Time for Strong Action Against Unruly Air Travelers

Back in July 2020, when the pandemic was still raging around the country, the Association of Flight Attendants called on the Federal Aviation Administration to mandate masks be worn by passengers on commercial flights. https://bit.ly/3yGZqgm The AFA called the FAA’s failure to act “absurd,” and it was. One can easily imagine that the FAA was, like many other federal agencies, intimidated by Donald Trump and his overt resistance to admitting the seriousness of the pandemic which (despite his assurances it was under control and would soon disappear “like magic”) has been responsible for the deaths of what is approaching 600,000 Americans.

Frankly, madam/sir/whomever, I really don’t give a damn about your “rights” and your claim to “freedom” to put others at risk. Air travel has proved to be relatively COVID-risk- free, and the widespread implementation of vaccinations is making it more so.

Nevertheless, many remain vulnerable and while the federal mandate is now at long last in place, enforcement remains a problem. The union president noted that while airline crews were doing better in protecting themselves with masks, some customers continue to resist. Threatened bans on future travel were insufficient deterrents. Flight attendants were subjected to verbal abuse and even physical attacks, for which, apparently, the airline employees are left to their personal legal remedies.

Most recently, it was reported that a Southwest Airlines flight attendant was attacked by a passenger and lost two teeth, among other injuries. https://bit.ly/3hYwbjb  Once again the president of the local flight attendants union sent a letter to the airline’s CEO calling for more aggressive action, since this was “just one of many occurrences.” The letter said,

Today’s traveling environment requires a new level of firmness in both tone and direction to ensure proper control in the cabin of our aircraft as the attitudes and behaviors of the flying public have, unfortunately, declined.

Part of the issue is, as the union noted, “Oftentimes, appropriate actions to maintain a safe environment have been misconstrued as being unkind or inhospitable. As alcohol sales are added back into this already volatile environment….” Airline reluctance to engage passengers aggressively may be particularly affected now that the pandemic appears to be receding and national policy is opening the door to increase travel. Pent-up demand for travel is very strong, so a near-term major increase in both travel and incidents may be in the offing. Airlines are likely concerned about any action that will be seen as off-putting by some passengers.

If so, that’s no excuse for inaction. The union letter noted there were 477 incidents on Southwest Airlines alone in the five week period ended May 15. The total incident count nationally must therefore have been in the thousands.  This is not just a Southwest Airlines problem. According to USAToday,

The FAA has taken notice of a spike in passengers behaving badly, adopting a zero-tolerance policy in January and extending it in Marchso it’s in place throughout the pandemic.

Since Jan. 1, the agency said it had received approximately 2,500 reports of unruly behavior by passengers, including about 1,900 reports of passengers refusing to comply with the federal facemask mandate.

The agency has proposed hundreds of thousands of fines, including $258,250 so far in May.

That’s all well and good, but likely more must be done to stop the escalating attacks on flight attendants working to keep everyone safe in flight.

The union letter asked for three steps:

  • Better inform passengers that misbehaving could land them on Southwest’s restricted travelers list and result in potential fines, criminal charges and possible imprisonment:  “The flying public needs to understand that egregious behavior will result in being banned from flying with Southwest Airlines.”
  • Be consistent in policies: “No passenger should be removed from one flight only to be permitted to board the very next Southwest Airlines flight after a noncompliance incident. We ask that you take a strong stance to ensure that unruly passengers are not welcome to travel with us. Period. Full stop.”
  • Demand the U.S. government increase the number of federal air marshals on flights and request that they “get involved and take action” when crew members are threatened.

Those steps are all good, but I believe more is required. A number of possibilities come to mind.

  1. Give each boarding adult passenger a card that states unequivocally the mask and other pandemic-related rules, that these rules are requirements of federal law and/or airline policy and not subject to discussion or debate and will be enforced strictly throughout the flight. Failure to comply will result in arrest at the next stop.
  2. Anyone physically attacking a flight attendant will be sued on behalf of the attendant by the employing airline. Not may but will. For serious actual and punitive damages. Count on it.
  3. Any person physically attacking a flight attendant will be, not may be, will be banned for life from flying on that airline.
  4. The federal government should add a new policy that if a passenger is found guilty and/or liable for assaulting a flight attendant or other crew, other airlines will be notified of the identity of that passenger, so they can take whatever action they want to take in the circumstances. Such passengers are clearly unsafe for those around them, so safety considerations warrant such disclosures.

In short, adults will be expected to act like adults. If you can’t comply, don’t fly. If you do fly and you don’t comply, you will, not may, face severe consequences, guaranteed.

This will seem harsh to some and downright un-American to others. Too bad. It is intolerable and unconscionable that flight attendants should be subjected to the reported abuses by inconsiderate and violent jerks who think the laws and regulations should not apply to them. There is no doubt that flying commercially involves a degree of regimentation. This is done for the safety and comfort of everyone involved, not just the few who think they are above the law. This is not new.

If the union and my reforms are implemented, it seems most likely that violent incidents in air travel will decline swiftly and significantly. With any luck, in the slightly distant future, the masking rules may be relaxed. Until then, it’s time for the airlines and the government to act decisively to restore consumer confidence in air travel and to protect the people who are in place to protect the rest of us.

Visit to Brookside Gardens

This Sunday we drove to Brookside Gardens for a bit of outside time. https://bit.ly/3yqMwTu The 50-acre Gardens sit within the larger 556-acre Wheaton Regional Park in, where else, Wheaton, MD, which is, what else, a census-designated place in Montgomery County, MD. I suppose when Wheatonites (??) are asked where they live, they reply with “I live in a census-designated place called Wheaton which is ….” as the person asking drifts away.

