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Does Donald Trump’s Supreme Court Nominee Believe the Constitution Is God’s Law?

by bt88jtv Posted on February 21, 2017

Mother Jones

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During his confirmation hearings, scheduled to begin March 20, Supreme Court nominee Neil Gorsuch will face a thorough grilling about his legal philosophy. Among the topics likely to come up are his views on “natural law” and his relationship with John Finnis, the Oxford University professor who advised Gorsuch on his Ph.D. thesis and one the world’s leading proponents of this arcane legal theory.

Natural law is a loosely defined term, but to many of its conservative US adherents it is essentially seen as God’s law—a set of moral absolutes underpinning society itself. In recent years, natural law believers have invoked this legal theory to defend a range of anti-gay policies.

Natural law has been a source of controversy for at least two previous Supreme Court nominees in recent decades—for dramatically different reasons. In 1991, Harvard law professor Laurence Tribe wrote a New York Times op-ed opposing the nomination of Justice Clarence Thomas because he would be the “first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.” Reagan nominee Robert Bork, on the other hand, was criticized for not believing in natural law by then-Sen. Joe Biden (D-Del.), no less. Biden told Bork at his confirmation hearing, “As a child of God, I believe my rights are not derived from the Constitution…They were given to me and each of my fellow citizens by our creator.”

Bork, who was ultimately rejected by the Senate, had scoffed at the idea that judges could know God’s law and implement it. Later, in a 1992 essay, he warned that if natural law proponents “persuade judges that natural law is their domain, the theorists will find that they have merely given judges rein to lay down their own moral and political predilections as the law of the Constitution. Once that happens, the moral reasoning of the rest of us is made irrelevant.”

Natural law theory dates back to Thomas Aquinas and the Greeks before him. It isn’t necessarily liberal or conservative. Lawyers from the natural-law legal camp helped formulate the Universal Declaration of Human Rights in 1948, a seminal document in which 48 countries committed to pursuing progressive measures that would protect human rights and fundamental freedoms.

In the United States, natural law has taken on a variety of interpretations. One proponent was David Lane, a white supremacist implicated in the murder of Alan Berg, a Jewish radio talk show host in Gorsuch’s hometown of Denver. Lane’s followers gunned down Berg in his driveway in 1984. Lane, who died in 2007, claimed that natural law justified any act, however heinous, that preserved the perpetuation of a race—in his case, the white race.

American conservatives, including Justice Thomas, use the term “natural law” to suggest that the Constitution and the Declaration of Independence were divinely inspired. Former Sen. Jim DeMint (R-S.C.), now the president of the conservative Heritage Institute think tank, explained in an essay last summer, “Our rights as Americans are considered unalienable only because they were inherent in the natural order of life established by the laws of nature and nature’s God.”

Where does Gorsuch fit into all this? In the 1990s, he studied legal philosophy at Oxford under Finnis. Gorsuch, who received his doctorate in 2004, has remained close to his former mentor, whom he credits in the 2006 book that grew out of his Oxford thesis, The Future of Assisted Suicide and Euthanasia. In a 2011 speech at Notre Dame law school honoring the Australian-born academic, Gorsuch fondly recalled the “red ink he poured so carefully—and generously—over the papers we produced.” He declared, “I have encountered few such patient, kind and generous teachers in my life.” (Finnis did not respond for a request for comment. He has publicly declined to discuss Gorsuch, telling the Guardian earlier this month, “I have resolved not to say anything to anyone at all.”)

Finnis, who is 76, is considered a brilliant and influential legal philosopher. In 1980, he published a definitive text on natural-law legal theory, Natural Law and Natural Rights, in which he identified seven “basic goods” that are central to human well-being: life, knowledge, play, aesthetic experience, sociability of friendship, practical reasonableness, and religion. From there, he sought to outline an ethical framework for viewing law and justice. He believes all human life is innately valuable and intrinsically good, and not because it might be useful to others, as some utilitarian philosophers might argue.

Melissa Moschella, an assistant professor of philosophy at the Catholic University of America who knows Finnis, says natural law is “a theory about what’s right and wrong, and it’s based on what, through reason, we can know about what’s good and bad for human beings, so that we act in ways that are always respectful of the well being of ourselves and others.”

On many levels, Finnis’ philosophy is profoundly humane. It led him to oppose the death penalty and to become an outspoken advocate for nuclear disarmament in the 1980s. He believed that even threatening to use nuclear weapons was immoral because it indicated a willingness to kill innocent civilians indiscriminately. Natural law also made him a foe of abortion and assisted suicide. While his work doesn’t invoke the divine, as DeMint and others have, Finnis’ views square with his Catholic faith: He converted to Catholicism in 1962 and has advised the Vatican on Catholic social teaching.

Not long after his conversion, Finnis discovered Germain Grisez, a French American natural-law philosopher and a prominent defender of the Church’s opposition to contraception. Griesz and Finnis began to collaborate, and Finnis’ work grew both more conservative and more focused on sex, particularly gay sex.

In 1993, Finnis testified for the state of Colorado in a case challenging Amendment 2, a ballot initiative that would have banned local governments from passing human rights ordinances or other anti-discrimination laws that would protect LGBT people. State Solicitor General Timothy Tymkovich, who now serves alongside Gorsuch on the 10th Circuit Court of Appeals, brought Finnis in to explain the allegedly classical roots of anti-gay prohibitions going back to Socrates. In his trial testimony, Finnis compared gay sex to bestiality “because it is divorced from the expressing of an intelligible common good,” according to part of his deposition published by The New Republic.

Martha Nussbaum, a prominent professor of law and ethics at the University of Chicago, served as an expert for the other side, suggesting that Finnis was misinterpreting the Greeks, who clearly had some acceptance of homosexuality in their culture. Nussbaum’s side ultimately prevailed at trial and at the US Supreme Court in its landmark decision in Romer v. Evans.

