THE MUGGLEBEE FILES : The T-Rex partnership and the industry that may face extinction

Rex

^ Rex Tillerson as T-Rex

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Donald Trump has now signed an executive order to rollback Obama’s Climate Change initiatives. This was no surprise to anyone; it’s another sign of his siding with big business interests and, as he puts it, “make America wealthy again”.

For a change, he’s telling the truth. He’s just not very good at doing — by which I mean, succeeding at what he tries. This is important, because as many do not know, a major industry faces potential extinction, and Trump is trying to save it : an industry that has been very wealthy for a very long time. The apex predator on the planet.

Things have begun to change, along with the planet. CO2 emissions are have risen beyond safe levels; weather changes have wreaked economic havoc as these global forces adjust to mankind’s efforts to profit by fossil fuels; and certain interests have begun to combat the problem, giving rise to a new and progressive move toward sustainable energy.

Donald Trump’s election has brought this fight directly to the people of this planet. Yes, his substantial failures in the first 60 days foretell an incapacity to be an actual president. But in he did make one substantial choice that needs much more attention: Rex Tillerson as Secretary of State.

Tillerson was the CEO of Exxon Mobile. He personally oversaw infrastructure investment and development in countless countries around the globe, making Exxon the single biggest company in the world. His exit from Exxon was a significant shift, but not without precedent; George W Bush was an oil man (though not a successful one). Nevertheless Big Oil had major influence in putting Bush into the White House in 2000. Big Oil has always played a role in politics, thanks to its enormity. It’s a serious business; its interests topple countries, empires, and despots.

One thing we learned during the Iraq War was how big oil took us to war, literally. War is expensive, and everything in war is not only based on oil but made of it — and runs on it. When an Administration decides to go to war, it needs the help and coordination of Big Oil.

In 2003, the launch of the Iraq War required the oil industry’s collusion. OPEC had to increase the flow of oil, so that its price could cheapen — thus reducing the war’s initial cost. How did they do that? They enlisted the Saudis, our allies.

Note this, however; Big Oil is American-based companies like Shell, Chevron, and Exxon Mobile. As for Middle Eastern oil, and the nations referred to as OPEC, it’s chiefly the Saudis. Big Oil works with the Saudis, who in 2003 controlled about 20-25 percent of the world’s oil supply. The scratch-our-back-we’ll-scratch-yours relationship meant that the Saudis agreed to turn up oil flow —  temporarily — making it cheaper. But in exchange for what? War. We shaped the Middle East in their favor and in ours. The ultimate goal, however, was to make money. So, after the United States military went all to its war budget, something remarkable happened…

The flow of oil reversed. And the price went up. As did profits. What was cheap to get in…turned expensive to get out of.

The whole equation benefits oil, across the board; what was an initial cheap investment becomes a lucrative payoff once in. The cost of doing business, they say. And guess who pays for that? Yeah, us, the tax-payer.

Since Big Oil and the Saudis are in business together, when the Saudis start profiting by The War, so does Big Oil. And who, of all the Big Oil companies made the most money off the Iraq War? Exxon Mobile.

The world is changing, undeniably — but not yet to the good. China is the biggest carbon emissions producing nation in the world; and the largest carbon emissions consumer ? Is the United States. After Saddam fell and the Iraq War ended, China began buying oil from Iraq and guess who they cut out? Exxon. This particularly angered Rex. When the 2016 election came and the unlikeliest of candidates, Donald J Trump, ran and actually won, Big Oil had a chance to save itself. Profits were down 30 percent under Obama, and Exxon, after the China debacle, had invested one billion dollars in Russian refineries in order to start pumping. But thanks to the thug culture headed by Putin, he and his Oligarchs were sanctioned. Which meant that Exxon couldn’t recoup its money. Come the Trump win — widely suspected to have been engineered in part by Putin — Exxon saw a chance. It could install someone at the top of the State Department who could make this Russia thing work. Thus Rex Tillerson.

Meanwhile, a curious coalition was forming. “Renewable energy” became a buzzword, and then a reality, as investors began to deem it possible to shift from over-dependence on oil, thereby save our planet — hopefully. This idea could even be profitable !

For Big Oil, all has not, however, gone as schemed. There’s this Russian scandal. Trump appointing Rex — whom I will now refer to as T-Rex — seemed an ever more strategic move. Yet as carbon-based fuels are more clearly viewed as something we need to discard, perhaps Big Oil has felt a pinch. Then it happened: Exxon’s shareholders filed class action suits against Exxon. Over what? Alleged evidence that Exxon knew its business had slumped and that it  defrauded its investors by saying it hadn’t. It got worse. Certain AG’s of certain states began filing class-actions. But — for something else, something far more grave. That Exxon knew the effects of climate change and were deliberately denying their knowing. Parallels to the tobacco industry were obvious. And the class-action had a new element: some AG’s were being paid, or forced, to spread the lies by punishing climate change scientists and businesses.

Yes. This is alleged.

