Prickly Questions of International Law Amid the Gaza War

 This blog originally appeared in the International Policy Digest.

The war in Gaza presents a problem for international politics. But it also poses problems for international law. Specifically, if we were to evaluate the events that have transpired since October 7, from the perspective of international law to assess the legality of actions and determine liability, many questions need to be addressed foremost among those, whether the events here rise to a level that could be adjudicated in some international forum, such as the International Court of Justice (ICJ) or the International Criminal Court (ICC).

The most complicated of all factors is about the status of Gaza—is it a state or not? The entire framework of post-1945 international law is premised upon a state-centric model. By that, nation-states or countries are the principal if not the sole actors in international public law. The United Nations is premised upon states as members of, not individuals or ethnic groups, for example. Non-governmental actors (NGOS) are not members of the UN, nor is the European Union, despite how important they are internationally.

Hamas is a terror group, not a state, and its legal standing under international law is unclear. The Gaza Strip, Jerusalem, and the West Bank are Palestinian territories. The Palestinian Liberation Organization proclaimed their territories a state in 1988. Palestine is recognized as a sovereign state by 138 of the 193 UN member states, but it is not a United Nations member itself. But neither Israel nor the U.S. recognizes it as a separate sovereign state, even though there is still lip service given to the idea of a two-state solution. While Gaza has some limited control and autonomy, it is effectively under the control of Israel.

On the one hand then, if Gaza is not a separate state, how does one characterize the attack against Israel by Hamas? The simple answer is that all the attacks were criminal acts and should be treated as such. This means the appropriate reaction by the Israeli government should have been to follow domestic criminal law, searching out the suspects who committed the crimes, prosecuting them, and putting them on trial. Israel instead chose an alternative approach and according to Gaza health officials, over 17,000 civilians, mostly women and children, have been killed as a result.

Instead, Israel formally declared war against Hamas. Under international law, one state cannot declare war against a non-state, let alone a group of individuals. First, aggression by states against another is supposed to be illegal against other states according to the 1928 Kellogg-Briand Pact, the UN Charter, and a 1974 UN resolution defining aggression. Second, while self-defense is recognized as legitimate by the UN Charter, the International Court of Justice has declared in a 2004 advisory opinion that states may not use force as a form of self-defense against non-state actors.

As far as international law is concerned, Israel’s war declaration and response are problematic. A formal declaration of war by Israel is tantamount to recognition of Gaza as a separate sovereign state against which it may be justified to use force as a form of self-defense. On the contrary, if Gaza is not a separate state but part of Israel, then its actions may violate international law.

No one should think what Hamas did was justified regardless of Israel’s policies in the Occupied Territories. However, with that said, how Israel treats Palestinians is possibly a form of genocide under international convention, or at the very least, it violates other international conventions such as the 1966 International Covenant on Civil and Political Rights. Israel is a signatory to these treaties. Legal action to determine if Israel violated either should have been brought before the ICJ.

But assume that Gaza is a state. Israel does have a right to self-defense under Article 51 of the UN Charter. Still, international law encourages peaceful means to resolve conflicts, or at the very least, to use international tribunals to resolve disputes. One option is the International Criminal Court. Unfortunately, neither Palestine nor Israel recognizes its jurisdiction, thereby foreclosing or at least limiting that as an option to hold either Hamas or, as some claim, Israeli officials such as Benjamin Netanyahu responsible for possible war crimes.

Moreover, if Palestine is a state, there are questions regarding whether Israel’s use of self-defense is legal. Self-defense is limited to proportionality, and it cannot take on actions that might amount to genocide, in violation of the 1972 convention. These are questions that are proper matters for the ICJ to address.

It is possible that the ICJ could be involved in other ways too. The UN General Assembly has requested an advisory opinion from the ICJ, which is currently before the Court. Hamas and the Palestinian state should have waited for this advisory opinion. It is also possible that the current conflict could be brought to the Court, but the authority of the ICJ could be complicated by the issue of statehood.

However, for many, the argument will be that turning to these international forums is futile. On the one hand, Israel has arguably violated international law with impunity over the years when it comes to the Palestinians, and despite repeated UN resolutions little has changed or been accomplished to resolve the disputes that led up to the events of October 7. There is a lot of truth to many of these claims and this begs the question of whether the current regime of international law can resolve the conflict that started on October 7 if it failed to resolve the disputes that led up to it.

 

Inequality in America?  Bah, Humbug!

BY DAVID SCHULTZ

This piece originally appeared in  Counterpunch on December 8, 2023.

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If the US economy is in such great shape why are there so many poor in America and why is there such inequality in the country?