Nussbaum says Finnis “is a very fine moral philosopher” and “author of important books that I admire.” But she notes that his work on sexual orientation has less going for it. “Finnis’s book Natural Law and Natural Rights is entirely different from the ‘new natural law’ work inspired by Germain Grisez that he got into later,” Nussbaum writes in an email. “The former is excellent philosophy, the latter arcane and strange conservative argument. In England Finnis on the whole focused on philosophy, and people were shocked by some of the things he published beginning in 1994.”

That year, he authored an article titled “Law, Morality, and ‘Sexual Orientation.'” In it, Finnis insisted that “homosexual orientation” was a “deliberate willingness to promote and engage in homosexual acts—a state of mind, will, and character whose self-interpretation came to be expressed in the deplorable but helpfully revealing name ‘gay.'”

Finnis’ students have deployed his legal theories to battle same-sex marriage in the United States. Among his best-known acolytes is Princeton professor Robert George, who co-founded the anti-gay National Organization for Marriage. George filed a brief in the 2013 Supreme Court case over the same-sex marriage ballot initiative in California, Proposition 8, and he also testified for the state of Colorado in the 1993 anti-discrimination case along with his former teacher.

Gorsuch’s long relationship with Finnis has put him in close company with George and other anti-gay figures. When Gorsuch spoke at Notre Dame in 2011, he shared the stage with anti-gay theorists including George and Germain Grisez. Gorsuch has also worked with George on academic projects, including his tome on assisted suicide, which was part of a series of books George edited at Princeton University Press. George recently wrote an op-ed in the Washington Post supporting Gorsuch’s Supreme Court nomination.

Whether Gorsuch adheres to the same natural law philosophy as George and Finnis about the alleged societal harm of homosexuality is hard to know. His book on assisted suicide mentions Supreme Court cases involving gay rights, but only as reference points for analyzing the court’s thinking, not his own, and its relevance to euthanasia. He’s hired openly gay clerks and attends a liberal Episcopal church in very liberal Boulder, Colorado, and gay friends attested to his openness in a recent New York Times story.

But he also voted in favor of Hobby Lobby, the craft store whose owners sued the Obama administration, alleging that the company’s religious freedom rights were violated by the Affordable Care Act’s requirement that employers provide health insurance that covers contraception. That decision might square with a natural-law view respecting the exercise of religion as a critical human right, but it also may have led to more persecution of LGBT people. The Supreme Court decision upholding that ruling has since been used to defend businesses that have discriminated against LGBT people—a view some lower courts have upheld. The Hobby Lobby case was brought by the Beckett Fund for Religious Liberty, a religious nonprofit law firm on whose board George serves.

Catholic University’s Moschella says Finnis makes a distinction in his work between morality and the law. He believes that what a judge does on the bench is not determined by natural law but rather by the laws of that nation. So if Gorsuch really does endorse Finnis’ philosophy, Moschella says, his moral views on abortion, gay rights, and other hot-button issues and what natural law says about them is irrelevant. She says, “What is relevant to his work as a judge is his commitment, which is also a moral commitment, to upholding the law of the land.”

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Does Donald Trump’s Supreme Court Nominee Believe the Constitution Is God’s Law?

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“Jane Roe” Has Died. Abortion Rights Might Not Be Far Behind.

by StormyMoseley Posted on February 19, 2017

Mother Jones

Norma McCorvey, the “Jane Roe” plaintiff in the Roe v. Wade Supreme Court case that legalized abortion in the United States, died Saturday at at an assisted-living facility in Katy, Texas. She was 69.

McCorvey was a complicated symbol for the political fight over abortion rights. Following the high court’s 1973 decision, she became the face of the pro-choice movement. At the time, she represented the struggles faced by ordinary women confronted with unwanted pregnancies. Abortion was illegal in Texas in almost all cases when she learned she was pregnant in 1969. Poor and with a ninth grade education, she didn’t have the means to seek abortion across state lines. The legal battle dragged on for three years; by the time she won, she had long since carried the pregnancy to term. She gave the baby up for adoption.

But in 1995, McCorvey reversed her stance on abortion after discussing the Bible with Pastor Flip Benham, the director of Operation Rescue, an aggressive pro-life group that had moved in next door to the women’s health clinic where McCorvey worked. She soon quit her job at the clinic and was baptized by Benham. She became a spokeswoman for the anti-abortion movement, penning a book about her ideological transformation and traveling the country giving speeches to religious groups.

Like McCorvey’s own views on abortion, popular opinion about a woman’s right to choose has been the subject of much conflict and debate since the landmark 1973 case. And while a strong majority of Americans still agrees with the Roe decision, dismantling the right to an abortion is now an explicit objective for both the new administration and the Republican-led congress.

In the month since President Donald Trump’s inauguration, GOP lawmakers have put forward measures aimed at pulling federal family planning funds from Planned Parenthood and repealing the Affordable Care Act, including its requirement that insurance plans cover contraceptives. They have also introduced bills that would make abortion illegal after 20 weeks of pregnancy and would ban the standard abortion method used by doctors in the second trimester.

A Supreme Court majority that would be open to overturning Roe is becoming increasingly likely, as well. This is something Trump promised repeatedly during the campaign as part of his largely successful effort to win over skeptical evangelical voters. As a candidate, he made four promises to the anti-abortion community: He pledged to nominate anti-abortion justices; defund Planned Parenthood; sign the 20-week abortion ban; and permanently enshrine into law the Hyde Amendment—a 40-year old budget rider that Congress has repeatedly used to bar federal tax dollars from funding most abortions. Assuming that Judge Neil Gorsuch is confirmed this spring, it may only take the departure of one pro-abortion-rights justice to tip the balance on the court against Roe.