Much of Trump’s agenda is regressive. Taking away rights, mistreating women, promoting coal mining. But I’ve heard it said that as a system nears a point of change, where it must evolve or perish, as critical point approaches, the business turns ever more dysfunctional, immedaiely prior to changing, as a caterpillar that becomes a butterfly. (Or a T-Rex becoming…what?)

T-Rex’s were the planet’s apex predator millions of years ago. No one quite knows why it didn’t survive, but some say it’s because it has such small hands (and arms). Science indicates some catastrophic change occurred, a global crisis that took that animal out and many of its contemporaries. We are facing something similar, we just don’t know it. Or maybe some of us do: yet the tobacco industry, for its intentional deception of the American people about the ills of smoking, was hit with the single largest monetary verdict in the world. It’s arguable that Big Tobacco hasn’t recovered and as the ills of smoking become ever more obvious, the industry itself is not what it once was. Like a dinosaur that used to roam the planet recklessly producing CO2 (and cancer) in its wake, tobacco may, hopefully, wane. Become extinct, maybe. Big Oil is facing a similar crisis, one in which it needs to get out in front of the wave. This now rests in the hands of one Rex Tillerson, former CEO of Exxon, now Secretary of State, third in line to the President, the man who is the dumbest failed businessman in the history of this country.

—- Christopher Mugglebee / The Mugglebee Files for Here and Sphere

THE MUGGLEBEE FILES : IF THE AHCA HAD ACTALLY BECOME LAW ….

 

chris

^ Christopher Mugglebee writes “The Mugglebee Files”

NOTE : This long-read on the now failed AHCA was written the day before the bill was withdrawn. We publish it for its insights and detail and because the issues presented in it, and in the AHCA, remain unresolved and needing resolution somehow, and soon. — the Editors

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“Health is the first wealth.

-Ralph Waldo Emerson”
America has always had a complicated relationship with wealth; it aspires to obtain it, and those who have it strive for more, often at the cost of those who have none. Interestingly, the same thing could be said about health.

With the now failed Obamacare repeal and replace plan put forth by Paul Ryan, awkwardly titled “American Health Care Act”, the connection between the two became shockingly clear.

Oddly, the name fits – the American Health Care Act. That’s because it was an act. A bill put forth by a bunch of paid actors, and bad ones at that. Bad because no one bought any of it. Their lines disingenuous, their drama so poorly-acted and the plot so thinly-disguised it had to be laughed out of the theater.. Problem is…it was a heist and a tragedy wrapped into one. Actors delivering lines to an audience that had no idea the stakes are real, that the daggers would have ended up in them, the very people who paid to see the show.

When the ACA originally passed, health care in America was in a bad way; coverage was being denied, people with pre-existing conditions dropped; here were lifetime caps that could essentially bankrupt a person if, say, they got cancer.. The takeaway from that…don’t get cancer.

People unfortunately in that position had to make an impossible choice : take on enormous debt in order to pay for treatments; or foregoing treatment altogether; or bankrupt surviving family. This was common in America.

The GOP, from the start, opposed it because they opposed anything Obama did. It didn’t matter that they privately agreed or understood the need for these changes to the insurance system, they publicly called it “socialism”. I understood the sham of their opposition. I didn’t buy the claim that Obamacare was “a disaster,” and I don’t buy it now. That being said, from the beginning the ACA had problems– primarily due to GOP obstruction — but underlying it was another problem that no one was talking about.

The problems weren’t with the ACA itself. They were with something else entirely.

When politicians use incendiary terms like “horrible and catastrophic”, we know there is an agenda going. One such was that insurance companies were coming between patients and their doctors in a way that seemed completely outrageous. Doctors had to create circumventions of insurance companies just to be able to treat people. Doctors literally couldn’t practice medicine. All I could think was “How in the hell did this happen?”

Many people said it was Obamacare, but the more I looked into things, the more I saw that our health care system was failing — because the insurance companies weren’t following the law. Back when the ACA was being crafted, most people assumed the insurance industry opposed it. Truth was just the opposite : the industry wanted it. After all, millions of new young healthy people signing up for  policies they neither needed nor wanted was a giant windfall for the insurance industry. Why look a gift horse in the mouth, right?

Often, politics and big business hedge their bets by playing opposites, so if a change doesn’t work they have an easier time going the other way. In the case of the ACA, the insurance industry was getting rich by a privatized social medicine construct, and millions were signing up. The evidence was clear: the law was working: yet the insurance industry still wasn’t satisfied. Premiums began to rise. And then something curious : insurance companies began pulling out of certain exchanges.

Doctors, too. They resisted signing up for the exchanges. They, after all, had to make a living. They struggled with the insurance companies. Now the GOP, which had wanted to privatize social security (again) took the opportunity to begin scrapping not only the ACA but Medicare and Medicaid, too, even though these programs were widely popular and highly successful as well. Why sc rap them ?

Because there was no other way to give the rich a tax break.

As talk of repealing Obamacare gained momentum because of the Trump candidacy, Speaker Ryan and his team went to work crafting a benefit-the-wealthy plan that looked like a new ACA.