According to The Economist we are entering the golden years for American workers. After decades of  the closing of factories, the loss of blue-collar jobs, wage stagnation, and a buyers’ market for workers, we have entered a new era according to the latest issue of this magazine.  Its editors point to labor shortages, rising wages, and the trickling down of the benefits of the digital economy to the common worker.  The Economist also cites Gerald Auten of the Treasury Department and David Splinter of the Joint Committee on Taxation, a nonpartisan group in Congress, who similarly question whether inequality exists or is increasing.

They join former US Senator Phil Gramm (one of the congressional architects of the Reagan tax cuts back in 1981 and author of the 1999 Gramm–Leach–Bliley Act which overturned the 1933 Glass–Steagall Act which had separated commercial and mortgage banks and who repeal led to the 2008 economic crash) and his co-authors who penned the 2022 bestseller The Myth of American Inequality declaring the poverty and inequality in America has fallen since 1947.

Additionally, the mainstream press points to record low unemployment and high employment, failing inflation (including energy costs) as signs that we have never had better in America.  This too is the story Joe Biden wants to tell as he contemplates a second term as president.

But somewhere out there, there is a disconnect with the American people and reality. Ignore first the trendlines that The Economist picks are short term and there is no indication they will last, even if accurate.  For example, by the time the December 2, issue of this magazine came out there were signs of a tightening labor market as the number of job listings was rapidly dropping and also the support programs in place during the pandemic   lifted many out of poverty were ending or had ended. .  Ignore also that Gramm overlooks the fact that from the mid-1970s to the present many of the gains from 1947 were stalled, eroded, or reversed by the time he became a legislator.

Beyond these cheery discounts of inequality, consider a few hard facts.

 Based on Census data, Time Magazine reports that “the U.S. poverty rate saw its largest one-year increase in history. 12.4% of Americans now live in poverty according to new 2022 data from the U.S. census, an increase from 7.4% in 2021. Child poverty also more than doubled last year to 12.4% from 5.2% the year before.”  Poverty, for a single person, or for a family of three, is defined as living below $13,590 or $23,000 per year respectively. We have approximately thirty-eight million people living in poverty according to that standard.  But tell me what single person or family of three can live comfortably at those incomes or even at double that.  Real poverty, as measured by a reasonable income, is probably double that figure.  By comparison, Michael Harrington’ classic 1962 The Other America declared there to be forty million poor people in the US.  In real numbers, little has changed in sixty years in terms of the poor population.

In 2023, the top ten percent of earners controlled sixty-nine percent of the wealth in America, the bottom fifty percent controlled barely one percent of the wealth.  According to Statista,  there has been no discernible shift in these trend lines going back to 1990, and there is no indication that it will change in the future. In 2022, on average White Caucasian households had about six times as much wealth as a Black household and five times as much as a Hispanic household.

The ten richest Americans are worth one trillion dollars, more than the total assets of the bottom fifty percent. In the 1970s the CEO-to-typical worker pay ratio was approximately 30-to-1; in 2022 it was 344-to-1.  Since 1978 CEO pay has increased 1322%.

One could cite even more statistics countering the rosy picture painted by The Economist, Gramm, and other inequality deniers.  But the broadest point is that there is little evidence that inequality is abating and that we are entering a new golden age of capitalism for workers.  Talk to the average person on the street or in the grocery store who is struggling to make ends meet, they will tell you a different story.  For those, though, who disagree, Bah, humbug inequality.

If the US Presidential Election were Held Today (Or Why Democrats Should be Beyond Worried)

 

Polls are not predictors.  They are merely snapshots of public opinion at a specific time. A lot can

change between now and the November 2024 US presidential election. But if the election were held today Donald Trump would beat Joe Biden in the electoral college and perhaps in the popular vote.

            There are many indications that Joe Biden is in deep trouble.  National  polls right now place him and Donald Trump in a tie, or with Trump with a slight lead.  But ignore all national polls.  We do not elect presidents either by national polls or a national popular vote.  All that matters is the electoral college and the race to get 270 electoral votes.

            But as I have written, not all fifty states are created equal.  Because of partisan demographics, population sorting, and the fact that forty-eight out of fifty states allocate their electoral votes on a winner-take-all basis, only a few swing states matter.  Within those few swing states perhaps only a few swing voters matter.  Back in 2015, I argued that there were only three numbers that mattered—10/10/270.  Ten percent of the voters in ten states would determine who would become president.  The reality was three swing states—Michigan, Pennsylvania, and Michigan decided the election.  Within those three states, shift 90,000 votes and Hilary Clinton would have been president. 

Four years later, factoring swing counties into the equation, the equation was 10/10/7/270.  Ten percent of the voters located in perhaps ten counties across seven states would decide the election.   In 2020 the election came down to Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin.  But had 43,000 more individuals voted for Trump in Arizona, Georgia, and Wisconsin, he would have won reelection.

