohibition exists in an enforcement limbo. Then too, the courts in structuring “standing to sue,” so as to minimize the number of frivolous suits brought before them, have made a very high bar for challenging violations of the Constitution that are not assigned “caretakers’ such as the caretaker Congress is in enforcing the Article I emoluments clause (even though with the Senate composition we currently have, Congress is unlikely to do so, although there may be an end-run around that if the House passes a resolution disapproving the foreign emoluments and then challenges in Court as to receive them the Congress must agree and the House disapproving would be prima facie evidence the Congress does not agree).

I in no way think that one should abandon the attempt to find a way to stop the payments and ask for the Treasury to seek repayment, but it does look, after my readings yesterday, that it is an uphill battle. Nonetheless, the data needs to be collected and a campaign issue made of the unconstitutional payments made to the criminal in the White House. After all, this is just the tip of the iceberg of his corruption.
T. Edward Westen
This will substantially appear on deartedandjody

Restore Constitutional Order to America

We have watched the destruction of the norms of democratic presidential and executive behavior in our republic systematically violated and effectively redefined into the undemocratic and nonrepresentational patterns of an autocratic state. To be sure we can look around and see the patterns of life around us look normal, but that is to be expected in the early days of an autocracy. In 1933 Germany the passage of the Enabling Act that gave Hitler, in effect, the sole power to make laws without Parliament. In 2020 the US Senate gave Trump (twitler) the freedom to do whatever he wants when it failed to remove him from office. Neither in 1933 Germany was nor in the US today are the citizens aware of what was (is) to come.

Make no mistake, twitler was already pushing the boundaries and doing pretty much what he wanted. However, the wasteland that is the US Senate confirmed for him that there were indeed no limits on his ability to ignore Congress and the norms of behavior in our democratic republic. Witness the news this week of the Attorney General’s heavy-handed intrusion into criminal matters related to the twitler’s friends, Roger Stone and General Flynn, and his opening of criminal investigations into people connected to the “Russia Investigation.” Yes, the case against McCabe was dropped, but DOJ currently has ongoing investigations into the investigators which could very easily bring McCabe, as well as Comey, Lisa Page, and Peter Storzok (as well as others) back under the investigators’ spotlight.

As you know I have been fretting about what a citizen can do about these developments. I have concluded that an organized resistance must be established. Unfortunately, it will need to be structured in a bottom-up and decentralized manner. And to protect citizens from retribution from twitler and his minions it is an organization that need to be built without rolls and lists of names. Even without lists of members, it needs to be very large so as to be impossible for twilters’ minions to attack individuals even if people subscribing to the resistance remain unknown.

I can see a unit of the “resistance” that will collect and disseminate details about and information on the crimes twitler and his minions commit along with violations of their oaths of office. I can see a unit with members who are lawyers that will file suits in courts, state and federal, contesting the illegal acts and oath violations. I can see a unit that will hound twitler’s twitter account.

Obviously there will need to be more specialized units so all citizens who wish to join can find a path to contributing to the downfall of twitler and his assault on our Constitution and norms of good governance.

I do need a catchy title for the resistance movement. So far, Restore Constitutional Order to America, is the best I have.

T. Edward Westen
I have posted this on deartedandjody

Money Creation and Urban Growth

Dear Ted and Jody:

I have been thinking about the impact that the way we currently create money (monetizing debt) has on everything from poverty to urban concentrations quite a bit of late. I admit my thoughts are scattered (I seem to have lost any discipline I ever had in focusing my thinking), however, one significant impact our money creation system has is it tends to concentrate population more than otherwise might occur, say, naturally.

Here is my logic. If one wants to produce something, one might be advised to center one’s production facility where there is a market for one’s product so one can readily sell the product and make a profit. A ready market suggests there is a sufficient population from which the producer might draw labor to operate one’s production facility. Hence, a financial institution evaluating the loan worthiness of the production project will likely consider both the availability of labor and the market for the product in making a loan for construction and early production. These two factors, labor, and consumers are more likely to be met in an urban area than in a rural one. So as an urban area grows it will attract labor from rural areas (note the various urban migrations in history that tend to support this thesis).

Since new money comes into existence every time a financial institution makes a loan, new money tends to be created in urban areas disproportionately more than in rural areas. This imbalance in where money is created is yet another reason population (labor) moves out of rural areas into rural areas (it is where the money is). Over time this movement of population will render rural communities into ghost towns (nothing to keep the people there other than structures and family and neither family nor structures will put food on the table as quickly as an income will). Generally one could argue that the need for an income drives people to leave rural areas for urban ones.

I have argued in my democratizemoney blog, https://wordpress.com/post/democratizemoney.wordpress.com/353  ,
those rural communities might fare better if we created money by monetizing citizens.

Consider that this is a draft of my initial thoughts on the link between monetizing debt and urban population concentrations. I will, of course, put this aside a for a bit and then take it up again. In the meantime, I will look at the connection between monetizing debt as a money creation system and some of the other consequences.

