Truth To Power: October 2017

Thursday, October 26, 2017

The 25th Amendment:

The fourth series of the The West Wing opens with President Jed Bartlet writing to Congress, invoking the 25^th Amendment and stating he is unable to fulfil his duties because of the capture of his youngest daughter, Zoe, by terrorists hostile to America. When Zoe is rescued, Bartlet signs another letter saying he will resume his duties. As one of the actor’s opposed to the ruling Party says, “You can’t fault Bartlet. He did everything right.”

The 25^th Amendment to the Constitution was ratified in the aftermath of President Kennedy’s assassination. It sets out procedures to replace a President or Vice-President in the event of the death, removal, resignation or incapacitation of the incumbent. The Amendment has been applied twice in real life, both in the 1970s: first when Gerald Ford replaced Vice-President Spiro Agnew and second when Ford replaced Nixon as President and Nelson Rockefeller filled the Vice-Presidential vacancy.

The Amendment is specific on process. If the President is unable to discharge his powers and duties, the declaration must either be in writing signed by the President himself, or the VP and a majority of the principal executive officers (i.e. the cabinet) or other body specified by Congress, declaring that the President is unable to discharge his powers and duties. If the President steps aside, he may resume his duties by written declaration that no such inability continues to exist. To date, no President has declared himself or been declared unable to fulfil his office.

President Trump’s fitness for office has been the subject of press speculation, not to mention Washington gossip, since his election. Former President Bush (43) recently commented how the hostility of party politics in Virginia is damaging to the people of the state but the implication of criticism of Trump was clear. Later, both Bush and Obama repudiated President Trump for his brand of politics and his approach to the world.

Senator John McCain has also lambasted Trump. In a speech in Philadelphia, he said, “To fear the world we have organized and led for three-quarters of a century, to abandon the ideals we have advanced around the globe, to refuse the obligations of international leadership and our duty to remain ‘the last best hope of Earth’ for the sake of some half-baked, spurious nationalism, cooked up by people who would rather find scapegoats than solve problems, is as unpatriotic as an attachment to any other tired dogma of the past that Americans consigned to the ash heap of history.”

This was no side-swipe at Trump. It was a right hook. No doubt, President Trump will fire back a volley of abuse at these senior politicians. I can’t wait for the tweets to start. It’s a pity Trump refuses to listen to these experienced politicians and mend his ways but that just will not happen.

I have often written that there is no prospect of Trump’s impeachment at present, unless Robert Mueller’s Russian investigation discloses serious wrongdoings by the President. Even so, impeachment is far more political than legal and there would have to be 67 Senate votes to convict the President and remove him from office. Instead, there is now mention amongst the chattering political classes of invoking the 25^th Amendment. I see no valid, legal grounds for this. Nothing about this President’s behaviour has been surprising, given the style of last year’s campaign. For example, evidence of Trump’s molestation of women and insulting the parents of a dead soldier did not deter voters. Since the inauguration, none of the Trump and family-related scandals have morphed into potential high crimes and misdemeanours. Perhaps a high degree of incompetence can be alleged but if you go back a century, how competent was Warren Harding? To use the 25^th on grounds of incompetence would be one heck of a stretch.

I strongly believe the Presidency is not simply another office. Since Roosevelt’s days, it has been the centre of American political power and sometimes the last resort for life and death decisions. The powers of Congress, as envisaged by the Framers, have been usurped by the executive branch. So, Americans are entitled to expect their President to use intellectual rigour, sound management and morality and not to govern by political ideology. After all, the chief executive is President for all the people. I consider Trump has failed in every department. He is like a spoiled child, not wanting to share toys, vicious in his treatment of others he considers inferior, a man who clearly despises blacks and Asians. He is a person riddled with complexes that would need a psychiatrist to name. Put simply, in my opinion he is unqualified for the job.

However, millions of people voted for him and I detect no sign that a vast majority of those voters have changed their minds. Currently, he has an overall approval rating of 37% but in Trumpland he has an 88% approval rating. Trump voters want him to annoy the Washington establishment, show belligerence to North Korea, force European allies to fund NATO, remove Obamacare and lower taxes. Trump has another trump card – excuse the pun. Congress’s approval rating is at an all-time low of 16%.