During the campaign, the formerly pro-choice Trump brought on Mike Pence to shore up his anti-abortion bonafides. As governor of Indiana, Pence signed some of the country’s strictest abortion restrictions into law, including a measure requiring burial or cremation of aborted fetus remains and a ban on abortions due to fetal anomaly. In a September 2016 speech, Pence told an evangelical conference in Washington, DC, “I want to live to see the day that we put the sanctity of life back at the center of American law, and we send Roe v. Wade to the ash heap of history, where it belongs.”

Last month, Pence became the highest-ranking government official to ever address the annual March for Life in person. “Life is winning again in America,” Pence said at the anti-abortion gathering, pointing to the “historic election of a president who stands for a stronger America, a more prosperous America, and a president who, I proudly say, stands for the right to life.”

Roe has been seen by many as an imperfect decision. Justice Ruth Bader Ginsburg, one of the foremost legal warriors for gender equality, has criticized the decision for changing too much, too quickly. After founding the ACLU’s women’s rights project in the 1970s, Ginsburg focused on fighting sex discrimination with an incremental strategy. She brought several cases to the Supreme Court, building up a body of court victories that together established a sweeping legal and moral understanding of sex discrimination as something that is both illegal and wrong. Roe, she said at a conference in 2014, “established a target” for abortion opponents because it ditched this incremental approach, instead imposing a drastic change on states across the country. She suggested that if the high court had moved a little more slowly, today the idea of reproductive choice wouldn’t be so controversial. “A movement against access to abortion for women grew up, flourished, around a single target,” Ginsburg said.

After her victory as Roe’s main plaintiff, McCorvey joined the movement that sprung up to oppose Roe. Her death comes at a time when that movement, with help from the Trump White House, could achieve many of its long-held goals.

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“Jane Roe” Has Died. Abortion Rights Might Not Be Far Behind.

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Trump Expected to Sign Executive Orders Hitting the EPA

by DemetriFarris Posted on February 16, 2017

Mother Jones

Scott Pruitt will almost certainly be the next head of the Environmental Protection Agency. The Oklahoma attorney general’s nomination is expected to sail through Senate—possibly as soon as Friday—despite Democrats’ protests that he is unfit to lead an agency that he has repeatedly sued. The administration has already imposed a freeze on the EPA’s social media, halted its rulemaking, and reportedly mandated that all agency research be reviewed by a political appointee before being released to the public. But next week, once Pruitt is sworn in, the real frenzy will begin.

According to Reuters, President Donald Trump plans to sign between two and five environmental executive orders aimed at the EPA and possibly the State Department. The White House is reportedly planning to hold an event at the EPA headquarters, similar the administration’s roll-out of its widely condemn travel ban after Defense Secretary James Mattis took office. While we don’t know what, exactly, next week’s orders will say, Trump is expected to restrict the agency’s regulatory oversight. Based on one administration official’s bluster, the actions could “suck the air” out of the room.

Trump may have hinted at the forthcoming orders in his unwieldy press conference on Thursday. “Some very big things are going to be announced next week,” he said. (He didn’t make clear whether or not he was referring to the EPA.)

Former President Barack Obama’s array of climate regulations, including the Clean Power Plan limiting power plant emissions, are certainly high on conservative activists’ hit list. So too is the landmark Paris climate deal, in which Obama agreed to dramatically cut domestic carbon emissions and provide aide to other countries for clean energy projects and climate adaptation. The EPA’s rule that defines its jurisdiction over wetlands and streams is also a prime target. As attorney general, Pruitt launched lawsuits against a number of these regulations.

“What I would like to see are executive orders on implementing all of President Trump’s main campaign promises on environment and energy, including withdrawing from the Paris climate treaty,” said Myron Ebell, who headed Trump’s EPA transition and recently returned to the Competitive Enterprise Institute, in an email to Mother Jones.

H. Sterling Burnett, a research fellow the Heartland Institute, which rejects the scientific consensus on climate change, says Trump could start by revisiting the Obama administration’s efforts to calculate a “social cost of carbon“—and by forbidding its use to determine costs and benefits of government regulations. He also wants to see broader restrictions on how the EPA calculates costs and benefits. In particular, Burnett hopes Trump will prohibit the agency from the considering public health co-benefits of regulations—for example, attempts by the EPA to argue that limits on CO2 emissions from power plants also reduce emissions of other dangerous pollutants.

Or Trump could take a cue from Republican Attorneys General Patrick Morrisey (W.V.) and Ken Paxton (Texas), who recommended in December that Trump issue a memorandum directing the EPA to “take no further action to enforce or implement” the Clean Power Plan. (The Supreme Court halted implementation of the rule a year ago while both sides fight it out in federal court).

The holy grail for conservatives would be reversing the agency’s so-called “endangerment finding,” which states that greenhouse gas emissions harm public health and must therefore be regulated under the Clean Air Act. The endangerment finding is the legal underpinning for the bulk of Obama’s climate policies, including the restrictions on vehicle and power plant emissions. Undoing the finding wouldn’t be an easy feat and can’t be accomplished by executive order alone. The endangerment finding isn’t an Obama invention; in 2007, the Supreme Court ruled that the EPA must regulate greenhouse gasses if it found they harmed public health. Pruitt said during his confirmation hearing that the administration wouldn’t revisit the finding, but he also launched an unsuccessful lawsuit against it in 2010. Neither Ebell nor Burnett expects to see Trump to tackle the endangerment finding just yet.

Environmentalists are already planning their response. Litigation is certainly an option, but it would of course depend on the details of Trump’s executive actions. Several groups, including EarthJustice and Natural Resources Defense Council, have already sued to block Trump’s earlier executive order requiring that every new regulation be offset by scrapping two existing regulations. Their case: The administration can’t arbitrarily ditch regulations just because the president wants fewer of them on the books.

