Category Archives: National

The Scalia Legacy

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It’s already started, the conservative drumbeat about how devoted Scalia was to the Constitution.

Nothing could be farther from the truth, of course, but that doesn’t stop them from saying it.

Scalia practiced a form of fundamentalism known as textualism or originalism. Like religious fundamentalism, it has never been a consistent intellectual theme in either law or religion, but is a reaction to modernism and the inclusion of new ideas and population groups. The originalism practiced by Scalia, Thomas, Alito, and Roberts is merely an intellectual gloss on their visceral disapproval of the Twenty-First (and much of the Twentieth) Century.

A perfect example of Scalia’s legacy, one that has had terrible consequences for the United States and the world, is Bush v. Gore.

We know what Bush v. Gore did: it installed George W. Bush as president. What is significant to understand the thinking of the majority, however, is how they reached that result. The basis of the decision was the Equal Protection Clause, and the claim that differential vote counting methods in different counties in Florida violated equal protection.

The irony, of course, is that the majority was a collection of conservatives who never, ever saw an equal protection claim they agreed with. For them, and for Scalia in particular, the Equal Protection Clause was entirely limited to what Congress intended when it adopted the Fourteenth Amendment, and could legitimately go not an inch beyond. Thus, for example, Scalia consistently refused to apply equal protection to claims of sex discrimination because it never occurred to 19th Century Congressmen that women could make a legitimate claim to political or legal equality.

No, but for some reason, unique in the history of jurisprudence, the one disfavored group entitled in the eyes of these conservatives to make an equal protection claim was the residents of certain counties in Florida. Because that’s what the Civil War was all about, right? Oppressed county residents.

Going further, the fundamental meaning of Bush v. Gore is set forth in one notorious sentence: Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

If there is any question in your mind, that meaning is that the conservatives were not deciding a case based on a legal principle, which would, of necessity, be limited not just to “present circumstances”, but would be applicable to all future cases raising the same legal questions. No, their decision was merely that they preferred to choose the Republican and not the Democratic candidate, and if you didn’t like it you could, as Scalia said, “Get over it.”

Not a justice or a legal scholar, but a thug.

Dr. Strangedrug or: How I Learned to Stop Worrying and Love Big PhARMA

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I watched the Super Bowl with my father, and as a cord-cutting member of the millenial generation I will admit that the most expensive ad buys of the year are a guilty pleasure. My fave was definitey Mt. Dew Kickstart’s “Puppy Monkey Baby”. Great dose of weirdness for a product I will never buy.

The real shocker though was an ad for a new drug, taking care of a problem one would like to think only a small, small minority of Americans face. Surely the market of people suffering from Opioid-Induced Constipation is not so great as to justify a multi-million dollar Super Bowl ad buy…. but apparently it is.

According to CNN there were 259 million prescriptions for opiates in 2012. Percocet, Vicodin, and the big daddy of them all OxyContin. The U.S. Pain Foundation says 1 in 3 Americans are in pain. If the market keeps growing the way AstraZeneca thinks, there will be 10 times more people who are suffering from OIC in 2019 than there are today.

The reaction to the ad was swift. Federal, state and local law enforcement took to Twitter to voice their disgust. Gov. Shumlin weighed in saying,

“The irrational exuberance with which opiates are handed out in America is driving the addiction crisis in this country…Now is the time to change that, not attempt to further normalize long-term opiate use by advertising a drug to help people take even more opiates during the most watched sporting event of the year.”

There is a huge disconnect between the public health crisis of opiate addiction and the pharmaceutical and healthcare industries promotion of these drugs. The fact that these drugs relieve terrible pain in a powerful, some would say “miraculous” way isn’t a justification for their liberal over-prescription.

My high school friend died from a heroin overdose, and got started by using pills like OxyContin. Another friend found his teenage son dead. These deaths are preventable. We could decide to treat these drugs with greater care. Limit their availability to those who are severe pain for whom non-opioid pain relief isn’t enough. That is not what we do. Opiates are the go to for post-operative pain management and chronic pain management.

I once went to the doctor with a friend who had a severe sore throat that wouldn’t go away. She walked out of a short visit with a big bottle of Hydrocodone. It was like prescribing a bazooka when a BB gun would do. She ended up just taking some Tylenol and resting up for a couple of days.Is the elimination of pain really a healthy goal for a society when the side-effect is the death of our children? Why are we doing this?