It’s amazing what you can be forced to learn on a Sunday drive. A census-designated place is a statistical geographic entity representing closely settled, unincorporated communities that are locally recognized and identified by name but not legally separate. They are, in other words, statistical counterparts of incorporated places. Oh, never mind.

The Gardens are huge, with meandering, paved paths and are divided into the Aquatic Garden, Azalea Garden, Butterfly Garden, Children’s Garden, Rose Garden, Japanese Style Garden, Trial Garden, Rain Garden, and the Woodland Walk. The Formal Gardens areas include a Perennial Garden, Yew Garden, the Maple Terrace, and Fragrance Garden. There are two conservatories open year-round. Admission to the Gardens is free but the conservatories that house tropical and flowering plants require free timed tickets. Check the website cited above for more information.

Sunday was a classic spring day in the Washington area, with comfortable temperatures- humidity and little wind. As natives will tell you, that’s not going to last. Plus, we are told that any day now the cicadas are going to emerge. Anyway, it was a very pleasant experience, not too crowded so distancing was easy. Highly recommended.

The featured image at the top of this post was an unexpected surprise. The heron (more shots below) scooped up a huge goldfish as we were watching. With some effort, he was able to swallow it whole. Fortunate to catch the action.

Below you will find more photos,  a sample of what we saw.

We also saw some interesting animals:

DC Statehood – Redux

Politico apparently wants to put the knife into the DC statehood movement. It just published Your All-Purpose Wonk’s Guide to Why D.C. Statehood Is So Hard  https://politi.co/3ymTtVF where this appears:

Attorneys general ranging ideologically from Robert F. Kennedy to Ed Meese have weighed in on the same side of this argument: Because the federal district was created by the Constitution, only an amendment to the Constitution could turn it into a state; and only an amendment could grant D.C. votes in the House and Senate.

Ridiculous. If Constitution had flatly said “DC may be made a state by an act of Congress pursuant to its exclusive authority over the District,” there would be zero basis for arguing that a constitutional amendment was necessary. While the Constitution does not contain that precise language, there is no language that expressly bars the District from being converted into a state under that same exclusive legislative control the Constitution plainly did give Congress.

The Politico article continues:

The 23rd Amendment says “the district constituting the seat of government of the United States shall appoint” presidential electors in a manner requiring ultimate congressional approval. Under the statehood bill just passed, the new city of “Washington, Douglass Commonwealth” would get three electors, just like the other low-population states—but according to the 23rd Amendment, that tiny strip of land designated as the new “federal district” would also have three electoral votes.

This is illogical reasoning. If “ultimate congressional approval” is required for the new “tiny” federal enclave (author’s description, not mine), there is no reason Congress could not simply fix the problem, if it is one.

This is what the 23rd Amendment actually says:

Section 1

The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. [emphasis added]

Section 2

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

Not only is the power of Congress to address the issue of electoral vote for the seat of government plenary (unqualified, absolute), but the text of the amendment is unambiguous that the federal enclave would get three electoral votes. The Politico article sees this as an insuperable problem because “depending on how specifically the lines of this remnant are drawn, it’s possible that the only residents of that zone would be the First Family.”

But unless one has the view that no increase in total electoral college votes is possible, a position not supported by the Constitution, this is not a problem at all. True enough, the District’s electoral vote would be determined by the number of voting citizens living within the District’s boundaries, which would be a small number than other “states,” but so what? Over time it’s likely that more people would move to the District zone and the “problem” would recede. Why is this any different than changes in population in other “states,” that have the effect of increasing electoral votes for some states and reducing votes for others? Oh, and by the way, the pending legislation does not define the federal enclave so that the only residents are the First Family. But nice try.

The Politico author translates those people in the federal enclave into “more or less nobody.” Another article adds to the silliness with the argument that “the result is a potential nightmare scenario in which a federal district exists where “zombie” electoral votes could be cast on behalf of people camping out on the Mall overnight for partisan political advantage.” https://nym.ag/3or64Cs Is it possible that writers of these pieces do not understand how voter registration and voting work in this country? If it were possible to do as they speculate, would we not have seen massive temporary migrations of “campers” moving to key swing districts to vote there rather than, say, their actual place of domicile where the outcome is certain? Republicans in the wake of Trump’s thumping in 2020 have twisted themselves into knots even sailors can’t imagine, and no such fraudulent voting was uncovered. The zombies are not the Mall campers. You can take it from there.

Fortunately, that same article just  cited notes this:

Stephen Vladeck, a professor at the University of Texas School of Law who has studied the constitutional issues around this, said that even without repeal, the text of the amendment gives Congress the power to enforce it “by appropriate legislation.” This means that Congress could simply pass a bill by the normal legislative process to, for example, hand the district’s electoral votes to the winner of the national popular vote, absent a new amendment.

Bingo! We can stop worrying about how the electoral votes of the federal enclave will be directed because Congress has complete control of that outcome and can avoid all the insane scenarios dreamed up by opponents of DC statehood.

It’s surprising that the author of the Politico piece, a person with a hugely impressive curriculum vitae, https://bit.ly/3v1s2i7, would conclude his analysis with a smug dismissal that suggests, without analysis, that there is no constitutionally acceptable way to address the issues raised by the 23rdAmendment. Certainly, he is correct that there are politically fraught issues here. Republicans are dead set against allowing the District of Columbia to become a state, but their constitutional arguments are just a cover; their opposition is grounded in their fear of adding a likely Democratic state to the mix. Their resistance is about retaining political power and nothing more.