But the question remained : why would the powerful insurance lobby want to repeal something that was successful (in terms of enrolees)? Perhaps because many people, myself included, weren’t really happy with the system; it wasn’t a cinch, and much of what Obama promised was not the case. Premiums increased, benefits absent or obstructed; doctors were not joining the exchanges. And the insurance industry was finding ways to collect the money while reducing coverage.

Even so, the answer wasn’t repeal and replace. That was just a political thing. What they wanted was a full repeal, going back to what they had before, however unacceptable.

I began to piece together why. Why they wanted to scrap it all.

The thing wasn’t failing for the reasons GOP operatives like Ryan said it was. It was failing because the insurance industry was making it fail. And the wealthy were looking for a tax break.

The ACA could have worked, had the insurance industry followed it. Changes like no lifetime caps and no excluding pre-existing conditions were paramount, and most Americans agree these are absolutely needed. Obama made these the central tenets of his healthcare initiative. But, in America, healthcare is a business. And first and foremost a business must make profit for its investors. Who are its investors? The wealthy. There has to be wealth care for there to be health care.

The insurance companies supported the ACA initially because they stood to reap large profits from that untapped demographic : younger, healthier people. Millions and millions of new customers forced to pay into an exchange that paid for all those pre-existing conditions.

But the thing is, America was sicker than it realized.

The Insurance industry soon changed tracks and began to back out, because it realized that.

The name Obamacare was originally used by anti-Obama agendas, but became the accepted name for a frustrated system. The true source of the frustration no one was talking about. Politicians claimed it was failing, but were they calling the insurance companies out? Nope. In order for a progressive move like the ACA to work, the insurance companies had to actually follow the law…and they didn’t.

The insurance companies were the problem, not the act itself. But we weren’t told that. Why? Because helping the people and helping the wealthy are two very different things.

It was always about wealth, not health. Let’s look at how.

According to https://www.google.com/amp/s/www.forbes.com/sites/anthonynitti/2017/03/13/gop-health-care-bill-will-result-in-a-huge-tax-cut-for-the-rich-24-million-without-insurance/amp/:

“While the removal of the individual and employer mandate are likely to benefit many lower and middle-class taxpayers, as noted above, both the net investment income tax and the additional Medicare tax apply only to the richest 2%. Thus, the repeal and replace plan results in a just-under $300 billion tax cut to those high-income taxpayers over the next decade, while simultaneously slashing Medicaid and subsidies for insurance premiums of low-income taxpayers.”

Here we see that The American Health Care Act might not have been about health, actually. More:

“…with the individual mandate no longer in effect, many young, healthy taxpayers will opt to go without insurance, driving up premiums in the short term by as much as 20%. Beyond 2020, however, the CBO predicts that premiums should actually decrease relative to Obamacare estimates, largely owing to a change in the American Health Care Act that allows insurers to offer cheaper plans because they are no longer required to cover at least 60% of certain health care costs.”

The AHCA allowed the insurance industry to raise costs in anticipation of a lowering in 2020, after which there would be a lowering of premiums. That’s good, right? No. When they lower premiums, companies no longer had to cover a minimum of 60 percent. That meant people would get less expensive, shitty coverage. Again. Like they had before the ACA.

And again, it’s always about wealth.

“It should be noted, however, that while the CBO estimates that average premiums will decrease after 2020, the report notes that the premiums for young individuals will be substantially reduced, while the premiums of older people will be substantially increased, as the new bill allows insurers to charge premiums to older applicants that are five times larger than those charged to younger applicants.”

This is truly startling. Here was the opposite of the ACA’s goals. It’s possible to surmise the insurance industry made a startling reversal of policy, no longer targeting the young and healthy but the old and sick. Why? Maybe because it’s more profitable? This was the single most confounding aspect to Ryan’s tax break for the rich.

https://www.google.com/amp/www.chicagotribune.com/news/opinion/editorials/ct-obamacare-fail-health-care-insurance-medicine-0911-jm-20160909-story,amp.html

“Obamacare failed because the penalties for going uncovered are too low when stacked against its skyrocketing premium costs. Next year, the penalty for staying uninsured is $695 per adult, or perhaps 2.5 percent of a family’s taxable household income. That’s far less than many Americans would pay for coverage. Financial incentive: Skip Obamacare.”

This seems to indicate many people decided to pay the IRS instead of the insurance companies. So, what did that mean?

Supply and demand. If it hasn’t tamed costs, does that mean costs are higher than they expected? If so, did the industry panic? Realizing young, healthy people were just paying the penalty, in essence giving the money to the US government instead of the exchanges meant this experiment needed to be scuttled. Remember, they hedged their bet, and now they have a card to play getting them out of this. What else can we discover about this boondoggle?

“Obamacare failed because insurance is based on risk pools — that is, the lucky subsidize the unlucky. The unlucky who have big health problems (and big medical bills) reap much greater benefits than those who remain healthy and out of the doctors’ office. But Obamacare’s rules hamstring insurers. They can’t exclude people for pre-existing conditions, and can’t charge older customers more than three times as much as the young. Those are good goals, but they skew the market in ways Obamacare didn’t figure out how to offset. Result: Young and healthy consumers pay far more in premiums than their claims (probably) would justify in order to subsidize the unexpectedly large influx of older, sicker customers who require expensive care. Too many unlucky people, too few lucky people: That will collapse any insurance scheme.” 

