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What I Want Bernie Sanders to Know Before Tuesday’s Debate

A few weeks ago Mike Huckabee made minor news by telling an interviewer that slavery has never been made unconstitutional.  Or, to be precise, he told radio interviewer Michael Medved that “the Dred Scott decision of 1857 still remains to this day the law of the land which says that black people aren’t fully human.”  He then asked, “Does anybody still follow the Dred Scott Supreme Court decision?”

That was a rhetorical question because no one follows the Dred Scott Supreme Court decision anymore.  No one has since December 18, 1865, when the Thirteenth Amendment was certified by the secretary of state as formally a part of the Constitution.  At least no one admits to following the Dred Scott Supreme Court decision anymore, and no one follows the part of it that treated slave ownership as a property right, since everyone but Huckabee knows about the Thirteenth Amendment.  It provides:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

But the Dred Scott opinion did not actually address the constitutionality of slavery; slavery clearly was constitutional then and Mr. Scott did not claim otherwise.  What Dred Scott addressed was whether under the Constitution, the right of states to trump the rights of individuals, including even the most basic human rights, extended beyond the borders of the states whose laws authorized the profound violations of human rights.  That is, whether the rights of those states to violate individuals’ human rights extended beyond those states’ borders and into other states.  The Supreme Court said it did.

And it is a fundamental tenet of the modern Conservative Legal Movement begun in the late 1970s, that has a stranglehold on the current Supreme Court and until recently thoroughly controlled the lower federal courts and continues to rage unabated in state courts, that despite the clear language and purposes of the two additional Reconstruction amendments, the Fourteenth and the Fifteenth, the essence of Dred Scott indeed remains the law of the land.  And just as in Dred Scott, it is given the name “Freedom”, its source of constitutional legitimacy nothing actually specified in the Constitution but instead the Constitution’s supposed “design”, which is federalism, the technical term for states’ rights.

The idea is that a separation of powers between types of governments means freedom. Balances between the powers of the federal government and state (and local) governments.  No checks, though; only balances.  Unless, of course, a state legislature enacts, say, a campaign-finance law, or a municipality a gun-restriction ordinance.

Trickle-down freedom, in other words.  Freedom derived by virtue of your state’s right not to be confined by federal constitutional rights that explicitly accrue directly to individuals.  Even though the Fourteenth Amendment begs to differ.

If you were a slave owner back before the Emancipation Proclamation, you were free to reclaim your escaped slave from a state that outlawed slavery, courtesy of your state’s freedom vis-à-vis the federal government.  And if you are a state or local judge, a state or local law enforcement officer, a state or local prison guard, you are unconstrained by that pesky Bill of Rights and that Fourteenth Amendment.  Those do limit state legislators’ and municipal lawmakers’ powers to, say, legislate campaign-finance laws and gun-ownership ordinances, but do not limit the brute power of government actors invested with actual and direct police powers over specific individuals.  It is only in the rarest of circumstances that individuals have freedoms derivative of their state’s rights, and therefore only in the rarest of circumstances does “Freedom” concern actual physical freedom.

It never concerns the right to be treated humanely when in the custody of the state.  Or the right to survive a traffic stop.  Or to not be incarcerated for days, weeks or months because you can’t afford to pay the hundreds or thousands of dollars in fines and fees whose purpose is to fund the municipality’s government, especially its law enforcement complex.  Or to be brutalized while in jail awaiting trial.

Then, freedom means state or local government’s freedom to violate individuals’ constitutional rights.  Federalism, in other words, defined by the Constitution’s design.

Dred Scott forever!

Most people who read about Huckabee’s pronouncement that Dred Scott remains the law of the land reacted as Medved did: with disbelief.  Me?  I said to myself, “Well, he’s in good company.  Or at least extremely powerful company.”

He is.

Five of the nine Supreme Court justices believe that Dred Scott accurately describes the Constitution’s design not only before ratification of the Fourteenth and Fifteenth amendments but after those amendments became a part of the Constitution.  The Fourteenth Amendment didn’t alter the Constitution’s design one whit, except when it can be invoked to advance an item on the Conservative Legal Movement agenda.  Uh-uh. No way, no how.  See?

John Cornyn, a high-ranking member of the Senate Judiciary Committee, agrees.  Late last fall,shortly after President Obama announced that his choice for Attorney General was Loretta Lynch, the U.S. Attorney for the federal judicial district in New York that includes Staten Island, Cornyn publicly licked his chops.  Lynch earlier had announced that her office was conducting an investigation into possible violations of federal criminal rights law by the police officer who killed Eric Garner, and the other officers who were present, as Garner was being arrested for selling single cigarettes in violation of state law.