In thinking about this, we should keep in mind that the 23rd Amendment was adopted to fix a political problem that would cease to exist if DC were made a state and a federal enclave were created to preserve the plenary authority of Congress over the seat of the federal government. The 23rd was not adopted to bar statehood for DC. If it were intended for that purpose, it could have just said so. It didn’t ,and there is no reason in the Constitution to see it otherwise. Since the purpose of the 23rd Amendment can be satisfied another way, it should be the case that, given the express and indisputable plenary authority of Congress over the federal enclave, a legislative solution is feasible and acceptable. Where there is a will, there is usually a way.

AMTRAK — Communications 101

Late at night, I received an email from AMTRAK. I am a big fan of AMTRAK. I strongly prefer train travel over air travel between Washington and New York City and have used the regular trains, business class and, occasionally, Acela over the years. Most of the time, everything works pretty well, despite the horrors of the restrooms.

Here is Amtrak’s message, inspired no doubt by the CDC’s latest guidance:

Hi Amtrak Passenger,

Starting May 23, Amtrak will return to selling full seat capacity on most of our trains.  While you may have someone sitting next to you, our trains offer large spacious seats, ample legroom, no middle seats, and the freedom to move about the train.

When searching for travel, you will see that we added a percentage indicator that shows how full each reserved train is at the time of booking. You can use this feature to book trains that have more space and check how full your train is prior to travel.  If capacity exceeds comfort levels, you can change your ticket without incurring a fee (a fare difference may apply).

[In this spot was a screen capture of the Amtrak listing showing the percentage of seats full on a particular train. For reasons that defy understanding, WordPress will not permit that item to display]

In the meantime, Amtrak has been upgrading our technology, fleet, stations, and processes to make travel as seamless and safe as possible. This includes upgrades to the Amtrak app, where you can book, get boarding information, and check train status from a mobile device and receive real-time information before boarding. We’ve also been focusing on making the experience touch free, including contactless boarding, scanning tickets directly from the Amtrak app and installing new kiosks, which we will be rolling out throughout the year.

Thanks for being a valued Amtrak customer.  We’ll see you onboard!

The most up to date arrival and departure times are available on Amtrak.com, our free mobile apps, by texting “Status” to 800-872-7245 or by calling 1-800-USA-RAIL (1-800-872-7245).

Join us on facebook.com/Amtrak
Follow us on twitter.com/Amtrak

That’s grand, as far as it goes. My question is simple: why didn’t this message use this opportunity to reinforce the federal mask mandate? Given all the uncertainties associated with changing CDC guidance, plus the hysterical anti-vaccination, anti-mask, anti-public health, etc. crowd continuing their foolish anti-science ranting, you would think someone at AMTRAK would have piped up to note the absence of a reminder about the mask policy.

The failure to cover this runs the risk that travelers will show up, sans mask, claiming they saw the AMTRAK email and it said nothing about masks, therefore “I DON’T HAVE TO WEAR ONE AND YOU CAN’T MAKE ME, MY RIGHTS, MY RIGHTS” etc., you know the drill by now. This obvious omission of an important message may place complying passengers in a difficult place, as has occurred on numerous airplanes in recent months (kudos to the Federal Aviation Administration for imposing major fines and deplaning the morons who refuse to comply with crewmember instructions).

AMTRAK, do yourself and your passengers a favor and put out another message that makes clear the federal mask mandate still applies in AMTRAK stations and on trains.

 

Democrats, Time to Call the Question on MTGCuckoo

Media reports, https://wapo.st/3blQSS0, for example, indicate that Marjorie Three Names, real name Marjorie Taylor Greene, known to me as MTGCuckoo, has once again violated House rules and norms of behavior by openly confronting Rep. Alexandria Ocasio-Cortez outside the House chamber, screaming at her and calling her names. WAPO reports that this led “the New York congresswoman’s office to call on leadership to ensure that Congress remains “a safe, civil place for all Members and staff.”

Indeed. It can be frustrating at times to observe the extreme formalities used by Members of Congress in addressing each other during hearings and debates, but those formalities serve a vital purpose. They are a device for keeping the focus on the issues being discussed and to reduce the flaring of tempers and personal recrimination that serious disagreements about serious matters can inspire. By and large they work.

Or at least they worked until the arrival of Donald Trump on the American political scene. Trump consistently behaved like the trashy human being he consistently proved to be. He labeled his political adversaries in his own party with offensive nicknames, made derogatory remarks about their physical appearance and their families, mocked a disabled reporter and on and on and on. His Republican competitors vehemently objected to Trump’s schoolyard behavior until he won the presidency. Then, like the miracle that was supposed to end the COVID crisis at its inception, they bent the knee to him, seeking jobs, swearing fealty to him personally and adopting his constant lies as “alternative facts.”

Trump inspired a new wave of Republican leaders who have adopted his tactics, among them is MTGCuckoo, a QAnon conspiracist among her other charming propensities. She cares nothing for tradition, standards of personal respect or any other norm of civilized conduct, just like her idol, Trump. With the support of 11 Republicans, she was stripped of her committee assignments in February because her extremist remarks that included

questioning whether deadly school shootings had been staged and whether a plane really hit the Pentagon on 9/11.  A supporter of the fantastical QAnon conspiracy theory, she also shared videos with anti-Semitic and anti-Muslim sentiment, and expressed support for violence against Democratic leaders in Congress.  [https://cbsn.ws/3yazBF6] ….

