Categories
politics

Is Trump Barred from Office? A Deep Dive into the State Rulings

Section 3 of the 14th Amendment to the U.S. Constitution is clear:

No person shall…hold any office…under the United States…who, having previously taken an oath…as an officer of the United States…to support the Constitution of the United States, shall have engaged in insurrection…against the same, or given aid or comfort to the enemies thereof.”

Based on the Consitution, the states of Colorado and Maine have determined that Mr. Trump’s actions leading up to and during January 6, 2021, disqualify him from holding office. Accordingly, unless overturned by the U.S. Supreme Court, the former president will not appear on their states’ ballots in the Republican primary, nor will he appear on their states’ presidential ballots in November.

This is a big deal. If the U.S. Supreme Court rules broadly rather than on a technicality, they could either prevent Mr. Trump from the ballots in every state or, once again, reinforce the claim that the United States does not operate under the rule of law.

The Findings of the Select Jan. 6th Committee

Many have argued that without Mr. Trump receiving a criminal conviction on the charge of insurrection, Colorado and Maine have prevented Mr. Trump from receiving the due process guaranteed to him in the 5th and 14th Amendments to the U.S. Constitution.

However, the United States Congress, in the form of the Select January 6th Committee Final Report, conducted nine public hearings watched by over 55 million Americans, with individual hearings earning more ratings than any other show on television at the time, excluding live sports.

The Select Committee presented testimony from more than 70 witnesses, interviewed or deposed over 1,000 other witnesses, collected and reviewed over one million documents, and watched hundreds of hours of videos taken in many cases by the perpetrators of the January 6th attack on the Capitol.

Armed with all of this evidence, the committee found that:

  1. Mr. Trump “provoked his supporters to violence on January 6th”
  2. Mr. Trump “plotted to overturn the election outcome”
  3. Mr. Trump “unlawfully pressured State officials and legislators to change the results of the election in their States”
  4. Mr. Trump “instructed…[tens of thousands of angry and…armed supporters]… to march to the Capitol on January 6th to ‘take back’ their country
  5. Mr. Trump “refused repeated requests over a multiple hour period that he instruct his violent supporters to disperse and leave the Capitol, and instead watched the violent attack unfold on television”

The Committee’s final report “includes criminal referrals to the Department of Justice regarding [former] President Trump and certain other individuals.” Further, in their list of recommendations, the Committee wrote:

The Committee believes that those who took an oath to protect and defend the Constitution and then, on January 6th, engaged in insurrection can appropriately be disqualified and barred from holding government office—whether federal or state, civilian or military–absent at least two-thirds of Congress acting to remove the disability pursuant to Section 3 of the Fourteenth Amendment.

Colorado’s Ruling

While Congress has attempted to define “conduct that would constitute cause for a disqualification pursuant to section 3 of the 14th Amendment” and to declare the events of January 6th as an insurrection against the United States, both attempts languished in the House Judiciary Subcommittee on Constitution, Civil Rights, and Civil Liberties.

As a result, the District Court of the City and County of Denver, Colorado, depended on the Select Committee’s Jan. 6th report, plus a five-day hearing that included eight witnesses for the petitioners and seven witnesses for Mr. Trump, to conclude that Mr. Trump engaged in insurrection.

The district court wrote:

The investigation [of the Select Committee] was conducted by a well-staffed, highly skilled group of lawyers (including a Republican U.S. Attorney [and many Republican lawyers]) and led by a former U.S. Attorney. There was a hearing conducted over ten days and 70 witnesses testified—all of whom testified under oath. The Select Committee had large volumes of records that it independently evaluated when crafting its final report. [What’s more,] the findings of the January 6th Committee were unanimous….

Furthermore, while [Mr.] Trump spent much time contesting potential biases of the Committee members and their staff, he spent almost no time attacking the credibility of the Committee’s findings themselves.

Considering the foregoing, the Court holds that the January 6th Report is reliable and trustworthy and thereby admissible…

Armed with Congress’s Jan. 6th report and the testimony of its witnesses, the district court concluded that:

  • Mr. Trump “incited imminent lawless violence”
  • “[Mr. Trump’s] call to ‘fight’ and ‘fight like hell’ was intended as, and was understood by a portion of the crowd as, a call to arms”
  • “[Mr.] Trump’s conduct and words were the factual cause of, and a substantial contributing factor to, the January 6, 2021 attack on the United States Capitol”
  • “[Mr.] Trump materially aided the attack on the Capitol”
  • “[Mr.] Trump’s 2:24 p.m. tweet caused further violence at the Capitol”
  • “[Mr.] Trump had the authority to call in reinforcements on January 6, 2021, and chose not to exercise it thereby recklessly endangering the lives of law enforcement, Congress, and the attackers on January 6, 2021”
  • “[E]ven after the attack, [Mr.] Trump’s [6:01 PM] tweet justified violence by calling the attackers ‘patriots'”
  • “[Mr.] Trump endorsed and intended the actions of the mob on January 6, 2021”
  • “[Mr.] Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification”

Finally, after examining the legal history of the word “insurrection,” the district court concluded “that the events on and around January 6, 2021, easily satisfy [the] definition of ‘insurrection’ and that “[Mr.] Trump engaged in an insurrection on January 6, 2021.”

The notion that Mr. Trump did not receive due process is laughable when we consider that:

  • Mr. Trump defied a subpoena to submit documents and testify before the Select January 6th Committee
  • The district court based its findings, in part, on evidence gathered from an investigation that included over a thousand witnesses, a million documents, and hundreds of hours of video footage
  • Mr. Trump’s lawyers participated in a trial that “took place over five days and included opening and closing statements, the direct- and cross-examination of fifteen witnesses, and the presentation of ninety-six exhibits. Moreover, the legal and factual complexity of this case did not prevent the district court from issuing a comprehensive, 102-page order within the forty-eight-hour window [Colorado law] requires”
  • Mr Trump (according to the Colorado Supreme Court) “has never specifically articulated how the district court’s approach lacked due process…He made no specific offer of proof regarding other discovery he would have conducted or other evidence he would have tendered. Moreover, his arguments throughout this case have focused predominantly on questions of law and not on disputed issues of material fact.”
  • The opinion of the district court was appealed and, in its findings of fact, upheld by the Colorado Supreme Court

The Colorado Supreme Court wrote:

We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.

