Later On

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Archive for the ‘GOP’ Category

Kevin Drum takes an honest look at worker pay (in contrast to Michael Strain, who takes a dishonest look)

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The epidemic of outright lying by the Right is unstoppable. Kevin Drum points out another deliberate effort to mislead, this time by Michael Strain. Read the post and look at the graph.

I am really tired of GOP lies.

Written by LeisureGuy

15 May 2019 at 4:43 pm

Posted in Business, Daily life, GOP, Math

Donald Trump Is a One-Man Foreign Policy Catastrophe

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Kevin Drum posts at Mother Jones:

Doyle McManus reviews Donald Trump’s foreign policy:

As president he named himself negotiator-in-chief and tried to cajole North Korea’s Kim Jong Un to abandon nuclear weapons. He reimposed tough economic sanctions on Iran, betting he could force the ayatollahs to change their ways. He vowed to force China, Canada, Mexico and the European Union to give up what he called unfair trade practices. He backed an uprising in Venezuela aimed at toppling its leftist president, Nicolas Maduro. He declared victory against Islamic State and ordered U.S. troops home from Syria. In his spare time, he asked his son-in-law, Jared Kushner, to arrange peace between Israel and the Palestinians.

He has achieved none of those outcomes.

But he might declare war on Iran. And impose tariffs on European cars. And commit the United States to . . .

Continue reading.

Written by LeisureGuy

15 May 2019 at 11:09 am

An example of why corporations are not to be trusted: Before Ethiopian Crash, Boeing Resisted Pilots’ Calls for Aggressive Steps on 737 Max

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David Gelles and Natalie Kitroeff report in the NY Times:

Weeks after the first fatal crash of the 737 Max, pilots from American Airlines pressed Boeing executives to work urgently on a fix. In a closed-door meeting, they even argued that Boeing should push authorities to take an emergency measure that would likely result in the grounding of the Max.

The Boeing executives resisted. They didn’t want to rush out a fix, and said they expected pilots to be able to handle problems.

Mike Sinnett, a vice president at Boeing, acknowledged that the manufacturer was assessing potential design flaws with the plane, including new anti-stall software. But he balked at taking a more aggressive approach, saying it was not yet clear that the new system was to blame for the Lion Air crash, which killed 189 people.

“No one has yet to conclude that the sole cause of this was this function on the airplane,” Mr. Sinnett said, according to a recording of the Nov. 27 meeting reviewed by The New York Times.

Less than four months later, an Ethiopian Airlines flight crashed, killing all 157 people on board. The flawed anti-stall system played a role in both disasters.

Boeing is facing intense scrutiny for the design and certification of the Max, as well as for its response to the two crashes. There are multiple investigations into the development of the Max. And in recent days, unions representing pilots from American Airlines and Southwest Airlines have received federal grand jury subpoenas for any documents related to Boeing’s communications about the jet, according to three people with knowledge of the matter.

The Federal Aviation Administration is also under fire for its role in approving the Max, and its decision to wait for days after the second crash to ground the plane. At a Wednesday congressional hearing, lawmakers will grill federal regulators about how the Max was certified.

Boeing declined to comment on the November meeting. “We are focused on working with pilots, airlines and global regulators to certify the updates on the Max and provide additional training and education to safely return the planes to flight,” the company said in a statement.

The hourlong November meeting, inside a windowless conference room at the Fort Worth headquarters of the American Airlines pilots’ union, was confrontational at times. At the table was Mr. Sinnett, along with Craig Bomben, a top Boeing test pilot, and one of the company’s senior lobbyists, John Moloney. They faced several union leaders, many of them angry at the company.

Michael Michaelis, an American pilot, argued that Boeing should push the F.A.A. to issue what is known as an emergency airworthiness directive.

The F.A.A. had already issued one directive after the Lion Air crash, instructing airlines to revise their flight manuals to include information on how to respond to a malfunction of the anti-stall system known as MCAS. But Mr. Michaelis pushed Boeing to consider calling for an additional one to update the software.

Such a procedure would have required Boeing and airlines in the United States to take immediate action to ensure the safety of the Max, and would have likely taken the jet out of service temporarily.