Too many unlucky people. Those being the American people.

Any system that weighs people based on luck is not going to work. The previous quote I find the most difficult to accept. I do not believe it was ever about luck. Back to my earlier statement : America is sicker than it thinks, perhaps something that the billion dollar insurance industry found out.

The last ten years have been hard on Americans. The expansive high of the Bush years led to a collapse that Obama inherited. Racism, troublesome law enforcement, and hate unleashed through the rising tide of social media, coupled with media-driven news cycles all generated a partisan divide wider than the Grand Canyon. The erosion of social norms and revisionist history had a devastating effect; it should be no surprise that health is a concern nation-wide. These last years have distorted our collective lives to the degree that facts are now questioned as our current president tweets Obama is a sick (bad) guy. The sick pot is calling the healthy kettle black.

No wonder America is suffering and in need of healthcare. It’s ill, and the insurance industry knows it.

Which is why it is adjusting, perhaps.

“Obamacare failed because too many carriers simply can’t cover expenses, let alone turn a profit, in this rigidly controlled system. Take Blue Cross and Blue Shield of Illinois, the state’s dominant Obamacare insurer. Last year, for every dollar the carrier collected, it spent $1.32 buying care and providing services for customers, according to BCBS President Maurice Smith. No wonder BCBS is proposing rate increases from 23 percent to 45 percent for its individual plans.”

Fortuantely, the American Health Care Act did not happen. Still, the wealth problem remains. Occam’s razor says the simplest explanation tends to be the right one, so let’s apply that.

“Today, the Congressional Budget Office answered those questions, releasing its official scoring of the American Health Care Act, and the results are not pretty. An $883 billion tax cut, $274 billion of it going to the richest 2%. $880 billion stripped from Medicaid. And 24 million Medicaid. And 24 million fewer insured individuals over the next ten years.”

A $274 billion tax break for the wealthiest two percent. That’s all this was. In a list of America’s top 10 most profitable companies, no health care company is listed. The first one, United Health, is 16th. The top ten are Big Oil, Apple/Samsung…and Walmart. While the latter all list profits are down, United Health, the only insurer in the top 50, is actually up by 20%. Apple is the only one up almost 30%, whereas oil is down by as much. This indicates something. The top ten are all big employers, and will take up a large chunk of that $275bil tax cut. Health care providers aren’t really in the top fifty. Had the American Health Care Act passed, they surely would have been.

Health may not be the first wealth in America, because wealth is the first wealth. And the second and the third and on down the line. Health is not. But it’s doing its best to make sure that changes, by making sure it doesn’t have to cover a sick country that is being told to prize wealth over its own health.

— Christopher Mugglebee / The Mugglebee Files at Here and Sphere

 

 

THE SYSTEM WORKED

Ryan

^ the Constitution gives him paramount power, to achieve or to fail at. So it was yesterday

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Of all the lessons, large and larger, that were taught us by yesterday’s events at the Congress, the largest of all is this : the system worked.

Given the attacks upon Constitutional precepts that Mr. Trump has roused by his aggressive use of Executive Orders, and by his subversive handling of Federal agencies, it is comforting to know that Article One of the Constitution remains the unassailable law of the land: the “legislative power” is the basic power in our Constitution, and when it has spoken, the “executive” is spoken to.

It is no accident that Article One of the Constitution is what it is. Its very first section leaves no wiggle room for alternative powers :

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Article One totals 34 sections and subsections detailing what powers are given to Congress, and which are not, and in it there is no mention whatsoever of an executive. Not until the next Article, Article Two, is an executive power described and empowered. All of the “executive” power is subject entirely to the powers granted by Article One to Congress.

I think that yesterday, Mr. Trump learned, vividly, exactly what these two Articles of the Constitution, pursuant to which he holds office, mean. I do not think he realized the facts of it before. His actions since being sworn to office two months ago suggest that he viewed the Presidency as a kind of business CEO. He now knows — MUST know — that that is not so, that “the executive” power he was sworn to comes second, and weakly at that despite the expansive view he takes of Executive Orders. And even if he does NOT yet realize what his office allows him, the voters now see that he is only a President, not a magic man; only second best in a system whose ultimate power lies elsewhere.

Such is the biggest message of yesterday, but of course there were others.

The failure of the health care revision bill is not really Mr. Trump’s. He bought into a bill that was not his — for reasons that baffle me, and which eventually troubled him, too — and that was definitely a mistake (a “rookie error,” as Nancy Pelosi correctly saw it); but the failure is Speaker Ryan’s. As Speaker of the body that has all the power, he offered a reform bill that tried to do too much and ended up doing all the wrong things. The Obama health care law needs reform — for example : the various insurance marketplaces should  be made nationwide, and medicaid expansion should not be optional — but what it does NOT need is to remove 24,0o00,000 people from health insurance coverage. Nor does it need to change the tax credit portion of the health law in a way that benefits high incomes while wreaking havoc on small income people. Above all , no reform of the health care law can ever remove the mandate for everybody to buy insurance, for without the mandate, the entire system collapses. Why Ryan could not grasp these facts, i cannot figure. Perhaps he thought the voters would prefer choice to actual coverage. Turns out they didn’t.