Now four years later the numbers to look at may be 5/5/5/270.  Five percent of the voters in five counties located in five states—Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin—will decide the election, with Maricopa, Fulton, Wayne,  Allegheny, and Door counties deciding who gets to 270.

How has the presidential race come down to this?

Let us assume that Joe Biden and Donald Trump are the presidential nominees in 2024.  Assume that that each of them wins all the same states they won in 2020, and that they again split the states of Maine and Nebraska the way they did in 2020.  Assume also that Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin are the only swing states in 2024.  If the election were held today Trump would lead Biden in the electoral college 235 to 232.  This number reflects a shift in electoral votes after the 2020 census  that work to Trump’s benefit.  This leaves the above five swing states totally 71 undecided electoral votes.

Polls right now in  the five swing states show Biden leading in Michigan  and  Wisconsin (25 electoral votes) and Trump in the lead in Arizona, Georgia, and Pennsylvania (46 electoral votes). With the exception of Georgia where Trump according to the latest poll  has a nine point lead, all the margins  of victory are within the margin of error. This suggests that the races are really to close to call or could simply go either way.

Total up the safe states and swing states for each candidate.  Trump wins with 281 electoral votes to Biden’s 257.

The picture is bleak for Biden.  No sitting president has won re-election with approval ratings with what Biden now has.  Incumbents do badly when the public senses the country is moving in the wrong direction or when they perceive the economy is doing badly. This is the case now in the polls.

The public is worried about Biden’s age.  There is an enthusiasm gap comparing how Democrats feel about Biden compared to how Trump’s base feels about him.  Generally undecided voters break against the incumbent when they perceive things going badly in the country.

Add it all up—Biden is in serious trouble.

Biden and Democrats are hoping abortion saves them like in 2022. Or that the Trump legal problems and possible convictions will save them. These are tough bets to make.

Four years ago many viewed Biden as a one term transitional president who would pass the mantel on to a  new generation in 2024.  He still needs to do that.  There is a small window, perhaps just three to four months, that Biden has to decide to exit the race and leave room for another Democrat to emerge as the consensus candidate.

It is possible that Biden can still win. It is possible the polls are wrong or that they are not good predictors but simply snapshots in time.  One year is a political eternity.  Yet right now despite how bad a candidate Trump is with all his problems, there is no guarantee Biden  can win in 2024 and instead a good chance he will lose.

Congress, Go Big or Go Home: Amend the Budget Act to Avert Government Shutdowns

 My latest appears in The Messenger. 

Yet another federal government shutdown is upon us. The choice should be not whether to allow a partial shutdown, but whether Congress should “go big or go home.” The real choice should be a total government shutdown or none at all.

A small group of anti-government zealots evidently want to play “chicken” with the federal budget and its credit score. Odds are, there will be a shutdown. But essential government functions — such as prisons, the military, Social Security, Medicare and Medicaid — will be funded, at least for now. Members of Congress will be paid, too, although their staff will not. Vulnerable Americans, those receiving WIC or SNAP benefits, may feel the pain immediately. Most Americans, however, will not feel the effects of a partial shutdown; the pain will not be spread evenly.

That is the problem with a partial shutdown. Many who dislike the government or specific programs will not be affected — at least not in the short term, or in ways that affect the poor. 

We need a better way.

One option is to let the government actually shut down, totally and completely. Reject the false distinction that there are “essential” and “non-essential” governmental functions. If Congress cannot come to an agreement, there is no funding and no government operations. Give the zealots what they want and let them live with the consequences of their choice. Courts, prisons and military bases would temporarily close. Seniors would not get their Social Security checks or health insurance.

It sounds cruel but maybe it would be effective. It would show the true value and importance of the government. It would demonstrate that all functions are essential. It also would force Congress — who, under this scenario, would not get paid — to confront the reality of its inaction. Right now, a partial shutdown bails out Congress; it can be irresponsible, and most of the government will continue to operate.

The problem with this option, however, is that the risks are too high: Vulnerable Americans will be hurt with a full shutdown, just as they are with a partial one.

Backfire: Keeping Trump off the Ballot and Impeaching Biden May Get you Something Worse

 

            Don’t wish for something, it might happen. When it comes to American politics in 2024, that might be the warning for Democrats seeking to keep Donald Trump off the ballot in Minnesota or Colorado or for Republicans trying to impeach Joe Biden.  For every political action there is an opposite reaction and for both parties what they might get is a backfire  that could do the opposite of what they want.