“My question to you, as Boeing, is why wouldn’t you say this is the smartest thing to do?” Mr. Michaelis said. “Say we’re going to do everything we can to protect that traveling public in accordance with what our pilots unions are telling us.”

Mr. Sinnett didn’t budge, saying that it remained unclear that the new software, which automatically pushes the plane’s nose down, was responsible for the Lion Air crash. He added that he felt confident that pilots had adequate training to deal with a problem, especially now that pilots — who were not initially informed about the new system — were aware of it.

“You’ve got to understand that our commitment to safety is as great as yours,” Mr. Sinnett said in the meeting. “The worst thing that can ever happen is a tragedy like this, and the even worse thing would be another one.”

The pilots expressed frustration that Boeing did not inform them about the new software on the plane until after the Lion Air crash.

“These guys didn’t even know the damn system was on the airplane, nor did anybody else,” said Mr. Michaelis, the union’s head of safety.

Another American pilot, Todd Wissing, expressed frustration that no mention of the system had been included in the training manual for the 737 Max.

“I would think that there would be a priority of putting explanations of things that could kill you,” Mr. Wissing said.

The Boeing executives, Mr. Sinnett and Mr. Bomben, explained that the company did not believe that pilots needed to know about the software, because they were already trained to deal with scenarios like the one on the doomed Lion Air flight. All pilots are expected to know how to take control of an aircraft when the plane’s tail begins moving in an uncontrolled way because of a malfunction, nudging the aircraft toward the ground.

“The assumption is that the flight crews have been trained,” Mr. Sinnett said in the meeting. He added later: “Rightly or wrongly, that was the design criteria and that’s how the airplane was certified with the system and pilot working together.”

When the pilots pressed Boeing to consider encouraging the F.A.A. to issue an emergency airworthiness directive, Mr. Sinnett made the case against moving too quickly. . .

Continue reading.

Written by LeisureGuy

14 May 2019 at 4:40 pm

Trump has the attention span of a gnat. It’s destroying our foreign policy.

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Anne Applebaum writes in the Washington Post:

“A few sharp victories, some conspicuous acts of personal bravery on the Patriot side and a colorful entry into the capital . . . We shall expect the first victory about the middle of July.”

Those immortal words of advice were given to William Boot, the accidental foreign correspondent who is the hero of Evelyn Waugh’s novel “Scoop.” They came from the fictional newspaper proprietor, Lord Copper, who wasn’t too worried about which side were really “patriots”; he just wanted a happy and rapid end. Waugh’s novel satirized the British press of the 1930s, their empty sensationalism and their disdain for reality. A similar spirit pervades the making of U.S. foreign policy today.

To see what I mean, look again at the extraordinary story published in The Post on Wednesday, describing President Trump’s loss of confidence in his administration’s policy in Venezuela. Since January, the president has been happy to play along with his national security adviser, John Bolton, and his secretary of state, Mike Pompeo; together they persuaded him to recognize Juan Guaidó, president of the Venezuelan National Assembly, as the rightful president of Venezuela. But after Guaidó failed recently to bring the Venezuelan army over to his side, it seems the U.S. president, like Lord Copper, began to lose patience.

Now, according to The Post, he praises Venezuelan President Nicolás Maduro as a “tough cookie,” he suspects Bolton is trying to drag him into a war, and he is persuaded by Russian President Vladimir Putin, the foreign statesman he most admires, that the United States should not “get involved” in Venezuela, except maybe to offer some humanitarian aid. Never mind that Russia has extensive military contacts in Venezuela, or that the Russian army conducted joint exercises in December with the Venezuelan army, precisely the people who refuse now to abandon a regime that has driven the country into poverty and despair. Trump accepts Putin’s version of events partly because he admires the Russian president, partly because he is ignorant, and mostly because the story has dragged on too long, the victory hasn’t arrived, and there is no “colorful entry into the capital” to show on the evening news.