The 25^th Amendment is not the proper vehicle to seek removal of a President in the current circumstances. It is not a substitute for impeachment. America and the rest of the world will have to await the outcome next year’s mid-term elections to see if Trump gets a bloody nose. If Republicans lose their House and Senate majorities, we have a new ball game where almost every Presidential move can be blocked. Until then, those who cannot stand the current administration will have to suck it up.

Thursday, October 19, 2017

To Stand or to Kneel. What Price Freedom of Speech.

President Trump likes to pick fights. Big or small, Asians, women, it’s all grist to his mill. He blusters, fabricates, bullies and tweets his way through the day, seemingly caring little for any proper analysis of the problems he is meant to address. Clearly, he thrives on conflict and is happiest when he gets down in the mud.

Trump also likes to play the role of patriot. This plays well in those states that still support him. But it has taken him a while to focus on the year-old protest by Colin Kaepernick, the former quarter back for the San Francisco 49ers, against police brutality in the US black community. Before an NFL game last season, Kaepernick sat on a bench during the playing of the national anthem. He said, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of colour.”

Kaepernick’s protest has been taken up by many NFL players who either kneel or bow their heads and link arms in silent protest during the anthem before kick-off. In turn, videos showing police shooting and killing unarmed black men have gone viral. Few police officers have served time for pulling their triggers unnecessarily. The protest emphasises America’s race problems, which commenced before the birth of the nation and still endure.

There is a long tradition of American sports stars protesting publicly to support their beliefs. Mohamed Ali refused to join the army and fight in Vietnam. He was acquitted in court but was stripped of his world heavyweight title. Who will forget Tommy Smith and John Carlos, the American sprinters, raising their fists at the medals ceremony in the 1968 Mexico Olympics to support the Black Power movement? Neither ran for the American track team again. In 2014, gestures were made by several black sports stars to support Black Lives Matter, in the wake of a tragic string of unarmed, young black men being killed by white law enforcement officers. Cleveland Cavaliers basketball player, LeBron James, was a protester

The President and Vice President say the NFL protesters are unpatriotic. Mr Trump has expressed publicly that he wished NFL players were fired for kneeling during the national anthem. “Wouldn’t you love to see one of those NFL owners, when somebody disrespects our flag, to say ‘get that son of a bitch off the field right now, he’s fired.’ That owner will be the most popular person in the country.”

Last week, Trump took another swing at the nation’s most profitable sports league for “disrespecting our anthem, flag and country”, threatening to revoke tax breaks, which a White House aide later defined as public subsidies for sports stadiums. Vice President Pence, playing the stooge, staged a walk out from a Colts game after several players knelt during the anthem.

Trump continued relentlessly to raise the stakes and, in a shameful and weak response, NFL Commissioner Roger Goodell capitulated. Worried about backlash from fans, Goodell wrote to all NFL team owners asking them to support a plan to “move past this controversy” and ensure that players stand during the anthem “to honour our flag and our country.” Dallas Cowboys owner, Jerry Jones, agreed to bench players if they do not stand at attention. However, most other owners appear to be seeking middle ground between football players and their critics. Trump is now alleging the owners are afraid of their players and unwilling to discipline those who have taken a knee, ignoring that they have no legal right so to do. Indeed, Trump called for a general boycott of the NFL “until players stop disrespecting our flag and country.”

Jeffrey Robinson, the ACLU Deputy Legal Director, writes: “If Donald Trump is not a white supremacist, his actions and words show a great deal of comfort with the values of white supremacy. He did not want Blacks living in his buildings or handling his money. His comparison of the Washington monument to confederate monuments built to honor people who killed American soldiers for the right to own other human beings shows an ignorance of and an unwillingness to deal with the truth about America’s past and current history of racism. His encouragement of police brutality and championing of unconstitutional stop and frisk policies are not race neutral.”

I consider Trump’s attack to be a craven attempt to motivate his largely white political base. In doing so, he is trampling over the players 1^st Amendment rights. Americans have the right to freedom of speech, which includes the right to protest legitimately. No less an authority than the Supreme Court supports this position, including a person’s right to burn the American flag in protest. If any player is now fired by his owner or suffers adverse changes to his terms of employment over this issue, he could not only sue the team’s owners for breach of contract but also take action against Trump for tortious interference, namely inducing one party to a contract to break its terms. Can a sitting President be sued? Probably not but I’d love to see him taken on.