They could be making a similar case soon enough. “A new president has to deal with the record and evidence and findings,” EarthJustice’s lead attorney, Patti Goldman, said. “If you take climate and the endangerment finding, that is a scientific finding that is upheld by the court. That finding has legal impacts. If there’s a directive along those lines, there will have to be a process.”

Of course, anti-EPA Republicans disagree about what is constitutional, which is one reason the agency is in for a tumultuous ride over the next four years. For many conservatives, no EPA at all—or at least one that has no regulatory powers—is the best option. “I read the constitution of the United States, and the word environmental protection does not appear there,” said Heartland’s Burnett. “I don’t see where it’s sanctioned. I think it should go away.” A freshman House Republican recently introduced a bill to do just that, but there’s no sign that it’s going to pass anytime soon.

And while Burnett acknowledges that the EPA probably won’t be vanishing in the near future, he’s been happy with the direction Trump has taken so far. He’s pleased with the president’s moves to restart the Keystone and Dakota Access pipelines, and he’s hopeful that the administration will move toward an EPA with “smaller budgets and a smaller mission, justified by the fact that you’ll have fewer regulations.”

Depending on what Trump does next week, that could be just the beginning.

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Trump Expected to Sign Executive Orders Hitting the EPA

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Here’s Why Donald Trump Can’t Defund “Out-of-Control” California

by WendyWWQHcs Posted on February 9, 2017

Mother Jones

One of President Donald Trump’s favorite threats is cutting federal government funding to states, cities, and other entities that refuse to cooperate with his policies. On January 25, he issued an executive order titled “Enhancing Public Safety in the Interior of the United States,” which warns “sanctuary cities” that they could lose federal funds if they continue to protect undocumented residents from deportation. After an appearance by Breitbart‘s Milo Yiannopoulos at the University of California-Berkeley was canceled amid violent protests, Trump tapped out the following tweet:

And during a pre-Super Bowl interview with Fox News’ Bill O’Reilly, Trump doubled down on California: “If we have to, we’ll defund…We give tremendous amounts of money to California. California in many ways is out of control, as you know.”

Here’s the thing: Trump can’t just yank funding from states or cities or universities that upset him. Yet the matter is far from resolved: Several cities and one state have already filed lawsuits against the Trump administration over its threats, all but ensuring a battle that could end up before the Supreme Court. Here’s what you need to know about the legal issues behind this fight.

Why can’t the president withhold federal money from states or cities?

The short answer is that Congress, not the White House, has ultimate power over the federal purse. The president’s budget requests may direct Congress how to allocate federal spending, but the matter is not entirely in his hands. And he has no authority to withhold or rescind spending that’s already been authorized.

So couldn’t Congress defund a state or city if the president asked it to?

Hypothetically, Congress could pass a law or budget bill that puts conditions on the federal funding provided to, say, out-of-control California. But numerous Supreme Court decisions protect state and local governments against this type of vindictive policymaking. When the federal government raised the national minimum drinking age to 21 in 1984, it prodded states into enforcing the new law by stipulating that any state that didn’t comply would lose 5 percent of its federal highway construction funds. South Dakota wasn’t happy about this and filed a lawsuit against the federal government. South Dakota v. Dole worked its way up to the Supreme Court, which found that the federal government can apply conditions to funding—with a few limits. One of those limits is the stipulation that any conditional spending must not be “coercive.” As Justice William Rehnquist wrote, there is a point when “pressure turns into compulsion,” and a state might unconstitutionally be forced to comply because it needs the federal money to operate. Additionally, conditional funding can only apply to new money, not funding that’s already been committed.

As a practical matter, states and cities receive federal money through hundreds of different appropriations bills and programs. If Trump and congressional Republicans wanted to effectively defund California, they would have to modify each federal spending provision that affects the state. Conceivably, they could pass a bill that instructs the Department of the Treasury to stop sending money to Sacramento, but that would spark an enormous constitutional crisis.

But aren’t states and cities required to follow federal laws whether they like it or not?

Yes—but again there are limits. When the Supreme Court ruled on the constitutionality of Obamacare in 2012, it also considered the law’s expansion of state Medicaid programs. The Affordable Care Act had threatened to cut off all Medicaid funding to states should they fail to expand the program in accordance with its standards. Citing South Dakota v. Dole, Chief Justice John Roberts wrote in his opinion that this ultimatum was “a gun to the head” of the states. For many states, federal Medicaid money comprises more than 10 percent of total revenue, and losing that money would effectively cripple them. Six other justices agreed with Roberts on this point, and Medicaid expansion was left to the states.

What about the 10th Amendment?

The 10th Amendment of the Constitution says that any power not delegated to the federal government becomes the responsibility of the states. This is the basis of America’s federal system, whereby states have the freedom to pass laws that are distinct from those passed by Congress.

The Supreme Court has long interpreted the 10th Amendment as the foundation for a check on federal power. Take the case of Printz v. United States. After Congress passed the Brady Handgun Violence Prevention Act in 1993, a Montana sheriff named Jay Printz challenged its requirement that local law enforcement agencies conduct background checks on gun buyers. He argued that Congress was acting outside of its authority to compel state-level officials to enforce federal law. In 1997, five Supreme Court justices, led by Antonin Scalia, agreed.

The Printz decision underscores what Duke University law professor Matthew Adler calls “an external constraint upon congressional power—analogous to the constraints set forth in the Bill of Rights—but one that lacks an explicit textual basis.” In other words, decades of Supreme Court rulings on the 10th Amendment have formed an effective check on federal power by the states. And that could mean that just as Printz was allowed to resist conducting federally mandated background checks, a court could find that officials in sanctuary states and cities are allowed to avoid enforcing federal immigration law.

Don’t conservatives like the 10th Amendment more than progressives?