This impatience has consequences. All over the world, the Trump administration is pursuing a range of policies: tweeting insults at Maduro, negotiating with a defiant North Korea, sending a small fleet of warships to the Persian Gulf to intimidate Iran. But the speed with which the president always sours on these efforts means they can never be part of any discernible strategy. Certainly they don’t reflect any coherent philosophy. Is the United States still in favor of promoting democracy, as some of the proponents of the Venezuela policy claim? Is the United States in the business of courting dictators, which is the essence of the North Korea policy? Does the United States want to flaunt its strength and make other countries afraid, which seems to be the point of the Persian Gulf fleet? Or is the United States now “isolationist,” which is why the administration is keeping silent about a new Russian offensive in Syria, the early stages of which Trump pushed back against in 2017?

A handful of sycophants is still trying to knit all of these policies into some kind of coherent argument — it’s all about “America First,” didn’t you know? — but the truth is that the United States is now in thrall to a president who will trash any of his employees’ initiatives if they don’t produce “wins” for his core television audience. North Korea has been hastily forgotten; the same fate awaits Venezuela and, if nothing happens, Iran. U.S. administrations have always had short attention spans, and the U.S. government has never had much of an appetite for drawn-out conflicts. But this administration has the attention span of a bored, petulant, channel-surfing septuagenarian looking for something juicy to watch on his extra-large screen. In other words, this administration has the attention span of a gnat.

Even in the best of times, the United States’ ability to influence events in faraway places is limited. The tools we have, from soft power and diplomacy to sanctions and bombing campaigns, are never guaranteed to succeed. The best strategies take years, even decades, to achieve anything at all: The Cold War was won, in part, thanks to small investments in the journalism of Radio Free Europe and Radio Liberty, all of which would have looked like a waste of money in the 1960s, or even the 1980s. But successive administrations kept them up because they were part of a larger plan, and an international orientation that Democrats and Republicans alike accepted.

Now there is no plan; there is only whim and instinct. There is no international orientation either, just a series of hasty unplanned, unexamined decisions, followed by Twitter tantrums. A wise administration would have . . .

Continue reading.

Written by LeisureGuy

10 May 2019 at 8:46 pm

What Mueller Found on Russia and on Obstruction: A First Analysis

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Scott R. Anderson, Victoria Clark, Mikhaila Fogel, Sarah Grant, Susan Hennessey, Matthew Kahn, Quinta Jurecic, Lev Sugarman, Margaret Taylor, and Benjamin Wittes write at Lawfare:

Really the best day since he got elected,” said Kellyanne Conway, the president’s counselor, about a day on which 400 pages dropped into the public’s lap describing relentless presidential misconduct and serial engagements between his campaign and a foreign actor. The weeks-long lag between Attorney General William Barr’s announcement of Robert Mueller’s top-line findings and the release of the Mueller report itself created space for an alternate reality in which the document released today might give rise to such a statement. But the cries of vindication do not survive even the most cursory examination of the document itself.

No, Mueller did not find a criminal conspiracy between the Trump campaign and Russia, and no, he did not conclude that President Trump had obstructed justice. But Mueller emphatically did not find that there had been “no collusion” either. Indeed, he described in page after damning page a dramatic pattern of Russian outreach to figures close to the president, including to Trump’s campaign and his business; Mueller described receptivity to this outreach on the part of those figures; he described a positive eagerness on the part of the Trump campaign to benefit from illegal Russian activity and that of its cutouts; he described serial lies about it all. And he described as well a pattern of behavior on the part of the president in his interactions with law enforcement that is simply incompatible with the president’s duty to “take care” that the laws are “faithfully executed”—a pattern Mueller explicitly declined to conclude did not obstruct justice.

The Mueller report is a document this country will be absorbing for months to come. Below is a first crack at analyzing the features that are most salient to us.

The report answers a great many questions, resolving a raft of concerning issues that had cried out for public resolution. Some of these questions it resolves in Trump’s favor, thereby reducing the long list of concerns that reasonable people will harbor about the president. But by creating a rigorous factual record concerning both Russian intervention in 2016 and presidential obstruction of the effort to investigate that intervention, the report poses other questions acutely. Most importantly, it poses the question of whether this conduct is acceptable—not whether it’s lawful or prosecutable or whether the evidence is admissible, but whether as a nation we choose to accept it, and if not, what means we exercise to reject it. Mueller is not a political figure, but the record he has created puts these fundamentally political questions squarely before us.