This morning I awoke to 1/4th inch of snow (it is largely gone now) which occasioned a few images,
s 20200117_090615
s 20200117_090710
s 20200117_092258
s 20200117_092531
s 20200117_093545 b&w calculate 2
Warmest regards, Ed
This post also appears on deartedandjody

A Petition to the US District Court, Southern District of New York for a Writ of Mandamus to order the US Attorney for the Southern District of New York to seek an indictment of, and prosecute if successful, President Donald J. Trump for his Participation in violation of the Federal Campaign Finance Laws for which Michael Cohen is currently serving a jail sentence.

Before you read this post, you need to know that prosecutors have absolute discretion in whom they prosecute. Thus, no court would issue the writ requested. However, it does not mean there might not be another way to invalidate the DOJ policy not to indict sitting presidents.

A Petition to the US District Court, Southern District of New York for a Writ of Mandamus to order the US Attorney for the Southern District of New York to seek an indictment of, and prosecute if successful, President Donald J. Trump for his Participation in violation of the Federal Campaign Finance Laws for which Michael Cohen is currently serving a jail sentence.

Petitioner: T. Edward Westen, U.S. Citizen

10-16-2000 “A sitting President’s Amenability to Indictment and criminal Prosecution.”
P222: “…would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned function’s,”
It seems that the brief filed by Bork in 1973 to indict and try vice-President Spiro Agnew, needed a rational to do so, that rational used the straw argument that he was not President and it would be of little consequence. The thing is that missed the point that the President is of equally little consequence, unless, you ask the President. The whole political climate of the Revolutionary period in this county and the period in which the Constitution was written was premised on the fact that no one is above the law. (See the Declaration of Independence list of Grievances against the King, who was above the law.)

Indeed, the DOJ memo upon which the unindictability of the President is based concludes after an exhaustive examination that there is no basis in the Constitution for making the President unindictable (above the law). The President can not be an exception. Sworn to uphold the law, if he or she violates a law, he or she is obligated to resign, for his or her failure in meeting a sworn obligation to uphold the law. Failing a resignation, the Department of Justice should indict and try the President as it would any other person.

Notice that US District Attorney’s Office in the Southern District of New York, convicted Michael Cohen on one count of campaign finance violations at the behest of the President and only named the President as an inindicted co-conspirator. The President was the instigator. The US Attorney’s Office had sufficient evidence to obtain a guilty plea for Michael Cohen. It is customary for prosecutors to use small fish to go after the big fish. In this case they threw the small fish away and used the pretext of this memo (see title above) as an excuse not to indict the big fish, or they let the mastermind escape prosecution. If the small fish is willing to testify against the mastermind, it is customary to use testimony from underlings to legally prosecute masterminds. That after all is the name of the game.

Further, the President was only a candidate when he committed the the action for which he was named an unindicted co-conspirator. He allegedly broke the law in an attempt to win the presidency where he, under the terms of this memo title above, would be immune from prosecution. So, the DOJ memo would seem to say, “we will not prosecute, those whose criminal actions result in their winning the office.” This is no way to run a criminal justice system.

A major reason for attaching punishments to some actions, such as campaign fiance violations, is to deter the crime. There are two kinds of deterrence, general and specific. For general deterrence purposes, it is necessary that the President be indicted an prosecuted and punished if found guilty to deter future candidates from breaking the campaign finance laws. One of the specific deterrents in this case is the President is running for re-election; he filed the day after his inauguration, so one thing is to keep him from doing it again. Then there is the second and more more general use of specific deterrence, if you take a criminal out of circulation the criminal will be unable to commit other crimes. In this case since he was not prosecuted, he may have been emboldened to commit more crimes while in office. To whit:

Excluding the President from indictment and prosecution while he is in office is a rational for the President to use all the tools of his office to stay in office at whatever the costs. He might, for example use his appointment power to appoint and Attorney General, US Attorneys and others in the DOJ to help frustrate the potential for him ever being called into account. This would mean the failure to indict and prosecute the sitting President would result in “unconstitutionally undermin[ing] the capacity of the executive branch to perform its constitutionally assigned functions.” Instead the Federal Government would become a criminal enterprise more horrific than the Mafia or any other organized crime ring in our or any countries’ history.

Once the President, who has escaped indictment, realizes he or she is beyond the law, he or she may decide to bypass Senate Confirmations and appoint acting heads, appointments which while temporary are beyond the impeachment power of Congress. Such appointments while expiring at the end of any given session of Congress, literally makes the appointees, who may or may not be qualified to serve in the positions, slaves to the whim of the President. Indeed, it may well result in the temporarily appointed officials causing tax payer funds to be spend in a manner that enriches the President indirectly and directly. For example a temporary Secretary of Defense could cause Air Nation Guard flights to refuel in foreign civilian airports which support a business the president owns and require those Air National Guard Troops to bivouacked at places owned by the President during refueling stops causing tax payer dollars to be paid to the President in violation of the domestic emoluments clause. Further the President could influence others to spend money at his business such as “suggesting” the vice-President stay at a resort the President owns some 175 miles from where he is staying overseas. Then too the President could directly cause tax payer dollars to be paid to his or her golf resorts by taking his weekend there along with his security detail and others in his entourage. Imagine the dollars the Secret Service would be forced to spend for golf carts alone over several hundred golf outings. And this is not to mention the hotel and restaurant bills the Secret Service alone would pay using taxpayer dollars! All of this is in violation of the domestic emoluments clause of the Constitution.