Maine’s Ruling

A caricature of the state of Maine

Meanwhile, in Maine, the Secretary of State determined that Section 3 of the 14th Amendment disqualifies Mr. Trump from serving as President and, accordingly, ordered the former president’s name be removed from the ballot of the Republican primary in that state.

The Secretary wrote, “Even without the benefit of the [Colorado] decision, I have little trouble concluding that the events of January 6, 2021 were an insurrection within the meaning of Section Three of the Fourteenth Amendment.”

The Secretary continued:

The facts…are not in serious dispute. I conclude, as did the Colorado Supreme Court…that the record establishes that Mr. Trump, over the course of several months and culminating on January 6, 2021, used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to prevent certification of the 2020 election and the peaceful transfer of power.

A candidate consent form in Maine includes a “statement that the candidate meets the qualifications of the office the candidate seeks, [and] the candidate must verify by oath or affirmation … that the declaration is true.” Such declarations can be challenged, and when they are, it becomes the duty of Maine’s Secretary of State to rule on such challenges.

Mr. Trump and others have challenged the ability of a single person to make a ruling on such a complex issue, but as the Secretary writes, “[Maine’s] statutes do not suggest that I am restricted to adjudicating straightforward questions of law or fact. Nor do I have the discretion to decline to rule in ballot qualification cases simply because they present difficult issues.”

Further, as the Secretary writes, “Mr. Trump’s concerns about the adequacy of this proceeding are..without merit. He has had the opportunity to present evidence; to call witnesses; to cross-examine; and to argue at length both the legal and factual issues germane to my decision.”

Following the lawful procedure in Maine’s law, the Secretary ruled that “the declaration on [Mr. Trump’s] candidate consent form is false because he is not qualified to hold the office of the President under Section Three of the Fourteenth Amendment.”

Will These Rulings Create Nationwide Chaos?

One of the popular arguments against the states’ rulings is that, if upheld, they will set off a firestorm that will see conservative states disqualifying liberal candidates and liberal states banning conservative candidates based on partisan rulings that this or that candidate engaged in insurrection.

For example, in an amici brief filed by 27 states, the states ask the Court if, given Colorado’s ruling, “could a state court disqualify a sitting President from running for reelection by construing a
serious misstep taken during time of war as an action that has “given aid or comfort to” enemies?”

Some Republican officials are contemplating removing President Biden from the ballot if the Court upholds Colorado’s ruling. For example, Florida’s governor said, “This is just going to be a tit for tat, and it’s just not going to end well. Could we make a credible case [against] Biden because of the invasion of 8 million [migrants]?”

These states urge the Court to make a single, nationwide ruling to prevent this chaos from breaking out.

Shouldn’t Congress Decide To Whom Section 3 Applies?

Section 3 was created to prevent Americans who fought for and oversaw the Confederate States of America from serving in political office following the failure of their insurrection.

In 1869, Chief Justice Samuel Chase, in his capacity as a circuit court judge rather than a Supreme Court judge, held in Griffin’s Case that “Section 3 is not self-executing” (according to this amici brief filed by a professor from the Maynooth University School of Law).

In this particular case, a man indicted in the state of Virginia with intent to kill argued that because the judge who oversaw his trial provided “aid and comfort” to the Confederates of Virginia, any rulings by him following those actions, including any guilty rulings against the defendant, ought to be vacated by Section 3 of the 14th Amendment.

In his ruling, the Chief Justice wrote: “It must be ascertained what particular individuals are embraced by the definition [of Section 3], before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by congress.”

He points to Section 5 of the amendment as evidence, which reads, “congress shall have power to enforce, by appropriate legislation, the provision of this article.”

He argues that Section 5 demonstrates it was:

…the intention of the people of the United States, in adopting the fourteenth amendment,…to create a disability…to be made operative in other cases by the legislation of congress in its ordinary course.

The amici argue that Griffin’s Case sets the terms of Section 3 and, therefore, the Colorado Supreme Court and the Maine Secretary of State do not have the power to determine who has or has not engaged in insurrection against the government.

Colorado’s Response to Griffin’s Case

The Colorado Supreme Court did not ignore Griffin’s Case. They explain that the case’s particulars involved whether all of the official acts of officers of the provisional governments of the formerly Confederate states, governments mostly made up of individuals affected by Section 3, were annulled by Section 3. If he agreed with Grifffin’s argument, it would be “impossible to measure the evils which such a [decision] would add to the calamities which have already fallen upon the people of these states.”

Accordingly, he decided to make the “argument from inconveniences,” which holds that when faced with two or more reasonable interpretations, the interpretation “is to be preferred which best harmonizes the amendment with the general terms and spirit of the act amended.”

Instead of throwing out virtually every official act of the provisional governments of the former Confederate states, Chief Justice Chase decided it was more convenient to reject Griffin’s argument.

The Colorado Court explains that “Griffin’s Case concludes that congressional action is needed before Section Three disqualification attaches, but this one case does not persuade us of that point.”

They point out that over the past 150 years, Griffin’s Case has been the subject of “persuasive criticism.” Furthermore, perhaps more importantly, they highlight that Griffin’s Case is not binding on the Colorado Supreme Court’s decisions and, therefore, “is of no particular significance.”

They argue that while Congress may establish a process for determining who Section 3 applies to, such a possibility does not prevent the state of Colorado from making its determination. The state has created a lawful procedure to determine whether a candidate is qualified, and “the process is sufficient to permit a judicial determination of whether Section 3 disqualification has attached to a particular individual.”

The Colorado court concludes “that Section Three is self-executing in the sense that its disqualification provision attaches without congressional action.”

The Colorado Court didn’t make this argument. Still, I’d like to point out that Chief Justice Chase said, “proceedings, evidence, decisions, and enforcement of decisions, more or less formal [italics added], are indispensable [for Section 3 determination]; and these can only be provided for by congress.” It seems to me that the Select Committee’s investigation on behalf of Congress involved more or less formal proceedings, evidence, decisions, and recommendations for enforcing those decisions (which the Executive branch did not choose to execute).

Even though Griffin’s Case may no longer be persuasive and is, undoubtedly, not binding, Colorado’s ruling, aided by the Select Committee’s investigation and final report, still satisfies it.