This is a local matter, Cornyn said, and indicated that he planned to question Lynch about her use of her federal office to infringe upon the obvious constitutional right of state and local law enforcement—police, judges, prison guards (those directly employed by state and local governments and those employed by corporations under contract with state and local governments in exchange for massive political contributions)—to baldly violate individuals’ most basic civil and human rights.  But it turned out that large swaths of Republicans who are not members of a local Patrolmen’s Benevolent Society actually disagreed. Within 24 hours of Cornyn’s declaration, many of them, including, if I recall correctly, Senate Judiciary Chairman Charles Grassley, and in any event informal Internet commenters and a couple of formal ones, indicated support for the federal probe into the death of Eric Garner.  Cornyn did not question Lych hostilely about infringements of state and local government rights in the federal Garner probe; at least nothing I read about. Neither did any other senator.

Cool!

So there is a limit to the Mad Hatter definition of freedom, even in the opinion of most Republicans.  Who knew?  (Not Cornyn.)

The Supreme Court, beginning in the late 1970s, has erected a bizarre series of ostensible jurisdictional and quasi-jurisdictional, but fabricated-out-of-whole-cloth, bars to access to federal court in order to challenge as unconstitutional actions by, and occurrences in, state and local court by judges in criminal and life-altering civil matters and by courts, prosecutors, law enforcement officers in criminal and quasi-criminal matters.

Such as minor traffic violations. Such as inability to pay child-support payments in the amounts ordered.  Such as adult-guardianships and conservatorships and child-visitation. And letting your nine-year-old spent time in a nearby park alone.  Even profoundly unconstitutional actions.

These court-fabricated jurisdictional and quasi-jurisdictional bars to access to federal court in order to enforce provisions of the Constitution itself are odd invocations of the Constitution’s design, since the Constitution’s actual design explicitly assigns to Congress, not the judicial branch, the obligation and sole authority to write the parameters of federal-court jurisdiction, and Congress has done so, or rather attempted to do so, in, for example, this statute.  And this one.

Under the Constitution’s actual—actually explicit—design, the sole role of the judiciary branch in determining federal-court jurisdiction is to consider whether a federal-court jurisdictional statute is constitutional, and whether Congress’s failure to provide for federal-court jurisdiction regarding circumstances is itself unconstitutional.  This is of particular importance concerning an infamous jurisdictional statute enacted in 1996 and signed by President Clinton because he feared that Bob Dole would run Willie Horton ads against him in the upcoming campaign if he did not.  The Supreme Court in the last decade—i.e., the Roberts Court era—has (very) effectively rewritten the statute to categorically eliminate the right of habeas corpus in state criminal matters.  Completely.  Ever.

This is a completely unabashed obsession of certain members of the current Court—an unremitting juggernaut lead originally by Anthony Kennedy, in the name of Freedom, and lately by Samuel Alito, in the name of Fascism.  Freedom and Fascism are converging these days.

States’ rights, according to the current Supreme Court, as I’ve said many times here at AB, mainly state-courts’ rights to violate individuals’ rights.  State legislative and executive branches don’t have that right.  The Supreme Court justices never explain why this is so, but as I’ve said before, I think it’s just good old-fashioned professional courtesy.  Affinity fraud, albeit on the public rather than on those with the affinity.  Masquerading as the Constitution’s design.  The Constitution’s habeas corpus provision, like the Constitution’s assignment to Congress rather than the judicial branch of the power to determine the scope of federal-court jurisdiction, is part of the original Constitution.  These provisions are not in Amendments; they are in the original Articles.  In contrast to the Bill of Rights.  And to the Reconstruction Amendments.

The most important of which, for purposes of this post, is the Fourteenth.  Which provides in the two sections that are at the heart of post-Civil War constitutional civil rights:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

and:

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Meaning that contrary to what (I suspect) most Americans believe, Congress indeed has broad authority to outlaw the slew of local and state laws and practices that brazenly render the United States Constitution’s vaunted civil rights provisions a Potemkin Village.  They actually protect almost no one against even the most arbitrary and absurd,  and even the most corrupt or brutal, police, prosecutorial, judicial and prison-guard and prison-official actions. Even against judges who openly and routinely violate their own state’s laws concerning bail and fines and fees.

Constitution-as-fraud.  How American.  Presumably, the next time Ruth Bader Ginsburg uses one of her month-long vacations during the Court term, or maybe her months-long summer break as she reportedly did this past summer when she spoke at a conference in Australia on the subject of human rights, to flit around the world and lecture other countries’ leaders in government and law about human rights and civil rights, she’ll explain the relationship between, say, this, and this, and this,  and this, and Supreme Court-created federalism. And Freedom, of course.