            Consider the state of contemporary politics.  It is a polarized winner-take-all-environment.  There are maybe five states—Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin that are in play.  Within those states, only a handful of swing voters in a handful of swing precincts will decide the race to 270 electoral votes  to win the presidency.  The US House and Senate are closely divided, with  perhaps no more than 20 suburban House seats and six Senate seats in play that will determine partisan control. Trump and Biden are tied in the national polls. 

Nearly forty states have partisan trifectas, giving  one party complete control of the legislative process.  These trifectas show the importance of winner-take-all politics  versus split government gridlock.

Now consider the current strategies.  Democrats in Colorado and Minnesota and perhaps in other states want to use the insurrection clause of  Section Three of the  Fourteenth Amendment to keep Trump off the ballot in those states.  Using a clause designed to remedy post-Civil War concerns regarding the  1866 election to keep former Confederates from serving in office and of which many legal historians question its applicability today, the strategy is to have election officials or state courts declare Trump and insurrectionist and therefore ineligible to appear on the ballot.

Keeping Trump off the Ballot in Minnesota

            Let’s consider the possibility of this in a quadfecta  state such as Minnesota where Democrats control both houses of the legislature, the governorship, the state supreme court, and even the secretary of state as the top election official.

The attraction or lure is great.  Exclude Trump from the ballot in Minnesota and one is guaranteed ten electoral votes without much work.  The resources can then be shifted to Wisconsin or another swing state.  Never mind no Republican has won statewide office since 2006 and no Republican presidential candidate since 1972.

But there are powerful downsides to this strategy.  One, if there is not even the semblance of a competitive presidential race in  Minnesota, it may be hard to motivate Democrats to come out to vote. Trump draws out Democrats to vote.  Without a competitive presidential race, down ballot races may be impacted.

Two,  if a 6-1 Democratic Party majority on the Minnesota Supreme Court throws Trump off the ballot it will only further add fuel to  the national claim of rigged elections. Minnesota will become the rallying cry to motivate Republican voters to come out in record numbers to support their guy.

Three, even if the Minnesota Supreme Court does not remove Trump from the ballot, the damage may already be done.  Even the hint of doing this raises the  stolen election fear both in the state and nationally, thereby propelling Republicans to the ballot.

Finally, now  consider one more issue—abortion.  The US Supreme Court overturning Roe v. Wade and abortion rights was a blessing for Democrats in the 2022 midterm elections.  It is still a salient issue. But in 2023 Democrats in Minnesota  went beyond codifying Roe, enacting legislation arguably going beyond what most of the state’s public opinion supports.  Republicans already plan to use the phrase “abortion on demand” to motivate their base in 2024, including a highly motivated pro-life anti-abortion constituency.

Rumor has it that the Democrats  want to go beyond codification of abortion rights and put it in a constitutional amendment and on the ballot in 2024.  In part the reasoning is to motivate their base.

Yet Democrats need to remember 2012 when a Republican legislature thought  a voter ID and marriage amendment would  juice up their base  and win them the elections. The result backfired and Democrats took over the legislature and single-party control of the state.

 

Impeaching Biden

            Biden enjoys tepid support among Democrats going into 2024.  He has low approval ratings among the general public and he does not garner enthusiasm among Democrats.  He is vulnerable in part because Democrats may not come out for him.

            The best thing Biden has going for him so far going into the 2024 election is Trump may be his opponent and that the House of Representatives is controlled by Republicans.  He gets to run against both next year.  But that still may not be enough to save him.

            Enter impeachment.

            The Republican House will likely impeach Biden later this year or in 2024.  The validity of the impeachment grounds do not matter.  Impeach Biden is meant to handicap him while running for re-election.  It is political tit-for-tat.  Trump was impeached, impeach Biden.  Trump has legal problems, divert attention from them and his trials by impeaching Biden and forcing a Senate trial on to television and into the social media.  It levels the legal playing field between Trump and Biden, and it serves as a way to motivate Republican donors and voters.

            Except perhaps not. There is no way a Democratic Party-controlled Senate will convict Biden.  There is even no guarantee it will hold a trial.  But much in the same way the Trump’s first impeachment motivated his voters  (and had it not been for Covid and his mishandling of it  he might have won him the 2020 election) after the 2018 midterm elections, a failed impeachment of Biden might simply be the thing Democrats need to rally their voters around Biden and bring them to the polls in 2024.

            The lesson is don’t wish for something because if you get it, it may backfire on you.

Saving American Democracy From Donald Trump-- Does the Fourteenth Amendment Provide a Solution?

 Winston Churchill once exclaimed that " democracy is the worst form of government, except for all those

other forms that have been tried from time to time."  With democracy facing challenges in the US the likes that perhaps not seen since the Civil War, the question is what to do. 