The answer is so obvious and so banal, it’s become cliche: PROFITS. Last year Forbes did a profile of the Sackler family and their $14 Billion net worth. It’s a sickening read. It describes the way in which the Sackler’s company, Purdue Pharma took generic Oxycodone, added a time-release mechanism to “prevent abuse” and expanded the market far beyond the cancer patients that a powerful opiate like this was originally prescribed to treat.

“Someone looking for a fix could just crush the pills to break the time-release mechanism, then snort the powder for a heroin-like high. Addiction, overdoses and accidental deaths followed, and Purdue Pharma found itself facing charges that it had misbranded OxyContin as far less risky than it was.”

They ended up paying $635 million in fines in 2007. I bet they still crack jokes at parties about the tiny percentage of their billions this amounts to. I wonder how many people they know are hiding their opiate addiction from their families, switching to heroin when they can no longer afford the pills and dying as a result of the Sacklers’ greed.

Yesterday I attended a “Congress in your Community” event with Rep. Peter Welch. Former State Senator Sara Kittell talked about the need for more support for treatment and recovery programs. We discussed the success of some local law enforcement efforts. Everyone looked at me like I had two heads when I brought up the idea of limiting the amount of prescriptions being written for these drugs. Before you work on the symptoms of blood loss from a patient, don’t you staunch the bleeding?

Local politicians pay a lot of lip service to this issue, but they haven’t been willing to demand that we do healthcare differently or put up the resources for access to treatment and recovery programs. We have got to have a shift in policy at the federal level, no doubt. However, we could do some things at the state level that would make prescription opiates less available. This requires challenging the pharmaceutical and  healthcare industry and our culture’s obsession with pain.

In a way I wonder if we’re all addicted to opiates. I’m not willing to watch people in my life become addicted to opiates and die from them and then pretend that there’s nothing we can do to prevent more deaths. We know what we have to do, but I fear we don’t have the will to do it. The fact that it has become acceptable to promote the sale of a drug to treat a side-effect from opiate use during the most-watched sporting event of the year should be evidence enough that we have a huge problem.

O Frabjous Day! Callooh! Callay!

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Good news travels fast, so you already know.

Scalia is dead, and good riddance.

Amidst the celebrations, I thought I’d throw out some initial thoughts about what this means.

First, Obama gets the opportunity to nominate a replacement. The Republicans may not like it, but here’s what the Constitution says:

He . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:

Second, he’s going to have a fight to do it. Already we’re seeing Republicans saying that he should hold off until the next president takes office. You can understand why they would say that, but bullshit. It’s almost a year until a new president takes office, and many cases to be decided. It would be irresponsible to leave the Court with a 4-4 split for the rest of the current term and the first half or more of the next term, especially when the sole reason would be to give a Republican the chance to do it.

I’m hearing people say that there is a tradition not to fill a Supreme Court vacancy in the last year of a president’s term, but that’s also nonsense. The occasion hasn’t come up that often, since there have been only 112 justices, but a quick look tells me that both Anthony Kennedy and Benjamin Cardozo were appointed in the last year of their appointing president’s terms.

Speaking of Kennedy, this is a huge demotion for him. If Obama does get a nomination confirmed this moves Kennedy from being the most powerful member of the Court, the perennial swing vote, to the guy who gets to decide whether there are three or four votes in dissent.

Still speaking of Kennedy, there are important cases that have already been argued this term, and important cases yet to be argued. One recent example is Friedrichs v. California Teachers Association, an attack on public employee unions; there are also abortion rights and voting and redistricting cases before the Court.

The way the Supreme Court works is that it takes a majority vote to reverse a lower court decision that comes to the Court. Thus, if the votes are split, 4-4, which is the way things stand now, the lower court’s decision is upheld. If you look at the list of the cases already argued and awaiting decision, or even the cases yet to be argued this term, you will see that in some of the cases it is a conservative challenging a liberal decision, in some it is a liberal challenging a conservative decision. As long as there is a 4-4 split on the court we can predict that there will be some lower court decisions that would certainly have been reversed with Scalia voting but that will likely be upheld without him as the fifth vote to reverse.

Finally, a few last points about a replacement. I don’t doubt that the Republicans will do what they can to block any nominee, and if they vote as a unit they have the votes. There is one absolutely clear point you can make about the Republican caucus in the Senate:

Looking at the list of Republican senators I have a hard time seeing how he gets 14 votes (counting Sanders and King as Democrats).