Greene has made a number of incendiary and false statements in recent years, among them that Black people “are held slaves to the Democratic Party,” that Reps. Ilhan Omar (D-Minn.) and Rashida Tlaib (D-Mich.) — the first two Muslim women elected to Congress — represented “an Islamic invasion into our government offices,” and that Jewish megadonor George Soros collaborated with Nazis.

She had previously harassed David Hogg, one of the teenage survivors of the Parkland school shooting, on the Capitol grounds and, reportedly, another member of Congress in a hallway dispute over Greene’s refusal to wear a mask.

This obnoxious and dangerous behavior has not harmed Greene’s appeal with the Trump base. She continues to collect large donations from them. In typical fashion, Republican House leadership has done nothing meaningful to rein in Greene’s manic conduct.

This is on the Democratic leadership. MTGCuckoo is violating every rule  and norm of behavior for a Member of Congress. She craves attention and will do almost anything to get more of it. One of these days someone is going to get hurt because of her low class schoolyard behavior. It may be her or someone else, but Democrats control the House and should put a stop to this immediately before it gets further out of hand. Many of the Trump sycophants look to people like MTGCuckoo for guidance regarding their own behavior. She doesn’t care a bit if she inspires some craven Trumper to act out their violent fantasies on a Member of Congress or someone else.

Closing Note: no doubt someone will decide to chastise me for hypocritically name-calling Greene in the fashion that I am criticizing her. Guilty as charged. Now they don’t have to bother. Greene has earned the nickname I gave her on Twitter, and I’ll continue to use it as long as she behaves like a tantrum-throwing child who makes statements that are, by any standard, beyond the realm of rational behavior. She belongs in rehab, not in Congress. My choice of nickname relates to her behavior, not to her appearance or her family. Apologies, however, to cuckoos.

Views from the Roof & Other Places

When we lived in New York City on the 50th floor of a mid-town tower with large windows on two sides, we enjoyed spectacular views, day and night. The photo above is the traffic headed south on 9th Avenue in the Before Times.

Here are a few examples of what could be seen from our windows on any given day/evening:

Washington, of course, is a “flat city” in the sense that is subject to a legislative decree that limits the height of buildings to 10 stories. Our apartment building, however, enjoys a developed rooftop extending all around the building that occupies most of a city block. Here are some of the views we enjoy from “up there:”

It’s not New York but nothing really is. We nonetheless enjoy our views, enhanced by a balcony that overlooks Pennsylvania Avenue just west of Washington Circle. All-in-all, pretty fine.

Has the Washington Post Gone Over to the Dark Side?

I was astonished and disturbed that the Washington Post would give a member of the January 6 insurrection streaming time on the Washington Post Live, but that’s exactly what it did with Senator John Hawley on May 4. The full transcript may be read here: https://wapo.st/3eT235C

I am doubly disturbed about this now that I am aware that it was the Washington Post that invited Donald Trump to sit at its table at the 2011 White House Correspondents Association Dinner at which then-President Barack Obama mercilessly and deservedly chided Trump for Trump’s role in the birther conspiracy regarding Obama’s birthplace. Trump was clearly very unhappy at being the butt of President Obama’s humiliating jokes. I’ll have more to say about that when I review Obama’s magnificent memoir, A Promised Land.

The interview at hand was conducted by Cat Zakrzewski, identified as a tech policy reporter and author of The Technology 202 newsletter. She was chosen, perhaps, because the program was billed as “The Missouri senator discusses breaking up big tech, antitrust reform and the post-Trump era for the Republican Party,” but it did not go well, in part because Zakrzewski opened the interview by testing Hawley on other subjects for which she was, it seemed, ill-prepared to cope with his aggressive style.

Zakrzewski opened the discussion by asking the open-ended question, “what responsibility do you feel for the cascading events that resulted on January 6th?” This presented Hawley with the perfect opening to gaslight, both-sides and what-about the country regarding his role. And he did. Hawley claimed that what he did was nothing compared to Democrats who had lodged objections to three past presidential elections.

True, as far it goes. But there are a few critical differences Hawley conveniently failed to mention. They are set out in detail at https://bit.ly/33kU7ES Suffice to say that in 2000, after the Supreme Court’s 5-4 extremely questionable decision to stop the Florida recount, it was Al Gore, the losing Democrat, who, serving as Senate President, enforced the rules to stop the objections. In 2004, overwhelming bipartisan votes rejected the objections lodged by just one member from each house. In 2016, it was again a Democratic Vice President who insisted that the rules be followed in the final certification and, absent any support in the Senate for objections, the tally in Trump’s favor was approved.

In 2020, on the other hand, Republicans brought, and lost, more than 60 legal challenges to multiple swing state outcomes. They never produced evidence of voter fraud on which the claim of “The Big Steal” was based. The entire claim was nonsense and Hawley knew it. His disassociation from facts mirrors the subordination of the entire Republican Party to the Big Lie by Donald Trump that the election was stolen.

Hawley then ran away with the interview in a late-in-coming exegesis on his disapproval of the January 6 mob attack on the Capitol, the same attack he encouraged with the fist pump that was photographed and seen by millions. And, again, Hawley attempted to minimize the attack by deflective references to other acts of violence to which he also objected, returning at the end to refer to the non-existent issue of “election integrity” that he insists was at the root of his objections to the Electoral College certification.