Once the President feels secure in not being liable for his or her actions, he or she will make end runs around the separation of powers by sequestering or transfiguring appropriated funds to non-appropriated purposes. Indeed, he or she might well attempt to fund projects that Congress has refused to funded. In addition to usurping the power of the of the purse, the President may well decide not to cooperate with Congressional Oversight by directing, either openly or covertly or through an Attorney General, Executive Departments not to comply with Congressional Committee requests, instruct those persons subpoenas by Congressional Committees to claim executive privilege. The President’s usurpation of law making powers and refusal to cooperate with Congress may well end with the President refusing to follow court ordered actions—a constitutional crisis.

Although the President’s extra-Constitutional and extra-legal actions, may one venture to call them unconstitutional and illegal, there may well become a point where the criminal activities of the Federal Government become so extensive that the Courts themselves will become ignored at best or complicit at worst.

On balance, the Department of Justice memo and policy not to indict and prosecute a sitting president is an open invitation for the President to commit more and more acts for which he would be indictable and, perhaps impeachable, lacking a complicit Senate and or House. So, the whole criminal apparatus that could result from not indicting and prosecution a sitting president for crimes for which he or she has been implicated and identified, is a consequence of a DOJ Memo by Solicitor General Bork in 1973 that found it “convenient” to differentiate the Vice-President from the President so that Bork’s office could proceed with a Grand Jury Investigation of the Vice-President.

P 229”a President may not be able full to discharge the powers and duties of his office if he had to defend a criminal prosecution”

The DOJ memo dismisses the use of the 25th Amendment. However,simply put, the 25th Amendment should be used to allow the functions “discharge of powers and duties of his office” if the President is indicted and taken to trial. It is not the person in the office that is important, it is only necessary for someone to be in the office. If the Vice-President and a sufficient number of cabinet officials is convinced the President is unable to discharge his duties and powers during a trial they can declare him unable. Unless, the President has decimated his cabinet with acting officers rather than Senate confirmed ones. (As a side note, the Senate confirmed cabinet members should be the ones counted in under the 25th Amendment for purposes of declaring the President unable to fulfill the duties and powers of office for acting cabinet officials would be loath to find the President least either the Vice-President replace them with Senate confirmed officials or the President once returned to office, if he or she returns to office would remove them.) This well may be the case if a cunning criminal President is covering his or her proverbial behind. However, in the interim the Congress can set up an alternative method for declaring a President unable to fulfill his or her duties and powers. Indeed, Congress should do that in any event.

However, in the case of the current occupant of the Presidency there is ample cause to argue he does not discharge his duties and powers in a manner we have come to expect a President to do do. Over 250 golf outing in two plus years, extensive “executive time” on the President’s schedule, regular “campaign rallies.” before a normal campaign would begin, long conversations with the hosts of Fox News are all ample suggestions that the current incumbent is rather selective in how he defines his duties and powers. As to Powers, we have already partially address those in the previous section where the hypothetical examples of abuse were drawn from this presidency.

In addition, the current occupant of the Office of the Presidency is used to being in a court case so it should not distract him: “Of the 3,500 suits, Trump or one of his companies were plaintiffs in 1,900; defendants in 1,450; and bankruptcy, third party, or other in 150. Trump was named in at least 169 suits in federal court.” https://en.wikipedia.org/wiki/Legal_affairs_of_Donald_Trump
Obviously, the current President would not be distracted by a legal case, even a criminal case in which he is the defendant given his daily use of law suits.

The DOJ memo spends a lot of ink discussing the time demands on the President. That the current occupant of the Oval Office is an unindicted co-conspirator in a plot to break the campaign fiance law to win the office, time for trial is a silly point to raise when the line of secession is clear and the immediate solution is the 25th Amendment. If any one person were essential to the role of the Presidency, George Washington would not have set a two term limit by example and Congress would not have reacted to Franklin Delano Roosevelt’s four elections to the office with the 22nd Amendment. The time of a President is no more valuable than the time of the janitor in the White House. Both potions can be filled by regular means in the case of an inability to perform the duties and powers required of the job by any competent and qualified person. Indeed, from resent history, the janitor may be more difficult to replace.

The difference between a democracy, in the case of the US a democratic republic, and most other forms of government is that everyone is equal in the eyes of the law. Yes, there are special cases such as provisions for minors, restrictions on practicing some professions just to cite two situations where not everyone is treated equally under the law; but, no one in a democratic republic is above or beyond the law. Specifically, no one is exempt from obeying the law and if one violates a criminal law, one is then subject to prosecution.

As the DOJ memo asserts the President is the chief law enforcement officer and ultimate authority for initiating and crying through prosecutions through his or her appointment powers to the Department of Justice and ultimate ability to fire or discharge officers in the Justice Department. As one reads the DOJ treatment of the President’s position relative to indictments, prosecutions, and ultimately punishments, one is struck by how it totally ignores the President’s culpability under the law and personal responsibility for any actions he or she commits that are criminal violations. Rather the DOJ Memo looks as what might be termed the inconveniences to the President if charged, the possibility of a prosecutor harassing the President (from his or her own appointees?), the awkwardness of DOJ officials prosecuting their boss, and a bunch of irrelevant information.