Before turning to what’s in the Mueller report, let’s pause a moment to note something that’s not in it: classified information. The document contains no so-called “portion marking,” which denotes classified material. While it describes sensitive intelligence matters, it does so in an unclassified manner. What’s more, it is almost entirely devoid of discussion of the counterintelligence equities at issue in the Russia matter. This is a prosecutor’s report, focused entirely on application of fact to criminal laws and to assessment of whether legal standards were met. The report indicates that the counterintelligence components of the investigation remained with the FBI, with Mueller’s office passing counterintelligence material produced over the course of the investigation back to the bureau. This is a document summarizing a criminal probe and the thinking of the prosecutors who ran it—not a document describing the management of threats to the country.

Like the report itself, we begin with Mueller’s resolution of matters related to Russia.

Results of the Russia Investigation

Consistent with the special counsel’s mandate, the first volume of the Mueller report focuses on “the Russian government’s efforts to interfere in the 2016 presidential election.” Toward this end, its first two substantive sections go into depth on Russia’s “active measures” social media campaign, as well as the “hacking and dumping” operations through which it accessed and disseminated private emails from the Democratic National Committee (DNC) and others. Both provide a fascinating account of Russian influence operations, but neither adds much to the indictments that the Mueller team has previously filed against involved persons. Instead, the important element of Volume 1 is the discussion of “Russian government links to and contacts with the Trump campaign”—or the possibility of what some might describe as “collusion.”

As the report is careful to explain, “collusion” is neither a criminal offense nor a legal term of art with a clear definition, despite its frequent use in discussions of the special counsel’s mandate. Mueller and his team instead examined the relationships between members of the Trump campaign and the Russian government through the far narrower lens of criminal conspiracy. To establish a criminal conspiracy, a prosecutor must show, among other elements, that two or more persons agreed to either violate a federal criminal law or defraud the United States. This “meeting of the minds” is ultimately the piece the Mueller team felt it could not prove, leading it not to pursue any conspiracy charges against members of the Trump campaign, even as it pursued them against Russian agents.

This conclusion is far from the full vindication that chants of “no collusion” imply, a fact driven home by the detailed factual record the Mueller report puts forward. In some cases, there was indeed a meeting of the minds between Trump campaign officials and Russia, just not in pursuit of a criminal objective. In others, members of the Trump campaign acted criminally—as evidenced by the guilty pleas and indictments that the Mueller team secured—but did so on their own. At times, these efforts even worked toward the same objective as the Russian government, but on seemingly parallel tracks as opposed to in coordination. None of this amounted to a criminal conspiracy that the Mueller team believed it could prove beyond a reasonable doubt. But the dense network of interactions, missed opportunities, and shared objectives between the Trump campaign and the Russian government remains profoundly disturbing.

This report shows that the Trump campaign was reasonably aware of the Russian efforts, at least on the hacking side. They were aware the Russians sought to help them win. They welcomed that assistance. Instead of warning the American public, they devised a public relations and campaign strategy that sought to capitalize on Russia’s illicit assistance. In other words, the Russians and the Trump campaign shared a common goal, and each side worked to achieve that goal with basic knowledge of the other side’s intention. They just didn’t agree to work toward that goal together.

Importantly, the report includes several areas in which the Mueller report really does meaningfully exonerate the Trump campaign.

First, while the report notes that some Trump campaign members shared tweets from Internet Research Agency (IRA)-controlled accounts and even agreed to assist in promoting IRA-devised rallies, the special counsel investigation did not conclude that any official of the Trump campaign was aware the solicitations were coming from foreign persons. Being duped is not the same as committing a crime, and Mueller conclusively puts to rest the question of whether the Trump campaign was somehow aiding the Russian social media operation.