            This question takes on exceptional salience with the coming 2024 presidential elections and the prospect that Donald Trump could again be re-elected.   This has prompted some to call for some to employ the Fourteenth Amendment to declare Trump an insurrectionist and declare him ineligible for office.  As attractive as this solution may sound, it is a dangerous tool to solve  a pressing problem.

            Democracies can produce their own antithesis. The Democratic German Weimar Republic elected Hitler and the Nazis who annihilated the popular government. Across the world we see similar problems in Hungary, Poland, and perhaps Israel.  Our constitutional framers saw this potential too.

Democracy, including that in the US, is an experiment in the people ruling, and it is still not clear if it works.  The American Experiment according to historian James McGregor Burns was that of being the first popular government in history. While one can challenge whether the elite framers who were slaveholders truly were interested  in popular government, let’s assume they were.  For James Madison, perhaps the principal architect of the Constitution and one of the authors of the Federalist Papers the challenge of popular government or what we call representative democracy today is to protect it from majority faction, mob rule, populism, or what others have called the tyranny of the majority.

The fear was that the passions of the people would swell up and produce a majority faction, defined as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”

The political solution to the problem of  populism was  creating a system placing breaks on the mobilization of power through separation of powers, checks and balances, federalism, staggered political terms, and an electoral college.  Yet somewhere along the line these mechanisms have failed .

Political science research tells  us that democracies need elite and mass support to work.  Yet polls suggest the American public increasingly worries about  our democracy or no longer trusts it, and many elites too have lost confidence in it.  Among those Donald Trump.

No matter how you cut it, Trump is the worst nightmare of our constitutional framers.  He is why we had an electoral college to prevent his selection as president.  But nonetheless, he was elected once due to structural features in the electoral college that have reduced presidential elections down to what a few voters in a few swing states think.  We have a democracy that is not  purely majority rule nor  purely capable of containing the excesses of democracy.  We have a democracy where the wealth of a few drives the agenda.  We have a democracy where wealth inequalities as well as racial, geographic, and partisan polarization divide America.  We have a democracy with institutions designed for the eighteenth century seeking to operate in the twenty-first century.

Simply put, there are many reasons to fear the crisis of a house divided.  There are  many reasons why  the likes of Donald Trump appeal to so many.  Yet what is scary is that his efforts to overturn the 2020 election results  and whether as a result of it he should be considered a viable presidential candidate divide America.  It ought to be a no brainer—What he did on January 6, 2021, was  simply wrong.  He encouraged a storming of the US capitol with the goal of effecting a coup d’état and overturning an  election.

He is an insurrectionist and should be barred from office under Section Three of  the Fourteenth Amendment.  At least this is the conclusion of a forthcoming article co-written by a former professor and colleague of mine Michael Stokes Paulsen.

The Fourteenth Amendment was one of three Post-Civil War Amendments and a host of legislation adopted as part of the Reconstruction.  The relevant part of Section Three states:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 

The question is what does this section mean and how does it apply to Trump, if at all?

            Central to Paulsen’s argument is a historical analysis of the Amendment with an argument that concludes that the Section Three exclusion was written to address specific circumstances growing out of the Civil War and the need to prevent former Confederacy members from serving in office and impeding Reconstruction.  But one can read Section three more broadly, as is true of Section One with regards to Duer Process and Equal Protection, to still be part of the Constitution and applicable beyond the Civil War and Reconstruction.   We can read it to apply to future events and use it to exclude Trump from future office because of what he did on or around January 6, 2020.

            I am not a professional historian—I am trained with a Ph.D. in political science as well as a JD and master’s in law as well as advanced degrees in philosophy and astronomy.  It is possible that Paulsen is correct that Section Three applies beyond the facts of Civil War Reconstruction and it has the meaning  he ascribes to it.  However, I decided to defer to some of the best American legal historians regrading Section Three’s meaning.

             Urofsky and Finkelman’s A March of Liberty (volume I, p. 502) describes Section Three as a “severe sanction” to those who  held office before joining the Confederacy.   Kelly, Harbison, and Belz’s  The American Constitution (volume II, p. 333) as originally proposed  “unconditionally  disenfranchised  all participants in the late  rebellion until March 4, 1870.”  But many moderate rebellions objected to the provision as two severe and too temporary and therefore substituted the present language to prevent all those who formerly held office and engaged in rebellion from holding office unless permitted to do so by Congress.

            Foner’s The Second Founding (p. 85) dismisses Section Three  in one sentence as “long since faded into history.”  Foner’s masterpiece, Reconstruction:  America’s Unfinished Revolution acknowledges the Fourteenth Amendment can only be understood within the  content of the  1866 (257), the elections that year, and the fear that the present Andrew Johnson would undo efforts to  enfranchise former freed slaves (254).  Finally Maline and Rauch’s Empire for Liberty (volume II, p. 12) effectively ruled out all of the “South’s leaders” and was detested by  Southerners.