What About the Senate’s Acquittal of Mr. Trump’s Impeachment by the House?

The 27 states (and others) point out that “Congress vigorously applied [its investigatory power] to former President Trump, as the House impeached him twice. But the Senate acquitted him both times, even when political opponents accused him of fomenting insurrection, much as the lower court held here.”

Holding that Mr. Trump engaged in insurrection “express[es] lack of the respect due to Congress.” The states argue that “Colorado has effectively rendered its judgment that Congress was wrong during the impeachment proceedings.”

The states argue that the separation of powers in the U.S. Constitution forbids Colorado from rendering such a judgment.

Based on these arguments, the states advise the U.S. Supreme Court should overrule Colorado and Maine.

Colorado’s Response

Article II, Section 1 of the U.S. Constitution gives states absolute power over elections, provided “they do not run afoul of another constitutional constraint.”

The Colorado Supreme Court reasons that “states may exercise their …power to limit presidential ballot access to those candidates who are constitutionally qualified to hold the office of President… Moreover, several courts have expressly upheld states’ ability to exclude constitutionally ineligible candidates from their presidential
ballots.”

The Court continues, “The question then becomes whether Colorado has exercised this power through the [state’s] Election Code. We conclude that it has.”

The Colorado courts did not address the specific question as to whether the Senate’s acquittal of the House’s impeachment of Mr. Trump prevents them from disagreeing with the Senate. However, it must be noted that Mr. Trump’s impeachment trial began on February 9, 2021, and concluded on February 13, 2021, while the Select January 6th Committee was not formed until July 1, 2021. Accordingly, the Senate did not have the benefit of the committee’s investigation and final report when it determined whether “Donald John Trump engaged in high Crimes and Misdemeanors by willfully inciting violence against the Government of the United States.

Now Comes the U.S. Supreme Court

Both the Colorado Supreme Court and the Secretary of State of Maine acknowledged the import of the cases. They suspended the effect of their decisions until the United States Supreme Court decided whether to rule on the issue.

On January 5, 2024, the Supreme Court did just that, granting Mr. Trump a writ of certiorari and setting the date for oral arguments as February 8th.

It’s easy to assume that a majority of the justices of the Supreme Court will rule in Mr. Trump’s favor, especially since he appointed a third of them to their seats. But these justices don’t always rule the way people assume they will.

The Court May Surprise Us

In Moore v. Harper, three of the conservative justices joined their more liberal brethren to shut down a fringe theory that would have allowed even more partisan gerrymandering by state legislatures.

In another case related to congressional mapping, two of the conservative justices agreed with their more liberal brethren that Alabama violated the Voting Rights Act. This was despite most people believing the conservative majority would use the case to diminish the Voting Rights Act beyond what they already had.

The Court also upheld the federal government’s sole authority regarding immigration and deportation, overturning two states’ attempts to challenge the Biden administration’s policies. Just yesterday, in fact, two of the conservative justices, Chief Justice Roberts and Justice Coney-Barrett, joined Justices Brown-Jackson, Kagan, and Sotomayor in favor of the Biden administration in another immigration-related case, The Department of Homeland Security v Texas.

Finally, against all odds, in Haaland v. Brackeen, the Court protected the Indian Child Welfare Act, which works to keep Indigenous American children with Indigenous American families and tribes.

The Court’s eventual ruling on Mr. Trump’s validity as a presidential candidate should be interesting. To understand why, here’s what a member of the NY Times editorial board said about it:

Part of me thinks there’s just no way [the U.S. Supreme Court is] going to rule in favor of the Colorado Court. They’re not going to uphold the ruling…because that would effectively have to tie all 50 states to the same standard and remove Trump from the ballot in all 50 states. I don’t think the Supreme Court is ready to take a step like that.

At the same time, I think the legal analysis by the Supreme Court of Colorado is hard to argue with. And I think when you look at the way that this current US Supreme Court likes to talk and think about cases and history with its focus on originalism, the Colorado Supreme Court stayed pretty close to those values. And it’s going to be tough for the Supreme Court to talk its way out of that.

– “How Could the Supreme Court Respond to Colorado: Two Editorial Board Writers Discuss,” The New York Times

I agree with Mr. Wegman. The Colorado argument is persuasive, and because it’s obvious that Mr. Trump engaged in an insurrection, he should be barred from Federal office.

However, I don’t expect the Supreme Court to be brave enough to make that call. If they have any integrity, they will issue a narrow ruling that allows states to determine for themselves, through legal means, whether Mr. Trump should be barred from office. However, if they follow the law entirely, they will bar him nationwide.

Unfortunately, the cynicism the Roberts Court has taught us makes me believe we’ll receive an illogical opinion whose notoriety will only be matched by the horrendous logic displayed in Bush v. Gore.

Categories
asides politics

Another week, another indictment

From the New Yorker’s In Georgia, Trump and His Gang Get the Mob Treatment:

There is a temptation to not even bother with the details, no matter how remarkable they may be. That which was unthinkable has now become something of a political routine: another week, another indictment…

“But, of course, there is nothing in the least bit routine about an ex-President being charged with the gravest offenses against the nation that one can imagine. And, even in this summer of Trump indictments, this new Georgia case stands out…

“Trump may believe the executive office comes with a magic get-out-of-jail-free card, but, even if the courts were to agree that it does, the card would only apply at the federal level. Georgia is outside the President’s jurisdiction. These are charges that Trump can’t kill.

Categories
life politics

Standing Up for LGBTQIA+ Rights: A Personal & National History

In September 2021, my child’s third-grade teacher dismissed his class for recess by using some fun way to divide them, with one group going first and the other going second. He did this often, with the identity of the two groups changing based on his mood. He might divide them based on their birthdays or their cookie preferences, or maybe about their opinions of Harry Potter.

On this particular day, he took what he thought was the easy route and divided them by sex: girls would go to recess first, and boys would go second.

He did not realize his prompt created a true crisis of conscience for my child.

A day later, my eight-year-old child came out to their mother and me.

They did it in their typical fashion. We had sent them to bed and were now relaxing on the couch, watching television. My child should have been asleep for at least half an hour, but they came stepping down the stairs in a Hogwarts robe (in Gryffindor colors) with their footie pajamas beneath it. They asked to speak privately with my wife upstairs, and after hemming and hawing, my wife acquiesced and followed them back upstairs.