She might also identify the constitutional authority that her court has for its admitted venture into policy, entirely absent any claim of constitutional or federal statutory interpretation as a pretext, that exempts law enforcement folks—police, prosecutors, prison guards—from civil rights monetary liability to their victims for blatant violations of their federal civil rights. The Constitution’s design, perhaps?  Nah. The justices themselves concede that this is simply a policy of the sort normally reserved for legislative bodies.  But they think the policy is a wise one.  So, no matter that under the Constitution’s design, they have no authority to simply invent a policy.  In the absence of actual constitutional authority, Ginsburg might identify her reason for failing to mention this in her dissents in these cases.  Maybe she will when she visits Canada or Sweden to lecture them about human rights and civil rights.  They’re northern-climate countries, though, so she’ll have to wait until next summer.  Especially since she has no clothes.

As a supporter of Bernie Sanders’ candidacy and a recipient of his campaign’s listserve notices, I received an email message that discusses a bill he recently introduced in the Senate that would end for-profit prisons.  I had heard about the bill but was under the disappointing impression that it prohibited only the federal government’s use of private privately-owned or privately-run immigration detention centers—the only use the federal government makes of prisons not owned and run by the federal government.  And I had assumed that Sanders limited his bill to the federal government because he thought, as so many people do, that Congress is powerless to address issues of that sort pertaining to state and local governments.  But, happily, I was wrong.  The email says the bill “will bar federal, state, and local governments from contracting with private companies who manage prisons, jails, or detention facilities.”  It will not get Marco Rubio’s vote.

The email goes on to say:

The private-for-profit prison racket is a $70 billion industry, and with so much money at stake, it’s not surprising they’ve corrupted our political process.

The industry has contributed millions of dollars to candidates in pursuit of laws that increase incarceration of nonviolent offenders — a practice that disproportionately impacts people of color in the United States. We must stop the practice of governments guaranteeing prison occupancy as part of deals with private corporations that incentivize states to keep prison cells filled. And we must stop the practice of private companies charging exorbitant rates for prisoners to contact their families by phone — sometimes up to several dollars per minute to talk with loved ones, and charging outrageous service fees to prisoners trying to access their money upon release. That kind of exploitation takes an already difficult family dynamic between husbands, wives, parents and children and strains it even further.

It is wrong to profit from the imprisonment of human beings and the suffering of their families and friends. It’s time to end this morally repugnant process, and along with it, the era of mass incarceration.

I wrote here at AB three or four months ago, shortly after I first learned of contracts with private prison companies that guarantee occupancy, that these contracts strike me as flagrantly unconstitutional.

The Sanders bill, if enacted, will be challenged as an unconstitutional abridgment of states’ rights and, indirectly, of the prison corporation’s Freedom; separation of powers equals Freedom, see, when the separation is between the federal government and state or local governments and it advances some Conservative Legal Movement goal.  Or Republican Party donors’ financial interests. But actually the bill is authorized by none other than the Constitution.  Albeit the Fourteenth Amendment, sections 1 and 5, which don’t actually count.  See Dred Scott v. Sandford, 60 U.S. 393 (1857).*

In fact, the entire panoply of violations that the general public now, finally, is aware of can be addressed by national legislation that indeed controls state and local courts, lawmakers, police and prison guards.  That is what I want Bernie Sanders to know before Tuesday’s debate.   I will recommend some in a (much shorter) follow-up post tomorrow.  It is imperative to expose the states’ rights canard for what it is: a key component of the Conservative Legal Movement’s commandeering of constitutional law, via procedural and fabricated jurisdictional gimmicks, to so completely remove constitutional protections from the vulnerable that, objectively, this country cannot be thought of as a civilized society.  Civilized societies don’t conduct themselves in this manner.  Civilized societies don’t uncouple the word freedom from its objective meaning; their highest court and their legislative bodies don’t use the Mad Hatter’s dictionary.

I also will insert several web links into this post tonight or tomorrow.**  Meanwhile, maybe Bernie Sanders can think about proposing a constitutional amendment that will once and for all end the part of the Dred Scott decision of 1857 that still remains to this day the law of the land which says that black people aren’t fully human.  Or an amendment that says that Mike Huckabee is fully human.  There seems to be a lot of support for the first of these, if not for the latter one.

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*Paragraph edited for typo correction and clarity.  Post edited slightly elsewhere, also.  10/11 at 11:10 p.m.

**I’ve added several links. 10/12 at 1:47 p.m.

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How the Supreme Court’s King v. Burwell Debacle Will End [Addendum added]

I have known for the last five weeks—since January 27, to be exact—that the Supreme Court will uphold the Administration’s interpretation of the federal-subsidies provisions in the ACA when it issues its decision in the infamous King v. Burwell case whose argument date at the Court is Wednesday.  I also have known since then that the opinion will be unanimous, or nearly so, and that Antonin Scalia is likely to write it but if not will join it.