Second, the Mueller report answers lingering questions about a number of previously reported events about which people harbored reasonable suspicions. The Mueller team examined the reported contacts between campaign members, including Jared Kushner and Jeff Sessions, with Sergey Kislyak at the Mayflower Hotel in April 2016 and found that the conversations were brief and nonsubstantive, and took place in public. Similarly, Mueller examined contacts between then-Senator Sessions and Kislyak at Sessions’s Senate office in September 2016 and determined that the two did not discuss anything related to the election. That is consistent with Sessions’s account of the matter and effectively clears him on the question; nothing untoward seems to have occured.

Additionally, the special counsel’s office describes a set of interactions between campaign members—in particular, Kushner—and the head of a D.C.-based think tank, the Center for the National Interest (CNI). The investigation found no evidence that CNI facilitated back channels between the campaign and the Russian government.

Finally, the special counsel’s report puts to rest suggestions that the Republican National Convention platform on Ukraine was altered at the direction of Trump or Russia. While Trump advisor J.D. Gordon did champion an effort on behalf of the campaign to soften a proposed amendment to the Republican Party platform on supporting Ukraine against Russian aggression, the report makes clear that Gordon was not directed to seek the change by Trump. He did so after deciding that the change would better align the platform with Trump’s stated policy.

So that’s all good news for Trump. Reporting on these matters had accurately described these events as having occurred, but the Mueller report should end speculation that they were evidence of collusion or anything untoward.

The rest of the report is far less rosey for Trump World.

While the report does not find criminal conspiracy between Trump associates and Russia, it describes a set of contacts that may not involve chargeable criminality but might reasonably be described as “collusion.” In some of these cases, there was a clear “meeting of the minds”—or an effort to establish one—between members of the Trump campaign and agents of the Russian government, but the object of that agreement was not a federal crime. If these episodes fall short of a criminal conspiracy, they nonetheless reveal an alarming reality.

The report details numerous contacts during the presidential campaign, some of which are well known—for example, the cases of George Papadopoulos and Carter Page, two low-level recruits to the Trump campaign’s foreign policy team who became the focus of efforts by Russian agents to cultivate a relationship. A higher profile case is that of Trump’s former campaign manager, Paul Manafort. The report describes Manafort’s extensive ties to Russia in detail, ties he cultivated through his prior work for Russian oligarch Oleg Deripaska and the former Russian-backed government in Ukraine. Throughout his time with the Trump campaign—Manafort resigned in August 2016 but continued to advise the Trump campaign through at least November—Manafort maintained consistent contact with his “longtime” associate Konstantin Kilimnik, a Ukrainian who, according to the report, “the FBI assesses to have ties to Russian intelligence.” Kilimnik attempted to have Manafort pass along a peace plan for Ukraine that Manafort acknowledged to be friendly to Russian interests, though the Mueller team was unable to identify evidence that Manafort did so. Manafort in turn instructed his deputy Rick Gates to provide Kilimnik with polling data and other information regarding the Trump campaign’s electoral strategy, which he understood would be passed on to Deripaska and others.

A particularly troubling example is the protracted negotiation over the Trump Tower Moscow project, in which President Trump was personally involved. In September 2015, the Trump Organization, acting through attorney Michael Cohen, restarted negotiations over a possible Trump Tower project in Moscow that had fallen through several years prior. Trump himself signed a letter of intent for the project in October 2015, on the same day as the third Republican primary debate. One of Cohen’s interlocutors on the deal, businessman Felix Sater, repeatedly raised the possibility of using the deal to enhance Trump’s electoral prospects. In January 2016, Cohen reached out to Russian officials in an attempt to contact Russian President Vladimir Putin and secure support for the project, which ultimately resulted in an invitation for Cohen to visit Moscow to discuss it. Cohen also raised the prospect of Trump himself visiting Russia to discuss the deal, once in late 2015 and again in spring 2016—a possibility that Cohen indicated Trump was open to if it would facilitate the deal. Neither trip came together. Cohen ultimately pleaded guilty to lying to Congress about how long into 2016 the Trump Tower Moscow project was negotiated and Trump’s personal knowledge of it.

There are other examples too. . .

Continue reading. There’s much more, and it’s interesting.