…in terms of having a debate about election integrity, I promised my constituents I would. I did, and I don’t regret that at all. That’s me doing my job.

When Zakrzewski challenged Hawley, noting that the Pennsylvania Supreme Court had dismissed challenges to the Pennsylvania count, Hawley rejected the Court’s decision, claiming it was not on the merits, was partisan,  that the court “also interfered with the count itself,” and was “in violation of their own precedent.” In other words, Hawley rejected the action of the highest court in Pennsylvania because he disagreed with it and proceeded to demand the overturning of the election in that state. So much for Republican devotion to “law and order.” Zakrzewski barely got a word in.

On the subject of a national 9/11 style commission to investigate the January 6 attack, Hawley, being the loyal Trumpist, objected to focusing on the attack and argued that the commission should instead address the security failures that allowed the attack to take place. Those issues, however, have already been investigated and Hawley has no explanation, other than deflecting from the core issues of the attack and its inspiration by Trump, for expanding the commission’s scope to other issues. It doesn’t take much imagination to foresee how a commission with a multiple-element mandate would be derailed by Republicans who clearly intend to protect Trump from accountability for his role in directing the assault. Just watch any hearing in which Rep. Jim Jordan participates and you’ll understand.

When again asked about the attacks on Capitol Police, Hawley again deflected to other incidents, mentioning for the second time the Nation of Islam. No objection from Zakrzewski. When asked about the fist-pump incident, Hawley, for the third time brought up BLM protests and riots.

The interview then shifted to other subjects related to the power of tech companies and Hawley’s proposal to break them up. Hawley was able to talk over Zakrzewski on every issue. It brought to mind the first Biden-Trump debate in which Trump simply ran over the moderator throughout the program. After each Hawley monologue, Zakrzewski just moved on to the next topic. But when she tried to explore the effects of the Big Lie about the stolen election, Hawley just continued his rant about political censorship by tech companies. She let him get away with it and turned to the then-pending plan to remove Liz Cheney from leadership to which Hawley demurred (she’s in the House so their problem).

The “interview” ended with Zakrzewski asking “would you support former President Trump running again for office in 2024?” Hawley again deflected, saying Trump’s decision was his to make, Hawley would never give him advice, etc. In short, no answer. Interview over.

Other than providing Hawley a platform from which to practice his both-sides deflection routines, what did the Washington Post accomplish by giving this supporter of January 6 this exposure? Whatever it was, it didn’t work. Instead, Hawley was given the opportunity to promote himself and his  “oh, no, it wasn’t me. I’m opposed to violent protest in all forms. Did I mention Portland? I was just doing what my constituents wanted me to do. Oh, yeah, I’m just a humble servant of the people of Missouri, though I reserve the right to reject the rulings of the highest courts in states like Pennsylvania and vote to overturn elections whose outcomes I don’t like. Did I mention antifa? Riots? Yeah, I’m for law and order unless it means following the decisions of the highest courts in a state whose election result I don’t like.”

If the Post is fooled by Hawley’s professed devotion to protecting free speech and the First Amendment, we are in even more serious trouble than I have thought. The Post should know by now that it cannot escape the fascist propensities of the rightwing politicians who shout at every opportunity, “fake news, enemy of the people” about the mainstream media. I fully accept that the Post should report genuine news – the Capitol attack on January 6 was news – but it should stay out of the business of creating news by giving platforms to the very people who would destroy the free press in a heartbeat if given the power. @WashingtonPost, do better. Before it’s too late.

Will DC Statehood Bring Down Our Representative Democratic Republic?

On April 13, the Attorneys General of 20 Republican-led states wrote a letter to President Biden, the Speaker of the House and the Majority and Minority Leaders of the Senate informing them that if the pending Washington DC Admission Act (H.R.51 and S.51) is passed and signed, these “legal officers” will challenge the statute in court on grounds that it is unconstitutional and “bad policy.”

As a legal document, the AGs letter is one of the silliest creations I have ever seen. Here’s why.

  1. Courts don’t have jurisdiction to decide whether a statute is “bad policy.” Policy (good, bad or otherwise) is the purview of the Executive and Legislative branches of government. You would think that these “legal officers” would understand that most fundamental principle of American jurisprudence.
  2. A simple summary of the AGs’ arguments goes something like this: a. The Constitution granting Congress “exclusive authority” over DC means that authority cannot be delegated. In other words, “exclusive” really means “permanent.”

Oops. The dictionary does not square with that idea. “Exclusive” does not mean “permanent.” There is also a problem that the Supreme Court has in effect ruled otherwise. A few  quotes from District Of Columbia V. John R. Thompson Co., Inc., 346 U.S. 100 (1953):

The power of Congress to grant self-government to the District of Columbia under Art. I, § 8, cl. 17 of the Constitution would seem to be as great as its authority to do so in the case of territories.

The power of Congress over the District of Columbia relates not only to ‘national power’ but to ‘all the powers of legislation which may be exercised by a state in dealing with its affairs’. [citations omitted] There is no reason why a state, if it so chooses, may not fashion its basic law so as to grant home rule or self-government to its municipal corporations.

A municipal corporation, in the exercise of all of its duties, including those most strictly local or internal, is but a department of the State. The legislature may give it all the powers such a being is capable of receiving, making it a miniature State within its locality.

3.  The “exclusive authority” language also means that the Constitution’s text providing for admission of new states simply does not apply to DC because … the AGs said so. They gave no other reason, and none is apparent.