The voters made their dislike of Ryan’s bill luridly known at one town hall after another. Congress members got the message. The system worked there, too.

If the major failure was Ryan’s, Mr. Trump must accept a portion of the blame. He rushed into supporting a bill that contradicted all of his campaign promises about everybody keeping their insurance. He hurried a process already much too hurried by Ryan, and he did so without knowing — as he admitted — many of the policy details the bill sought to enact. Nonetheless, he conducted many negotiations with Ryan’s GOP members, thereby associating his political capital with Ryan’s defeat. A rookie mistake, indeed.

Mr. Trump can recover; everybody realizes that he misjudged because he is new to Washington and to his office. I think a big lesson from yesterday is, will he ? Will Mr. Trump accept his humbling and figure out that it is far better for his re-election prospects for him to work within the limits of “executive” power rather than flout them ? I wonder. He has many items on his agenda. He can’t just stop. It’s not his way. More mistakes likely loom. And the aura is gone. He is no longer the can-do outsider. He is “the executive power,” charged “to take care that the Laws be faithfully executed.”

As for Mr. Ryan, he may well lose his Speakership. If there were an obvious replacement, he almost certainly would lose it. His GOP members showed themselves grievously split : hard core “Freedom Caucus” ideologues; pragmatic centrists, who have no choice but to respond to voter anger; and “moderates” who want bipartisan reform, a method that Ryan and his leadership team expressly reject. All my sympathies lie with the “moderates.” You can’t just freeze out 198 Democrats in a 435 seat Congress, because if you do that, you now hostage yourself to 21 Republican members, because that’s all the NO’s it takes to sink you if the 198 Democrats are unanimously as No as your rule has made them. Yesterday there were 36 GOP members intending to vote No.

Ultimately, the system works by the numbers. If you don’t have the votes, you cannot enact a law. Someday, some GOP leader will learn that he or she has to count votes. It may be Paul Ryan, but maybe not. He of all people should understand that the system works — and how.

—- Mike Freedberg / Here qand Sphere

OF CHECKS AND BALANCES

falling

^ the falling man of 9/11 : emblem for when a system of checks and balances falls out of balance

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We who live in the USA and write of its politics take for granted what we call “checks and balances.” We applaud the Constitution for installing this basic principle : the Congress balances the Executive, and the High Court checks both : thereby assuring that no part of our governmental enjoys plenary power, which, as Amendment 10 says, is left to “the people.”

Myself, I’m not so sanguine about the principle. Too easily we forget that balance is a fragile thing. Think a tightrope walker walking his rope, balance pole in hand : tip himself even the slightest bit out of balance and he’s done for. same it is with a government founded in balances. Either the balance fails — as it has done during the President of 45 until recently — because one side of the pole collapses because it wants to, or it becomes so rigid — as it did from the day that President Obama took office — that it blocks the tightrope walker from walking at all.

To work, the system of check and balance has to accept two corollary principles : ( 1 ) those who would walk its tightrope must be extremely subservient to the tiny margin of error and ( 2 ) everyone involved must commit to the tightrope walker actually walking, all the way across the abyss.

If those who impose a government of checks and balances upon themselves do not commit to these two corollaries, or if they cease to commit to them, the tightrope walker falls to his death, or else doesn’t walk at all. Something of both has happened to our Constitutional arrangement these past nine years or so, and we see the consequences: anarchy and tyranny, both of which those who drafted and agreed to our Constitution sought to avoid.

They were not naive. They knew that the system they were agreeing to required good faith of those who sought to work it. They often said so, bluntly.

Checks and balances lead to nothing at all getting done if they become tactics to exploit, or if the balances become ends in themselves rather than prods to a resolution of differences.

The consequences of overreach, we see : nothing that needs be done gets done, yet life goes on, ad hoc, and thus the longer that nothing governmental. gets done, the more that ad hoc decisions come to be the norm, each one fraying the balance tight rope a little bit more, until there isn’t any rope at all and thus no Constitution. (or, better said, a Constitution in name only, nice words on parchment).

Principally we now experience three failures of balance, with the attendant consequences : ( 1 ) we impose a political agenda upon the Supreme Court, which as an un-elected body was never intended to have any political duties ( 2 ) we allow the legislative to aggravate social controversy rather than resolve it and ( 3 ) we force the executive to do the legislative resolving that we refuse to let the legislature do. All three failures compound one another, which is what happens when balance is lost : it is never lost only in one sector, because every sector of balance requires equilibrium of all.

Worse, today we have in power, and supported in that power, persons whose objective is to exploit the imbalances to their agenda’s advantage, forgetting that when a balance system goes out of balance, there is no advantage : one sided of a falling body may hit the ground first, but the rest of the body follows fatally with it. And thus the famous falling body photo that heads this column stands as a gruesome emblem of where we are now in an America whose Constitution is falling to the ground, both because it is an out of balance design and because imbalance is eagerly embraced by those who imagine that falling to the ground will kill only their opponents.