Written by LeisureGuy

10 May 2019 at 8:57 am

Five reasons Trump is a foreign policy failure

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Jennifer Rubin in the Washington Post offers a clear-eyed view of Trump’s incompetence:

The Post reports:

President Trump is questioning his administration’s aggressive strategy in Venezuela following the failure of a U.S.-backed effort to oust President Nicolás Maduro, complaining he was misled about how easy it would be to replace the socialist strongman with a young opposition figure, according to administration officials and White House advisers.

The president’s dissatisfaction has crystallized around national security adviser John Bolton and what Trump has groused is an interventionist stance at odds with his view that the United States should stay out of foreign quagmires.

It’s odd that Trump doesn’t understand why his own policy is so aggressive; he and his vice president have issued numerous blustery pronouncements and threats. Perhaps Bolton’s mistake was in taking Trump’s commitment to the opposition too seriously. Alternatively, Trump may have been duped by an overly optimistic national security adviser who had no plan B if Maduro didn’t give up.

Then there are then the trade negotiations with China. What seemed like a narrowing of differences now appears to be a potential collapse of talks, with Trump threatening that higher tariffs will be imposed Friday. The Wall Street Journal reports, “The new hard line taken by China in trade talks—surprising the White House and threatening to derail negotiations—came after Beijing interpreted recent statements and actions by President Trump as a sign the U.S. was ready to make concessions, said people familiar with the thinking of the Chinese side.” Apparently Trump’s weakness or apparent weakness — the sort of negotiating behavior he’d scorned in “The Art of the Deal,” a fictional account of his career — has brought us to the brink of an even more dangerous trade war.

As with Venezuela, Trump would like to blame others (even Democrats, somehow), but his own attempts to flatter Chinese President Xi Jinping and his attacks on the head of the Federal Reserve seem responsible for China’s about-face:

Trump’s hectoring of Federal Reserve Chairman Jerome Powell to cut interest rates was seen in Beijing as evidence that the president thought the U.S. economy was more fragile than he claimed.

Beijing was further encouraged by Trump’s frequent claim of friendship with Chinese President Xi Jinping and by Trump’s praise for Chinese Vice Premier Liu He for pledging to buy more U.S. soybeans.

That brings us to North Korea, which after two ill-advised summits has resumed missile testing and failed to demonstrate it is serious about denuclearization, no matter how many times Secretary of State Mike Pompeo tries to spin the results.

Some common themes characterize these and other foreign policy flubs.

First, Trump imagines all foreign leaders are narcissistic patsies like he is. He tries to flatter those immune to flattery. He ignores egregious human rights behavior in North Korea and China for fear of poisoning a personal relationship that exists only in his head. Strongmen, as a result, see him as gullible and weak.

That leads to Trump’s second major failing: He gives too much away for free without any demand for reciprocity, thereby emboldening opponents. He gives Kim Jong Un passive PR wins. He lets China’s ZTE off the hook and slow-walks sanctions against China. He gives Saudi Crown Prince Mohammed Bin Salman a free pass on the murder of Jamal Khashoggi, with no promise of any changed behavior domestically or in Yemen.

Third, Trump and his advisers set unrealistic goals, reinforce them with exaggerated rhetoric and then lack a backup plan. Whether it is Venezuela or Iran, he envisions regime change but lacks a viable road to achieving such a dramatic result. As a result, friends and foes no longer take him seriously.

Fourth, he mistakes gestures for policy. Pulling out of the Joint Comprehensive Plan of Action, a.k.a. the Iran deal, doesn’t make us safer. Pulling out of the Paris accord doesn’t create an alternative plan for fighting climate change. Agreeing to move our embassy to Jerusalem doesn’t bring us an inch closer to a deal, even an intermediary one, between Israel and the Palestinians. The administration and Trump in particular never seem to be prepared to answer the logical question “And then what?” In fact, these are moves for domestic policy consumption and without an overarching strategy to achieve desired results. In addition, they fray relationships with allies who are essential to our long-term interests.

Finally, under two secretaries, the State Department has been hollowed out and left with absent or “acting” officials, in addition to facing massive proposed budget cuts, which Congress has fortunately rejected. A demoralized, disrespected State Department bleeding away officials with decades of experience is no way to beef up American influence and stature.