Nevertheless, let’s say he goes forward with an appointment. I don’t have any inside information on who might get the nod, but I think we’re looking at a youngish–fifty or younger–person who has already been through the judicial or Cabinet-level confirmation process. Wikipedia has a list of people who have been “mentioned” for Obama before that I’ll link to here, along with a list of his judicial appointments. Look to judges who were appointed unanimously or nearly so: there may be some Republicans who would be hard put to justify rejecting someone they’ve already voted to confirm once or twice. Finally, as a long shot, there’s always the possibility of nominating a senator. I’ve heard it said that almost any senator would be confirmed, but that was in earlier, less bitterly partisan times.

And, to imagine one particularly unlikely scenario that might have a certain Machiavelian appeal to it, how about Hillary Clinton? She’s a smart lawyer, but she has two things that might make her appeal to the Republicans: she’s old, so she won’t be in office as long as a different appointee, and she gives the Republicans what they want, the chance to run against Bernie in November. Ya think?

Of course, anyone’s guess is as good as mine. I wouldn’t be much on his chances of getting someone through, but someone who has a less dark view of the Republicans in the Senate might be more optimistic.

To Hillary: as if it matters

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Piece of advice, Hillary?

Lose the Silver Fox with his foot in his mouth.

Allowing Bill Clinton to lash himself to your campaign did you no favor in 2008. This year, its an even worse idea.

As everyone within shouting distance knows, I am a HUGE Bernie Sanders supporter.

Nevertheless, I recognize Hillary’s competence and experience. If, after a fair primary season, she is the nominee, I will support her.

That being said, I never liked Bill and am liking him less every time he opens his mouth.

What Hillary has to understand is that many Bernie supporters don’t dislike her; but this is despite her husband, who falls just a little to the left of George Bush in the greater scheme of things.  He does nothing to burnish her progressive credentials, if that’s as important to her as it seems to be.

Worse than Monica Lewinsky, he gave us NAFTA and “Don’t ask, don’t tell”…which probably was his personal motto.

Under Boyfriend Bill, the rich got still richer and the myth of American exceptionalism was on steroids.

If it’s all about summoning some sort of racial divide based on voting habits from twenty years ago, that seems more than a little demeaning to minority voters who are, after all, individuals  whose lives have been shaped, much like everyone else’s have, by events and emerging issues from the intervening years.

Please Hillary, PLEASE: send the big boy home.

He will be toxic for your campaign and, by extension, the whole Democratic party.

Ground Hog Day: De-Bugging the F-35

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It seems the F-35 fighter; aka the most expensive weapons system ever, hasn’t been in the news too often lately. And most of the news out that is out there is awful, according to reports in early February. If or when the jet fighters do fly on a regular basis, at some point in the future some will be used by the Vermont Air National Guard and based at the Burlington airport. This is over objections from residents in nearby towns over possible noise levels during take-off and landings — so, here’s a heads up for Vermonters. f-35model

If you care to read more details, that can be done here. But these three descriptive headlines provide a more than adequate, quick summary: The Version That the Marines Are Using Is Very Buggy;  ALIS [Autonomic Logistics Information System] Is Still Terrible, Perhaps Even Getting Worse; and my favorite,  Lockouts, Confusion, etc.

From Lockouts,Confusion,etc.:

  • The F-35 fails to detect if it’s been flying too fast or what effect that might have. “The Integrated Exceedance Management System, designed to assess and report whether the aircraft exceeded limitations during flight, failed to function properly.”
  • The plane “randomly prevented user logins into ALIS.
  • The plane doesn’t know how broken parts are: “The maintenance action severity code functionality…designed to automatically assign severity codes to work orders as maintenance personnel create them—did not work correctly.”
  • The plane’s crews need to phone Lockheed Martin tech support because the plane can’t handle the data it needs to process in order to run missions. “Managing data loads associated with mission planning required extensive contractor support.”

I think it was on Ground Hog Day that the Pentagon’s office of testing’s recent evaluations made their way into the news. So if the report sees its shadow and tax money is allowed to flow on and on, there will likely be six more months of testing for the most expensive weapons system ever. One does wonder how many crashes and injured or killed pilots will it take to ground this hog.

 

GOP Governors Love the French Revolution: Cake & Guillotines

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This is Michigan Gov. Rick Snyder’s (R, plumbago) wife’s birthday cake.  Really! snydercake

The Governor took some time recently away from dealing with the Flint city water emergency to celebrate in style behind blacked-out windows at an upscale Michigan restaurant.

The owner of the boutique bakery said : […] “We knew that renting out West End Grill is not a cheap thing to do on a Saturday night, but we have a lot of high end clients. We just didn’t know this one was the governor.”