I considered revealing this to AB readers earlier, but feared an F.B.I. inquiry into suspicions that I hacked into the computer system in Scalia’s chambers, so I hesitated.  But it’s now or never—Scalia will make his position clear at the argument, and then I will have lost my one chance, ever, for a career as a Vegas oddsmaker—and I think I can persuade the F.B.I. that I received my information not illegally but instead from a report recounting extensive, pointed comments Scalia made in open court on January 21, in a case that is not about the ACA but is, like King, about the methods the Court uses to interpret lengthy, highly complex federal statutes with multiple interconnecting sections and subsections whose purpose is to establish a cohesive policy.

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Now That the Supreme Court Has Found a Right to Vote in the First Amendment, Are State Laws Denying the Vote to Convicted Felons Unconstitutional? You Betcha.

“There is no right more basic in our democracy than the right to participate in electing our political leaders.”  That’s how Roberts began the opinion.

So I guess we can now assume that the Court will strike down all those voter-ID laws that so clearly impact that most basic of rights, and will do so by unanimous vote of the justices.

— The REAL News From the McCutcheon v. FCC Opinion, me, Apr. 3

Actually, I had thought the most basic right in our democracy was the right of states to violate individuals’ constitutional rights as they chose, courtesy of the fundamental constitutional principle of states’ equal sovereignty.  So my post and its title were intended as facetious.  But then AB reader Alex Bollinger reminded me in a comment to my post that Antonin Scalia had written in his concurrence in Bush v. Gore that the Constitution contains no generic guarantee to the right to vote.

I mean, sure, the Fifteenth Amendment says:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

But those Reconstructionist types who drafted and ratified that Amendment hadn’t checked with James Madison before presuming that there was a right of citizens of the United States to vote.  And, more important, they hadn’t checked with Roger Taney.

In any event, Scalia, by joining Roberts’ opinion in McCutcheon, now agrees that the Constitution indeed guarantees a right to vote.  It does so in the First Amendment, which James Madison participated in drafting!  And which Roger Taney probably approved of.  (Whew!)

While that first sentence in McCutcheon doesn’t directly identify the First Amendment as the source of the right to participate in electing our political leaders, elsewhere in McCutcheon the First Amendment is expressly credited as guaranteeing that right.

I realized that this morning when I read Linda Greenhouse’s op-ed in today’s New York Times in which she pretty much sums up John Roberts along with McCutcheon.  She writes:

It wasn’t until the Roberts court’s Citizens United decision in 2010 that the court shrank the definition of corruption to quid pro quo bribery. To assess the implications of that shift, it’s important to remember what Citizens United was about: not direct contributions, which remain prohibited to corporations, but independent spending. In the Buckley decision and since, the court has accorded greater First Amendment protection to independent expenditures than to direct contributions, which it has viewed as more tightly linked to the anti-corruption rationale and thus properly subject to tighter regulation. To say that only quid pro quo corruption can justify a limit on independent expenditures was not to similarly limit the rationale for regulating direct contributions, the subject of the McCutcheon case.

But in his McCutcheon opinion, Chief Justice Roberts collapsed the distinction between the two, extending Citizens United’s narrow definition of corruption to direct contributions. The government “has a strong interest,” he wrote, “in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption — quid pro quo corruption — in order to ensure that the government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.” Justice Stephen G. Breyer’s dissenting opinion called the chief justice out on this maneuver, but in vain.

Indeed.

Greenhouse’s main focus in that op-ed is Roberts’ ridiculously transparent pretenses to judicial minimalism, in McCutcheon and in his opinion last year striking down the key section of the Voting Rights Act case on the fundamental constitutional principle of states’ equal sovereignty introduced in 1885 by Chief Justice Taney in Dred Scott v. Sanford, and dormant since the Civil War began in 1861 until last year.  What Roberts actually is doing, as I wrote here in a series of posts, and as Greenhouse makes clear, is effectively rewriting the standard for judicial review of federal and state laws so that it’s now simply a game of sophistic, sleights-of-hand analogies and of redefinitions of common words and phrases.

Earlier this week, in what I thought would be my final post on that subject, I suggested that liberals should plan to pick up that Supreme-Court-can-now-casually-repeal-statutes-it-doesn’t-like ball and run with it, once they regain a 5-4 majority on the Court.  I said that there were several statutes that I could think of offhand that would be good candidates for this, including some that actually are unconstitutional, not necessarily as written but as the current Court majority has interpreted them, and as an example I cited the Federal Arbitration Act, which as it happens, is the law at issue in another article in the New York Times today: This one. (H/T Dan Crawford.)

And aren’t some of those anti-labor-union sections of Taft-Hartley unconstitutional?

But more immediately–and deadly seriously–I see no even-remotely logical ground upon which the state statutes that remove the franchise from convicted felons can survive McCutcheon’s statement that even corruption, other than that of the direct, explicit quid pro quo variety, cannot be limited, because we must ensure that the government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.  Remember: This prohibition is in election-law statutes, not in criminal-sentencing statutes, which shouldn’t, but could, make a difference.  I hope challenges to those state laws begin soon.

