Posts tagged ‘Supreme Court’

11/04/2012

Undecided Voters: Social Issues

The better choice on each issue is in the left column, indicated by a (D) for Democrat, (R) for Republican, or (N) for neither.

(D) VOTING RIGHTS AND ELECTIONS: Which party is more likely to promote a constitution amendment to remove money from campaigns, or appoint Supreme Court justices willing to interpret large contributions as bribery? Romney goes in the wrong direction as he suggests getting rid of campaign finance laws. (1-16-12). Who is more likely to promote and protect the right to vote by removing unnecessary obstacles, and yet preserve the integrity of the system? Democrats clearly win this one.

(D) MEDICARE: Although the nation must get Medicare spending under control, Romney has no solution, for he would block grant it to the states, which would effectively kill it. (10-18-11) (11-12-11) (2-22-12). Not changing things for current retirees is just a way of screwing those who’ll retire later (1-8-12) Romney wants a premium voucher program, which inevitably will not cover increases in insurance company premiums (1-16-12).

(D) MEDICAID: Romney would also effectively end Medicaid by sending it to the states. (1-16-12). As he put it, he would get the government out of Medicaid. (1-19-12). The problem is a large segment of the population will prematurely die off.

(D) HEALTH CARE COSTS: Health care needs tough federal regulation to control doctor and hospital costs, as well as drug prices, but neither party openly proposes a solution. Since regulation is the only answer, and the modern Republican Party never advocates price controls, Romney cannot be the solution.

(D) OBAMACARE: Romney was wrong when he thought Obamacare would be declared unconstitutional. (12-10-11). He repeatedly promised to repeal it. (10-11-11) (10-18-11) (1-7-12) (1-16-12) (1-19-12) (2-22-12). He posed a good question when he asked what we would be replaced with. (10-11-11). He alleged Obamacare raises taxes 500 billion, cuts Medicare 500 billion, and is a government takeover. (10-11-11). He thinks eliminating it would save 95 billion annually (11-12-11) (1-7-12). Romney would give states health care waivers (9-22-11), which effectively would repeal it. Since the current health care system is dysfunctional, the greatest problem with the Republican position is their failure to suggest a rational intelligent alternative.

(D) INDIVIDUAL MANDATE: Romney argued people need to purchase health insurance to show their personal responsibility. (8-11-11) (11-9-11). He said uninsured persons are going to emergency rooms and taxpayers end up picking up the tab. (9-7-11). Romney insulted those who cannot afford health insurance by calling them “free riders.” (1-26-12). He later contradicted himself saying he opposed the individual mandate (1-23-12). The problem is even with a government voucher program, health care providers and health insurance companies will continue raising costs and premiums, and most will be priced out of coverage. Deductibles and co-pays will continue to rise. Prices need to be controlled and regulated. Since Republicans will never regulate, the vote has got to go to the Democrats.

(D) PRESCRIPTION DRUGS: Romney said he would not repeal the unfunded Prescription Drug Program started by Little Bush (9-12-11). The problem is we need drug price regulation, but the Republicans will never do it. Our only hope is with Democrats.

(D) SOCIAL SECURITY RETIREMENT: Social Security retirement should never be confused with Medicare, or other social welfare programs. The retirement plan, created in 1935, is the most successful and efficient program ever created by the federal government. It needs nothing, except to be left alone. While Romney called it an “essential program” (9-12-11), Republicans from Reagan to Little Bush have advocated phasing it out. So, even though Romney said we should save the retirement plan (9-7-11), he would be pressured by House Republicans to push a right-wing agenda, which is to privatize it. Although Romney said it would not change for current retirees (1-8-12), he would add a year or two to the retirement age (1-16-12).

(D) WELFARE: Romney would turn poverty programs back to the states (1-8-12), which would kill them. He thinks Obama is creating a welfare state (1-19-12), and the U.S. has become an entitlement society. (1-16-12). Romney would block grant Food Stamps (2-22-12), which would cripple the needs of the hungry.

(D) EDUCATION: Romney apparently thinks there is something wrong with teacher unions, as he said he would stand up them. (9-22-11) While he would test children in math and English (2-22-12), which is fine, too many Republicans push the idea of privatizing schools, a long range threat to our culture.

(D) EDUCATIONAL TV/PUBLIC BROADCASTING (PBS): In an shocking campaign promise, Romney said he would eliminate Public Broadcasting (11-12-11). At a time when more, not less, non-fictional programming on science is needed, why cut PBS? Personally, it’s the only benefit I ever received from the federal government. I can’t believe any candidate would eliminate it.