About fifteen minutes later, my wife came down and told me it was my turn. I sighed, put down my phone, and walked upstairs, where I found my child smiling and kneeling on my bed. As I reached the top step, they slammed their face into the mattress, giddy with excitement. I sat beside them and asked, “What’s up?”

Without taking their face out of the mattress, they said, “I think I’m nonbinary.”

I don’t remember my exact words, but I made it clear I supported any label they claimed for themselves.

I also urged them to be wary of caging themselves behind a label. If, later in life, they started to experience themselves as a boy or girl, I didn’t want them to feel like it was wrong to feel that way, just like it wasn’t wrong to feel nonbinary.

Finally, I acknowledged the power that comes from matching the right word to the right sense, and I told them I hoped they now felt that sense of power.

My eight-year-old looked up at me and said they understood. They hugged and thanked me for being their dad.

During our conversation, they said they wanted to come out because when their teacher had divided the class into boys and girls, they felt distressed by the question and didn’t know which group they belonged to. But here’s the thing: they didn’t want to come out just so their teacher would know they were nonbinary; they wanted to come out so that any other nonbinary students in the class wouldn’t suffer the same stress and anxiety my child had felt.

They came out so they could protect others.

Yesterday, Texas became the most populous state in the nation to ban gender-affirming care for minors. They are the eighteenth state to target children whose gender, like my child’s, does not align with the one assigned to them at birth.

Using data suggested by a 2017 study from the Williams Institute on the age of individuals who identify as transgender in the United States, roughly 48,000 children between the ages of 13 and 17 are affected by these laws.

To put that in perspective, Manhattan has a population density of 66,000 people per square mile. If you were to round up ALL of the gender-non-conforming youth in those eighteen states and box them into one square mile of Manhattan (as I’m sure the politicians in those states would like to do), you would still need to add the entire population of a town the size of Concord, MA, to that one square mile if you wanted it to equal the borough’s current population density.

Still, with the volume of outrage coming from those who seek to limit the gender expression of these kids, you’d think our country was being taken over by a horde of woke parents with rusty knives who are driven to slice off the still-budding breasts and undropped testicles of all the nation’s children.

But the children affected by the laws in these eighteen states comprise less than 0.015% of the country. According to the same study, the entire population of gender-non-coming youth is probably no greater than 0.73% of the country.

The political party behind these laws — the Republican Party — depends on social issues to stir up the energy of its base. Having lost the original battle over segregation in the 1950s and ’60s, they spent the next fifty years continuing to lose on every other major social issue.

In the 1970s, the Supreme Court found in Reed v. Reed that the Fourteenth Amendment protected individuals from being discriminated against based on sex. This was extended in Title IX of the Education Amendments of 1972, which prevented sex discrimination throughout the education sphere, including school sports, sexual harassment policies, academic opportunities in engineering and the sciences, and discrimination based on pregnancy. It also (and most famously) recognized a federal right to abortion in Roe v. Wade.

With the “Reagan Revolution,” the 1980s offered the conservative counterpunch to the liberal victories of the previous decades. The attempt to pass an Equal Rights Amendment finally failed in the states after having been passed by Congress a decade earlier. Beyond the Reagan administration’s refusal to fight the AIDS epidemic, which was decimating the country’s (and the world’s) gay population, homosexuals suffered another major setback when the Supreme Court upheld a Georgian law criminalizing sodomy in private between consenting adults.

But there were some progressive victories. The power of Congress to extend the Federal minimum wage and overtime pay to state employees through the Fair Labor Standards Act was upheld, as was the right to parody public officials in the media, the right to stage a boycott to enact social changes, the right to burn the American flag in protest, and the right of students to be free from the religious doctrine of creationism in public schools.

The 1990s saw the Supreme Court uphold the fundamental principles of Roe v. Wade, affirming an individual’s right to abortion before fetal viability. The ruling in Planned Parenthood v. Casey extended the right further by acknowledging that an individual’s decision to undergo an abortion takes place in “a realm of personal liberty which the government may not enter.” The verdict invalidated Republican attempts to involve the state in discussions between pregnant individuals and their healthcare providers.

The Court also prevented the state of Colorado from enshrining discrimination against homosexuals in its state constitution, struck down the conservative moralizing of the Internet inherent in the Communications Decency Act and Child Online Protection Act, and prevented public schools from forcing attendees at graduations to listen to religious prayers.

In the 2000s, the Court reaffirmed its finding that the First Amendment’s Establishment Clause prohibits school-sponsored prayer. Santa Fe Independent School District v. Doe extended its interpretation of the clause to prohibit student-led and student-initiated prayer that utilizes school-supplied materials (in this case, a loudspeaker at a football game).

It also overruled its earlier decision in the 1980s and determined that all laws that criminalize consensual, same-sex sexual conduct violate an individual’s right to privacy under the Due Process clause of the Fourteenth Amendment. In Goodridge v. Department of Public Health, the Court affirmed the right of homosexuals to receive a marriage license (allowing for civil unions).

In the 2010s, the Court ruled in Obergefell v. Hodges that the exclusion of same-sex couples from the right to marry violated the due process and equal protection clauses of the Fourteenth Amendment, allowing homosexuals to gain all the benefits of marriage.

Despite capturing the legislative agenda of the Republican party, right-wing conservative Christians (a.k.a. “evangelicals”) had been losing in Federal courts for nearly fifty years. Progressives such as myself might be forgiven for claiming that the late 20th-century rise of the religious right was merely the death rattle of conservative America.

After all, demography equals destiny, and more and more children seem to be coming of age in a secular America with a fundamental belief and constitutionally defended notion of equal rights for all.

Unfortunately, as Monty Python tried to teach us, no one expects the Spanish Inquisition.

The makeup of the Supreme Court changed drastically during the Trump administration. During his four years in office, President Trump named as many justices to the court as President Obama did during his eight years. Two of those justices (Justice Gorsuch and Justice Coney-Barrett) resulted from anti-democratic maneuverings by the Republican leader in the Senate, Senator Mitch McConnell.