Niccolo Macchiavelli, in The Discourses, wrote brilliantly that divided government strengthens a political entity., He was the first writer to see the point, which is why we still read him 500 years after he wrote. What he did not say, because it was then only too obvious, is that divided government also means war of a sort with many casualties : many were banished, some were assassinated, and many more suffered economic disaster as faction prevailed over faction. Yet he was right. Divided government meant controversy, and controversy meant that there could never be only one truth,m one agenda, one creed. We are a free people today because divided government, in medieval Italy (from about 1200 to about 1550) established a model for defeating the agenda despotism of that era’s Papacy and, thus, of all agenda dictatorships that have arisen since.

We would be very wise to read The Discourtses again, along with Guicciardini’s history of Italy in that period, a record of conflict that can easily weary one’s sense of optimism about politics. But no more wearying than the political era — of obstruction, prerogative, and misuse of justice — in which we now live.

—- Mike Freedberg / Here and Sphere

 

THE GORSUCH NOMINATION : NORMALITY; AND, THE “ADMINISTRATIVE STATE”

Neil Gorsuch

Right now the number one urgent need for politics in the United Stares is to reclaim normality. Those who are asking that Judge Neil Gorsuch, nominated to be a Supreme Court Justice, be blocked, or angry that hearings are even occurring, aggravate the abnormal situation we’ve had to endure now since the beginning of the Trump campaign, worsened by the Senate’s refusal last year to take up the Justice nomination of Judge Merrick Garland. Irresponsibility of this sort I condemned at the time. i condemn it now.

That the Gorsuch nomination exists solely because of the irresponsible act of last year;’s Senate is unfortunate, but said lack of fortune is no excuse, none at all, for deploying yet more politics of bad faith. It is good to see that most Democratic Senators are not taking that course. The loudest voices of activists now shout at us that the Gorsuch nomination must be put on hold because the President who nominated him is under FBI investigation for acts which, if proved, amount to treason. I disagree with this view. As long as Mr. Trump holds the office of Presi9dewnt, acts that he does pursuant, unquestionably, to his Constitutional powers, must be responded to with the same degree of Constitutional good faith.

If Mr. Trump is found to have committed acts which amount to impeachable offenses, and if he is then impeached, he will cease to hold the office of President; and no act of his thereafter will have any Constitutional effect. Until such event, t.he opposite must hold : that his acts have all the effect that Article 2 of the Constitution directs that they have.

The above seems almost too obvious to have to state; but it bears stating because our current politics so grievously lacks normality that even the most boringly normal of it needs to be called to the spotlight. Thus have I done.

The nomination of Judge Gorsuch is equally obvious. Hearings on conformation are obvious. It is good that the majority of Democrats are operating obviously. By doing so, they are helping to restore the nation to political health.

So much for the kudos. I wish I could say as much about the Gorsuch hearing itself. I cannot. The questions I have seen Democratic Senators ask have nothing to do with a Justice’s duties. Asking him if he will give a workingman as much of a shake as he might give to a corporation — as Senator Feinstein of California asked him — is fairly beside the point. A Supreme Court Justice’s job isn’t to give ANYONE a “shake,” it’s to decide how Constitutional precepts, if they’re at issue in a case, apply to the case. How they end up affecting a particular litigant is second hand; the Constitution’s principles and directives may not support the outcome that you want.  After all, there are always (at least) two sides to a case or controversy; and in our law, each side has an equal chance of having the Court decide for it, or against it. It may be great politics to advocate for “the little guy” — one should always stand for the underdog — but Court decisions shouldn’t be mainly political (politics will always be a factor in them, because politics generally arise from disputes), they should be mainly judicial. One hopes that before the Gorsuch hearings end he will be asked about his jurisprudential principles: because he does have them, and to an advanced degree, and because the principles that he holds matter, a lot.

So far I have heard no questioner focus on the REAL import of the Gorsuch nomination. More about that below. First I wnat to offer two links for furtyher research :   (1 ) Yesterday I posted at facebook, on my own page, several of Judge Gorsuch;’s 10th Circuit opinions and concurrences. (You can read many of them here : http://www.gibsondunn.com/publications/Pages/Summaries-of-Opinions-of-Supreme-Court-Nominee-Judge-Neil-Gorsuch.aspx   ( 2 ) You can also read Eric Citron’s in-depth examination of Gorsuch;’s jurisprudence in action at SCOTUSblog here : http://www.scotusblog.com/2017/01/potential-nominee-profile-neil-gorsuch/

What do we learn from reading these two summaries and analyses ? Chiefly this : Gorsuch’s most significant opinions affect Administrative Law. His view is that administrative agencies may not develop their own interpretations of Federal Laws under which they administer, and , especially, may not set aside a Supreme Court ruling governing administrative regulation, but must, instead, write regulations conformable to such Supreme Court opinion. Gorsuch applies this restriction upon administrative prescription even where the applicable Law is worded ambiguously.