Greenhouse points in her op-ed to a passage in McCutcheon in which Roberts justifies the de facto overruling of a part of Buckley v. Valeo, the first post-Watergate Supreme Court opinion that addressed campaign-finance law, by saying that, well, Buckley concerned another federal statute, not McCain-Feingold, which was enacted in 2002–and since Buckley, the Court’s conservative majority has partnered aggressively with usual-suspect Conservative Legal Movement lawyers and groups to rewrite First Amendment jurisprudence as a deregulation juggernaut.  Regulatory statutes that crowd doesn’t like but can’t repeal through the legislative process can be struck down as violations of the First Amendment!  Call it playing the First Amendment card.

Which of course could butt up against the fundamental constitutional principle of states’ equal sovereignty.  But which, in light of McCutcheon, would look like pure partisanship, concerning state election laws that deny the vote to convicted felons. Which may not matter.

As I suggested in another post this week, liberals and libertarians can play the McCutcheon First Amendment card in another respect: pushing for legislation (or an SEC rule) that would prohibit publicly-traded corporations to from making political expenditures–and, eventually, direct campaign contributions–unless the corporation first gets approval from a majority of shareholders.  As I pointed out in that earlier post, a passage from McCutcheon itself seems to imply that the First Amendment right of citizens to choose who shall govern them is a right of personal choice that, Citizens United notwithstanding, cannot be co-opted derivatively without intentional delegation.

I ended that post by saying that the conservative majority’s petards can hoist only so much before shrapnel lands so visibly in unintended places that it becomes impossible to hide it.  And, who knows? Maybe I’m right.

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*Cross-posted at The Law of the Jungle.

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John Roberts Introduces a New Favorite Tactic This Term: Sleights-of-Hand Analogies

Roberts suggested that he believes Hobby Lobby and Conestoga Wood can bring forth claims of religious freedom, saying courts have held that “corporations can bring racial discrimination claims as corporations” and that “those cases involve construction of the term ‘person.’”

John Roberts Offers Conservatives A Way Out Of Birth Control Dilemma, Sahil Kapur, TPM, Mar. 26

About which I wrote a post here the next day titled: “Turns out Alito isn’t the only justice who conflates the Securities Exchange Act with state-law corporate-structure statutes.  Roberts does, too!  (Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling.  Or something.)

Yep. Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling.  Or something.

What I was referring to was this, from that post of  Kapur’s about the argument on Mar. 26 in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, the two consolidated cases challenging as violative of the First Amendment’s free exercise clause the ACA’s employer contraceptive-coverage mandate, in which a threshold issue is whether corporations can exercise religion and therefore are “persons” within the meaning of the Religious Freedom Restoration Act:

After observing that “eight courts of appeals, every court of appeal to have looked at the situation have held that corporations can bring racial discrimination claims as corporations,” the Chief Justice asked:

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14th Amendment

The 14th amendment was the linchpin of civil rights, though the process was painfully slow. Upon passage in 1868 it overturned the abhorrent Dred Scott verdict, which held that

…. we [the Supreme Court of the United States of America] have already said in an earlier part of this opinion, upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citizens of the United States, in every state that might desire it, for twenty years. And the government in express terms is pledged to protect it in all future time if the slave escapes from his owner. That is done in plain words — too plain to be misunderstood. …neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner with the intention of becoming a permanent resident.

But, tipped off by Brad D., I am reminded that the 14th amendment also contains a 4th section [emphases mine]:

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

So, yes, the trust fund is real. The general fund, financed by income taxes (cut significantly over the last 4 years), owes a lot of money (more than $1.6 trillion) to the trust find, which was and is financed by payroll taxes (increased significantly in the early 1980s). As it turns out, that debt of more than $1.6 trillion “shall not be questioned.”

Seen anyone questioning it lately?

AB

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1000% increase in Drug Addicted Babies in Florida – 2016

Janet Colbert of Stop The Organized Pill Pushers Blog:

“The death rate from Opioids continues to escalate year over year due to Florida ignoring the opiate epidemic for so long. Since STOPPNow (Stop The Organized Pill Pushers) started posting, the death rate went from 7/day in Florida. to 14/day. To keep the pressure on the legislature, I (Janet Colbert) will keep the Stoppnow.com site updated when we have bills that will need support to become law.”

Janet Colbert is a Neonatal Nurse in a Florida hospital caring for newborns who are addicted to opioids at birth.

Sun Sentinel; Gov. Rick Scott has called for $50 million and new legislation to fight the opioid abuse epidemic that has killed hundreds and overwhelmed morgues in South Florida.”

Click on the picture to enlarge it.

If you recall my way-to-long post: How Pharma Influences . . .