4. The Constitution says DC may not exceed “ten Miles square,” but that actually means the capital District may not be reduced below that size.

Sorry, but the District of Columbia is only 68 square miles now. Clearly, it can be reduced below “ten Miles square”

Virginia asked for the land in what is now Alexandria to be returned from its original ceding of land for the capital and this was done (with Congress approval, of course). It follows that both the natural meaning of the original text and the history of Congressional action indicate that the size of the District is not immutable, no matter how much the AGs might wish it were otherwise.

5.  The federal presence in DC consists of just a “few federal buildings and surrounding parks and it self-evidently cannot have been the Framers’ intent to permit the District to be so reduced.

In fact, the boundaries of the Capital District as set out in HR 51 occupy some 12 pages of legislative text setting out the capital district boundaries street by street, to be confirmed by a metes-and-bounds survey. Quite a bit more than a “few federal buildings” are encompassed in that space. We are talking about the entire federal government for the United States in the present time, not it’s condition in 1787. Perhaps the AGs reference to a “few federal buildings” simply reflects their ignorance regarding the scale of , or merely their contempt for, the federal government.

6.  Adoption of the Twenty-third Amendment, giving Electoral College votes to DC, would been unnecessary if creating a new state were possible, or less difficult, so since the Twenty-third was adopted, it follows that statehood is forbidden.

This is apparently intended to say that Congress could have made DC a state but chose not to do so. Instead, it was easier to give DC some Electoral College votes, while still denying it voting representation in Congress. No doubt that was the easier course. But that says nothing about whether Congress had the authority to do more.

7.  Statehood will create all manner of “practical problems” involving “utilities and the provision of basicservices”

Hoo boy, that’s good one. Can you imagine that something as complex as providing electricity to federal buildings, something that happens routinely every single day now, would befuddle the government of the “greatest nation on earth” in dealing with the new state? The Republican AGs would fail any respectable law school exam with that argument. Oh, and recall how Texas failed to provide electricity during the recent storm. Based on the Republican AGs argument, Texas should it forfeit its status as a state and return to territorial status.

Beyond the issue of delegation, the AGs argue that,

“the Constitution’s provision of exclusive authority over the District of Columbia to the United States Congress cannot be wiped away simply by ordinary legislation. Rather, the only lawful way to provide statehood to the District of Columbia is to amend the Constitution.”

The operative language in Article I, section 8, clause 17 of the Constitution says, “To exercise exclusive Legislation in all Cases whatsoever, over such District….”

The AGs see Clause 17 as a self-evident permanent mandate to rule the territory ceded as the capital district rather than a grant of authority to be exercised through “exclusive Legislation” that can, among other things legislation can do, delegate control to local authorities consistent with Congress’ correlative authority to admit new states under Article IV. In the AGs’ view, Clause 17 is not merely enabling; it overrides Article IV, section 3, clause 1 of the Constitution which permits the addition of new states to the Union through Congressional action:

New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.

Not one word of Article IV-3-1 directly or by reasonable implication has anything to do with whether DC can be made a state by legislation because none of the constraints in the text has any application to the current state of the District’s physical relation to surrounding states. The Republican view that the conclusion is otherwise is not based on facts or evidence, just an assumption that what they prefer is how things are or should be.

Finally, the AGs get to the heart of the matter:

[HR 51’s] enactment would be antithetical to our representative democratic republic, and it wouldconstitute an unprecedented aggrandizement of an elite ruling class with unparalleled power and  federalaccess compared to the existing fifty states in the Union.

That word salad looks like something taken from a Donald Trump stump speech back in the day. This is not a position grounded in the Constitution, and no evidence is offered in support of the claim that granting statehood to DC would undermine the “representative democratic republic,” that is the United States.

What in the world are the AGs thinking? Granting the benefits (and obligations) of statehood to an area representing 68 square miles out of the total 3.797 million square miles of the United States (or .0018 percent) will bring down the “representative democratic republic?”  Can’t wait to see that presented in court.

The District of Columbia, according to the Republican AGs would be a “super-state that would have primacy over all others.” The AGs seem to have confused the introduction of the Declaration of Independence (”We hold these truths to be self-evident”) with their Trumpian version of reality. A super-state!? An elite ruling class!?

The AGs next “argument” was put in a footnote, fittingly:

[the legislation] does not address the potential conflict with the requirements that “no new State shall beformed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” U.S. Const. art. IV, § 3.

This beyond incoherent. The statute does not take land from other states; it reorganizes the existing land known as the District of Columbia.

Finally, I know I’m skipping some crazy stuff, the AGs object to the provisions granting liberal voting rights to DC residents that may be more voter-friendly than some of the restrictive regimes favored in Republican-dominated states. So what?  Some states have better voting laws than others. Why should the District of Columbia be deprived of the opportunity to have the most vote-friendly system?

At the root of this nonsense is likely an animus against a community with a majority of Black and Brown citizens that tends to vote for Democrats. It is not hard to imagine that if the vast majority of DC residents were white and voted Republican, the Republican AGs would have a different view. No doubt some people with balk at the suggestion that the Republican AGs determination to deny statehood to DC is race-based. If they are right, they should be able to produce better arguments than the sorry stuff of the AGs’ letter.

We have good reason to believe that the Republicans in the Senate will defeat the DC Statehood legislation. Democrats everywhere should take note and understand that the only way real progress is going to be made in the United States is by removing the obstructionist/insurrectionist party from political power.