In the past, the 10th Amendment has provided cover for advocates of states’ rights and efforts to resist federal civil rights efforts such as integrating schools. More recently, the 10th Amendment became a rallying cry for the Obama administration’s opponents. Sen. Ted Cruz (R-Texas) is a big fan of the 10th, and tea partiers and “Tenthers” invoked the amendment to push back against Obamacare and even call for secession.

Now it’s liberals who are warming to the promise of the 10th Amendment. San Francisco’s recently filed federal lawsuit against the Trump administration argues that, defunding aside, the anti-sanctuary-city executive order violates the 10th Amendment. The city claims that it is within its rights to not cooperate with federal authorities under the “anti-commandeering” precedent set in Printz, which says higher jurisdictions may not “commandeer” local resources to enforce federal rules. Likewise, Massachusetts has also invoked the 10th amendment against Trump’s “Muslim ban” executive order. Several Boston suburbs have also cited the 10th in their lawsuits against the administration’s sanctuary city order, as has Santa Clara County, California, the home of Silicon Valley. Last week, Portland’s mayor issued a statement that the 10th Amendment protects its sanctuary city policies too.

How could this battle play out?

The feds depend on state and local officials to enforce their policies. The federal system is set up to encourage cooperation between state and federal officials. If that falls apart, Trump will have difficulty enacting his agenda. As Yale law professor Heather Gerken recently argued on Vox, “Even if President Trump spends enough political capital to win this or that battle against blue cities and states, he cannot win the war. The federal government doesn’t have the resources to carry out Trump’s policies.”

The funding question remains up in the air since Trump hasn’t given any indication to how, exactly, he would defund cities and states. However, given that California is in the process of passing legislation that effectively makes the entire state a sanctuary for undocumented immigrants, and given that its elected officials have been vocal about their opposition to Trump, we could see a California v. U.S. case in the near future if Trump tries to follow through. On Monday, state Attorney General Xavier Becerra reiterated his commitment to pushing back against Trump’s defunding threat. “We will fight anyone who wants to take away dollars that we have earned and are qualified for simply because we are unwilling to violate the Constitution under these defective executive orders,” he said.

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Here’s Why Donald Trump Can’t Defund “Out-of-Control” California

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Trump’s Immigration Fiasco Might Be More Premeditated Than We Think

by RolandoAngel970 Posted on January 29, 2017

Mother Jones

Harold Pollack on President Trump’s immigration fiasco:

The President’s team had months to prepare this signature immigration initiative. And they produced…an amateurish, politically self-immolating effort that humiliated the country, provoked international retaliation, and failed to withstand the obvious federal court challenge on its very first day.

Given the despicable nature of this effort, I’m happy it has become a political fiasco. It also makes me wonder how the Trump administration will execute the basic functions of government. This astonishing failure reflects our new President’s contempt for the basic craft of government.

This sure seems to be the case. For the barely believable story of just how incompetent the whole exercise was, check out this CNN story. It will leave your jaw on the floor. And yet, there’s also one tidbit that makes me wonder if the chaos attending the rollout was quite as unintended as we think:

Friday night, DHS arrived at the legal interpretation that the executive order restrictions applying to seven countries — Iran, Iraq, Libya, Somalia, Syria, Sudan and Yemen — did not apply to people who with lawful permanent residence, generally referred to as green card holders.

The White House overruled that guidance overnight, according to officials familiar with the rollout. That order came from the President’s inner circle, led by Stephen Miller and Steve Bannon. Their decision held that, on a case by case basis, DHS could allow green card holders to enter the US.

The decision to apply the executive order to green card holders, including those in transit, is almost insane. Whatever else he is, Steve Bannon is a smart guy, and he had to know that this would produce turmoil at airports around the country and widespread condemnation from the press. Why would he do this?

In cases like this, the smart money is usually on incompetence, not malice. But this looks more like deliberate malice to me. Bannon wanted turmoil and condemnation. He wanted this executive order to get as much publicity as possible. He wanted the ACLU involved. He thinks this will be a PR win.

Liberals think the same thing. All the protests, the court judgments, the press coverage: this is something that will make middle America understand just what Trump is really all about. And once they figure it out, they’ll turn on him.

In other words, both sides think that maximum exposure is good for them. Liberals think middle America will be appalled at Trump’s callousness. Bannon thinks middle America will be appalled that lefties and the elite media are taking the side of terrorists. After a week of skirmishes, this is finally a hill that both sides are willing to die for. Who’s going to win?

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Trump’s Immigration Fiasco Might Be More Premeditated Than We Think

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Six Agencies Are Investigating Trump-Russia Ties

by Leesa78508779713 Posted on January 18, 2017

Mother Jones

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McClatchy has the latest on the investigation into ties between Russia and the Trump team:

The FBI and five other law enforcement and intelligence agencies have collaborated for months in an investigation into Russian attempts to influence the November election….The agencies involved in the inquiry are the FBI, the CIA, the National Security Agency, the Justice Department, the Treasury Department’s Financial Crimes Enforcement Network and representatives of the director of national intelligence, the sources said.

….One of the allegations involves whether a system for routinely paying thousands of Russian-American pensioners may have been used to pay some email hackers in the United States or to supply money to intermediaries who would then pay the hackers, the two sources said….A key mission of the six-agency group has been to examine who financed the email hacks of the Democratic National Committee and Clinton campaign chairman John Podesta.

….The working group is scrutinizing the activities of a few Americans who were affiliated with Trump’s campaign or his business empire and of multiple individuals from Russia and other former Soviet nations who had similar connections, the sources said.

….The BBC reported that the FBI had obtained a warrant on Oct. 15 from the highly secretive Foreign Intelligence Surveillance Court allowing investigators access to bank records and other documents about potential payments and money transfers related to Russia. One of McClatchy’s sources confirmed the report.