In 2016, Sen. McConnell refused to allow a vote on President Obama’s final nominee because, as he said at the time, he didn’t think it was fair to vote on a Supreme Court nominee during a presidential election year. However, when Justice Ginsburg died two months prior to the presidential contest in 2020, Sen. McConnell rushed through the approval process of Justice Coney-Barrett to ensure Justice Ginsburg’s seat was filled by a Republican nominee.

Thanks to Senator McConnell, today’s Supreme Court has a comfortable, conservative majority, even if you discount the predominantly conservative voting record of Chief Justice Roberts, whom arch-conservative critics call a “Republican In Name Only.”

The conservative majority on the Roberts Court has, most famously, struck down its holdings in Roe v. Wade and Planned Parenthood v. Casey, declaring that there is no Federal right to an abortion. The decision empowered state legislatures to determine whether a pregnant individual has the right to an abortion and what limits can be placed on that right.

The Roberts Court also dismantled the enforcement mechanisms of the Voting Rights Act of 1965, erasing nearly 60 years of civil rights protections for Black Americans in the hopes of enshrining the power of White politicians for generations to come.

In October, the Court heard the oral arguments in two cases related to affirmative action. The arguments did not differ from those made in earlier cases when the Court upheld the use of race in college admission decisions, but with the new makeup of the court, conservatives have their best chance yet of erasing the policy of affirmative action, not only from education but from housing, government contracting, and employment.

The Roberts Court has also begun to chip away at the wall separating church from state. The football coach at a public high school regularly conducted demonstrative prayers on the 50-yard line of the school’s football field. When the school decided not to renew his contract based on his behavior, he sued them for violating the Free Expression clause under the First Amendment. Even with lower courts supporting the school board’s decision based on the Court’s precedents around the Establishment Clause, the Roberts Court mischaracterized the facts to overturn the lower courts’ rulings. While the majority’s opinion suggests a narrow interpretation of the case, religious supporters see it as a sign of the Court’s willingness to revisit all its decisions on school prayer.

Is it any wonder that Republican politicians are going after transgender rights? Without abortion, racism, or school prayer to stoke the moral outrage of the rubes in the cheap seats, what other moral scapegoat could they use to drive Republican voters out of their pews and into the voting booths?

It doesn’t help that in 2020, 49.5% of white evangelicals believed that Donald Trump was anointed by God. Add to that the fact that President Trump banned transgender individuals from serving in the military, erased gender identity as a basis for sex discrimination in healthcare, and allowed sex-based homeless shelters to deny access to transgender people (and not just those who self-identified as trans, but anyone who the shelter believed may be transgender based on such fool-proof signs as height, the presence of an Adam’s apple, and other gender stereotypes).

Suppose God’s anointed messenger says being transgender is a sin, and the Supreme Court has taken away all the other wedge issues. In that case, it only makes sense to concentrate your political party’s incessant propaganda on saving the children.

My ten-year-old child came out as nonbinary because they wanted to protect those who could not speak for themselves. After telling their mother and me about their gender non-conformity, they asked us to speak with their teacher so he would understand the stress he had inadvertently caused to his students.

Since my child came out, over a dozen children in their school have confided to them that they are some flavor of LGBTQIA+. I’m talking about nine-, ten-, and eleven-year-old kids here. They come to my child because my wife and I have taught them to be proud of who they are, to stand up for their rights, and to defend themselves against anyone who tries to rob them of their power.

The other students come out to my child because, as my kiddo told me when I questioned the number, “they know I’m safe, Dad.”

Earlier this year, the state of Vermont passed the first law in the nation that explicitly protects healthcare providers from being sued or prosecuted for providing gender-affirming care. This was how my home state told its LGBTQIA+ youth what my child’s behavior told their friends: You’re safe.

My ten-year-old tells their mother and me that they want to be a lawyer when they get older.

I can only dream that they sue these hateful legislatures for violating their children’s right to be and express themselves in every color of the rainbow.

My child’s experiences are nested within a broader socio-political landscape that is downright frightening. The rhetoric and the rulemaking of the Republican party are resistant to change, and our nation is scarred by battles fought in courtrooms and legislative chambers.

While the laws and attitudes we’re currently facing are disheartening, I do not despair. I find immense hope in my child’s resilience and courage. I see it in the way the kids in their school grasp the complexities of sexuality and gender, viewing themselves honestly. Their bravery in accepting and declaring their identities should inspire all of us.

They fuel my motivation to build a society where truth is respected, not rejected. A society where each individual is allowed to explore, understand, and declare their identity without fear of repercussions.

We may not know the next chapter in our nation’s history. But together, we, as parents, teachers, neighbors, and allies, can write it. We must forge ahead with compassion for those different from us and a steadfast commitment to safeguarding each individual’s right to be who they are.

Categories
politics

A Brief Statement Regarding the Gathering of Kyles in Kyle, Texas

Tomorrow, Sunday, May 21, 2023, at 4 p.m. local time, the city of Kyle, Texas, will host a gathering of Kyles in Kyle Park in an attempt to break the Guinness World Record for the largest gathering of people with the same first name.

As happened before when an event regarding the name “Kyle” swept the news cycle, the nation’s Kyles convened in groups of 99 via Zoom to determine how we felt as a group about the news-causing event. The online convention was attended by over 90,000 Kyles from around the country, including just under a hundred ex-patriated Americans who go by the name Kyle.

Because this was our second online convention, we were able to dispense with preliminary discussions about how the process would work, and each group agreed from the outset that the representatives we elected at our previous convention would remain in place.

Humbly, this decision made me the de facto spokesperson for the nation’s Kyles. I did not and do not take this role lightly. I understand that my rëelection does not mean that the way I feel about a particular issue is the way all Kyles feel about that issue; instead, it means they trust me to craft the opinion of the majority of Kyles, regardless of how I feel.

With that being said, I offer the following statement regarding the gathering of Kyles in Kyle, Texas, on behalf of the nation’s Kyles:

In 2021, the state of Texas prohibited the right of child-bearing persons to have an abortion after a fetal heartbeat is detected. It also created a civil enforcement measure that allows any non-governmental employee to sue any other person involved in providing or intending to provide an abortion, including those who pay for the abortion. It also banned abortion-inducing medicine from the state, forbidding its delivery by mail, delivery service, or courier.