I suspect this NFL issue will not die down. Protests will continue. Last Sunday, Fox News did not televise the playing of the national anthem before the Vikings v Packers game. Never mind Fake News. What about Censored News? However, Trump does not seem to be bothered by these irritating legal and constitutional rights. Have you noticed how every time his legislative agenda is defeated in the US Senate, he cries foul and “remove filibuster rights.” He did not do likewise when Democrats held a Senate majority.

These are troubling times. Extreme right wing elements are appearing in the political process in Germany and Austria. Brexit and its consequences hark back to a likelihood of trade problems of the 1930s if trade deals are not agreed before the exit. The Trump administration policy of America First harks back to the same era. I am not suggesting that America is morphing into a totalitarian or authoritarian regime, at least not yet, but the first signs of such a change usually include a clamp down on legitimate political protest.

There’s a story doing the rounds that Secretary of State, Rex Tillerson, warned Trump to beware of the 25^th Amendment, which sets out grounds for removal of a sitting president aside from impeachment. Trump responded, allegedly, “What’s that?” Maybe it’s time the President read the Amendment and found out.

Friday, October 13, 2017

Boundary Changes: Is it Vote Stealing?

For several years, I have studied the workings of local and city governments, mainly in America but also UK. I am fascinated by retail politics. You cannot expect an MP or a Congressman to deal with refuse bin problems, street lighting and the myriad of matters dealt with by local and city politicians. Sadly, there is much corruption too, although surely fraud, deception and theft are the exception rather than the rule.

Back in the 1960s, T. Dan Smith, the Leader of Newcastle City Council and a prominent figure in the Labour Party in North East England, sought to clear Newcastle of slum housing. Smith formed business links with architect John Poulson. The relationship led to Smith’s trial for accepting bribes. He pleaded guilty and was sentenced to six years imprisonment.

In America, city corruption was rife from post-Civil War times. The notorious boss, William Tweed of New York, sold pencils to the city at $70 a time and this in the 1870s. In the 1920s and 1930s, city bosses like Tom Pendergast of Kansas City and Frank Hague of Jersey City perfected the art of insider dealing as each developed property in their cities and became rich at the taxpayers’ expense. Pendergast also supplied most of the cement for city roads. Another fortune made at taxpayers’ expense.

Local and city politicians can also cheat the voters by fixing elections. Pendergast was the past-master. He devised all sorts of methods to swing elections his way. Personation, ghosting and ballot-box fixing were only three of his many tricks. When I give talks about this subject, the topic is often met with laughter because it is so outrageous but it is a serious matter. Effectively, the politicians who practice these black arts are cheating voters and denying their franchise.

My interest was aroused again last week when the Supreme Court heard oral arguments in Gill v. Whitford, a case which might impose constraints on partisan gerrymandering, the distorting of districts to political election advantage. The case concerns a redistricting plan put into place in Wisconsin in 2011. Republican state legislators developed a new electoral map in secret and then voted it through, using the Party’s majority in the legislature. In the 2012 election, Democrats won a majority of votes but Republicans captured sixty out of ninety-nine seats in the State Assembly. Something new had happened, different from the crude, ad-hoc gerrymandering of old.

What is gerrymandering? It can be defined as an occasion when a legally authorized person or body changes the borders of an area in order to increase the number of persons in that area who will vote for a particular person or party. But there are other instances, for example where voters more likely to be favorable to one political party are induced to move to a new district and ramp up votes for that party.

The word “gerrymander” was used for the first time in the Boston Gazette in 1812 in reaction to a redrawing of Massachusetts state senate election districts. The coiner has never been established. Historians widely believe that the Federalist newspaper editors Nathan Hale, and Benjamin and John Russell were the instigators. Gerrymandering soon began to be used to describe other cases of district-shape manipulation for partisan gain in other states.

It is a rarity in the UK but it happens. Following a narrow election victory in the 1986 local council elections, the Conservatives in the borough of Westminster feared they would be defeated unless there was a change in the social composition of the borough. The Conservative leader, Dame Shirley Porter, instituted a secret policy known as 'Building Stable Communities'. Some of Westminster's council housing was put up for commercial sale, rather than re-letting when the properties became vacant. The designated housing was concentrated in those wards most likely to change hands to Labour in the elections, thus markedly reducing the Labour vote. The Conservatives also played dirty tricks with “Labour” housing, such as delaying or not carrying out repairs and sanitation works. The Conservative policy was challenged by the District Auditor in the courts. Dame Shirley was convicted of gerrymandering and fined heavily.