Court Eviscerates Barr Attempt to Whitewash Mueller Report

Federal District Court Judge Amy Berman Jackson yesterday issued a 35-page opinion (exclusive of attachments) rejecting the claims of the Department of Justice that it can withhold  a memorandum behind then-Attorney General Barr’s attempt to whitewash the Mueller Report.  Citizens For Responsibility and Ethics in Washington v. U.S. Department Of Justice,  Civil Action No. 19-1552 (DC DC May3, 2021). [Note: bolding of text is mine]

You may recall that, as brilliantly reported by Judge Jackson, and at the risk of giving away the conclusion,

 On Friday, March 22, 2019, Special Counsel Robert S. Mueller, III delivered his Report of the Investigation into Russian Interference in the 2016 Presidential Election to the then-Attorney General of the United States, William P. Barr.

But the Attorney General did not share it with anyone else.

Instead, before the weekend was over, he sent a letter to congressional leaders purporting to “summarize the principal conclusions” set out in the Report, compressing the approximately 200 highly detailed and painstakingly footnoted pages of Volume I – which discusses the Russian government’s interference in the election and any links or coordination with the Trump campaign – and the almost 200 equally detailed pages of Volume II – which concerns acts taken by then- President Trump in connection with the investigation – into less than four pages. The letter asserted that the Special Counsel “did not draw a conclusion – one way or the other – as to whether the examined conduct constituted obstruction,” and it went on to announce the Attorney General’s own opinion that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”

The President then declared himself to have been fully exonerated.

The Attorney General’s characterization of what he’d hardly had time to skim, much less, study closely, prompted an immediate reaction, as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball.

When, almost a month later, Barr presented the Mueller Report to Congress, “He asserted that he and the Deputy Attorney General reached the conclusion he had announced in the March 24 letter “in consultation with the Office of Legal Counsel and other Department lawyers.” CREW immediately filed Freedom of Information Act requests for any documents related to those consultations. Predictably, DOJ resisted, citing exemptions from disclosure based on “deliberative process” and “attorney-client privilege.”

At issue then before the Court were two memoranda to the Attorney General. The DOJ justification for withholding the first one, the Judge noted, was poor, but the Judge conducted an in camera [private, in chambers] review of the document and gave DOJ a helping hand:

there was a particular, immediate decision under review to which the document pertained, that it also addressed another specific issue that was likely to arise as a consequence of the determination made with respect to the first, and that the entire memorandum was deliberative with respect to those decisions.

Judge Berman therefore held that document need not be disclosed to CREW.

The other document, however, was another cup of joe entirely. It was dated just two days after Mueller gave Barr the report and “specifically addresses the subject matter of the letter transmitted to Congress.” Most of the document is redacted in the Judge’s opinion but she also conducted, over DOJ’s strenuous objections, an in camerareview of that document.

Noting first CREW’s objections to the timeline represented by DOJ attorneys:

DOJ’s . . . arguments rest on the demonstrably false proposition that the memo was submitted to the Attorney General to assist him in making a legitimate decision on whether to initiate or decline prosecution of the President for obstructing justice . . . . [H]owever, the Special Counsel already had made final prosecutorial judgments and the time for the Attorney General to challenge those judgments had passed. Whatever the contents of the March 24, 2019 OLC memo, it was not part of a deliberation about whether or not to prosecute the President….

The absence of a pending decision for the Attorney General to make necessarily means the memo did not make a recommendation or express an opinion on a legitimate legal or policy matter. Instead, it was part of a larger campaign initiated by Attorney General Barr to undermine the Special Counsel’s report and rehabilitate the President . . . .”

The Judge concluded:

the redacted portions of Section I reveal that both the authors and the recipient of the memorandum had a shared understanding concerning whether prosecuting the President was a matter to be considered at all. In other words, the review of the document reveals that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given.

In a footnote, most of which is redacted, the Judge noted, “DOJ made a strategic decision to pretend as if the first portion of the memorandum was not there.” Ooof.

Similarly, Judge Jackson later observed,

the in camera review of the document, which DOJ strongly resisted …. raises serious questions about how the Department of Justice could make this series of representations to a court in support of its 2020 motion for summary judgment

and,

summary judgment may be granted on the basis of agency affidavits in FOIA cases, when “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” But here, we have both.

Noting a previous court opinion (the EPIC case) that found,

The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report – a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report.

Judge Jackson found,

the [DOJ] affidavits are so inconsistent with evidence in the record, they are not worthy of credence.

and,

the suspicions voiced by the judge in EPIC and the plaintiff here were well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time.

and,

A close review of the communications reveals that the March 24 letter to Congress describing the Special Counsel’s report, which assesses the strength of an obstruction-of-justice case, and the “predecisional” March 24 memorandum advising the Attorney General that [redacted text] the evidence does not support a prosecution, are being written by the very same people at the very same time.

As to the claim of attorney-client privilege, Judge Jackson was equally incisive and for similar reasons:

… since the memorandum was being written at the same time and by the same people who were drafting the Attorney General’s letter to Congress setting forth his views on the basis for a prosecution, and the record reflects that the priority was to get the letter completed first one simply cannot credit the declarant’s statement that the Attorney General made the “decision” he announced based on the advice the memo contains.

Finally,

The Court emphasizes that its decision turns upon the application of well-settled legal principles to a unique set of circumstances that include the misleading and incomplete explanations offered by the agency, the contemporaneous materials in the record, and the variance between the Special Counsel’s report and the Attorney General’s summary.