Between July 2021 and June 2022, school administrators in Texas banned over 800 books from their schools, making it the most censorious state in the nation. Between July and December 2023, Texas added another 438 instances of public school districts removing books from libraries and classrooms. The wave of book bans have caused entire classrooms and school libraries to suspend access to all of the books on their shelves in order to evade potential lawsuits.

Earlier this week, the governor of Texas announced he would sign Senate Bill 14 into law, which will prevent transgender youth from receiving puberty blockers and hormone therapies and undergoing gender-affirming surgeries (which are rare among children). Puberty blockers and hormone therapies are critical tools for improving the mental health of transgender children and stemming the high suicide rates among transgender individuals.

(Speaking for myself and as a teacher of several transgender students, I know that the loss of such medical care would likely cause more than one of my students to descend into irrecoverable depression and eventually result in a suicide attempt.)

Further, the governor of Texas has directed the Texas Department of Family Protective Services to investigate the parents of transgender youth, categorizing any attempt at providing transgender-affirming care for their child as “child abuse.” While courts have prevented the state from investigating specific families, it has not issued a universal ban on the state’s policy. Schools have pulled trans students from their classrooms to be interrogated about their medical care. Teachers, who are mandated reporters, are required to report to the state any knowledge they have of families who allow their children to live in a manner counter to the gender inscribed on their birth certificate.

During the 2023 legislative session and its special sessions, Texas legislators put forward 76 bills that targeted the LGBTQ+ community. These bills called for:

  • allowing Texas residents to file civil lawsuits against anyone who helped another Texas resident receive gender-affirming care, including out-of-state residents
  • removing the statute of limitations for malpractice claims related to gender-affirming care, allowing people to file a malpractice case against any doctor who provided such care to any person before the person’s 25th birthday
  • banning gender-affirming care for adults
  • making it a state felony to attempt to conduct surveys and studies related to Texas’s LGBTQ+ youth population
  • banning classroom instruction about sexual orientation and gender identity from kindergarten to 12th grade
  • forcing schools to disclose to parents any request from students to be identified as other than the gender on their birth certificates, as well as any exhibition of behavior for the purpose of exploring their gender identity
  • banning extracurricular clubs, activities, celebrations, or discussions related to sexual orientation or gender
  • banning all books a school district deems as obscene, and then registering the vendor of said books and banning all schools in the entire state from purchasing books from that vendor
  • requiring schools to enforce a separation of bathroom use based on “biological sex,” authorizing a civil penalty of up to $100,000 against the school for lawsuits related to a violation of the requirement
  • prohibiting teachers and other school employees from affirming a trans or nonbinary student’s gender in any way, including through the use of a student’s preferred pronouns
  • banning trans youth from participating in all sports as well as any school-based competition
  • restricting the state from developing forms that include anything other than “male” and “female” as an option for someone’s sex
  • defining any business that hosts performers exhibiting a gender identity different from the performer’s birth, including makeup or clothing, as a sexually oriented business in the eyes of the law
  • revoking state funding from municipal libraries that host an all-ages drag storytime
  • requiring birth certificates to mark down the biological sex of an infant defined exclusively by the presence of a Y chromosome

In 2021, Texas began preventing teachers from talking about “a particular current event or widely debated and currently controversial issue of public policy or social affairs” without giving deference to all sides, regardless of the ignorance that may fuel one or more of those sides.

As part of the same law — which attempts to target “critical race theory” as understood by ignorant Texas politicians — the state also prevents students from critically considering whether slavery and racism “are anything other than deviations from, betrayals or failures to live up to, the authentic founding principles of the United States” (ignorant, of course, because slavery was baked into the founding document of the United States and was only outlawed through President Lincoln’s objectively unconstitutional Emancipation Proclamation, which itself was only issued as a war-saving measure, and whose civil-rights legacy continues to be opposed by Lincoln’s Republican party, opposition whose modern form was inspired by the Supreme Court’s decision to ban legalized racial segregation in Brown vs. the Board of Education).

Of course, Texas would not be Texas if it limited its hate to women, LGBTQ+ individuals, and Blacks.

This session, the state legislature is considering a bill, H. 20, which would enact anti-immigration measures in opposition to Federal authority. It would compel the state to create a Border Protection Unit whose officers can arrest, detain, or deter individuals crossing Texas’s southern border using non-deadly force. It would also give those officers immunity from criminal or civil liability. The bill attempts to supersede the Federal government’s exclusive power over immigration by deputizing the state’s citizens as anti-immigrant vigilantes. It would require, de facto if not de jure, that all brown-skinned Texans living along the border carry their identification papers with them at all times or risk the effects of arrest, detention, and “non-deadly” violence.

Adding to its parade of hatred and condemnation, Texas has challenged the Indian Child Welfare Act in the Supreme Court. The act was passed by Congress in 1978 to atone for the United States’s disgusting history of removing Indigenous children from their cultural communities. It establishes a preference for placing any Native American child who has to be removed from their home with another Native family, ideally an extended family member, but if one is not available, with a member of the same tribe, and if that is not available, with a member of any tribe.

If Texas has its way (which it may at least in part, given the Suprem Court’s statements and questions during the oral argument in November), Native children may once again be stolen from their families and cultural communities, adding even more tragedy to our nation’s continuing genocide against the continent’s indigenous peoples.

While the Kyles of the United States welcome the attempt to assemble the world’s largest gathering of individuals with the same name, we cannot stand idly by while Texas threatens by law and by body the rights and privileges of the state’s women and minorities. If we were to venture to Kyle, Texas, this weekend, we would bring with us hundreds of thousands (if not millions) of dollars of economic activity, thereby giving tacit consent to Texas’ hatred.

This we will not do.

And so, on behalf of the nation’s Kyles, I have the honor of saying:

Fuck Texas.

Categories
life politics

The Nation Needs A Salary Cap

The majority of American sports leagues limit what they pay their players. The NFL, NHL, and MLS have “hard caps” that teams cannot go over, while the NBA’s “soft cap” penalizes teams that exceed it.

Major League Baseball doesn’t have a salary cap, which is why we see such obscene payrolls in baseball. The Los Angeles Dodgers, for example, had a total payroll of $260 million in 2022, which means they spent more money on their 40-player roster this year than the entire state of Vermont did on special-education ($213 million).

Freddie Freeman received a team-high $27 million from the Dogers in 2022.