Given Mr. Trump’s active dislike of “the administrative state,” is it a stretch to conclude that it is for his administrative law rigor that Gorsuch was nominated ? Limiting the “administrative state,” we have seen, is a key objective of Mr. Trump’s top advisor, Steve Bannon.

Is Gorsuch’s textual rigor about administrative regulations issued pursuant to a Law a bad thing ? That depends on where your interests lie. Constitutionally, it is indisputable that under Article 2, a President must “take care that the laws be faithfully executed.” By what argument is it allowable, under that standard, that an executive agency “executing the Laws” add its own interpretation of a Law to its enforcement ?

This is hardly an obscure question. Agency power in our age of complex, ubiquitous Federal Law affects almost everybody. How many of us have not had encounters with a Federal agency ? How many of these encounters end up not frustrating you, or making your life or work more difficult ? For businesses, which create all kinds of processes spread over many jurisdictions, conflict with this or that administrative rule is almost a daily event. Certainly it is crucial that agencies charged with “faithfully executing the Laws” must have rules and must use them, or the Laws are nothing but paper tigers; yet Gorsuch has a point : if we who are subject to agency regulations intended as a faithful execution of the Laws cannot rely on their consistent application — if instead we are met by arbitrary and/or changing enforcements — the Laws become an impediment to, not a safeguard of. our responsibility to the society. Such would seem to be Gorsuch’s view. We have agreed to the Laws enacted by Congress; we have not willy nilly agreed to how the agencies enforcing them see them.

Your view of agency law may differ from Gorusch’s. Mine may differ from it too. But his view is a serious one entitled to be respected by the other eight Justices if he is confirmed. His view certainly belongs in the Court’s deliberations. In any case, this is the Gorsuch whose jurisprudence ought be questioned in his confirmation hearing. So far I have heard nothing to indicate that the Judiciary Committee even gets the point.

—- Mike Freedberg / Here and Sphere

 

 

 

 

THE GREATNESS OF CHUCK BERRY

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=video&cd=2&cad=rja&uact=8&ved=0ahUKEwjj_qGXquXSAhXn7YMKHZ1WA4oQtwIIIDAB&url=https%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3D9jKrHzps0XM&usg=AFQjCNGVM55q-ELCNdB_KDiIjbzEj-REaQ&bvm=bv.149760088,d.amc

^ Chuck Berry at his hot-rodding, duck walking fiercest

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Chuck Berry died this weekend, well into his 90th year. His songs wrote pretty much the story of my youth, and probably of yours as well.

How great was he ? Just consider : he invented an entirely new musical framework : fast tenpos, two-string guitar licks, a storyteller’s voice as biracial as his audience, lyrics that you instantly remembered, lines that spoke your life better than you could — which is what a great pet does. Berry was a great poet.

From May 1955, when his first hit “Maybellene” was released, until late 1964, when his last batch of major songs reached us — “No Particular Place to Go,” “Nadine,” “Marie” — he ruled my generation. The car radio was our connection. It was a car radio age. What an iphone is to today’s youth — Snapchat and Whatsapp etc. — the car radio was for us, and the car itself, a fast moving joy room in which we could “motorvate” without parents saying no. Berry sang about car radios, ab out cars, about going to school and the bell that ended school days, about the juke joints where we could drop a coin into the slot and play his stuff, and about car chases, speed, the sound of speed, the feel of it. He sang it, and his guitar and band played its soundtracks.

No one else had us anywhere near as completely as he. After “Maybellene” came “Roll Over Beethoven,” “You Can’t catch Me,” “Reelin’ and Rockin’,” “School Days,” “Rock and Roll Music,” “Sweet Little Sixteen,’ “Johnny B. Goode” — each one a celebration of what we did and of who we were and wanted to be. His songs focused it all.

There were others who we liked, of course. We raved with Little Richard, swooned with Fats Domino and Frankie Lymon, lusted with Gene Vincent and Elvis Presley, joked with the Coasters, sang lullabies with a dozen great doo-wop vocal groups. Yet none took command of us as did Chuck Berry.

I said that his reign lasted from 1955 to 1964, but that’s not entirely so. Early in 1957 a very different kind of voice, fronting a very different kind of beat and tempo — Chuck Willis, doing his version of “C. C. Rider”  — proved irresistible to most of us. We slowed down and sang upward rather than straight ahead. Yet if Berry now had to share the highway with the big hall dance floor, his passing lane music gave way to center-lane funk : “Little Queenie,” “Memphis,” “Carol,” and “30 Days” thumped as well as flew, and it was all that Chuck Willis — his own follow up hits kept the pressure on — could do to stave off Berry’s lumpy new story songs. Berry’s wry wit funk style was stronger, musically, than his first fast flourish. He held his own well into the new, 1960s era of soul styles, James Brown, and Motown slick : “Promised Land,” “You Never Can Tell,” “Too Much Monkey Business,” “Back in the USA,” These were some of his greatest songs, lyrics as visionary as they were pithy.