With its Memos and the polity the Memos stimulated, there was a political decision made about criminal matters. There is no prosecutor discretion, the DOJ made a blanket policy of not indicting a sitting president, their boss. The United States has taken stands against mixing political and criminal matters. Yet, the DOJ takes a political stand regardless of existing evidence of a crime apparently committed by a sitting president, before or during his time in office. If one man is above the law, then there will be others. One man or woman can not, for political reasons, be subjected to or above the law.

If one man or woman is above the law, he or she may work injustices on others. Thus a president above the law may end up trampling the rights, freedoms, and properties of others since he or she can not even be indicted to face the consequences in a court of law for his or her actions.

The US Constitution guarantees the States a republican form of government (Article 4, Section 4). Republican in this context means representational. The United States Constitution outlines the rules for our National Republican form of government. The rules are far less complicated than most would think. As we have already discussed, nowhere in this republican document is the President immune from indictment, prosecution or punishment. In the states in the Union, whose constitutions conform to the three branches, republican, governments models in the US Constitution, none of their officers, elected or appointed, are immune from indictment, prosecution, or punishment upon conviction. It is not unheard of for governors to be indicted. It is not unheard of for the chief prosecutor in the states or their subdivisions to be indicted. So the thorny issue that the DOJ memos seem to wrestle with go without remark, and the several states proceed with normal criminal proceedings against their officers elected or appointed. Indeed, if a sitting president is indictable for a crime in a state, there is no reasons why a state prosecutor would not proceed with a grand jury or a true bill, an indictment, prosecution and if guilty, a state judge would impose an appropriate penalty under the state law violated. Indeed, under Federal precedent, the Federal Government may not intercede in a state case. The DOJ Memo does not protect the President in a state criminal proceeding.

The DOJ memos discuss the awkwardness of indicting and prosecuting the person who is, in fact, the appointing authority over their department. The Memo asserts it would be as if the prosecutor were prosecuting him or herself. No, the DOJ attorney trying the case would be prosecuting on behalf of the United States of America, not on behalf of the sitting president. Indeed, no prosecutions are undertaken on behalf of or in the name of the President of the United States. All DOJ employees take an oath to uphold the Constitution not to follow the orders and whims of the president. Since the US laws are promulgated under the US Constitution, the D0J is obligated to apply the law, not some memo they have relied upon for dodging the issue of doing their job with a potentially criminal president. The application of the law is not and should not be for political convince. Rather, applying the law should be to achieve the ends of the law which is to prevent behaviors which are deemed by Congressional Action and approved by some president to be inappropriate in this Republic. If the law violated had meant to exempt any person or class of persons, it would have been so written. Congress does not generally exempt classes of citizens from falling under the law except explicitly (see the exemptions for Congressmen in hiring and employment practices).

The DOJ policy of not indicting the president is simply absurd in a democracy. We rebelled against a king listing grievances against him which largely asserted the king was above the law and we could not tolerate that. By not indicting and if successful, prosecuting a sitting president we will return to the conditions against which we rebelled in 1776—a tyranny.

Petitioner comes to the court under The first Amendment’s stipulation that petitioner has the right “to potion the Government for a redress of grievances,.” Specially, the Court is a branch of the Government as stated in Article III of the Constitution. Thus, petitioner comes to this court with a petition as stated below. And Petitioner comes to the court under the 10th Amendment’s reservation that powers not delegated to the United States by the Constitution, no, Amendment to the States,are reserved the States respectively, or to the people.” Clearly an individual citizen, which Petitioner is, is include in the “people.” Since no one in the Congress or the Executive sees fit to compel the US Attorney for the Southern District of New York to indict and prosecute the sitting president for the crime for which he was named an unidicted co-conspirator, petitioner exercise the power reserved to the people to request a writ of mandamus for the US Attorney for the Southern District of New York to uphold his oath and do the necessary due process work, in good faith, to indict and then if successful therein prosecute the sitting president for the crime for which he was named an unindicted co-conspirator for which one Mr. Michael Cohen is presently serving a sentence in the federal penal system.
The bottom line is the DOJ is a creation of Congress. Indeed, the Attorney General, the government minister or officer in charge of DOJ is a creation of Congress even though appointed by and confirmed by the Senate, normally. But, Congress has not delegated the authority to exempt individuals and classes of individuals to never indict members of the class to DOJ. In this case the class of persons is “a sitting President..” Unlike quasi-legislative and quasi-judicial agencies, the DOJ policy is not based on a legislative power granting them the authority to amend existing Statutes to exclude their boss, the President. Hence, even if a court finds the DOJ memos upon which this policy is based persuasive in the abstract, the policy is still illegal and extra-constitutional. In addition, the policy has the net effect of making the person in the Office of the President the equivalent of a king with the power to ignore any law and make things up as he goes. This was one of the main thrusts of the crimes of the King in the Declaration of Independence, the King was arbitrary (another way to say, he made things up as he governed) in his dealing with his colonial subjects. The DOJ has by its action amended the Constitution to make the Article Two Branch of Government, the only branch that has any power. The policy of not indicting and presumably not prosecuting if indicted a sitting president eviscerates both the Article One and the Article Three Constitutional Branches of our government. For such an exception to the criminal laws of this nation are an effective grant of tyrannical power to the sitting President. DOJ, does not have the power to Amend the Constitution. The power is specifically address in Article V which does not stipulate a path to Amendment that includes DOJ Policy. Hence, DPO policy of not indicting a sitting president can not stand as it is prima fascie unconstitutional.
Surely the US Attorney for the Southern District, or his representation, will argue that a sitting president can not get a fair trial for any number of reasons ranging from partisan biases jurors may have to information jurors may have. So far, as this court has, as petitioner is sure, found, the difficulty of impaneling a petit jury, is not a reason not to try an accused for alleged criminal behavior.
In the event the Court rules that the petitioner, being one citizen does not have standing to petition for a writ of mandamus or an alternative the court finds appropriate, Petitioner asks the Court how many of his fellow citizens need to join him in his quest for justice to obtain standing to petition the court?