Even with its hard cap, the NFL had a total payroll of about $6 billion. To put that in relative terms, the NFL’s payroll was higher than or comparable to the 2021 annual spending of four states: Delaware; South Dakota; Vermont; and New Hampshire. There are 1,696 players in the NFL; 1.3 million people live in New Hampshire.

Of course, if NFL owners are spending that much money on players, how much more must they be making on the backs of those players?

The most profitable team in the NFL, the Dallas Cowboys, have an operating income of over $280 million. They’re also the most valuable team at $8 billion. If Jerry Jones, the Cowboys owner, sold today, he would be able support the entire state of Delaware and still have about $4 billion left over to open the “Whites Only” high-school of his youthful dreams.

Jerry Jones in 1957 participating in a violent protest against black students attending a public school in Little Rock
Jerry Jones, the owner of the Dallas Cowboys, at Arkansas’ North Little Rock High in 1957, where he was one of several White students denying access to six Black students. In related news, over his 30 years as owner of the Cowboys, Mr. Jones has yet to hire a black coach.

Salary caps in sports are intended to ensure parity across the league. No offense against Green Bay, Wisconsin, but without a salary cap, there’s no way a city of just over 100,000 people could generate enough revenue to compete for players against bigger markets such as Los Angeles, New York City, Philadelphia, or Chicago. Thankfully, as a result of the salary cap, no one can predict what will happen on any given Sunday and a small city like Green Bay can afford the highest paid player in the NFL.

There’s Rich. Then There’s Unfathomably Rich.

But let’s go back to Jerry Jones. According to Bloomberg, the Cowboy’s owner was worth roughly $11.5 billion in Dec. 2022. That’s a $2.5 billion dollar increase from a year earlier. Mr. Jones’ income in 2022 was more than 165,271 times the median U.S. household income.

According to Forbes, Mr. Jones isn’t even in the top 40 richest people in America.

Elon Musk lost more money per minute in 2022 than nearly three median American households earn in a year.

Elon Musk, the richest person in the United States according to Bloomberg, lost $107 billion in 2022 (he actually lost $4 billion just in the hours it took me to write this article!).

Don’t feel too bad for him though; Mr. Musk is still doing fine with a valuation of $164 billion (as of this moment, anyway).

If we try to put Mr. Musk’s loss in more relatively down-to-earth terms, his wealth decreased $203,442 per minute, every minute, this year. His minute-by-minute loss was almost 300% of the median U.S. household income — in other words, Mr. Musk lost more money every minute than the combined yearly income of nearly three median American households.

Guatam Adani, the third-richest person on Earth, had the highest year-to-date change in 2022 when he increased his fortunes by $48.7 billion. Mr. Adani owns the largest port operator in India, as well as the largest closely-held thermal coal producer and largest coal trader. His yearly increase was over a million times greater than the median U.S. household income.

Mr. Adani is an Indian industrialist, however, so we should compare his income to his fellow citizens, the median of whom makes less than US $3,400 a year.

Compared to his countrymen, Guatam Adani made 14 million times what the median Indian household made in 2022.

“Every Billionaire Is a Policy Failure.”

These numbers make no sense. I don’t care what Mr. Adani or Mr. Musk bring to the table, they are not (as individuals) worthy of their wealth. As Representative Ocasio-Cortez (D-NY) has argued, every billionaire is a policy failure.

Rep. Ocasio-Cortez tried to address that failure by proposing (in the press, not in the Congress) a 70% marginal tax rate on incomes above $10 million. Millionaires would send the feds ¢70 of every dollar they earn above $10 million (while still paying 10% on their first $19,400; 12% between $19,401 and $78,950, etc., all the way up through the various tax brackets).

If Mr. Adani paid taxes in the United States under Rep. Ocasio-Cortez’s plan, he would still have taken home roughly $14 billion of the $48 billion he made this year. That’s more than the state budgets of Vermont, South Dakota, and Wyoming combined.

The $34 billion the government received from this one individual could cover the expenditures of 20 different states.

Mr. Musk complained of having to pay the world’s largest tax bill in 2021 when he (reportedly) sent the federal government $11 billion.

I’m all for the richest man in America paying the highest tax bill ever, but like those sports-team owners carrying those obscene payrolls — if that’s what he paid taxes, how much richer must he actually be?

A 70% Tax Rate Isn’t Enough

I’m a fan of Rep. Ocasio-Cortez, but I don’t agree with a 70% marginal tax rate. It institutes a soft cap. The nation needs a hard cap.

Between the day the U.S. formally entered a lockdown (March 18, 2020) and the day the U.S. passed one million deaths due to COVID-19 (May 4, 2022), U.S. billionaires increased their worth (as a group) by $1.71 trillion.

Seriously: you can’t even imagine a trillion.

In June 2022, the left-leaning (but factual) Institute for Policy Studies reported that the wage gap between CEOs and median US workers jumped to 670-to-1 (49 of the 300 firms they studied had ratios of over 1,000-to-1). For every $1 a median worker made, a CEO brought home upwards of $670. Only six of the firms studied had pay gaps of less than 100-to-1.

In another report, the Institute demonstrated how several states (and countries) actually have laws on the books to help these billionaires “avoid federal taxation, cheating the U.S. out of revenue with which it could combat poverty or invest in infrastructure.”

More than half of the states mentioned in the report have regressive tax policies, cutting taxes on the wealthy and forcing the poor to pay taxes on a disproportionate share of their income. The poorest 20% of households in South Dakota, for example, pay about 11.2% of their income in taxes, while the top 1% of South Dakotans paid about 2.5%.

The richest of the rich not only have more money than they need but actively conspire to keep what they have despite what our democratic republic requires of them.

These selfish assholes don’t deserve to keep the 30% that Rep. Ocasio-Cortez allows them.

Tax Incomes Over $1 million by 70% & Over $10 million by 100%

There’s no reason to allow billionaires to exist. Hell, there’s barely a reason to allow millionaires to exist. If an individual can’t satisfy their needs and wants on $1 million a year, then those needs and wants are probably immoral.

I’m willing to grant that a million dollar limit is a radical suggestion in capitalist America, so I’ll judiciously allow our top earners a maximum income of $10 million a year. They’ll just have to send ¢70 of every dollar over $1 million to the feds, and once they hit $10 million, every extra $1 is now ours.