In sum, Trump has gotten by in life with lies, bluster and secrecy (e.g., keeping his tax returns under wraps). He hires flunkies, not experts in their field who might challenge his views. The results aren’t pretty. Moreover,

Continue reading.

Written by LeisureGuy

9 May 2019 at 8:37 pm

The Supreme Court, the Census Case, and the Truth

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The US is falling, one vital institution at a time. The Supreme Court seems next in line. Linda Greenhouse writes in the NY Times:

The smart money says the Trump administration is going to prevail at the Supreme Court in its effort to add a citizenship question to next year’s census. Having read the transcript and listened to the audio file of the recent argument, I don’t challenge that forecast.

Neither am I going to argue with the experts’ prediction that adding the citizenship question, which has been omitted since 1950 from the census form that goes to every household, will lead immigrant families to fail to return the form out of fear caused by the Trump administration’s brutal anti-immigrant policies. The resulting differential undercount will penalize immigrant-rich cities and states in political representation and federal funding.

Harmful as that impact would be on the affected areas, I want to argue here that validating the Trump administration’s cynical hijacking of the census would have a devastating effect on the integrity of the Supreme Court.

Never mind that three Federal District Courts, ruling since the first of the year in three cases, have found the addition of the citizenship question to be procedurally improper or flat-out unconstitutional. There are respectable contrary arguments that might be made, under the Administrative Procedure Act or the Constitution’s Enumeration Clause, or there would be, had the administration acted in the good faith that Judge Jesse Furman, ruling in the case now before the court, found to be conspicuously lacking.

Perhaps the justices who appear poised to overturn the lower-court decisions really believe that Congress has delegated its constitutional census obligation to the secretary of commerce to conduct the enumeration however he wishes without judicial supervision. Maybe they really think that the 18 states suing the Commerce Department lack standing because any harm that befalls them from the citizenship question is due not to the government but to the “illegal” acts of immigrants who fail to answer the census. These propositions constitute the core of the administration’s argument. If the justices are honestly persuaded by them, well, that’s litigation for you. It’s a zero-sum game in which someone wins and someone loses.

But if the plaintiff states are going to lose, it seems to me that it matters greatly how they lose. What was depressing and even scary about the April 23 argument was the disingenuous lengths to which the conservative justices were willing to go to tilt the case in the administration’s favor. They played dumb. They pretended not to know what they surely knew: that the citizenship question will depress the census count in a way that is predictably harmful and that the administration’s brief concealed the real story of how the citizenship question made its way onto the census. In other words, I have enough respect for the justices’ basic intelligence, which includes the ability to read the same briefs and opinions that I read, to conclude that they know full well what game is afoot.

Don’t take my word for it. Read the transcript. The conservative justices were at pains to challenge the very idea that the citizenship question could depress noncitizens’ response rates, despite the fact that numerous Census Bureau studies have shown that to be the case. “What jumps out,” Justice Samuel Alito said to Solicitor General Barbara D. Underwood of New York, “is the fact that citizens and noncitizens differ in a lot of respects other than citizenship. They differ in socioeconomic status. They differ in education. They differ in language ability.” And so, he went on, “I don’t think you have to be much of a statistician to wonder about the legitimacy of concluding” that the response rate would go down “because of this one factor.”

Justice Neil Gorsuch weighed in. “There could be multiple reasons why individuals don’t complete the form.” He continued: “We don’t have any evidence disaggregating the reasons why the forms are left uncompleted. What do you do with that? I mean, normally we would have a regression analysis that would disaggregate the potential cause and identify to a 95th percentile degree of certainty what the reason is that persons are not filling out this form and we could attribute it to this question. We don’t have anything like that here. So what are we supposed to do about that?”

Justice Alito then returned to his theme. There were “many factors that could explain a decline when you’re distinguishing between citizens and noncitizens,” he said.

When Ms. Underwood started to explain that the Census Bureau studies had controlled for the differences, Justice Gorsuch broke in. “It’s fair to say we don’t have this isolated, though, isn’t it?” he asked.