In the United States, gerrymandering has a long tradition since the founding of the country. In 1788, Patrick Henry and his Anti-Federalist allies were in control of the Virginia House of Delegates. They drew the boundaries of Virginia's 5th congressional district in an unsuccessful attempt to keep James Madison out of the U.S. House of Representatives. But gerrymandering permeates through all stratas of government. I have anecdotal evidence that some high schools in Texas have their school districts re-drawn so that promising American football players would play for a particular school.

Throughout the 20th century, courts have grappled with the legality of types of gerrymandering and have devised different standards for the different types of gerrymandering. Legal and political remedies have emerged to prevent gerrymandering, including court-ordered redistricting plans, redistricting commissions, and alternative voting systems that do not depend on drawing boundaries for single-member electoral districts.

The internet will provide any interested reader with the long history of gerrymandering. Following the Watergate scandal, the "-mander" suffix has been used often to tie a particular effort to a particular politician or group, including "Jerrymander" referring to California Governor Jerry Brown and "Perrymander" for Rick Perry.

In the UK, The Parliamentary Boundaries Commission, an independent body, defines the geographic area and parliamentary constituency represented by each MP. A review examines the existing constituencies and makes recommendations for any changes that might be needed to make sure constituencies comply with legal requirements. Those legal requirements are intended to keep the number of electors in each constituency broadly equal, whilst also taking into account factors such as local community ties.

The Supreme Court has also decided on gerrymander issues. In Davis v. Bandemer (1986), it held that partisan gerrymandering violated the Equal Protection Clause of the Constitution but then made a dogs breakfast of the ruling. The court could not agree on the appropriate constitutional standard against which legal claims of partisan gerrymandering should be evaluated. Writing for a plurality of the Court, Justice White said that partisan gerrymandering occurred when a redistricting plan was enacted with both the intent and the effect of discriminating against an identifiable political group. Other Justices said that partisan gerrymandering should be identified based on multiple factors, such as electoral district shape and adherence to local government boundaries. Three Justices disagreed with the view that partisan gerrymandering claims were justiciable, that is triable in a court of law, and held that such claims should not be recognized by courts. Little wonder the decision was considered unhelpful.

The Supreme Court revisited the concept of partisan gerrymandering claims in Vieth v. Jubelirer (2004). The justices divided once again and no clear standard against which to evaluate partisan gerrymandering claims emerged. Writing for a plurality, Justice Scalia said that partisan gerrymandering claims were non-justiciable. A majority of the court would continue to allow partisan gerrymandering claims to be considered justiciable, but those Justices had divergent views on how such claims should be evaluated.

Little wonder that in America, the legal position needs clarification. Whether Gill will provide the Justices with an opportunity for this remains to be seen. It seems to me that there has been too much over-thinking by the Court. Surely, it should be a comparatively simple exercise to rule that re-placing or re-drawing district boundaries cannot have an overriding political influence favouring one political party. But this is America where its highest court is often as much political as legal.

Friday, October 6, 2017

The Trump Tax Plan

When stripped down to the barest of bones, the business of government can be summed up as follows: to collect money and spend money. How much to collect, where from and how to spend it depends on political ideology and necessity. I believe those who can best afford to pay should contribute more heavily than others but those others should be seen to contribute fairly. Likewise, those least able to care for themselves should be important beneficiaries but others should benefit too in fair proportions. I admit I am a one nation Tory.

Barack Obama put it much better than me. In the 2012 election campaign, he said: “How do we create an economy where everybody from top to bottom, folks on Wall Street and folks on Main Street, have a shot at success? If they’re working hard and they’re acting responsibly, they should live out the American Dream…The reason this is relevant to the campaign is because my opponent, Governor Romney, his main calling card for why he thinks he should be President is his business expertise…He is saying ‘I’m a business guy and I know how to fix it’. When you’re President, your job is not simply to maximise profits. Your job is to figure out how everybody in the country has a fair shot.” (My italics.)