The first line of the post:

From 2006 to 2015, pharmaceutical companies spent $880 million in lobbying state and federal legislatures and contributing to campaigns to prevent laws restricting Opioid prescriptions. Their lobbying expenditures has outstripped those advocating for greater controls on prescriptions by 200 times giving them greater influence at the state level.

Pharmaceutical companies spend almost twice as much every year as compared to what Florida will spend to fight the Opioid epidemic in Florida over a period of time.

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Part of Patriotism is Paying Taxes

Part of Patriotism is Paying Taxes

As Americans, we pay taxes to allow our government to support important activities that we as individuals or individual businesses either can’t do at all or can’t do as successfully.  Both individuals and businesses benefit from government, so that paying taxes is a wonderful exercise in patriotism.

For individuals, the idea of paying taxes as patriotism may be obvious to many of us, because we think that taxes are an obligation of citizens to support and pay for the many things that the government does that we cannot do ourselves, from running a military defense system to supporting basic research into diseases, helping people and cities and states hit by natural disasters (like Texas and Florida and Puerto Rico), supporting education and research that leads to innovation and economic growth, helping to fund changeovers from dying industries like coal to new and growing industries like solar and wind, preserving areas of public lands for the public rather than allowing them to be decimated by private industry and fossil fuel extraction, preventing huge multinational companies from gouging consumers or polluting our water, land, and air, and the many other things that the government does for the benefit of all Americans.

But the far right in this country has been preaching the opposite for years.

  • There’s a good bit of hypocrisy there, because when Sec. of Health Price (now fired) or current Sec. of Treasury Mnunchin or current EPA Director Scott Pruit wants a comfortable private ride (like Pruitt’s many trips back to Oklahoma to talk to industry magnates one-on-one without any public information, and then de-regulate on their behalf), they love that they can make a slim excuse and take a military jet at the cost of hundreds of thousands of U.S. taxpayer dollars.   Or, like Pruitt, have a “sound-proof room” built for himself (first EPA administrator who thinks he needs it) so he can talk to his industry buddies about how to un-protect the environment without any Americans ever finding out about it.
  • Far right media personalities have made a killing by arguing for tax cuts (that mostly benefit the rich like them) and government shrinkage (of programs that they think they won’t use).
    • Grover Norquist wants taxes to be low because he wants to “shrink the government and drown it in a bathtub.”  That idea has proliferated on the right to many of the programs that are directed to help the most vulnerable amongst us, such as Medicaid, and to programs that exist to help ensure the Americans of all ages and backgrounds enjoy the right to access to health care and decent standard of living in retirement, through Medicare and Social Security. Not surprisingly, Norquist has stated that including a VAT in the U.S. system would be “like shards of glass on a pizza” (see this link) –even though almost every developed country has a VAT as well as an income tax (which is one of the reasons that the comparisons of corporate tax rates is so misleading–it is comparing apples (only an income tax) to oranges (an income tax AND a VAT and usually other taxes as well, such as financial transaction taxes).
    • Rush Limbaugh supports Trump’s tax-cuts-for-the rich ideas.  See “What I was Told About the Trump Tax Plan–and What I Think About It“, The Rush Limbaugh Show (Sept. 28, 2017).  He spouts one falsehood after another about them:  that they are not trickle-down (of course they are), that they aren’t harmful for the poor (of course they are); that they will allow 99% of Americans to file their tax forms on a postcard just because the framework reduces the number of tax rates (absurd:  reducing the number of tax rates  has just about nothing to do with reducing the complexity of the Code for the vast majority of American taxpayers, who already file a simple form because they have mainly wage income that is withheld at the source).  And  no matter how much Rush Limbaugh claims that reducing the corporate tax rate, creating a low tax rate for partnership pass-through income, getting rid of the estate tax and getting rid of the AMT aren’t benefits for the rich (because, he says, Trump has insisted that the changes aren’t supposed to benefit him), the fact is that they are benefits for the rich and the Trump clan clearly will especially benefit, probably to the tune of hundreds of thousands annually and billions upon Trump’s death.  Limbaugh is quite simply just plain wrong.  Because, you see, although rates matter (and we should have a top tax rate much HIGHER than our current top tax rates), the changes that the GOP Six are proposing in the framework are specifically intended to, and do, provide enormous tax cuts to the ultra wealthy.  That’s because the marginal statutory rate is just one piece–the real question is what gets taxed, i.e., how is the “taxable income” amount calculated and what special loopholes are built in to benefit the rich (like the 25% partnership pass-through rate).