At this point in the transcript, Justice Stephen Breyer’s exasperation with his colleagues almost jumps off the page. “There are a million factors,” he said with evident sarcasm. “There are pet dogs, you know. I mean, there are cats.”

It fell to Justice Elena Kagan to bring the argument back to earth. “Would it be right to say, General,” she said to Ms. Underwood, “that it was the Census Bureau’s conclusion, a bureau full of statisticians, that it was the citizenship question that was driving the differential response rates?”

“That is correct,” Ms. Underwood replied.

Among the other conservative justices, Justice Clarence Thomas, as is his custom, said nothing, and Justice Brett Kavanaugh said relatively little. Chief Justice John Roberts didn’t join in the game that Justices Alito and Gorsuch were playing, but he did seem strangely obtuse when he observed to Ms. Underwood that “we’ve had demographic questions on the census, I don’t know how far back, but certainly, it’s quite common. Sex, age, things like that. ‘Do you own your house?’ ‘Do you own a radio?’ I mean, the questions go quite beyond how many people there are.”

The chief justice’s observations, while accurate, made no sense in the context of this case, as Ms. Underwood diplomatically pointed out. “We have no comparable evidence about any of those other questions that they depress the count in this substantial a way and in this disproportionate a way,” she said.

And what is there to say about Solicitor General Noel Francisco’s argument for the Trump administration? It’s part of our current national tragedy that an allergy to the truth has infected the Department of Justice from the top down. Mr. Francisco maintained in both his brief and his oral argument that it was the Justice Department that urged Wilbur Ross, the secretary of commerce, to add the citizenship question, ostensibly to provide for more precise enforcement of the Voting Rights Act. Aside from the fact that the Trump administration has shown no interest in protecting voting rights and that no administration has asked for a citizenship question in the 54 years since the Voting Rights Act of 1965 became law, there is one problem with the solicitor general’s narrative: It is demonstrably untrue.

According to the record methodically compiled in Judge Furman’s District Court courtroom, Secretary Ross was urged to add the citizenship question by Steve Bannon, a White House adviser at the time, and the anti-immigrant crusader Kris Kobach. Mr. Ross shopped the idea around the federal government for a year and was initially turned down by the Department of Homeland Security as well as the Justice Department. He finally made a direct pitch to Attorney General Jeff Sessions, who agreed to get him a letter that would request the citizenship question and provide the Voting Rights Act rationale — the rationale that Judge Furman called pretextual.

So when Mr. Francisco told the justices that there was “no evidence in this record” that Secretary Ross would have added the citizenship question “had the Department of Justice not requested it,” he was at that moment the luckiest person in the courtroom: The red light on the lectern came on, indicating the end of his argument time. No one could ask a follow-up question, including Justice Kagan, who earlier had observed to Mr. Francisco that “you can’t read this record without sensing that this need is a contrived one.”

This sordid tale might be just so much inside-the-Beltway gossip except that it goes directly to the legal matter at hand in the pending case, Department of Commerce v. New York. The administration is demanding deference to its decision on what to ask on the census. Yet experts at the Census Bureau have testified that asking the citizenship question will make the 2020 census less accurate. As Solicitor General Underwood of New York put it in her brief for the plaintiffs, addressing the Justice Department’s purported request for the question, “Settled principles of administrative law foreclose any deference when a decision maker falsely claims to rely on the expertise of another agency to defend its determination.”

The basic legal claim of New York and the other states is that adding the citizenship question is “arbitrary and capricious,” in violation of the Administrative Procedure Act. As the states’ brief explains: “A decision maker acts arbitrarily by purporting to rely on another agency’s expertise when, in fact, the decision maker instructed that agency rather than the other way around. Such illusory reliance undercuts the foundational premise for judicial deference to administrative action: that the decision resulted from an exercise of specialized expertise that courts lack. When a decision maker purports to rely on an exercise of expert judgment that never happened, there is nothing to which the courts can defer.”

In the administration’s brief, Mr. Francisco complains that . . .

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Written by LeisureGuy

9 May 2019 at 10:19 am

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