(D) ENVIRONMENTAL PROTECTION: In Presidential elections, we don’t just elect a man; we choose a party to manage the agencies of government. If Romney wins, House Republicans will name the head of the Environmental Protection Agency (EPA). Extremists like Republican Michelle Bachmann, who advocated abolishing it, will have influence. If Romney wins, we will have a weak EPA. We should prefer over-regulation, than the other way around. Although Romney said we can’t let pollution flow from one state to another (1-8-12), which implies a need for federal law, modern Republicans cannot be trusted to regulate.

(D) FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) The storm that just hit the East Coast is a good reminder of how bad it would be if FEMA had been abolished, or privatized. We need to remember we all sink or swim together.

(D) SUPREME COURT: It is likely the next President will appoint one or more Justices. A Romney win would tip the court to the hard right. The Court currently has four right-wing Justices: Scalia, Thomas, Alito and Roberts (on most issues). Reagan’s appointee Kennedy completes the usual conservative majority, which has existed since 1972.

(D) ABORTION: The secular right to “liberty” found in the 5th and 14th Amendments allows women to have an abortion in the earlier stages of pregnancy, when the fetus is incapable of living outside the womb. As a practical matter, attempts to outlaw abortion have been a waste of time. Even if the anti-abortion crowd had another Justice, who would ignore precedent, and reverse Roe v Wade, subsequent attempts to convict women and doctors would fail. Prosecutors will never get 12 jurors to convict women or doctors, and there would be hung jury after hung jury. We live in a free country which has no official religious creed. People disagree as to whether life begins at birth, or some other point before the fetus can live outside the womb. Romney, a missionary for the very conservative Mormon Church, will almost certainly appoint right-wing Justices. He changed his position on abortion. Most recently, he said he is pro-life (12-15-11) (1-19-12). He said Roe v Wade was wrong, it should be overturned, and the issue should be left to the states. (1-7-12). His stand would only give religious fanatics the power to impose their religious views on a secular society, filled with many who want to be free.

(D) CONTRACEPTIVES: Romney did not think any state wanted to ban contraceptives (1-7-12), but he is part of a right-wing Republican Party willing to turn back the hands of time.

(D) GAYS: Romney, whose Mormon grandfather fled the U.S. and moved to Mexico, because he believed strongly in the right to have more than one wife, ironically wants to amend the Constitution to limit marriages to one man and one women. Why the Republicans want to control the life of gays, who are genetically predisposed, is a mystery. We live in free country. It’s time to leave gays alone. Although Romney opposes same-sex marriage (12-15-11) (1-8-12) (1-16-12), and would amend the constitution to stop gay marriage (1-7-12) (1-8-12), the Democrats have the better position, as they believe in personal freedom.

(D) GUNS: Neither party is doing much to control hand guns in cities. Romney signed an assault weapons ban when he was Gov. in Massachusetts, but now he says he is pro-gun (12-15-11). The Republicans offer little hope to control firearm violence.

(D) RELIGION: Romney served overseas in France as a missionary for the Mormon Church. (12-10-11). He said he would seek guidance and providence in making critical decisions (1-26-12). He thinks Obama is somehow attacking religious freedom. (2-22-12). I have no idea what Romney is talking about.

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06/04/2012

Regulating Commerce: What Can We Do?

The Supreme Court will soon be deciding if all or part of the 2010 federal health care act went too far under the Congressional power to regulate interstate commerce. The question is to what extent does the “commerce clause” give Congress the power to regulate?

Art. I, Sec 8 (3) of the Constitution provides: “Congress shall have power…to regulate commerce…among the several states.” The first significant “commerce clause” case involved a challenge to a state law in Gibbons v Ogden (1824), where Chief Justice Marshall held Congress has the power to regulate every aspect of commercial intercourse, including every transaction not wholly carried out within the boundaries of a single state.

During the nation’s first 100 years, despite a federal power to regulate commerce, Congress passed no significant law in that regard, and instead most legislation was at the state level. Congress first used the “commerce clause” in 1887 to create the Interstate Commerce Commission (ICC) to regulate the railroads. Three years later, they added the Sherman Antitrust Act (1890).

An activist conservative Supreme Court however went right to work limiting any federal expansion of the power to regulate commerce. They held in 1895, while Congress could control railroads and common carriers, manufacturing conducted wholly within the confines of a single state, was outside their reach. In Hammer v Dagenhart (1918), Congress tried to eliminate child labor by establishing a minimum work age, but a conservative Court held the act exceeded their constitutional powers, because manufacturing was outside the reach of the “commerce clause.”

The interpretation of the “commerce clause” changed significantly during the Great Depression, when a new Court held in NLRB v Jones & Laughlin Steel 301 U.S. (1937), Congress could regulate manufacturing, even if it is based within one state. The Court abandoned the old distinction that kept manufacturing beyond the reach of federal regulation. The new test was any activity “affecting” interstate commerce could be subjected to regulation. In a challenge to the 1938 Fair Labor Standards Act, which regulated wages and hours, a progressive court in U.S. v Darby (1941), finally overruled the old 1918 Hammer decision above.