            At best historical evidence is mixed when it comes to the meaning and interpretation of Section Three.  Most  historians see it as time bound or limited to the circumstances immediately following the Civil War.   Yes, as Paulsen contends, other parts of the Fourteenth Amendment such as Section One may have a life beyond  the Civil War or Reconstruction, but just because one section is not limited by time and historical circumstances does not mean the entire Amendment is.

            The task here is not to criticize the historical claims.  One can concede the  history of Section Three and one can also concede that Trump encouraged an insurrection on January 6.  Yet it may nonetheless be bad policy to use Section Three to bar him from the office.

            Trump deserves to be punished for what he allegedly did.  This is why we have courts, due process, and rule of law. Let the criminal justice process do its job. Additionally, one has to feel uncomfortable  letting election officials make determinations of ballot access.  While such decisions are subject to judicial review, there is already a problem in the US with minor parties and candidates seeking ballot access and having to spend significant amounts of money to fight restrictive laws.  Granted their case is different from Trump’s but we should not empower more discretion in election officials to deny access to the ballot.

            Additionally, a generation ago in 2000 the Supreme Court’s Bush v. Gore  was criticized for resolving the election dispute in Florida.  Many said the Court picked the president.  Here if the Insurrection Clause is used to keep Trump off the Ballot,  courts again may determine who is the next president.  This is especially with the likelihood that the Supreme  Court may eventually review any lower court decision.

            But there is also a problem of precedent. Deny Trump access now and Section Three will turn into a partisan tool much in the same way the impeachment has eroded into gotcha politics.  In a polarized political environment such as the US is experiencing, keeping a candidate off the ballot does nothing to overcome that.

            Finally, keeping an opposition candidate off the ballot reeks of tactics that governments do in less than democratic states. 

            American democracy is in trouble and Trump is trouble for democracy.  He is a symptom of a deeper problem that keeping him off the ballot will not solve.  Short term political mobilization, especially in the critical five or six swing states that will decide the 2024 presidential election, is the solution.   Organize to defeat Trump.  But longer term there are major obstacles regarding race, class, and gender discrimination.  There are problems with election laws unfair to minor parties and candidates.  There is a need to address political disinformation.  The institutions of democracy need to be fixed.  Barring Trump from office will not accomplish that.

Sprawl v. Densification: A Hobson Environmental Choice for Cities

 

A Minnesota court and law has just dealt a major blow to the latest trend in urban planning theory—

densification and the elimination of single-family zoning. The implications of this decision should force cities and metropolitan areas to rethink the environmental tradeoffs between continued sprawl and urban density.

            New Urbanism declared urban sprawl bad for many reasons.  Among them, sprawl produced inefficient use of land and resources.  It forced the  use of cars on paved roads resulting in pollution and the use of carbon fuels.  It resulted in mega homes too costly to heat or cool and green lawns that used up too much water.  Sprawl was an environmental problem.

            The solution was  densification.  If cities were eliminate single-family zoning and encourage greater density of housing and business, it would be good for the environment, especially if coupled with the encouragement of  mass transit.  It would   yield a better use of land, provide for less use of carbon fuels and private cars to move people around.  Additionally, elimination of single-family zoning would encourage the building of more affordable housing and address the legacy of residential racial segregation.

            Minneapolis was the first on board with this idea.  Its 2040 comprehensive plan was heralded by the planning community as a major progressive reform.  It provided the model for other cities contemplating similar action to addressing a host of problems.

            But somewhere along the line the City of Minneapolis and reformers neglected to think about the environmental impact of densification.  A coalition of environmental groups challenged the Minneapolis 2040 plan, contending that it violated Minnesota’s Environmental Rights Act.  They brought suit contend that comp plans were subject to state environmental impact statement reviews.  The Minnesota Supreme Court ultimately agreed and finally on September 5, 2023 a Minnesota Court reached  a final order  declaring the 2024 Plan in violation of  state environmental laws and enjoined it enforcement.

            In reaching its decision a Minnesota District Court reached several findings of fact.  It found that densification and the plan to add nearly 150,00 residents to the city by 2040  would include among other things  increased noise impacts, pedestrian traffic, vehicle traffic and  vehicle congestion and idling.  It would result in decreased air quality, increased parking constraints, reductions of privacy, increased light and glare from buildings, decreased access to light for surrounding properties, shadowing of adjacent properties,  and impacts of existing solar panels on neighboring structures.  The  Court also noted that densification would produce more hard surfaces, exacerbating water runoffs and heat island effects.  Overall, simple densification would produce significant problems that the City had not accounted for.