These devastating (for the DOJ attorneys) findings confirm the suspicions that I and many other expressed at the time that the fix was in at the Barr Justice Department and that Barr was acting more as personal counsel to Trump than doing his job as Attorney General of the United States.

Judge Jackson gave DOJ until May 17 to move for a stay pending appeal, but it is unlikely that AG Merrick Garland is going to do anything to resist the force of Judge Jackson’s definitive analysis. Stay tuned. The release of an unredacted version of the Judge’s opinion will be an explosive eye-opener about the extent of corruption in the Trump-Barr Justice Department.

 

Faux Election Integrity Fever Identified in Texas & Florida

Like coronavirus, “Faux Election Integrity Fever” (hereafter “FEIF 2021”) moves quickly across state lines and attacks Republicans with a vengeance. In this case the evidence indicates that Georgia’s sudden post-election awakening to the realities of demographic change and resistance to racism (see https://bit.ly/3njQqbC and https://bit.ly/3aGt0rQ) has morphed into a collection of proposed voter suppression legislation in Texas and Florida.

The odd thing is that Trump won 2020 Texas handily and the state’s two Republican senators, Ted Cruz and John Cornyn, are among Trump’s most devoted sycophants. Cruz in particular is an avid member of the Sedition Caucus that voted to overturn the 2020 election and hand it to Donald Trump as, in effect, Dictator of the United States. So what is going on with the Texas variant to FEIF 2021?

Trump also won Florida — by more than 370,000 votes, split largeyn,ly by urban (Biden) and non-urban (Trump) preferences. Florida also sports two Trump shills in Senators Rubio and Rick Scott.

Disclosure: I am relying on published reports regarding the content of the legislation that, based on past experience, are highly reliable sources for such information. Texas GOP Targets Access for City Voters [print headline 4/25/21] https://nyti.ms/3gls1vc and Florida Legislature OKs Bill That Limits Voting By Mail, Ballot Drop Boxes, https://n.pr/2RgSnte 

The NY Times online report regarding Texas notes:

Republicans Target Voter Access in Texas Cities, but Not Rural Areas

In Houston, election officials found creative ways to help a struggling and diverse work force vote in a pandemic. Record turnout resulted. Now the G.O.P. is targeting those very measures.

The NPR report indicates many of the Florida provisions are similar to those recently adopted in Georgia.

Defenders of these bills argue that they include some provisions that make voting easier and more secure. The problem is that there are other provisions that either make voting harder or create the danger that Republicans, motivated as they have shown regarding the 2020 election to overturn important election losses, will use the tools contained in the legislation to simply override the voters’ choices in the future. This is not fantasy.

Given that (1) there is no credible evidence of voter fraud in any of the states where Trump challenges were mounted, (2) these states all had highly detailed vote regulatory laws in place before the new legislation, (3) these are states where 2020 turnout set records, creating (4) reasonable doubts that the Republican-controlled legislatures’ real goal is to enable even great turnout in the future. No, the most reasonable inference is that the huge turnouts in 2020 that resulted in Trump’s defeat have led not to sudden enthusiasm to increase Democratic opportunities going forward but have inspired renewed efforts to suppress Democratic voting in future elections.

These areas of focus are more than a little curious, considering certain other facts about Texas and Florida that one might think would be the real subjects of interest by the governing bodies of those states.

For example, Texas ranks 36th nationally in per-student education spending. While some conflicts exist about the exact amounts spent, https://bit.ly/2S8gyuz, the real losers in the squabbling over the state’s stinginess are the students. As for the mothers of those students,

While maternal mortality is decreasing in most countries, maternal death rates in the U.S. have been increasing and Texas is recognized as having the highest maternal death rate in the country. Texas’ own study on maternal deaths indicates that Texas’ rates have nearly doubled in recent years.

[https://www.texmed.org/MMM/]

U.S. News https://bit.ly/3noOXRc ranks Texas in these categories among the states:

Health Care – No. 31

Education – No.34

Opportunity – No. 39

Economic Opportunity – No. 40

Equality – No. 45

Crime & Corrections – 37

Natural Environment — 40

Population without Health Insurance

                   Texas 24.5 %

                  National Average 12.9 %

And that’s despite having the nation’s 9th largest economy and net inbound population growth, due, it is reported, to little regulation, low taxes and low labor costs.

The Florida story is similar. Despite its famously aged population, Florida ranks:

Health Care                25

Infrastructure            20

Opportunity               33

Crime & Corrections  26

Florida ranks 3rd in Education, driven, however, by the large higher education establishments. It’s only 16th in PreK-12.

You would think that with those standings, the governing parties would be focused on more than just voter suppression but apparently not.

Much of the Republican hullabaloo about voting has no factual or logical foundation. Putting aside the absence of meaningful evidence of voter fraud (all this legislation is directed at a non-existent problem), if you can file taxes online, then why not voting online?  Maybe we need to reconsider leaving all this to the states. Maybe, just maybe, the federal government could do a better job of securing voting systems under a well-crafted legislative plan.  Surely there is a way to do this safely. And, if not, then why not establish through federal legislation a uniform system of manual voting that affects everyone the same way across the country?

Beyond actual voting, why is there a concern that sending out absentee ballot applications, or real ballots, to everyone is a problem, given that voting is highly regulated with detailed checking and matching of ballots to registrations before votes are counted?  Why are drive-through voting sites a problem? In many places you can get a COVID vaccination at a drive-through. And millions routinely do bank transactions at drive-through windows. What is the problem, other than the fact that these practices make it easier for more people to vote?