In Wickard v Filburn 317 U.S. (1942), the Court upheld the power of the federal government to regulate local farmers, who never did any business outside their state, on the grounds their production nevertheless affected aggregate national supplies and prices. In Heart of Atlanta Motel v U.S. 379 U.S. (1964), a local motel in Georgia that discriminated against blacks was subjected to the federal Civil Rights Act of 1964, because they accepted guests from out-of-state, and therefore engaged in interstate commerce.

The question now is whether the Supreme Court will limit the national power to regulate health care providers, businesses that provide health insurance to workers, as well as the powerful health insurance industry. Will they exclude the “individual mandate” from the reach of the commerce clause? The answer is there are five conservative votes on a 9-member Supreme Court, and though we have no crystal ball, at least 4 or 5 of them will vote to overturn at least part of the new law.

04/30/2012

Death Penalty Should Be Abolished

While Connecticut’s recent repeal of the Death Penalty made it the 17th state to do so, Capital Punishment remains available in 33 others, where the issue should now be debated, so lawmakers could perhaps realize it does not deter crime, and its ongoing use only poses unnecessary risks for those wrongfully convicted.

The argument the Death Penalty deters homicide is pure myth. Before criminals go out and pull the trigger, they do not visit the local library to research which states impose the Death Penalty, versus those that do not. They are generally not that rational. Even those who are aware of the possible punishments are not deterred, because crimes are usually committed on impulse, by people who are simply not thinking straight at the moment. The recent killing of the black boy in Florida is a good example.

If reasoning and logic actually played a role in the criminal decision-making process, one would expect reductions in homicide in the 33 states that use Capital Punishment, and increases in the 17 where it has been abolished, but statistics show exactly the opposite. In the 10 states with the highest murder rates, all of them allow the Death Penalty, but in the 10 with the lowest rates, 6 have abolished Capital Punishment. There simply is no correlation between Capital Punishment and crime rates.

Eliminating the deterrence argument reduces the debate to the issue of retribution and the nagging question of whether the legal system is capable of error. Simply stated, it is. Many wrongful convictions have been made throughout time, and with the Death Penalty, once it is applied, it is too late discover or correct errors.

The Eighth Amendment to the U.S. Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Attempts were made to abolish the Death Penalty through the Supreme Court by asking them to declare it “cruel and unusual” per se. In Furman v Georgia (1972), the Court, in a 5-4 decision, (with the four Nixon appointees dissenting), ruled the Death Penalty unconstitutional, when applied in a discriminatory manner. A new conservative majority however came back in 1976 and declared Capital Punishment was not in and of itself unconstitutional.

Since then, the Court has gradually limited the Death Penalty to homicide. In Coker v Georgia (1977), death as a punishment for the rape of an adult woman was deemed disproportionate.

The only way Capital Punishment can now be completely abolished is if the remaining 33 states repeal it. In the current political climate, this would be a very challenging objective, since right-wing politicians have shown in recent years absolutely no inclination towards even debating the topic.

The only solution is to win over one person at a time. As enough rational people become convinced of the myth of deterrence, and realize the risk of wrongful execution can never be totally eliminated, change will come. The only answer is to expand upon the following list of states that do not use Capital Punishment, by adding states like Connecticut, and another year of abolishment:

1846 Michigan
1853 Wisconsin
1887 Maine
1911 Minnesota
1957 Alaska
1957 Hawaii
1964 Vermont
1965 Iowa
1965 West Virginia
1973 North Dakota (abolished initially in 1915)
1981 District Columbia
1984 Rhode Island (abolished initially in 1852)
1984 Massachusetts
2007 New Jersey
2007 New York (abolished initially in 1966)
2009 New Mexico (abolished initially in 1969)
2011 Illinois
2012 Connecticut

04/27/2012

2nd Amendment: No Right to Bear Arms

Although the Supreme Court’s conservative five-member activist majority of Scalia, Thomas, Alito, Roberts, and Kennedy ignored the “original intent” of the Second Amendment, as they drafted law from the bench in 2008, and gave individuals who had not enlisted in any state militia an individual right to bear arms, the Constitutional interpretation enunciated by dissenting justices Stevens, Souter, Breyer and Ginsburg, who said only state militia members have a right to bear arms, was the correct view.

In the American Revolution, a loosely-affiliated group of colonial states, operating under the Articles of Confederation (1777-87), provided arms to those serving in well-regulated militias. Art VI of the Articles stated in part: “…Every state shall always keep up a well-regulated and disciplined militia, sufficiently armed…and shall provide…a proper quantity of arms…”

When the Founders realized the Articles were too weak, and the nation needed a stronger central government, they adopted the U.S. Constitution, which created a federal system, and delegated to Congress the power to raise an Army. The new arrangement concerned some, as they feared a rouge President might use the Army for his own personal purposes, to overthrow their liberties.