After 1964, however, we were no longer living in, by, and for cars and the car radio, and as Curtis Mayfield, James Brtown, Otis Redding, Motown, and surfin’ music became our musical standards, Berry’s world of cars and high school slipped to memory status: though he continued, occasionally, to craft wonderful songs in the manner of 1952-1954 slow drag blues that he had rendered obsolete (and from which he lifted more moves than he would ever admit to). He had always done such songs, but as B sides to his inventions; now they became his calling card, songs to last a long while rather than flash hot for a month or two: “Beer Drinking Woman,” “It Wasn’t Me,” “Have Mercy Judge,” “Aimlessly Drifting,” “Ramona, Say Yes.”

Songs of this type came naturally to an artist who knew the history of Black American and country music as well as anyone ever, sources from which he constantly drew and whose pith he reshaped. In particular, count the number of songs that he wrote on the venerable “poor boy long ways from home” theme.

He also knew his guitar hsito9ry. He took from T-Bone Walker, Gatemouth Brown, Pat hare,m Guitar Slim, and Muddy Waters, to name the most obvious; and every.one whose work he grabbed came out sounding completely different when Berry did his Berrying.

Berry often told interviewers that he made the music that “the market” wanted. He was every inch an entrepreneuir, a salesman, a provider to those who needed provisions. He did not confront or oppose. Pleasing those who wanted music to be pleased by was good enough to make him the great artistic inventor — who also succeeded in inventing us.

—- Mike Freedberg / Hered and Sp-0here

FRAMINGHAM : CHARTER CHANGE WINS THE ARGUMENT

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Last night I attended one of the many public comment hearings being hosted by the Framingham Charter Change Commission. If what I heard said, by the two sides, is any indication of the entire debate, it’s no contest : the change proponents win.

At the Joseph P. Keefe Technical School, on Winter Street hard by Framingham’s commuter rail line, about 75 people gathered to listen to the Charter Commission’s presentation and then to ask questions. There were many. Two hours into the meeting — at which pointy I left, having heard enough to write this story — questioners were still lining up. I would be surprised if this isn’t how it is at every hearing the Commission schedules.

Of the several questions that were asked during my two hours of witness, the most interesting questioned the effectiveness of the present town meeting, town manager arrangement and its inability to respond efficiently to applications for development, or even for simple budget proposals. For these, the Commission’s sole dissenter, Teri Banerjee, had no answer. In particular, to a question posed by Mike Gatlin, wh0 directs Framingham’s Economic Development group, Banerjee fumbled badly even to frame any sort of response. The lack of preparation said it all.

About one quarter of the attendees represented the “Not This Charter” opposition. If those whom I saw are a fair sample, it’s basically current town meeting members — all of whom wi, lose their positions — many of them elderly in the wrong sort of way. It’s no crime to be old — heck, I am old — but it’s a grave lack to be unready, and evidently unable to grasp that things aren’t what they were in the 1950s (a decade explicitly referred to by one town meeting member, from precinct 7, who responded to discussion of imbalance in the location of Framingham’s schools by citing that in the 1950s, those location s were thought correct). I’m sorry, but that level of answer won’t do.

What was this about ? It turns out that three quarters of Framingham’s schools are located north of Route 9 — the big highway which more or less divides the town in half — while three quarters of the actual students come from south of Route 9. For solving this imbalance, the charter opponents had no answer other than the 1950 argument I have mentioned.

Much of the stated opposition to making Framingham a city, with a much smaller City Council — eleven members, not 215 town meeting members, 12 for each of 18 precincts — reminded me of arguments made by opponents of ratifying the United States Constitution; and made for much the same reasons : fear of big money, of powerful offices, of major economic change and efficiency. Odd it felt, to hear these 230 year old arguments made today, in all seriousness. What reasonable objection can be made for creating a government, for a community of at least 70,000 people, that makes civic development easier, more effective, and more worth pursuing politically as well as economically ?

Here, a brief digression seems in order :

Missing at this hearing was even one person from Framingham’s large Brazilian community. The town is at least 25 percent Brazilian, including almost the emntgi9rety of its downtown, but there isn’t one Brazilian on the charter commission and I saw none at the hearing. Will it be different at the upcoming hearing on the “South Side:” at the Woodrow Wilson School ? Fact : not one of Framingham’s current elected officials is Brazilian. Not one. (Indeed, from what i am t,old, most come from just two — 2– of the town’s 18 precincts.)

That will change under thew charter. The two “South Side: city council seats, at the very least, will surely attract ambitious Brazilian-Framingham candidates; maybe a few might even find their way the at large seats, and, eventually, the Mayor position. This is how it’s done in our democracy.Give the voters offices worth running for, and they will seek them vigorously.

Now back to my main argument:

Three days ago I wrote my first argument in support of the charter change, and I adduced many, many reasons why I find it a very good change. last night’s hearing confirmed my opinion. Indeed, every one of the arguments brought forth against the change by its opponents, I find to be a positive argument why that change should take place. Add to them the palpable lack of preparation or argument demonstrated last night by the opposition, in contrast to the remarkable conviction and profound preparation  shown by the charter Commission — John Stefanini and Dennis Giombetti in particular.

Chance really does favor the prepared mind. In Framingham, it should favor the prepared argument.

—- Mike Freedberg / Here and Sphere