If the US implemented such a drastic (but reasonable) policy, it would be normal to wonder what would happen to the country’s revenues. They wouldn’t include, for example, an $11 billion check from Mr. Musk.

But you also have to wonder how it would affect the country’s outlays. 40% of the 300 firms studied by the Institute for Policy Studies received federal contracts in 2021 totalling over $30 billion. Some of that $30 billion went to the outlandish salaries and bonuses of those firms executives.

A National Salary Cap Spreads the Wealth

Just like in the professional sports leagues, the intent of a national salary cap is to spread the wealth.

According to Salary.com, Walmart Inc.’s CEO made over $21 million in 2021, its CEO of Sam’s Club made over $12 million, and both its CEO of Walmart US and its Global CTO made over $11 million each. Its median (median!) employee pay, however, was only $20,942; half of all of its workers made less than that. Walmart’s CEO made $1,078 for every $1 its median (median!) worker made.

Walmart paid its CEO $1,150 for every $1 it paid to the bottom 10% of its associates.

If $11 million of the $21 million Walmart paid to its CEO would be sent directly to the feds, plus $6.3 million of the $9 million between $1 million and $10 million, it wouldn’t make sense for Walmart or its CEO to agree to his contract. Instead, the company would (hopefully) divert those millions back to the lower half of its other 2.3 million employees (more than half of whom, remember, make less than $20,000 a year).

You can think of this as a new form of trickle-down economics. Trickle-down economics (a.k.a., supply-side economics) posits that allowing the rich to keep their money will lead them to invest in their workers and research and development, creating new jobs — in other words, the wealth of the rich should trickle down to the average American.

Unfortunately, trickle down economics underestimated the power of greed. It also forgot that things only trickle down after they fill up a limited container; otherwise, they just keep growing.

In my version of trickle down economics, the maximum limit is $10 million, with money pouring out faster and faster as soon as it breaks $1 million. Extend this idea to corporate profits in general, and all of sudden, the nation itself, and all of its workers, will become as successful as the NFL.

Categories
asides politics

20 climate photographs that changed the world

From 20 climate photographs that changed the world:

They are the images that made us sit up and take notice. As world leaders gather for Cop27, these pictures prove that global heating isn’t a distant possibility – it’s already here

Categories
life politics

Negotiate From A Position of Power

In 2020, a millionaire named Raj Bhakta purchased my alma mater and neighbor, Green Mountain College. He didn’t know what he’d do with the old girl when he purchased it (I had some ideas), but two years later, he has a better sense of things.

According to the development papers he recently submitted to our town, he now “seeks to turn the property into a regional destination for agrotourism, hospitality, small businesses, and post-graduate food and beverage education.” He imagines that “the campus will become the incubator for entrepreneurs developing new businesses who seek to locate in a dynamic and energetic work community.”

The estimated $100 million plan has three phases to be developed over the next decade:

  • Phase 1 (2023-2026) will convert existing college dorms into a 100-room destination hotel and twenty-three new condos, turn the college’s gym into a spa/fitness/wellness center, convert the main cafeteria into a convention center and the library into a “bulk storage tasting space,” and finally, construct a new “antique small craft distillery”
  • Phase 2 (2026-2028) will see the development of a brewery/tasting room, the addition of 40+ apartments, a sports complex, an equestrian center, and outdoor gardens
  • Phase 3 (2028-2030+) will include a post-graduate education center, a roastery, sports fields, improved trails, and a walking garden

The first part of the plan requires developing a significant number of new parking lots and some new road construction (to avoid traffic on the residential terrace beside the property). They hope to shield most of the parking behind three-foot-high brick walls (similar to the walls already on campus) with “dark-sky friendly” lighting. They hope to build enough parking for 549 vehicles (an increase of 412 from what the college had).

Finally, he would like to add a helipad to the circle in front of the college. Because the property anchors the west end of Main Street, the helipad would dominate the view on Main Street.

GMCTo attract investors to the project, Bhakta asked the town in March to stabilize his property taxes for the next ten years. He argued that he already pays more taxes than the college ever did (since the college was a non-profit educational institution), and he’s not asking for a tax waiver — just tax stabilization. He suggested in a presentation to the town that he would use “his current $100,000 tax bill as a base to which a surcharge equivalent to a quarter of a percent of the development’s gross revenues would be added.”

When he made the presentation, he added a veiled threat: a religious group had contacted him about purchasing the property, and if the town didn’t back his development plan, he might have to sell to them; as a religious institution, they’d be tax exempt, so stable taxes with him would be better than no taxes at all.

About a week after the presentation, the town voted to give the select board the power to explore a tax stabilization deal with Bhakta. Still, any agreement would be subject to the approval of the town’s voters.

The tax stabilization deal is perhaps the only leverage the town has over what happens at the former college. We learned the hard way that zoning, permitting, and democracy doesn’t work. Despite the zoning board and the town’s voters rejecting the construction of a Dollar General in town, the developer had deep enough pockets to fight it in court, and the town ran out of money to keep up our appeals. The Dollar General should open at the front gate of our town any month now.

Outside of the helipad (which I’m entirely opposed to from a noise pollution standpoint), I’m not opposed to Bhakta’s plan. It supports the goals of our official town plan, which seeks to “grow Poultney’s outdoor recreational economy, support existing businesses, and encourage new ones.” With a focus on agrotourism, the renovation of dorms into a 100-room hotel, and the conversion of other dorms into condos (I’m guessing for short-term rental purposes), it could bring the tourists every Vermont town needs to survive and thrive.

I have concerns about the destruction of the trees on campus and how the added parking lots will contribute to run-off pollution into the Poultney River. I hope regulations around Act 250, Vermont’s land use and development law, may help balance those concerns.

With all of that, the tax stabilization deal does give the town some leverage over Bhakta’s plan. One of my neighbors suggested the select board could use that leverage to ensure Bhakta hires a certain percentage of contractors, construction workers, and service industry folks from the local pool (however that gets defined). The town could also require he set aside a certain percentage of the 40+ apartments built in Phase 2 for low-income Vermonters. I support both of those proposals and encourage the town’s residents to brainstorm even more.

Bhakta said in his presentation that the town’s support of his development is vital to his success. If that’s true, let’s ensure (in writing) that his development contributes to the town’s success as well.