The Second Amendment was adopted to preserve the rights of the states to maintain armed militias, so they could collectively resist a federal Army. This is why it provides: “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.”

The “original intent” of the 2nd Amendment was to prevent the federal government from disarming state militias. In modern terms, the U.S. government in Washington cannot take guns away from those in state militias, such as the Wisconsin National Guard. If you belong to the Guard, you have a right to bear arms; if not, you have no right to them.

Subsequent Acts of Congress, such as the Militia Act of 1792, which ordered every 18 to 45 year old man to be “enrolled in the militia” and to “provide himself with a good musket or firelock…or with a good rifle” showed the Founders were connecting the right to bear arms with enlistment in a militia.

State Supreme Courts also found only those in the state militias had right to bear arms. In Andrews v State, 50 Tenn. 165 (1871), a Tennessee Court held the right to bear arms for common defense did not mean individual defense, but referred to the right to bear arms for the defense of the community.  In English v State, 35 Tex. 473 (1872), the Texas Court held the “arms” referred to in the Second Amendment are those of soldiers. In Dabbs v State, 39 Ark. 353 (1882), the Arkansas Court held a statute making it an offense to sell “any pistol,” except those “used in the Army or Navy of the U.S.” did not invade the constitutional right to keep and bear arms. In Pierce v State, 276 P. 393 (Ok App 1929), an Oklahoma Court held “arms” in the 2nd Amendment did not include pistols, but only weapons carried by the militia.

A few years ago, however, the conservative U.S. Supreme Court ignored the language of the 2nd Amendment, as well as case precedent, as they created an individual right to bear arms. See District of Columbia v Heller (2008). Heller was later applied to state and local governments, in another 5-4 case. See McDonald v Chicago (2010). (Sotomayer replaced Souter’s dissent).

The only saving grace in Heller was the part where the Court upheld the constitutionality of firearm regulations, and reaffirmed the right of states to engage in gun licensing. They said Second Amendment rights are not unlimited, as there is no right to carry any weapon, in any manner, for any purpose.

Gun regulations have been used for over 100 years. 126 years ago already, the U.S. Supreme Court upheld an Illinois Military Code that prohibited all bodies of men, except U.S. troops, and those in regular organized state militias, from drilling or parading with arms, unless they were licensed. See Presser v Illinois (1886). 115 years ago, in Robertson v Baldwin (1897), the Court held the right to bear arms was not absolute, and states had the authority to regulate concealed-carry. 73 years ago, the Court held the 2nd Amendment does not protect citizens who transport 12-gauge shotguns, because they are not reasonably-related to the preservation of a well-regulated militia. See U.S. v Miller (1939).

Today, while the need of urban governments to reduce crime by imposing complete handgun bans has been blocked, they can still keep felons and juveniles from possessing firearms; they can ban certain types of firearms, like machine guns and sawed-off shotguns; they can prohibit concealed carry; and they can ban guns on public property.

While gun control advocates are unable to ban and can only regulate, 10 to 20 thousand Americans die each year as a result of handguns. Most murders (63%) are caused by handguns, and 70% of the time the person shooting is a friend or relative of the victim. Foreign countries, such as Japan, Canada, and those in Europe, have only a small fraction of homicides caused by handguns.

Gun control is needed in central cities (where there is no hunting), and any regulation that makes access to handguns in urban areas more difficult, is a step in the right direction. Since the Supreme Court decided to write law, and outlawed the option of banning handguns, the only alternative now is to regulate gun use to death, with the hope that someday, a different Supreme Court, will finally apply the original intent of the Second Amendment.

04/24/2012

Court Justices Necessarily Make Law

When the Supreme Court issues decisions this summer on the constitutionality of the “individual mandate” under the Health Care Act, and the legality of the Arizona immigration statute, no matter which way they rule, they will be engaging in judicial activism, and they will be making law, and criticism will follow from the right, the left, or perhaps from both directions.

The Court has a challenging job for they do not review obvious legal questions. If the issue is: What is the minimum age to be President? The outcome would be easy, as the Constitution clearly states “Thirty-five.” But the Court never reviews simple questions like that; they instead take cases involving important issues, where there has been a substantial disagreement among the various appellate courts.

While the winners of these cases usually say the law was correctly applied, the losers accuse the Supreme Court of: 1) engaging in judicial activism; 2) ignoring the “original intent” of the Framers; 3) improperly making law; and 4) of not behaving like neutral and objective justices. The Republicans have used these types of arguments for more than 40 years, even though they have had more justices on the Supreme Court than Democrats since 1972.