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Trump’s “Give the Rich a Break” Tax Plan

Trump’s “Give the Rich a Break” Tax Plan

National GOP leaders on Wednesday released a 9-page document that they called a tax “framework” (available here on the Washington Post site) describing in vague terms how they intend to cut taxes for the nation’s wealthiest people while doing very little that serves the government needs. Overall, the GOP framework would amount to about $2.2 TRILLION in less revenue to support federal programs (like protecting the environment from corporate pollutants, supporting higher education loans for students, funding basic university research) (assuming $5.8 trillion loss to lowering rates and shift to territorial system and maybe $3.6 trillion recouped by eliminating as yet unspecified deductions).  See GOP proposes deep tax cuts, provides few details on how to pay for them, Washington Post (Sept. 27, 2017).

  • They promise 3 rates (12%, 25% and 35%, without stating what the applicable income brackets for those rates should be).  That lowering of rates is primarily beneficial to the wealthiest, since the people who just barely get by on their wages (especially with the new corporate regime of calling people in for short shifts, as needed, rather than paying them a regular full-time job) are hit hardest by the payroll taxes that won’t be lowered at all under this plan.  That is, ordinary wage-earners in the middle and lower classes are generally already taxed on a consumption basis–they spend what they earn and have little left for saving for the future.  They pay relative low income taxes but pay significant payroll taxes through withholding on their wages (with no deferral).  This is another excursion into the current GOP’s ‘alternative fact’ universe, where huge tax cuts mainly benefiting the wealthy are sold as a ‘simplifying’ reform that will benefit ordinary people.

 

  • Although the lowest rate is higher than the poorest wage-earning taxpayers pay now, the planners claim that this is still a tax cut because of the “doubling” of the standard deduction for those taxpayers that do not itemize.  However, the personal exemptions are eliminated, so that the combination of the standard deduction and the higher rate is likely to be at best a minimal cut for small families and an actual tax increase for larger families.  See, e.g., this article.

 

  • They promise to eliminate the “alternative minimum tax”, a tax provision that was enacted as a safety provision to ensure that wealthy taxpayers who can afford tax planning and generally can most easily benefit from the various loopholes and tax subsidies written into the code would pay some modicum of taxes rather than get off scott-free from any tax burden. The “framework” (page 5) claims that “it no longer serves its intended purpose and creates significant complexity.”  It is admittedly somewhat complex, but not unduly so with modern tax preparation software which makes that complexity a minimal problem.  I have been required to pay the AMT, and it hasn’t made my life or tax return filing more complex.  In fact, the people who owe the AMT should be paying more tax than they would pay without the AMT, and that means it is in fact serving its intended purpose of ensuring that taxpayers cannot aggregate too many of the various haphazard subsidies in the Code to permit them to essentially escape a reasonable tax burden on their economic income.  Elimination of the AMT is a tax break for the well-to-do:  Trump, for example, has had to pay the AMT (real estate developers are one of the much-favored groups in terms of various tax expenditures in the Code that benefit them).

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Missouri Travel Advisory

At a conference on Wednesday, National delegates voted to adopt the advisory for Missouri It is the first time the NAACP has issued a travel advisory for a state. The “extreme caution” notification is not exclusive to high crime areas such as may be found in cities. The notification is meant to make minorities more aware of surroundings while traveling in Missouri and to be cautious with encounters with police. What is sad about this is it is telling minorities do not give the white man any reason to take issue with you such as what you wear, being in a heavily white populated areas, a broken tail light, not signaling, rolling stops or going through lights on the yellow, etc. Jim Crow has emerged again and heavy force will be applied to put you into the role expected of you.

The advisory is as follows:

(Jefferson City, MO – Missouri NAACP State Conference Office – edited) Unlike seasonal weather advisories where unnecessary travel on city streets or parking might be directed; the NAACP wants to make Missourians and visitors alike aware of a looming danger which could include the following examples of what has happened to some residents and visitors in the past.

– Tory Sanford was never arrested and yet died in a jail cell. He ran out of gas when he traveled into the state accidentally.
– On campus racist attacks on University of Missouri students after the university system spoke in favor of Romine’s Jim Crow Bill.
– Black high school students in St. Louis have been attacked with hot glue and racially denigrated.
– Two foreign born men were gunned down in Kansas City after their killer thought them to be Muslim.
– African Americans are 75 percent more likely to be stopped and searched than Caucasians according to the Missouri Attorney General.
– Public threats of shooting ‘Blacks’ by an alleged racist and others have terrorized University of Missouri students and members of the public.

Individuals traveling in the state are advised to travel with extreme CAUTION. Race, gender and color based crimes have a long history in Missouri. The home of Lloyd Gaines, Dredd Scott, and the Missouri Compromise gives Missouri the distinction of being one of the last states to lose its slaveholding past.

The Missouri State Conference of the NAACP will follow Governor Greitien’s review of this Jim Crow Bill – SB 43 and will update the NAACP advisory for the State of Missouri if this measure is vetoed. SB 43 legalizes individual discrimination and harassment in Missouri and would prevent individuals from protecting themselves from discrimination, harassment, and retaliation in Missouri.