The US Attorney for the Southern District of New York may well argue that if he indicts the President that the President could fire him. While defendants in criminal cases have the right to discharge defense attorneys, it is almost inconceivable that a judge in a criminal case would allow a defendant to fire the prosecutor. So, at worst, the US Attorney for the Southern District of New York would find him or herself working without a paycheck, Federal office space, and staff.

If the court feels that either the US Attorney for the Southern District of New York would face an undue burden by working without pay or support, or given the US Attorney for the Southern District of New York is an appointee of the President and that accordingly the US Attorney for the Southern District of New York would not pursue the indictment with all vigor and, if necessary, prosecution of the President in the case of obtaining and indictment, then Petitioner would offer his attorneys to do the work and amend this pleading to have the US Attorney of the Southern District of New York provide Plaintiff’s attorneys with all documentation and evidence in this and allied cases including but not limited to the case against Michael Cohen.

Talk about an Inconvenient Truth!

I have been thinking about Greta Thunberg’s appearance at the UN and her message to the world leaders assembled there. The leader’s culpability goes beyond what she asserted. Each one of them is there because of profits made from polluters who have contributed to global warming over the centuries. Yes, centuries, perhaps even millennium.

In the Winter Semester of 1964, I read An Economic Theory of Democracy by Anthony Downs (Harper and Row, NY, 1957.https://en.wikipedia.org/wiki/An_Economic_Theory_of_Democracy
In the book, which was, as I recall, initially his doctoral dissertation, Downs argues that specific government policies each only marginally impact consumer’s income and cost streams. So it is not rational for consumers to become informed about proposed government policies in a wide range of areas and certainly not rational for them to attempt to incur the costs of informing government of their positions on proposed legislation and policies. Specific government policies however dramatically impact producers income and cost streams. Hence producers are rational to monitor government proposals for laws and policies and take action to inform the government of their positions on pending legislative and policy proposals. Indeed, the impact government policies and regulations have on producers income and cost streams is so large it is rational for producers to incur fairly substantial costs to inform government by hiring lobbyists and making campaign contributions. Hence, Downs concludes that in a democracy, government policy will have a producer bias.

The thing is, in any governmental system, government policy will have a producer bias. Without going into the logic for each system, I can shorthand the logic. Since the production of goods and services has been viewed as the source from which government revenues have derived, governments have enacted policies which have made costs cheaper for producers while allowing producers to maximize income. Thus governments, even the soc called communist governments, have policies which are biased in favor of producers.

What a producer bias in government laws and posies means leads to producers being allowed to produce collective “bads” (collective goods with a negative impact on those forced to consume them) as a byproduct of their production of whatever good or service the producer is producing for sale of consumption. Producers under favorable government laws and regulations will dump untreated toxic waste into rivers, streams, or lake. Producers might spew coal dust and gasses into the atmosphere causing carbon levels to rise and coal-ash dust to settle for a radius of tens if not hundreds of miles. For example, injecting liquids deep into the Earth to crack rock to allow natural gas and other energy products to be accessible, impacts the aquifer and water wells become foul if not toxic. Some times without any government laws or policies, or in the absence of some regulation, one will have child labor, black lung disease, a very high incidence of worker injuries. So, not making laws or regulations will have a producer bias also.

While this may seem to be a long way from Greta Thunberg’s appearance at the UN and her message to the world leaders assembled there, consider that every one of those world leaders is there because of producer money that put him or her there. The very producer money spent to get favorable laws and regulations that have allowed producers to continue to make a profit at the expense of global warming and pollution in general, to mention their harm to their workforces as well.
In effect Greta Thunberg and the rest of us are asking co-conspirators with the polluters to fix a problem from which they have built careers and, quite frankly, profited from and still do. Talk about an Inconvenient Truth.

Part 3 of My Equality Project completed

The Apparent Untying of the Equality Knot—Brown and then Busing

One major issue for the US Court system is differentiating between political and non-political issues. The Supreme Court’s early articulation of a political issue or question was noted in the US Supreme opinion Oetjen v. Central Leather Co., 246 U.S. 297 (1918) “The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative — “the political” — departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision. United States v. Palmer, 3 Wheat. 610; Foster v. Neilson, 2 Pet. 253, 307, 309; Garcia v. Lee, 12 Pet. 511, 517, 520; Williams v. Suffolk Ins. Co., 13 Pet. 415, 420; In re Cooper, 143 U.S. 472, 499. It has been specifically decided that:

“Who is the sovereign, de jure or de facto, of a territory is not a judicial, but is a political, question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this Court, and has been affirmed under a great variety of circumstances.”