When conservatives complain of “liberal activism,” they ignore the multitude of cases involving “conservative activism.” All decisions on legal issues require justices to take a stand, by either moving to the left, or to the right. Inaction is not an option. Even refusing to review a case, which amounts to an affirmation of a lower court ruling, can be viewed as liberal or conservative activism. People complaining about liberal activism, or conservative activism, ignore the reality the Supreme Court necessarily moves in one direction or the other.

Conservatives also complain about not following the “original intent” of the Constitution, as if there is only one way to interpret the document. Their Presidential candidates pledge to nominate only those who believe in the “original intent,” as if it could be known, or found easily in some textbook. The truth is there is no singular book to turn to for the answer, because language is imprecise, and the purpose, meaning, and intent of the Constitution is often vague and ambiguous. Law is not an exact science. This is why a judiciary was created, so we had a body whose job it was to construe and interpret the Constitution. No one can now check with the Founders, and even if they could, Jefferson and Adams, among others, had disagreements between themselves, over 200 years ago already, about the intent of the Constitution. Somebody today has to fill the void left by the Founders, and this is why we have a Supreme Court. They are “the deciders.” While everyone would love to know the “original intent,” the truth is it is subject to debate, and justices must apply their best guesses.

As to the allegation the Court engages in law-making, they are correct, but there is no alternative. A judicial decision necessarily becomes a part of our larger body of law. It has always been that way. When the Court turns areas of gray into black and white, they engage in a limited form of law-making. All judges, whether liberal or conservative, necessarily make law.

The final myth is Supreme Court justices should be, or can be, purely neutral and objective. The truth is justices are human beings whose subconscious subjective personal viewpoints necessarily cloud their judgments. The notion of a purely neutral and impartial objective judiciary is nothing more than a childish myth. Judges are human beings who cannot be perfectly impartial in the pure sense of the word.

We need to acknowledge all U.S. Supreme Court justices are partisans. All of them knew a Republican or Democratic Senator, who sponsored their nomination, and none of them got to the Court by accident, or based solely on merit. When the U.S. Supreme Court stopped the 2000 Presidential election recount in Florida, the outcome was relatively easy to predict, based on the politics of the justices. The Court had seven Republican-appointees, and only two Democratic nominees, and when the decision favored George W. Bush, it was really no surprise, since the justices were unable to set aside their personal political biases.

This summer we may expect an activist court to again make law, which will move the nation to the left, or to the right, since the justices are necessarily biased, and just as political as the rest of us.

03/30/2012

Republican Primary Doesn’t Matter

During the Wisconsin Presidential Primary next week, Republican voters will be asked to choose between Romney, Gingrich, Ron Paul and Santorum, but their selection will make little difference in the long run, for even if their nominee prevails in November, in the final analysis, their candidate will not be able to make any change without the help of the House, Senate, and Supreme Court.

For those who “vote for the man,” because they naively believe one person can single-handedly change the way things are, they have an awful lot to learn about party politics. What matters is not an individual win, but rather a victory by an entire political party. Real and significant change in America only occurs if the same party controls the House, 60% of the Senate (to block filibusters), the White House, and at least five Supreme Court seats.

Unless voters want divided and paralyzed governments, there is no rational reason to split tickets between Republicans and Democrats, by picking one party’s nominee for this office, and another party’s choice for that. Although many voters dislike both parties, one or the other is going to win and gain control, so it makes sense to learn their differences, and vote along party lines.

No matter who the Republicans nominate for President, if the conservatives continue to control the House, they will put their agenda to their leader, (not the other way around), and he will be expected to approve of it, whether it is Romney, Santorum, Paul, or Gingrich. The Presidency is much weaker than most realize.

When Obama became President, a Democratic Congress handed him legislative measures, during his first two years, like the health care bill, and he had no choice but to approve of it. If he had not, his own party would have turned on him. Although Obama wanted to close Guantanamo, Congress pulled the purse strings for that pledge, and consequently, the prison remains open, regardless of the President’s wishes, or his campaign promises.

If Romney becomes President, and has an opportunity to appoint a Supreme Court justice, you better believe the entire Republican Party, including Bachmann, Santorum, and a whole host of right-wing fundamentalist ministers will be looking over his shoulder. One man in Washington DC simply has no power to do anything.

If you think you can change the basic two-party system, you have a boatload of work to do. The existing parties not only select nominees through caucuses and primaries, they draft platforms stating goals, but most importantly provide networks of volunteers locally to register voters, and make sure they vote on Election Day. Third-party candidates trying to operate outside one of the two major parties would find it extremely difficult to organize, without the help of the thousands who already share a party label.

While it is true George Washington, a Federalist, was first elected as an individual, Thomas Jefferson soon founded an opposition party, even though the Constitution did not mention their use, and for over 200 years, they have been an integral part of our system.