            For now and pending appeals, Minneapolis cannot enforce the 2040 Comp Plan and it must continue to use the existing one.  But longer term the court opinion, if upheld, poses a Hobson’s choice for planners and metro areas.  Urban sprawl  poses  environmental problems as does renewed urban densification. 

How we assess the competing environmental tradeoffs in these competing  approaches suggest that  there needs to be a better balance or assessment in how cities and suburbs are constructed, and that will require  a rethinking of the types of housing built and where, and how we move people from place to place.  We also need to rethink  issues such as greenspace location and a host of other issues.    Perhaps the pandemic  and then changing patterns of where people are choosing to live  and work is the opportunity for this.  But for now the Minnesota courts are forcing reformers to rethink the environmental consequences of the latest  trend in planning.

The Supreme Court’s Color Oblivious Constitution and the Road not Taken

            The Supreme Court’s Students for Fair Admissions, Inc. v. President and Fellows of Harvard College struck down affirmative action programs at both Harvard and the University of North Carolina in the name of the “color-blind” Constitution. Perhaps it would be better to describe the Court’s Orwellian fantasy doctrine as “color oblivious.” 

            The decision should have surprised no one and it well-telegraphed not just from its recent decisions chipping away at racial considerations when it came to college admissions, but perhaps from the very start of when the Supreme ever looked at the issue of affirmative action.

            The very first class I taught (co-taught) in college was a course entitled “Justice and Affirmative Action.”  It was  a long time ago.  I  have spent a life time and career thinking about race and affirmative action. What has always struck me is the unease Americans have when it comes to race.

            W.E.B. DuBois once proclaimed that the problem of color-line would be the problem of the twentieth century.  Yet the Supreme Court’s affirmative action jurisprudence has never really embraced it or understood the reality of American politics both historically and today.  Whether it was its 1857 Dred Scott v. Sanford which ruled that slaves were property and not persons, or the 1896 Plessy v. Ferguson  declaring separate but equal as an acceptable constitutional doctrine, the Court has more often than not failed to look beyond formal legal doctrines and see the reality of race in America. 

            The reality is of an American society that remains racist.  Our constitution was born of slavery and race. We fought a Civil War and a civil rights movement over it.    Yet the badges of slavery persist in all of our institutions including criminal justice, housing and education.  Affirmative action was never meant to be the sole tool to abate race, but instead one of several.  It recognized that there was a difference between the use of race for discriminatory as opposed to remedial reasons and that it was an illusion to say that simply passing law  making discrimination illegal would make it disappear.

            Affirmative action at the college admissions level recognized the failures of our society in confronting race.  Perhaps, just perhaps if we truly had integrated and quality schools for all and all students were free to pursue their excellence, affirmative action at the college level would not be necessary. But we do not live in that world.  We do not in part because of the Court’s own decisions such as San Antonio Independent School District v. Rodriguez declaring that there is no constitutional right to education and that discrimination based on wealth is not illegal,  or Keyes v. School District No. 1, Denver where the Court imposed limits on cross-district integration and thereby accelerated suburban white flight.  Both cases were from 1973—undermining civil rights and equal educational opportunities almost from the start.

            The 1978 Bakke v. University of California  was the Court’s first college affirmative action case.  It struck down the racial quota system in place, ruling that race could only be one of several factors  when making admission decisions.  The Court also declared that the only constitutional justification for racial considerations was to promote diversity in the classroom.  Yet Bakke ignored the fact that there was a small cluster of special admission’s slots given to the dean, presumably offered as legacy slots or for rich donors.

            Consistently the Court has ignored the privileged position of legacy admissions at Harvard and other schools. It has ignored the way rich donors can buy admissions for their children, as we say in the stories from a few years ago where individuals such as actress Lori Loughlin paid $500,000 to buy admission for her daughters. to USC.  The Court seems oblivious  to  how some private, prep, and boarding schools give some applicants a special advantage to get into elite schools such as Harvard and Yale. Such schools, one might note, that have produced the majority of Supreme Court Justices. 

            The Court in Bakke accepted the argument that racial considerations to help people of color  were a form of racial discrimination.  That assumption prevailed in all of the Court’s college affirmative action cases, as well as in its decisions, especially under the Rehnquist and then Roberts Courts, when it came to employment and redistricting.  Somehow just declare  the Constitution and the law racially neutral or blind and it will go away.

            Twenty years ago in  Grutter v. Bollinger the Court signaled its impatience with affirmative action when Justice O’Connor declared that she hoped in twenty-five years affirmative action would no longer be necessary. In the Fair Admissions, Inc case decided on June 29, the patience ended.  In part because Harvard and UNC could not say when they would no longer need to consider race to overcome discrimination, that is why the Court had to end it.  In effect, despite the fact that the Court in its decision discussed the history of race in America it was simply time to end it because it discriminated against white Caucasians (such as those individuals who brought the case) and because it just had to come to an end.