The cost of the cake was not divulged but it took 30 hours to bake (build/design?), and the bakery charges by the serving: there were 60 servings in this cake. The outlandish cake seems almost by design to draw contrast to the thousands of Flint residents unable to drink and in some cases even wash with their tap water.

While under management of Gov. Snyder’s hand-picked overseer, the water system of the city of Flint, Michigan (pop. 100,000) became contaminated with high levels of lead. The contamination apparently happened, at least in part, as a result of cost saving measures. Congressional hearings are being held, but Republican Governor Snyder was not subpoenaed. Several members of his administration were forced to testify but Snyder has ‘declined an invitation’ to testify before a congressional committee on February tenth. Guess he must be busy planning his wife’s party, er, I mean, managing the water crisis.

So what is it with GOP governors and the French revolution? Last month Maine Governor Paul LePage  publicly expressed his interest in bringing back the guillotine for criminals. And now Governor Snyder’s cake recalls a similar level of insensitivity to the plight of others as Marie Antoinette’s famous,  “Let them eat their cake” remark directed at starving peasants.

But let’s be fair, Governor Snyder isn’t totally insensitive and he does make sacrifices. With a net worth in 2014 of approximately $200 million, the former venture capitalist and Gateway Inc. president  selflessly declines his yearly state salary of $159,300 and returns it to the state. Still, it leaves him enough for cake.

A Pox on Both Their Houses

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Now that Donald Trump‘s suit of alligator armor has suffered a rent in Iowa, I feel it is safe to say that on one thing we agree: Ted Cruz’s campaign is guilty of fraud.

No matter how you parse the story, Ted Cruz’s tightly run campaign dispersed a false story to Iowa Caucus goers, that Ben Carson was stepping down and his supporters should switch their vote to Cruz. The record of communications clearly demonstrates that this was an attempt to move voters over to Cruz by deliberate deception.

The Cruz campaign attempted to hand-off the blame to CNN. Fortunately, in this era of wall-to-wall records, it’s perfectly clear that the Cruz campaign took the legitimate story carried on CNN that Cruz was not flying to New Hampshire that night but rather to Florida “for a change of clothes,” and transformed it into a boldface lie.

That goes well beyond ‘dirty tricks,’ of which Donald Trump has no doubt played plenty.

Cruz has apologized to Ben Carson, and it is questionable how much of an effect the ruse had on the outcome; but defrauding voters is ‘voter fraud’…something which Republicans are always allegedly combatting in their efforts to suppress votes by minorities.

How is this kind of voter fraud consistent with Ted Cruz’s supercilious holier-than-thou Christian values?

Cruz’s surrogates are dismissing Donald Trump’s call for redress as the predictable whining of a sore loser. ‘True enough; but it’s not as simple as that.

What happened to that great Christian value of accepting responsibility for your actions? Apparently, if you have the credentials of a certified pious zealot, you are entitled to a ‘get-outta-hell’ card every now and again. Just say ‘sorry’ and you’re good to go.

I hope Trump does sue Cruz’s campaign. By all rights, he might just win that one…and he does love to win.

Bernie’s revolution had a promising night.

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Last night’s Iowa primary was a wild ride as befit the first official vote in this extraordinary year.

Even though cable news awarded the win to Clinton, the clearness of victory most certainly remains questionable and must be bitter-sweet for the once presumptive nominee.

Establishment pundits on the same cable networks still insist Bernie doesn’t stand a chance against Hillary when minorities are factored in, but his long-time supporters know how compelling his arguments are among almost any demographic once he is able to reach them on their home turf.

Conventional wisdom treats minorities as monolithic voting blocs, likely to herd in one accustomed direction. When you think about it, that’s a pretty demeaning assumption. If we are learning anything from this election cycle, it is the folly that lies in making assumptions.

The only question is whether there is sufficient time left for Bernie to make contact with all those voters in crucial southern states who are just now becoming familiar with his name.

I don’t know the answer to that, but I do know that Bernie is likely to get his revolution in the long run, if his support among young people is anything to go by.

Last night was far more of a moral victory for Bernie Sanders than it was for Hillary Clinton.

With Iowa, he has already proven that, even after Citizens United, a principled candidate relying solely on small donations can still be viable against the kind of money Hillary Clinton is able to summon from establishment and corporate interests.

It must be hugely gratifying for a man who has devoted his long political career to fighting for the little guy, often suffering ridicule for his idealism.