The head of political party, i.e. the President, or presidential candidate of the other party, matters far less than Congressional control. If you want to see change, the question is not who will win the upcoming Wisconsin Republican Presidential Primary; the important question is: After the 2012 election, which of the two major political parties will control the Congress?

01/13/2012

Huntsman: Why New Hampshire Surge?

Former Rep. Utah Gov. John Huntsman, who lived overseas four times while serving Presidents Reagan, Bush Sr., Bush Jr., and most recently Obama, as U.S. Ambassador to China, finished third in the New Hampshire Republican primary, and is now a serious contender, primarily because of his foreign policy.

FOREIGN POLICY: Huntsman said we need to leave lingering Cold War thinking behind. While some UN members are anti-American, he said, the organization serves a useful peacekeeping and humanitarian purpose. We should not use water-boarding, as he labeled it torture. He said it diminishes our standing in the world as to human rights. We must balance individual liberties and security, and project America’s goodness.

AFGHANISTAN: Huntsman said we need an honest conversation about our sacrifices in Afghanistan the past 10 years. We listened to the generals in 1967, but that didn’t serve our interests. At the end of the day, he said, the President, not the generals, must decide as Commander-in-Chief. He made clear it’s time to leave Afghanistan, as only the Afghans can save their own country. While security is still lacking, it is time to come home, he said, since we achieved our objectives. We drove the Taliban out of Kabul, dismantled al-Qaeda, held elections in 2004, and killed Osama bin Laden. We should not do nation-building with 100,000 troops, as 10,000 to 15,000 troops, with Special Forces and drones can gather the intelligence we need.

IRAN: Huntsman predicted sanctions will not stop Iran from developing a nuclear weapon, because Russia and China are not going to play ball. In a contradictory way, he said our foreign policy in the Mideast is to insure Iran does not go nuclear.

PAKISTAN: Huntsman said only Pakistan can save Pakistan. His concern is they have 160 million people and 100 nuclear weapons. They have troubles along their border, and risk becoming a failed state, due to the Midrasha Movement. Expanded drones over Pakistan would serve our interests, he said.

ARAB SPRING—SYRIA—BAHRAIN–LIBYA: He said the American interest in Syria is called Israel. He would remind the world what it means to be our ally. He accused President Obama of missing the Persian Spring in Bahrain, saying he failed on that front. On the other hand, he felt we had no interest in Libya.

TRADE: If we apply trade sanctions against China, Huntsman worried, we will get the same in return, because we also manipulate our currency, and a trade war will only hurt our exports. He said we cannot sue China in the WTO over currency issues. He warned Europe is second only to Canada as a U.S. export market, and if they go down, the problem will spread to us.

BANKS/ANTITRUST: Huntsman appeared to be concerned about “too big to fail” and wants a proper size for banks. We must address the problem of banks being too big to fail, because they are setting us up for a long-term disaster. He said six institutions have 9.4 trillion or 60 to 65% of our GDP, with unfair implied taxpayer guarantees of protection. They need to be “right-sized,” he said. The banks must pay to take the risk away from taxpayers.

CORPORATE WELFARE: Huntsman said we should not bail out corporations, because we spent trillions with nothing to show for it. He would also phase out corporate welfare and subsidies. As to those protesting against Wall Street, he wants to be the President of the 99%, as well as the 1%, but disagreed with anti-capitalism messages made by some in the crowd.

JOBS: Huntsman thinks we can create jobs for the 15 million who are unemployed through regulatory reform, repealing Obamacare, tax changes, energy independence, and ending corporate welfare.

IMMIGRATION: Huntsman reminded listeners legal immigration is a growth engine. Two of his seven children, from India and China, help him see the issue through their eyes. He said the number of illegal aliens in the U.S. is down due to the economy. While Utah governor, he gave Drivers Licenses to illegal aliens.

AUTO INDUSTRY: Huntsman thinks we can regain our industrial base by lowering taxes and lessening regulations. He did not think the 68 billion dollar auto bailout was a good use of taxpayer money. Americans are sick and tired of bailouts, he said.

ENERGY/ENVIRONMENT: He wants energy independence, but thinks we can’t use wind or sun right now. He would develop natural gas to get rid of our heroin-like addiction to imported oil. The true cost of oil and gas, he said, includes federal spending to keep the Persian Gulf sea lanes open. He accused the EPA of running a “reign of terror.”

BUDGET/DEBT: Huntsman would never let the U.S. default on our debt, which he labeled a cancer, but we have to have an honest conversation about our sacred cows, as everything has to be on the table, including the 650 billion dollar Defense Budget. If we do not, he warned, we will soon look like Europe. He explained: Greece has a 170% debt to GDP; Italy: 120% to GDP; Japan: 100% to GDP; and ours is 70% debt to GDP, and it is moving up. A 70% debt-to-GDP ratio is a national security problem, which will cause us to stop growing, as it gets too high.