The political doctrine of political questions or rather the nonjusticiablity of political questions was a deciding factor in the courts not acting in numerous other court decisions, two other example are Baker v. Carr, 369 U.S. 186 (1962) and Nixon v. United States, 506 U.S. 224 (1993). Thus, the courts attempt to limit the scope of any decision they reach. So, the Law School cases only applied to state-funded professional education beyond a bachelor’s degree. Applying the cases in a broader context would have the courts deciding that public policy made by the states under the Constitution and the Plessy decision and the states’ constitutional basis for making public policy, laws, was null and void and the court would be making an excursion into setting public policy or making a political decision and substituting its policies over legislatively determined and executive approved state policies. The courts would be exercising powers they do not have under the Constitution.

All of this discussion of political questions and the U.S. Courts, the third branch of our government leads one to an understanding of why the courts, in most instances, decide cases on very narrow grounds. It also explains why in applying the American idea of equality the cases are filed on at a time and generally handled in one specialized or limited issue, one case at a time. Courts do not see policymaking as their role in the division of labor under the Constitution.

So when asked to adjudicate the separate but equal provision of a Louisiana law for rail travel, the court decided that the law was constitutional and that the issues Louisiana were addressing seemed to treat everyone equally. This gave a green light to Louisiana and any of the several states to utilize the same argument in all facets of life regulated by the state. As the court examined the Law School cases it was patently clear to lawyers who happened to be justices of the Supreme Court, that none of the “attempts” at separate were equal and thus in the case of professional educations, separate was unequal.

But their decision did not address the landmark case of Plessy. So, the next case that came before them was a compilation of five cases from five states involving public schools. The cases are collectively summarized in title by one of them, Brown v. Board of Education of Topeka, 347 U.S. 483 (1954 ). The other four cases were from South Carolina, Virginia, Delaware, and Washington, D.C. All but the Delaware case came to them with decisions from the lower courts upholding separate by equal. Only the Judge in the Delaware case ruled the segregated schools were not equal.

Using both legal, historical and sociological evidence the Court unanimously ruled that “Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases present problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question – the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws.”

But as noted above, this decision applied to public education, no further. Technically, Plessy is still the controlling Supreme Court decision till this day as the court has not specifically said it is overturning it. In practice, the seventeen states which had segregation laws saw the writing on the wall in the 1950s and systematically disassembled or simply failed to enforce its patchwork of Jim Crow or segregation laws.

However, there still remained a patchwork of segregated schools since public schools were largely assigned by geographical districts and housing patterns in large swaths of the county, to this day, are still de facto segregated. So enter the case of the School Board of Charlotte-Mecklenburg in the 1970s, some 15 years after the Supreme Court mandated desegregation of public schools with all deliberate speed. Simply put, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) mandated that a district court remedy for desegregation, busing children to create racial balance be the law of the land. That ment that a special district that was a school district had to bus children to avoid segregated schools. However, the good citizens of Detroit argues that children should be bused between school districts to create unsegregated schools in the Detroit and Wayne County school districts of Michigan. The Court found that “We conclude that the relief ordered by the District Court and affirmed by the Court of Appeals was based upon an erroneous standard and was unsupported by record evidence that acts of the outlying districts effected the discrimination found to exist in the schools of Detroit. [p753] “Milliken v. Bradley, 418 U.S. 717 (1974) Which simply put, meant that if the district lines between school districts were not drawn to segregate, the busing remedy would not apply.

Since 1974, de facto segregated schools, by district have existed in The United States. While education is seen as the responsibility fo the several states, the several states essentially fiance their K-12 schools by property taxes levied school district by school district. So, today, approximately 1/5th of schools are segregated and have unequal finding, unequal by the predominate race of the students!

This author has been amazed that no one has sought to challenge the de facto unequal education caused by de facto segregation across school districts within a state by challenging a state’s educational funding model.

To conclude this chapter, The Supreme Court Ties Equality into Knots, we would think that the Brown decision and the bussing decision in Charlotte-Mecklenburg would have untied the knot, but three things prevalent that. First, no decision of the Supreme Court has overturned Pelssy. Second, while the Court in 1896 made an inadvertent sweeping decision by allowing separate but equal to be the law of the land, the very manner in which the Court narrowly handles cases seem to prevent them from erasing that mistake. And, third, this author suspects the Court is too attuned to the prevailing attitudes in the general population, an attitude which is largely resistant to change even when that change would shore up what that public largely would say is a core value of this nation.

2nd third of Part 3 of My Equality Project

Attempts to Loosen the Knot – The Law School Cases

Following Plessy v. Ferguson, states in the former Confederacy continued to pass waves of legislation which segregated the races in all public facilities. While some of these laws were challenged in the state court systems, I am unaware of any successful challenges until 1938, 42 years after the Plessy decision. And that successful challenge, MISSOURI EX REL. GAINES v. CANADA, REGISTRAR OF THE UNIVERSITY OF MISSOURI, ET AL.305 U.S. 337 (1938)

was not in the state courts, but the Federal Courts. And then that success was not due to the Court fining “separate but equal” a problem, but rather that the State of Missouri did not have a separate facility for blacks, but a whole different solution. Essentially, lacking a law school for blacks, Missouri paid the tuition for blacks to adjacent states that had law schools which would admit blacks.