That’s an awful lot of agencies investigating an awful lot of allegations against an awful lot of people. And as the article says, you can’t get a warrant unless you can demonstrate at least some kind of plausible probable cause. That means these folks are working off a lot more than just the famous dossier produced by the ex-MI6 spy.

At this point, I flatly don’t know what I believe anymore. This is all crazy stuff, but a whole bunch of investigators don’t seem to be treating it as crazy. Either way, though, the guy at the center of all this is going to become president of the United States in two days.

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Six Agencies Are Investigating Trump-Russia Ties

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Major Investigation Blasts Chicago Police for Abuses

by LeonoreYXSX Posted on January 13, 2017

Mother Jones

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The US Department of Justice on Friday released a scathing report concluding a 13-month investigation into the conduct of the Chicago Police Department, finding rampant uses of excessive force and other abuses. The investigation was launched in November 2015 after the release of video showing a white officer shooting black teenager Laquan McDonald 16 times, killing the youth who was armed with a knife. The Justice Department reviewed documents related to the Chicago PD’s training policies and procedures and reviewed reports and investigative files for nearly 600 police-shooting and use-of-force incidents between January 2011 and April 2016. It also interviewed community members, city officials, hundreds of police officers, and investigators with the city’s independent police review board. Key findings from the report include:

Chicago police officers routinely used unreasonable force—including deadly force. Officers engaged in tactics that made the need to use force more likely or more risky, such as engaging in unnecessary foot pursuits and shooting at moving vehicles, the report says. In one incident, officers drove up to a man on the street and ordered him to freeze because he was fidgeting with his waistband. The man ran and three officers chased him, shooting as they ran. The officers fired a total of 45 rounds in the pursuit, in which the suspect was killed.
Neither the police department nor the independent police oversight agency adequately investigated use-of-force incidents or misconduct complaints. The Internal Police Review Board—tasked with investigating police misconduct until Chicago Mayor Rahm Emanuel overhauled the agency last year—found just two of the 409 shootings that occurred in the period covered by the DOJ’s investigation to be unjustified. And despite that Chicago paid more than $500 million in judgments in misconduct cases since 2004, it conducted disciplinary investigations into fewer than half of them. When cases were investigated, the report notes, witnesses and officers often were interviewed long after the incidents occurred, or never at all; officers were heavily coached by union attorneys; and some officers colluded to cover up misconduct.
Training in Chicago’s police academy is insufficient to train recruits to modern standards. In one training that DOJ investigators sat in on, recruits were instructed with a video that was 35 years old, pre-dating Supreme Court decisions that altered use-of-force standards, the report says. The instruction was also inconsistent with police department’s own use-of-force policy, the report said.

Notably absent from the DOJ’s report is an assessment of whether Chicago cops disproportionately target people of color—which the DOJ has repeatedly found with investigations of other cities’ police forces. Asked about this during a press conference on Friday, Attorney General Loretta Lynch acknowledged that the abuses outlined in the report had a greater impact on minority neighborhoods. The report also discussed how distrust between police and communities of color affected Chicago’s skyrocketing murder rate, noting that the tension made it harder for police to investigate shootings. (Chicago police have made significantly fewer stops and arrests in Chicago in 2015, which President-elect Donald Trump and some city authorities have attributed to increased scrutiny on officers and blamed for the worsening gun violence.)

The release of the report and the agreement reached between the DOJ and Chicago officials, in which both parties agreed to work toward reforms, were reportedly finalized in a hurry, due to concern that the process would stall under the incoming Trump administration. Both president-elect Donald Trump and his attorney general pick, Jeff Sessions, have been critical of federal involvement in local policing issues. Asked if the DOJ’s agreement with Chicago would stick after the change in administration, Lynch said the agreement was not dependent upon “one or two or three” people who lead the DOJ, but on the work of all involved in the process, including Chicago city officials. Chicago mayor Rahm Emanuel and Chicago police superintendent Eddie Johnson both said they were committed to making sure the reform recommendations made by the DOJ were implemented.

The DOJ announced yesterday that it had also reached a consent decree with the Baltimore Police Department, five months after concluding its investigation into that department following protests over the in-custody death of Freddie Gray. The department also rushed to finalize that decree before Obama leaves office, Baltimore mayor Catherine Pugh told the Baltimore Sun.

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Major Investigation Blasts Chicago Police for Abuses

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This Bible Belt Abortion Provider Is Looking Beyond Trump

by TraceeZerangue Posted on December 31, 2016

Mother Jones

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Abortion providers have had a rollercoaster year. On the one hand, a landmark abortion rights case in Texas saw an affirmative ruling from the Supreme Court, overturning restrictions that aimed to put clinics out of business across the United States. At the same time, conservative statehouses pushed through legislation that aimed to decrease abortion access and defund Planned Parenthood, the largest women’s health provider in the country. Months after the Supreme Court ruled in Whole Woman’s Health v. Hellerstedt that the restrictions in Texas qualified as undue burdens and were therefore unconstitutional, Donald Trump was elected president, assuring voters of his staunch support for anti-choice legislation and deflecting allegations of sexual assault.

The week after the election, we called Dr. Willie Parker—a Harvard-educated OB-GYN from Alabama in his 50s who has been providing abortions full time since 2009. He practices in clinics in Alabama, Georgia, and Mississippi, has confronted demonstrators blocking his access, and sued the state of Mississippi to keep the sole clinic in that state open. We wanted to hear how abortion providers are preparing for the next chapter of the battle against reproductive rights. As board chair for Physicians for Reproductive Health, Parker has been at the forefront of the national fight to preserve a woman’s right to choose. Here’s what he had to say about the likely new realities in women’s health during the future Trump administration.