            The Supreme Court could have taken a different road in this case. It could have declared that the group bringing the case had no standing to sue because it had not suffered harm.  The Court could have said the Harvard plan was discriminatory toward Asian-Americans and ordered them to fix it without striking down all considerations of race.  But by the time we got to this case the Court had already gone down the wrong path.  It ignored how its own decisions have contributed to racial discrimination and the unequal educational opportunities  and how they have undermined  societal institutions to address racism. In effect, the color obliviousness of Fair Admissions, Inc. v. President and Fellows of Harvard College  was a long time coming.

 

Trump is why the framers created the Electoral College

This blog originally appeared in The Hill. 

The possibility of a second Donald Trump presidency provides perhaps the strongest case ever for the Electoral College. Were the Electoral College to work as the Framers originally envisioned, there is no chance Trump would even be a serious candidate in 2024, let alone 2016 or 2020.

The Electoral College is perhaps the most maligned and misunderstood institution in American politics. There have been more efforts to alter or abolish it than any other institution, and polls suggest large percentages of the public support replacing it with a direct popular vote for president.

So why did the constitutional Framers create the Electoral College?

Historian James MacGregor Burns describes the U.S. in 1787, at the time of the drafting of the Constitution, as an experiment. It was an experiment in popular government. The world was full of monarchies, but nowhere did democracy exist or was there a government where the people could select their leaders.

As the constitutional Framers debated how to structure the new government, “fear” was the word of the day. Slave states feared the free; small states feared the larger ones. Everyone feared that if the new Constitution were framed wrong, they would lose. These disagreements led to the infamous three-fifths compromise, where slaves would count only as partial persons in determining population for congressional representation. Additionally, a recent uprising by farmers, known as Shay’s Rebellion, meant many at the convention feared that the people might not be capable or knowledgeable enough to vote.

When all this fear came to the presidency, the question was how to select that person. Alexander Hamilton originally proposed a president who would serve for life. While there was some talk of direct election of the president, there was little support for it. The less populous states worried that a direct popular vote would mean they would be dominated by states with more voters. The slave and free states each feared that the direct popular vote might work to their disadvantage. Thus the compromise — the Electoral College.

The idea was for the legislatures of each state to select electors who would be temporary, beholden to no one, with the sole duty of picking the president and vice-president. The presumption was these electors would be of sound judgment and character, and they would make the best choice for president. As Alexander wrote in Federalist No. 68: “The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Similarly, James Madison worried that with direct elections, “The ministers of foreign powers would have and make use of the opportunity to mix their intrigues & influence with the election.” Pierce Butler, another constitutional framer, worried that the “two great evils to be avoided are cabal at home and influence abroad.” The Electoral College would address both.

This system was also defended as protecting the minority from the tyranny of the majority. A direct popular vote might result in small states or particular regions or interests being ignored. The Electoral College was, as political scientist Martin Diamond once argued, the check on populism that might go bad.

But partisan politics quickly undermined the original vision of the Electoral College, as each state sought to control its electors and how they would be selected. In the early nineteenth century, as the spirit of democracy spread, legislatures gradually let the people vote to select the electors. Later on, states changed their laws to allow for each qualifying candidate to designate their own slate of electors, with popular elections determining whose slate was entitled to cast the electoral votes. Finally, fearing that the electors might not vote as the people decided, “faithless electors” laws were enacted to compel them to vote the way the popular vote went. The Supreme Court upheld such laws in Colorado Department of State v. Baca.

Changing notions of what democracy means have led to erosion in support for the Electoral College. Five times in American history — 1824, 1876, 1888, 2000, and 2016 — the winner of the national popular vote lost the presidency to the winner of the Electoral College. Many Americans saw this as undemocratic and urged that the Electoral College should go. One alternative is the National Popular Vote, a compact for states to cast their electoral votes for whichever candidate wins the national popular vote.

Now enter Donald Trump. Twice impeached, although not convicted; allegedly the beneficiary of Russian interference in 2016; now facing two indictments, with more possibly coming; already held liable for sexual harassment, and facing many other lawsuits. He is implicated in the January 6 attack on the Capitol and expresses no remorse for his behavior. By one count, he lied more than 20,000 times in office.

Yet Trump’s base is with him. He is the odds-on favorite to win the GOP nomination and perhaps the presidency again. For the first time, America could have a convicted felon as president.

Our constitutional framers would have declared him unfit to be president. Were the Electoral College operating how they had originally intended, there is no way Trump would now be a viable candidate for president. Perhaps the prospect of a second Trump presidency is the best argument one can offer for retaining the Electoral College.