Having ruled that “Lloyd Gains, a negro,” should be admitted the the Missouri, all white, Law School at the University of Missouri one supposes that he would have attended. However, the NACP, which sponsored Mr. Gains case allowed the court action to admit him to lapse as Mr. Gains’ whereabouts could not be established—he had disappeared.

One could speculate about Mr. Gains whereabouts after the case. However, I have admired the restraint of the scholarly community (historians and students of Constitutional Law) for not doing so. Nonetheless, I for one would love to know.

Missouri ex rel Gains v Canada, however, did send a clear signal to the segregationists that they at least had to have a law school for blacks or “tolerate” mixed-race legal educational institutions.

Oklahoma decided to have mixed-race legal education but they segregated where students of color could sit and study. To whit, they admitted George W. McLaurin, a negro to their Law school. However, the State limited him attending class by sitting in a chair in the hall outside of his classes (presumably with the door open), a table in the cafeteria, presumably properly labeled colored just as their public drinking fountains from which blacks were allowed to drink, and a desk in the law library.

The Court found, McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950), “We conclude that the conditions under which this appellant is required to receive his education deprive him of his personal and present right to the equal protection of the laws. See Sweatt v. Painter, ante, p. 629 We hold that under these circumstances the Fourteenth Amendment precludes differences in treatment by the state based upon race. Appellant, having been admitted to a state-supported graduate school, must receive the same treatment at the hands of the state as students of other races.“ (p 642)

Texas had moved faster than Oklahoma and established a black law school after denying admission to Mr. Herman Marion Sweatt to the all-white Texas Law school on the basis that he was a negro. He would be admitted to the Texas black law school. The Texas black law school consisted of a basement room and a library with books still in boxes and no permanent faculty (four part-time faculty from the Texas Law School).

Aside from the unequal quality of the black institution, the court also saw that “Moreover, although the law is a highly learned profession, we are well aware that it is an intensely practical one. The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned. The law school to which Texas is willing to admit petitioner excludes from its student body members of the racial groups which number 85% of the population of the State and include most of the lawyers, witnesses, jurors, judges and other officials with whom petitioner will inevitably be dealing when he becomes a member of the Texas Bar. With such a substantial and significant segment of society excluded, we cannot conclude that the education offered petitioner is substantially equal to that which he would receive if admitted to the University of Texas Law School.”.

The two cases, McLaurin and Sweatt ended “separate but equal” in processional education in state-supported institutions for they found in professional education there were not separate professions once graduated. For instance, there is only one legal system in each state, not two separate and equal ones!

The Apparent Untying of the Equality Knot—Brown and then Busing

I Blame the Gun

I see some in the media are suggesting that the twitler’s stance on white supremacy has changed. I think they need to wait a few minutes and see what spews out of his mouth when he isn’t reading from a teleprompter. Nonetheless, he is touting the tried and failed excuses used by politicians and gun lovers for at least two centuries—it was not the gun, but rather mental health, violence in entertainment, but the gun did not pull its own trigger. Terry Pratchett has a Discworld novel, Men at Arms, which features ‘the Gonne,’ a device with a mind of its own. ‘The Gonne’ is a shoulder-held projectile weapon. Its mind of its own is a take-off of the notions that a person with a gun is powerful, able to impose his or her will on others, in control of life and death. Those notions are all to easily adopted by the person holding the gun. If Pratchett’s interpretation is anywhere in the neighborhood of reality, it makes a lie of the assertion that “guns don’t kill people, people do.” The belied assertion assumes away the basic purpose of the tool that is an assault-style long gun, automatic handgun or pistol; these tools are specialized tools for killing people, lots of people and killing them very quickly. To illustrate the efficiency of an assault-style rifle at killing people, the gunfire in Dayton killed 9 people and wounded over 14 in 30 seconds (and almost a score of others were injured in the panic)!

Throughout the day I have intermittently listened to various talking heads, interviews and politicians address what is to be done to stop mass shootings. According to the CDC https://thehill.com/policy/healthcare/421306-cdc-report-us-gun-deaths-reach-highest-level-in-nearly-40-years US gun deaths reach highest level in nearly 40 years. Keep in mind that the CDC has been prevented from researching gun violence by an Act of Congress! The rest of the world recognized what our problem is with guns—we, the people, have them, and they are readily accessible to literally everyone. Yes, I know about the 2nd Amendment, However, not anyone else actually has read the 2nd Amendment, including the Supreme Court. That Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” So tell me, where are the provisions for a well regulated Militia? Also, tell me how the 2nd Amendment says people need guns for self-protection?

I recall that the late Associate Justice John Paul Stephens thought the repeal of the 2nd Amendment was in order. No need to go that far. Rather strictly interpret it. Then the solution is simple, ban guns. Offer a buyback if that is more politically palatable. Hell, we could even have the manufacturers and those in the supply line of guns and ammunition fund the buyback.

As an English friend of mine once observed, “Your puny weapons would be no match against a tank or heavy artillery.” He is right, but they are adequate for white supremacists to go out and kill people by scores, people who those white supremacists seem to blame for all their white supremacist personal failings as a human being.

Here is a revision of my Memo to the DNC. I still need help in revising this for clarity and impact.