What’s the conversation like among providers right now?
Most people can’t even talk. We’re still figuring it out. But I think people are trying to think beyond and say, “OK, given the inability to overturn the election, and given our ability to prognosticate based on how he’s operated politically, most of us have to think worst-case scenario.” But there’s also really no way of knowing what he’s going to do—he’s been sufficiently vague in his policy positions. We can take some prognostic indication from some of the things that he’s said, like in his 60 Minutes interview where he talked about his intention to appoint a pro-life justice to align the court to overturn Roe. I think of it as a low-hanging fruit. He has every intention to repeal the Affordable Care Act, as much because it’s known as Obamacare as because he wants to try and deconstruct the legacy of President Obama. But that has implications that mean women who were accessing family planning and contraception as a preventative service with no co-pay will lose access to that coverage. We will only see an exacerbation of the things we were engaged in trying to prevent—like unplanned pregnancy and the need for abortion, which creates a societal dilemma. If you’re making abortion illegal and undermining the various things that will allow the prevention of that need, it can only be a situation that goes from bad to worse.

There are a lot of misconceptions around contraception and abortion care, not only in the general public, but also among our lawmakers. Do you think there will be an uptick in anti-science attitudes?
There’s a saying that you can’t awaken somebody who’s pretending to be asleep. I’m full of clichés—I was raised by a Southern black woman, and they had a saying for everything.

I get you, I’m from Tennessee and Mississippi, I grew up on those sayings too.
Oh, so you’re my homegirl! laughs

There’s a willful ignorance. We indulge people who are willfully misrepresenting the facts. I don’t think those anti-choice congress people are as much benignly misguided as they are intentionally and willfully ignorant of the facts of reproduction. That lends itself very well to them being ideologically driven and carrying out agendas that, if they were to be really be honest about the facts, would be a tougher sell. But I think anti-intellectualism can be rewarded by the outcome of the election that’s going to result in people being appointed who can reinforce that agenda. We’re going to see more of that willful ignorance if we don’t push back and fight. The worst thing we can do is to assume that the electoral college votes resulting in the election of Donald Trump represents a mandate. It does not. He did not get the majority of the popular vote; that went to Hillary Clinton. That means those votes represent the consciousness of the nation, which is that abortion should be legal, that contraception and family planning are health issues and prevention, that a woman’s right to reproductive privacy is the law of the land and should remain such.

Have any of your patients expressed any fear since the election?
I’ve seen patients once since the election, and then, it was only abortion patients. But certainly, my friends and the common narrative is people are trying to shore up their own lives with regards to family planning and reproduction. I know people who were previously considering IUDs are considering them again. I know the requests for those kind of visits are up. People are concerned about how much control over their reproductive lives they’re going to lose as a result of this election outcome.

Do you think this puts states that are down to one clinic, such as Mississippi, in even more danger?
The fight in Mississippi will be more protracted. I’m the physician plaintiff in the lawsuit that keeps the Mississippi clinic open, and we prevailed twice in the Fifth Circuit—once with just the three-judge panel and once with the full Fifth Circuit panel. Despite that, the state tried to push it up to the Supreme Court, but the Supreme Court did not take that in lieu of the Texas case. So the definitive nature of the Texas case should have made things OK in Mississippi, but the state of Mississippi has decided to go forward. Now, I think their hope will be rekindled and renewed around the fact that potentially there will be an overturning of Roe, and there will be the appointment of a conservative justice who alters the balance of the court. There now will be a political hope based on the change in the presidential administration—hope that maybe wasn’t there before the election. But I don’t think anything will change immediately. President Obama, in his first remarks since the election, in order to reassure people and help them understand how government works, said the US government is like an ocean liner, not like a speed boat. It’s harder to turn around than people might think. Hopefully, many of the decisions have been structured in a way to make them resilient, so they’re not as vulnerable to the capricious whim of political administrations.

So what would you say to women who are worried about what a Trump administration could do to their reproductive health?

I just want to remind people that the task of those who support reproductive rights and reproductive justice didn’t change based on who is in the White House. We have leadership that is not supportive of what we’re trying to do, but the demand for justice shouldn’t be modulated. We can take that as a notion that we don’t know exactly what President-elect Trump is going to do, but we can’t afford to take a position of waiting around to see. We have to work under the assumption that the things that we fought hard for to protect women will be under assault, and we have to bring all our creativity and our energy to bear to preserve those things. No matter who is in the White House.

This interview has been edited and condensed.

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This Bible Belt Abortion Provider Is Looking Beyond Trump

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Police Departments Find Yet New Ways to Steal People’s Money

by VonnieU02s Posted on December 26, 2016

Mother Jones

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Adam Liptak tells us that the Supreme Court is pondering whether to hear a case from Ramsey County, Minnesota, which confiscates money from people it arrests. That’s what happened to Corey Statham, who was arrested and charged with disorderly conduct, and then released:

But the county kept $25 of Mr. Statham’s money as a “booking fee.” It returned the remaining $21 on a debit card subject to an array of fees. In the end, it cost Mr. Statham $7.25 to withdraw what was left of his money.

….Kentucky bills people held in its jails for the costs of incarcerating them, even if all charges are later dismissed. In Colorado, five towns raise more than 30 percent of their revenue from traffic tickets and fines. In Ferguson, Mo., “city officials have consistently set maximizing revenue as the priority for Ferguson’s law enforcement activity,” a Justice Department report found last year.

….Through his lawyers, Mr. Statham declined a request for an interview. He lost in the lower courts, which said his right to due process had not been violated by the $25 booking charge or the debit card fees, which were both, the trial judge said, “relatively modest.”

Lovely. It’s OK to confiscate money as long as you don’t confiscate too much. Unless, of course, you’re engaged in civil asset forfeiture, in which case the sky’s the limit. All you have to do is attend one of the many classes that teach your police officers how best to steal people’s money under the pretense that they “just know” it’s drug money.