There is an overarching theme of populism driving both the Democratic and Republican primary races. Make no mistake though; while some glib pundits suggest they are drawing from the same pool of discontent, the theme plays in a wildly different key on either side of the two party divide. Suggestions, by the same pundits, that Bernie supporters could ultimately be recruited by Trump in the event of a Hillary nomination, demonstrate how clueless the mainstream media is about the values of Bernie voters. This is hardly surprising when you consider how little attention they paid to his candidacy throughout the summer and fall.

Bernie Sanders’ revolutionary message appeals to our evolved and ‘better’ selves, while that of Donald Trump appeals to the primitive and selfish id, which instinctively responds with an adrenaline rush to fear and prejudice.

The same kind of anti-minority, nationalistic drum-beat that recruited God-fearing German citizens to join Hitler’s brownshirts is calling the extreme right flank of the Republican party to renounce the traditional American values of personal liberty, tolerance and generosity that underly our constitution.

No matter who ends up the Democratic nominee, to imagine Bernie’s followers could ever fall-in behind Donald Trump is truly laughable.

EB-5 extended despite “constantly evolving” schemes

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Critics and some supporters of the EB-5 investment and immigration program agree it needs improvements in oversight to avoid fraud. Yet with the passing of the Congressional omnibus spending bill in December, the program was extended without changes for the next nine months. This is in spite of the fact that the Government Accounting Office raised doubts about regulators’ ability to keep up with “constantly evolving” schemes to defraud investors.

However, according to one business publication there is rejoicing. Congress’ extension without changes is welcome news for all participants of the program— investors, regional centers, developers, and marketing agents alike—for the time being.

The Immigrant Investor Program grants permanent residency to foreigners who are willing to invest $500,000 in certain approved businesses that promise to create at least 10 jobs. Vermont’s Regional EB-5 Center has several such programs, including developments at Mt. Snow, the Trapp Family Lodge, and Sugarbush. The largest by far is Bill Stenger’s $750-million Northeast Kingdom Economic Development Initiative which includes Jay Peak, AnC Bio and Q-Burke.EB-5 map2

A year ago this February, the state of Vermont was sufficiently worried about security fraud allegations that they shifted oversight of the program (in VT.) to the Department of Financial Regulation. Nationally, the SEC reportedly subpoenaed Jay Peak’s EB-5 records and conducted interviews with development associates.

Alarms and warning bells have been going off nationally for a while.

As of May 2015, the Securities and Exchange Commission and other federal law enforcement agencies had 59 open investigations relating to EB-5 projects, 35 of which “primarily involved securities fraud issues,” according to the report. The SEC received more than 100 “tips, complaints and referrals related to possible securities fraud violations” between January 2013 and January 2015.  

EB-5 supporters Senators Chuck Grassley and Patrick Leahy hoped a proposed series of reforms would tune up potentially fraud-ridden programs. Among the changes that made it to a compromise bill (but which eventually proved to be sticking points) were rules to narrow definitions of employment areas, closer supervision of regional centers, impose filing fees for investors and increase the investment requirement to $800,000. The powerful US Chamber of Commerce and the Real Estate Roundtable, along with large developers, opposed the changes.

But none of that was destined to happen. And EB-5 developers, lawyers, and marketing agents now have until September 2016 to drive stakes into future reforms. Are they really the  stakeholders, or are they the vampires sucking in money from investors seeking a return in addition to green cards?

Vermont to Receive the Imp of Intolerance

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Responding to the news that Donald Trump plans a visit to Vermont, our own Senator Bernie Sanders released this rather restrained statement:

“I welcome Mr. Trump to Vermont. I hope his presence here will help him better understand Vermont values — social and economic justice, tolerance, respect for all people and the environment.”

…To which I can only say, “Don’t hold your breath, Senator!”

For the Vermont Democratic party this is a sit-back-and-enjoy-the-show moment because, whatever happens, the Vermont GOP is bound to be dis-served by a visit from the celebrated Imp of Intolerance.

Usually, a big name on the national ticket coming to town means donations and reflected glory flooding statewide candidates of the same party.

That doesn’t promise to be the likely effect of Mr. Trump’s visit.

I almost feel sorry for Randy Brock, who has very recently taken a giant step away from the presumptive GOP national nominee…something that Phil Scott has avoided over the past couple of months, although he did say last September that he couldn’t support Trump.

What might Phil Scott’s reward be for keeping a lid on it?  A photo op with His Nibs?  And how would that play in Putney?

Under the immediate circumstances, I don’t know which has made the wiser decision.