Moreover, overzealous enforcement of routine traffic violations in Missouri against African-Americans has resulted in an increasing trend and has resulted in increased traffic fines, senseless searches of vehicle and persons, and on occasion unnecessary violence.

The advisory is in effect until August 28.

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Foxconn cashes in for $3 billion-plus: Analysis

Foxconn hit the jackpot with Wisconsin on Wednesday, when CEO Terry Gou and Governor Scott Walker signed a memorandum of understanding for the company to invest $10 billion in southeastern Wisconsin in return for $3 billion in state subsidies and an undetermined amount of local incentives in the form of tax increment(al) financing (TIF).*

The basic outline of the deal, sent to me by John Haynes of the Milwaukee Journal-Sentinel, is pretty simple: Foxconn is required to invest $10 billion and employ 13,000 workers within six years at an average pay rate of $53,875 a year plus benefits. In return, the state will give Foxconn $1.5 billion in tax credits for the 13,000 new jobs, $1.35 in tax credits for the $10 billion investment, and $150 million in sales tax breaks on construction materials for the plant. The tax credits are refundable, so Foxconn will receive a check if it doesn’t owe much or anything in state income tax in any given year. The state credits will total $200-$250 million a year for up to 15 years, or until Foxconn has received the entire $3 billion. All this must be approved by the state legislature by September 30. According to the state, if Foxconn does not create all the jobs or make the entire investment, it does not get the full subsidy.

In addition, the legislature must also amend the state’s TIF law by lifting the 12% cap on the ratio of TIF’d property value to a municipality’s total property value, and extending the allowable life of TIF bonds. Together, these would make larger TIFs and greater municipal debt possible. It is unclear exactly how much more this will add to the subsidy package, since a final site hasn’t been chosen in the Kenosha-Racine area. But Kansas City has certainly managed to give hundreds of millions of TIF dollars to companies in the past, so a large local component to the incentives package is certainly possible.

Is this a good deal for Wisconsin? As the state’s press release points out, it’s better than the deals Boeing has gotten in Washington state, including a much lower cost per job — but that’s a pretty low bar. As I discussed last time, Foxconn wanted desperately to locate in the United States due to its fear of U.S. protectionism, so the country as a whole was actually in a very strong bargaining position. However, the possibility of a bidding war between different states negated this, even though the individual states (Wisconsin at 3.1%) had very low unemployment rates and thus greater bargaining power than otherwise. Without EU-style rules to restrict bidding wars, there was a high probability of Foxconn hitting the jackpot.

With EU-type rules, it would be impossible to give a $3 billion investment incentive, since $9.9 billion of the $10 billion would only be eligible for 34% of any region’s maximum aid intensity. The maximum conceivable subsidy would be a little over $1 billion.** We might say this consideration is the high bar, but it’s worth knowing what is already achievable with a different set of rules.

On a strict cost basis, if the deal works out as claimed, you still have a cost per job of $231,000 and an aid intensity of 30%. These would be normal numbers for an automobile assembly plant, but Foxconn will only be paying a tiny bit over the Wisconsin average wage, certainly less than auto assembly pays. So these are basically just average jobs getting a lot of money. Many average jobs, certainly, but there is a good argument that you have diminishing returns. The more jobs there are, the more pressure that gets put on schools and infrastructure as people move to southeast Wisconsin, and the greater the number of jobs that will likely go to Illinois residents (indeed, Greg LeRoy of Good Jobs First says Illinois is the biggest winner of this deal after Foxconn itself). So you really shouldn’t be spending 10 times the incentive dollars for 10 times the jobs.

What seems worst to me is that not only did Foxconn definitely need to be in the United States, but it probably wanted to locate in the Congressional District of House Speaker Paul Ryan all along. This was a very short bidding war. Wisconsin municipal officials were only notified about two months ago, and we have seen no stories about competing bids, nothing about other governors making a pilgrimage to Asia. This seems like it was never much of a competition. If that’s true, Wisconsin got taken to the cleaners. Even if there was a genuine competition, the deal was way too rich.

 

* In Wisconsin and a few other states, the program is known as tax incremental financing, but in most of the country, it is simply tax increment financing.

** According to EU rules, the maximum aid intensity of 50% of investment is only allowable in regions with less than 45% of EU average per capita income. These areas are unlikely to be the site of an advanced manufacturing facility. The next highest maximum is 35% (down from 40%, such as Dresden, Germany, which has quite a bit of high-level manufacturing, such as microchip fabrication), and 34% of that is 11.9%. 11.9% of $10 billion is obviously $1.19 billion, which is why I say the maximum conceivable subsidy is just over $1 billion, and $3 billion is simply impossible under these rules.

Cross-posted from Middle Class Political Economist.

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