TAXES: Huntsman said this is the worst time to raise taxes. He would lower tax brackets to 8%, 14%, and 22%. He would phase out loopholes and deductions for individuals, as recommended by the Simpson-Bowles Commission. He would also phase out corporate welfare and subsidies. As Utah governor, he delivered on a flat-tax. He refused to sign a no-tax-hike pledge.

HEALTH: Huntsman said the government’s health care approach is wrong, because it contains a costly individual mandate. He warned the IRS is gearing up with 19,500 employees to administer the mandate. He delivered on health care reform in his state, he said, without a mandate. We need truly affordable insurance by addressing health care cost containment. We have to get costs out of the system. Half of health care spending is nonsense, he said. He wants a health care solution that works in the market. We need affordable health insurance to reduce the number of uninsured. Patients need to be empowered. The Ryan plan puts everything on the table, he said. He would send Medicaid back to the states. He would let the states experiment.

EDUCATION: He thinks early childhood literacy is important, but wants education local, and he would send it back to the states, with no unfunded mandates.

EQUALITY: Huntsman does not bash gays, and accepts civil unions. He asked fellow Republicans to do better on equality.

JUSTICE: Huntsman limited his approval of Supreme Court Justices to just Roberts and Alito.

11/14/2011

Sexual Harassment: The Cained Women

Since Sexual Harassment has once again returned to American Politics, thanks to four different women who claimed to be the victims of it at the hands of Republican Presidential candidate Herman Cain, it is a good time to review the law on the subject.

The legal basis for a Sexual Harassment claim is the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin:

It shall be an unlawful employment practice for an employer…to discriminate against any individual with respect to (her) compensation, terms, conditions, or privileges of employment, because of… race, color, religion, sex, or national origin.

Sexual Harassment was further defined by the Equal Employment Opportunity Commission as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature…when: 1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; 2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual; or 3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance, or creating an intimidating, hostile, or offensive work environment.

Sexual Harassment manifests itself in one of two ways: 1) the exchange of concrete employment benefits for sexual favors; or 2) harassment that creates an offensive or hostile work environment. A successful case requires proof the harassment was: 1) based on sex; 2) unwelcome; and 3) sufficiently severe and pervasive.

When a supervisor sexually harasses a subordinate, because of the subordinate’s sex, the supervisor discriminates on the basis of sex. Meritor Savings Bank (1986). A woman must show she would not have been the subject of harassment, but for her sex.

The law allows work-place criticism and sexual flirtation. Mere criticism in the work-place, not based on sex, does not violate the law. A boss can be unpleasant, critical, or even mean, and yet not be guilty of sexual harassment, as the Civil Rights Act did not create a general civility code. The Supreme Court has never held workplace harassment…is automatically discrimination because of sex, merely because the words used have sexual content or connotations. The law does “not mistake ordinary socializing in the workplace, such as…flirtation, for discrimination.”

A second issue is whether sexual advances were unwelcome. Ongoing voluntary romantic engagements do not constitute sexual harassment. Co-workers can engage in sexual relations, as long as they are consensual. A claimant’s dress and conversation are relevant in determining unwelcome conduct. The Court in Meritor said it does not follow that a woman’s sexually provocative speech or dress is irrelevant, as a matter of law, in determining whether particular sexual advances were unwelcome. In other words, a man can introduce evidence of what was said and what she was or was not wearing. If a man made sexual advances, after a woman walked into his office and took off all her cloths, subsequent harassment charges could be defended against with evidence of her naked appearance.

The Supreme Court in Meritor further said sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. A single sexually explicit remark is not sufficient to prove a wrong. See Clark County School Dist. (2000). Simple teasing, offhand comments, and isolated incidents (unless extremely serious) do not constitute discrimination. Sexually hostile or intimidating environments are characterized by multiple and varied combinations and frequencies of offensive exposures, which would dictate an order of proof demonstrating the injury resulted not from a single or isolated offensive incident, comment, or conduct, but from incidents, comments, or conduct that occurred with some frequency. Courts will look to the frequency, severity, verbal or physical nature of offenses, and whether they interfered with work performance. Harris v Forklift (1993).

Since Herman Cain did not fight and win his cases, but instead made payments, it is fair to assume all of the required evidence was available against him, before cash settlements were made.

Perhaps Cain may now sympathize with President Clinton, who was innocent of sexual harassment as to his purely consensual affair with Monica Lewinsky. She never once said his advances were unwelcome. Clinton was properly acquitted in the Senate of trumped-up impeachment charges brought by House Republicans.

Clinton was also not guilty of charges brought by Paula Jones. In Jones v Clinton (W.D. Ark. 1998) Judge Susan Wright rejected Jones’ claim that a single incident of allegedly requesting oral sex was enough, in and of itself, to create a hostile work environment. Jones, who worked for Arkansas, was not even directly under the supervision of then Gov. Clinton. Courts have ruled where a supervisor has no authority over an employee, because they work in different departments, it may be improper to find liability.