I continue to be gobsmacked by all of this. I’ve heard all the arguments about due process and civil vs. criminal and so forth, and not a single word of it strikes me as anything but an obvious sham. And yet courts—all the way to the Supreme Court—and judicial agencies—all the way to the Department of Justice—accept them without blinking. It’s the kind of thing that makes me wonder if I’m stuck in some kind of Kafka-based virtual reality. How can something so obviously wrong be approved with a shrug by so many people?

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Police Departments Find Yet New Ways to Steal People’s Money

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A St. Louis Suburb Jailed Nearly 2,000 People for Not Paying Fines

by LeighFrayne Posted on December 16, 2016

Mother Jones

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On Wednesday, a federal judge approved a $4.7 million settlement with nearly 2,000 people who were thrown in jail illegally in a St. Louis suburb, a practice legal advocates had likened to a “modern debtors’ prison.”

The plaintiffs in the class action lawsuit alleged that the city of Jennings, Missouri, had jailed people who were unable to pay municipal fines and fees, keeping them in overcrowded, unsanitary cells where they were routinely taunted by jail guards and staff. The settlement, preliminarily approved in July, comes more than a year after the Jennings municipal court signed a separate agreement to eliminate cash bail for nonviolent offenses, dismiss “failure to appear” charges and forgive fees in cases before March 12, 2011, and establish a way to assess a person’s ability to pay. It also agreed to use civil debt collectors to obtain payments from fines instead of issuing warrants and immediately release people on first arrest on bond.

Attorneys for the plaintiffs claimed that Jennings “built a municipal scheme designed to brutalize, to punish, and to profit.” According to the complaint, the city issued more than 2.1 arrest warrants per household in 2014 and nearly 1.4 for every adult, adding that if the rest of the St. Louis area generated revenue at the same rate as Jennings, cities would have made more than $670 million in five years.

In recent years, civil rights groups have taken cities to court to compel changes to their operation of so-called debtors’ prisons, where those who cannot afford to pay fines are jailed until their debts are paid off. The practice was first barred under federal law in 1833. In 1983, the Supreme Court ruled that the act of imprisoning someone unable to settle their debt unconstitutional. Yet lawsuits and a federal investigation into policing and court practices in Ferguson following the death of Michael Brown shed light on how municipal courts locked up poor residents who couldn’t pay off their debts as a way to generate revenue. Beyond Jennings, federal lawsuits are under way against Ferguson and 13 other cities in the St. Louis area over the alleged operation of modern-day debtors’ prisons.

“One thing that has been revealed over and over again in the Ferguson investigation and these lawsuits is that the worst practices tend to arise when courts and other officials perceive a financial necessity in funding their operation through fees and fines,” says Larry Schwartztol, executive director of Harvard University’s Criminal Justice Policy Program. “That creates conflicts of interest and distorts the justice system.” William Maurer, an attorney for the Institute for Justice, told Mother Jones in July that small towns around urban areas “have municipal infrastructure that can’t be supported by the tax base, and so they ticket everything in sight to keep the town functioning.”

Here’s a look at some similar recent cases across the country:

Biloxi, Mississippi: In a complaint filed by the American Civil Liberties Union (ACLU) in last October, attorneys alleged that poor residents in Biloxi who couldn’t take care of their debt were “routinely” arrested and tossed in jail without receiving a court hearing to determine whether they would be able to pay such penalties. The lawsuit alleged that the city relied on the fines and fees for a substantial portion of its budget and enlisted the help of for-profit probation companies to collect the money. In March, the two sides agreed on a settlement and adjusted it in September. The city agreed to stop using private probation companies to collect payments, to adopt a “bench card” for judges as a reminder of how to not send people to jail who are unable to pay, and to provide alternatives to debt repayment, such as payment plans, job training programs, mental-health counseling, and community service. The city, its police chief, and a district judge named in the complaint also admitted no wrongdoing as part of the resolution.

Colorado Springs, Colorado: Hundreds of impoverished people in Colorado Springs who were fined for a minor infringement of the city’s ordinance had a choice: Pay the debt in full, or settle it for time in jail at $50 a day. Last October, the ACLU of Colorado sent a letter to the city’s attorney and a municipal court judge, alleging that the court had ordered the “pay or serve” sentence in more than 800 cases since January 2014. In May, the city agreed to pay $103,000 to 66 impoverished residents, or $125 for each day they were behind bars. Municipal judges and city-contracted attorneys also underwent training on the rights of indigent citizens.

Jackson, Mississippi: For impoverished Jackson residents, the Colorado Springs case sounds familiar. Those arrested for misdemeanor cases were forced to navigate Jackson’s “pay or stay” system, according to complaint filed last October. If someone failed to pay all or a large portion of their debt at the time of their hearing, they were sent to jail in Hinds County. Once behind bars, they “were told they could ‘work off’ their fines at the rate of $58 per day,” according to the complaint. Those who couldn’t work were left to “sit out” their fines at $25 a day. In June, the city of Jackson settled and created an alternative monthly payment of $25 or an hourly credit for community service. The city also eliminated a requirement for people to post a money bail when arrested for a misdemeanor and to instead be released on the condition they appear for a future court appearance.

Benton County, Washington: A woman named Jayne Fuentes was sent to county jail for more than three months to work off $3,229 in “legal financial obligations” from 2010 and 2011. A complaint filed last October by the ACLU alleged that people like Fuentes who couldn’t pay off their debt were either sent to jail or forced to work on the county’s work crew as part of “partial confinement.” In June, the county and ACLU reached a resolution. The county agreed to stop issuing warrants to arrest those who didn’t pay off their debts. Beyond that, district court judges were also required to ask about a person’s ability to pay at hearings, and county public defenders and prosecutors would receive training on the assessment and collection of court-imposed fines.

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A St. Louis Suburb Jailed Nearly 2,000 People for Not Paying Fines

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