TO: THE DNC

FROM: T. EDWARD WESTEN

RE: A STRATEGY FOR USING TRUMP’S RACISM, ATTACKS, AND THE STUPID THINGS HE SAYS TO GAIN SUPPORT

BACKGROUND:
It is clear that Trump uses his platform to attempt to solidify his base and attract fellow travelers to it—other racists and those whom we might say will “drink the ‘Kool-Aid’.” It is clear the Republicans in the House and Senate have yielded their values to his racism and stupidity because they fear his Twitter account.

For those of us in the hinterland—outside of the Beltway—we are getting tired of candidates and the media decrying what Trump says. Rather take action that will get our attention an show us that you want to do better and what you can do better than.

THE PLAN:
So, rather call him names in return, I suggest a series of 20 to 30-second television advertisements, spots, which play clips (or full screen reproductions of his Twitter account of his racist and stupid attacks and then play over them with captions or block print or a voice-over to give viewers the meanings or import of his message and what they can do to counter him.
“Help us stop this. Register to vote today and get others to register.”
“If your children spoke like this would be happy? Register to vote so we can have a President who is better than that.”
“Would you want your female relatives in the same room with this man. Register and vote to remove him.”
“All it takes to stop this kind of talk is your vote. Register today. Get others to register.”
“If you want to stop the world from thinking this is us, Register to vote today and vote in November, 2020.”
“If you want to stop this, and you are already registered to vote, Help a friend register.”
Make America, America Again, Register and vote this guy out of office.”
“If this isn’t your idea of what a President should say, Register today and vote in November.”
“If this isn’t your idea of how a US President should behave, register today and vote in November 2020′
“Are you represented by a Republican in the Senate? Then ask your Senator why they agree with this idiot?”
“If you are represented by a Republican in the House, ask your representative why they think what he has to say is right?”
“Tell me again he is not a racist!”
“He does not have a racist bone in his body. However, his heart and brain are clearly raciest–listen to what comes out of his mouth.”
“He does not have a racist bone in his body. However, he also claimed to have bone spurs to get out of the draft.”
“Save the Republican Party from Trump. Register and vote Democratic in 2020.”
These few suggestions will give you some idea of the direction you can go with such a campaign. You have creative people, use them come up with blockbuster captions or voice-overs for his ranting, racism, and stupid attacks on Americans and human beings. It will cost you nothing to use tapes of him ranging, making racist statements, and stupid attacks. It will only cost you a bit of editing and the fees for running the ads. Heck, use some of those 20 to 30-second spots to ask for funds to make more ads, or to raise money for the campaign to oust Trump and those Republicans running for reelection to all offices—ALL (the spots will let the voters know Trump is enabled by the Republicans in the House and Senate. Indeed, be explicit about their enabling him in other 20-30 second spots).

I am suggesting we Democrats do this rather than just being disgusted and calling him names in return. Hit him with his own words, over and over and over again. You will get under his skin and he will give you much more content for such an ad campaign.

Start the campaign now and make it more and more intense over the next 16 months until every American who can cast a vote will vote against Trump. By making suggestions in 20 to 30 second spots now and until the election as to what a sane voter can do, you will help get us start to take productive action rather than just reacting. If what he says and does is setting the agenda, turn the agenda directly back on him!

A Memo to the DNC

This is a draft. Comments and suggestions are needed to make the case stronger.
Thanks for the help

TO: THE DNC

FROM: T. EDWARD WESTEN

RE: A STRATEGY FOR USING TRUMP’S ATTACKS AND STUPID THINGS HE SAYS TO GAIN SUPPORT

BACKGROUND:

It is clear that Trump uses his platform to attempt to solidify his base and attract fellow travelers to it—other racists and those whom we might say will “drink the ‘Kool-Aid’.” It is clear the Republicans in the House and Senate have yielded their values to his racism and stupidity because they fear his Twitter account.

For those of us in the hinterland—outside of the Beltway—we are getting tired of candidates and the media decrying what Trump says. Rather take action that will get our attention an show us that you want to do better and what you can do better than.

THE PLAN:

So, rather call him names in return, I suggest a series of 20 to 30-second television advertisements, spots, which play is racist and stupid attacks and then play over then with captions or block print or even a voice-over to say things like

“Help us stop this. Register to vote today and get others to register.”

“If your children spoke like this would be happy? Register to vote so we can have a President who is better than that.”

“Would you want your female relatives in the same room with this man. Register and vote to remove him.”

“All it takes to stop this kind of talk is your vote. Register today. Get others to register.”

These few suggestions will give you some idea of the direction you can go with such a campaign. You have creative people, use them come up with blockbuster captions or voice-overs for his ranting, racism, and stupid attacks on Americans and human beings. It will cost you nothing to use tapes of him ranging, making racist statements, and stupid attacks. It will only cost you a bit of editing and the fees for running the ads. Heck, use some to raise money for the campaign to oust Trump and those Republicans running for reelection to all offices—ALL.

I am suggesting we Democrats do this rather than being disgusted and calling him names in return. Hit him with his own words, over and over and over again. You will get under his skin and he will give you much more content for such an ad campaign.

Start the campaign now and make it more and more intense over the next 16 months until every American who can cast a vote will vote against Trump.