Whether or not Herman Cain could have prevailed in his sexual harassment cases, if they had gone to trial, it is useful to know the law of sexual harassment.

07/18/2011

Income Tax: Intended For The Rich

For nearly 100 years, the progressive income tax has been the federal government’s major source of revenue, and it must now be strengthened, so more is collected from corporations and the rich.

The first federal income tax, used to finance the American Civil War, was imposed from 1861 through 1873.

When Congress implemented another income tax (1894), the issue went to the Supreme Court. Although the Constitution stated: “Congress shall have power to lay and collect taxes” (Art I, Sec. 8), the opponents of the tax argued the framers did not intend for them to be imposed on “income;” they only permitted “uniform” taxes “in proportion to the census.” Since income taxes could never be based on the census or be “uniform,”  the court declared the law unconstitutional (1895).

During the Progressive Era, after Wisconsin enacted the first state income tax (1911), the nation ratified the 16th Amendment (1913), which overruled the 1895 case, and allowed a federal income tax. The Constitutional Amendment provided: “Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.”

The Revenue Act of 1913 imposed an income tax on individuals earning $3,000 or more, or couples making at least $4,000. The tax applied only the rich, since it reached just the top 1% of all households. The wealthy paid anywhere from 1% to 7% of their incomes in taxes, at rates that increased as their earnings went up. The income tax was never intended for the lower or middle classes.

Today, it is the middle class that pays the income tax, as wealthy corporations escape its grasp. Although the law treats corporations as persons and gives them constitutional rights, they evade the financial duties of citizenship. While they benefit from services for transportation, energy, education, commerce, justice, state, and defense, they fail to pay much, if any, income tax.

Corporate tax evasion must be prosecuted and avoidance through exemption and deductions must end. Corporations on the Fortune 500, doing business in the U.S., should pay taxes on a certain percent of their gross “revenues,” no matter what their source, and without exception, deduction, exclusion, adjustment, credit, prior loss, loophole, shelter, or excuse.

It’s time to get tough with big corporations and the rich. They are far better off now than they were when the income tax started a century ago. It’s time to return to the good old days of the Progressive Era, when the rich were disproportionately taxed.

06/22/2011

Redistricting Must Be Done Fairly

Congressional redistricting in Florida is big business, since it will divide 18,801,310 Floridians into 27 districts of roughly 696,345 each. Depending on how the Republican majorities in the state government draw the lines, the GOP could win 24 of 27, even though the number of voters supporting each party was evenly divided in the last presidential and gubernatorial elections.

If theoretically the Republicans could herd 696,345 Democrats into each of three districts from Jacksonville to Orlando, Tampa to St. Pete, and in Miami, they could quarantine off a total of 2,089,035, leaving only 7,311,620 to face 9,400,655 Republicans in the state’s remaining 24 districts.

They could then determine the number of Democrats in the other 24 districts by dividing the remaining 7,311,620 by 24, which comes to 304,650, and could apportion the Republicans per district by dividing 9,400,655 by 24, which comes to 391,693.

Since 391,693 Republicans per district would represent 56% of the vote, and 304,650 Democrats per district would be only 44% of the vote, the Republicans could win 24 districts this way, while losing only three, despite equal statewide votes for each party.

The process of manipulating districts to engineer an outcome is called gerrymandering. To be sure, Republicans will certainly engage in it, while simultaneously denying any intent to do so. Frankly, I would be shocked if each of the Congressional Districts were drawn to have 348,172 Democrats and 348,172 Republicans.

With the help of the U.S. Supreme Court in Easley v Cromartie (2001), the herding of blacks in North Carolina into one oddly-shaped gerrymandered district was approved in a 5-4 vote. Now, blacks do not object to these heavily concentrated districts, as they help their candidates score easy victories.

What they may not realize is they are being used by Karl Rove Republicans to create disproportionately more Republican seats, as explained above. The loss of Democrats in the House also affects state-wide races, like the recent U.S. Senate contest, because it reduces the number of candidates qualified to run for statewide office. In the last race, Democrat Kendrick Meek of Miami, a black man, was beaten badly in a statewide contest. The Democrats could have won that race with a stronger candidate, but their bench was weak due to gerrymandering.

When I moved to the Tampa-Bay area, I was shocked to see the extent of gerrymandering used to create a Democratic district. The blacks of St Petersburg, in Pinellas County, were combined with the non-whites of Tampa, in Hillsborough County, located clear across the Tampa Bay (body of water). This certainly explains why Republicans won most seats in the urban Tampa Bay area. Hopefully, the media will expose gerrymandering this time, and contiguous districts will be fairly drawn.