President Trump has not heeded his predecessor’s wise words. He has vaunted his skills as a deal-maker, although there is little evidence, thus far, of achievement. He regards governing as a business deal. It seems he thinks Puerto Rico should not receive much federal government help because they are in debt. Never mind that the island has been devastated by hurricanes, that there is still no power and no readily available drinking water.

Late last month, the Trump administration released its tax reform plan. Broadly speaking, The Unified Tax Reform Framework (“the Plan”) would reduce income tax rates, lowering the top rate to 35 percent. The Plan doubles standard deductions but eliminates personal exemptions, as well as lowering the corporate tax rate from 35 percent to 20 percent. It allows a one-time repatriation of corporate profits earned overseas.

The Republican spin is that Trump's tax reforms will boost economic growth by giving families and businesses more money to spend. However, it is significant that the Republican leadership is unable to guarantee tax cuts for all middle-class workers. House Speaker Paul Ryan and Treasury Secretary Steven Mnuchin defended the Plan as a boon to the middle class amid accusations from Democrats and interest groups representing the lower income families that it is primarily a ploy to cut taxes on corporations and the wealthy. It is the same old partisan politics lacking any analysis, just predictable ideology. Tax is bad/good depending on political persuasion.

I see the Plan as a broader attempt to pass a major legislative priority this year. The Republicans are under intense pressure from voters and President Trump to fulfil their pledge on taxes. After the dramatic failure to repeal and replace the Affordable Care Act, Congress seats are on the line.

Unless US government spending is reined in, the Plan will add $4.2 trillion to the current US debt of $20 trillion. Favouritism to the wealthy and lost revenue is why the US debt increases so much. However, it should be said that the wealthiest Americans contribute the lion's share of total tax revenues. So: not only will the debt slow growth in the long run but the assumption by the Trump administration is that the rest of the world will continue to buy American government bonds to finance both the rise in the US debt and pay for tax cuts benefiting the wealthiest in American society.

Also, the Plan eliminates the estate tax and the generation-skipping transfer tax. That would help the top 1 percent of the population who pay it. Some 5,000 tax payers will benefit, including the Trump family and other billionaires who have joined his government. Tax breaks improve at each income level but the top 1 percent would get an 8.5 per cent break.

The Plan reminds me of the 1980s Reagan experiment with taxation. The Republicans are once again relying on supply-side economics, giving tax cuts to business to create jobs. It worked for a while during the Reagan administration because the highest tax rate was 70 percent. According to some economists, when taxes are high enough, cuts boost economies out of debt. But today's tax rates are half that. That's why I doubt trickle-down economics will work. The Democrats will rightfully claim that in Trump’s America, those who need government help the most won’t get it because the uber-rich are paying much less tax.

Of course, it is up to Congress to decide on the Plan. Under the ‘Senate Reconciliation Rule’, if it is proved that tax cuts will not increase the budget deficit, the Senate filibuster rules will not apply to a vote. The Bill would only require 50 votes because Vice-President Mike Pence has the tie-breaking vote. However, if the budget deficit increases, a 60-vote Senate majority is needed to defeat a filibuster. How would the $4.2 trillion deficit be offset? An interesting question. We have not seen the proposals for cuts in expenditure which will help defray tax cuts. We can be certain that entitlements for the poor and middle class will be hit but the savings Trump was looking for by abandoning Obamacare are not available.

Will budget-conscious Republican senators support the Plan? Trump’s track record in persuading Congress is as poor as can be. But in American politics, you should always allow for surprises.

Will the abomination in Las Vegas this week result in any changes in gun law? Readers of my blog will know I consider the Second Amendment’s “right to bear arms” is wrongly construed. I am certain that, despite Las Vegas, nothing will happen to end America’s gun slaughter unless and until the gun lobby, led by the NRA, is held in check. Congress is considering action, supported by the NRA, to limit the ability to fire multiple rounds of bullets in quick time. Talk about a Band-Aid when major surgery is needed. Sadly, the outrage of Las Vegas, like Orlando, Newtown, Connecticut and Washington Navy Yard, are soon set aside. On this issue, lily-livered members of Congress are too closely associated with their gun lobby funders to take action. The President campaigned on a platform of ‘hands off the guns.’ He played to the NRA and fellow travellers. The rebuttal ought to be found in election ballot boxes but will it?