U.S. Efforts To Prevent Global Atrocities   

On August 4, U.S. Secretary of State Michael Pompeo announced the State Department’s submission to Congress of the second annual report on U.S. efforts to prevent, mitigate and respond to global atrocities. According to his statement, the U.S. has “enhanced early warning, strengthened civil society and multilateral engagement, and increased the capacity of U.S. government personnel to coordinate, integrate, and institutionalize atrocity prevention across our foreign policy.”[1]

The Secretary said, “Preventing atrocities is critical to promote U.S. values, including respect for human rights, the sacred value of life, and fundamental freedoms. The 2017 U.S. National Security Strategy states, ‘No nation can unilaterally alleviate all human suffering, but just because we cannot help everyone does not mean that we should stop trying to help anyone.’ We will not ignore the suffering of those who experience atrocities. We will continue to promote accountability for perpetrators of genocide and other atrocities.”

Pompeo added, This work was advanced by the Atrocity Early Warning Task Force, “which includes representatives from the National Security Council; Departments of State, Defense, Homeland Security, Justice, and the Treasury; the United States Agency for International Development; and the Intelligence Community” and which “takes timely and effective action to assess and address atrocity risks.”

This report is mandated by the Elie Wiesel Genocide and Atrocities Prevention Act of 2018, which President Trump signed in January 2019 and which directs the State Department to provide additional training for Foreign Service Officers assigned to a country experiencing or at risk of mass atrocities, such as genocide or war crimes and for the President to submit annual reports to Congress on U.S. efforts to prevent mass atrocities.[2]

Weisel (1929-2016) was a Romanian-born Jewish prisoner at the Nazi’s Auschwitz and Buchenwald concentration camps, from which he was liberated in April 1945 by the U.S. Army. For the next 10 years, he lived in France where he became an author and journalist. In 1955 he moved to the U.S., where he wrote over 40 books, mostly non-fiction about the Holocaust and taught at Boston and Yale universities and Eckerd and Barnard colleges. In was awarded many honors, including the 1986 Nobel Peace Prize as a ”messenger to mankind . . . of peace, atonement and human dignity.”

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[1]  State Dep’t, Submission of the Second Congressional Report Pursuant to the Elie Weisel Genocide and Atrocities Prevention Act of 2018 (Aug. 4, 2020).

[2]  Elie Weisel Genocide and Atrocities Prevention Act of 2018, Public Law No. 115-441 (01/14/2019).

 

 

Pandemic Journal (# 27): More Reflections on the Pandemic

The July 26 New York Times proclaims the statistics of the pandemic’s toll: [1]

  • For the world, there have been 16,034,200 cases in nearly every country with 644,925 deaths while the number of new cases is growing faster than ever with a daily average of more than 200,000.
  • The U.S. (including four territories), with at least 4,190,400 total cases has the most of any country in the world while recoding 146,314 deaths. “Case numbers are surging throughout most of the United States, including in many states that were among the first to reopen. Because the number of people hospitalized and the percentage of people testing positive also are rising in many of those places, the case spike cannot be solely explained by increased testing. Still, coronavirus deaths remain well below their peak levels. And as some places reimpose restrictions, others continue to reopen their economies.”
  • The State of Minnesota has had at least 50,331 cases and 1,611 deaths. “Over the past week, there have been an average of 689 cases per day, an increase of 22 percent from the average two weeks earlier.”

The pandemic has been having and continues to have a major negative impact on the world and U.S. economies. For the week ending July 25, the initial U.S. jobless claims rose to 1.4 million. This increase was the first in nearly four months, “a sign the jobs recovery could be faltering.” Now the $600/week jobless aid is nearing an end. Evictions loom for millions who cannot afford their rent while foreclosures loom for homeowners who cannot pay their mortgages. And the U.S. federal government recorded a budget deficit of $ 3 Trillion for the 12 months ending this June.[2]

These calamities have had a disproportionate impact on our African-American brothers and sisters. For example, in Minnesota 48% of Black workers have filed for unemployment compensation versus 22% of white workers. “One of the big reasons for the unemployment disparity in Minnesota is that Black Minnesotans are more likely to be employed at hotels, restaurants, retail, health and other service-related industries that have seen the most job losses because of stay-at-home orders and other pandemic-induced slowdowns.” In addition, “the pandemic also has disproportionately hurt American Indian, Latino and Asian American employment in the state. Women, younger workers and those with less education have also taken a bigger hit.”[3]

In the midst of these immense problems and challenges, President Trump continues to lie and demonstrate his incompetence. As a result, the rest of the world is shocked and dismayed.[4] I worry that Trump will attempt in some fashion to try to steal the election.[5]

Although I am retired with good health and financial savings and thus not personally affected (so far) by these woes, I worry about the impact of these crises on my sons and grandchildren. More generally I am worried about the negative impact of these crises on people and countries all over the world and the U.S. in particular that will linger for all their lives as I believe happened to those who lived through the Great Depression of the 1930’s.

“Investing in the Future” was the sermon today at Westminster Presbyterian Church by Associate Pastor Sarah Brouwer. It drew upon Jeremiah 19: 1-14, where the Prophet sends a letter to the Jewish people who have been taken into exile in Babylon after the Babylonians had destroyed the Temple in Jerusalem. God tells the exiles, “Build houses and live in them; plant gardens and eat what they produce. Take wives and have sons and daughters; take wives for your sons, and give your daughters in marriage, that they may bear sons and daughters; multiply there, and do not decrease. But seek the welfare of the city where I have sent you into exile, and pray to the Lord on its behalf, for in its welfare you will find your welfare.”

This passage of Jeremiah continues. “Only when Babylon’s seventy years are completed will [the Lord] visit you, and I will fulfill to you my promise and bring you back to [Jerusalem]. For surely I know the plans I have for you, says the Lord, plans for your welfare and not for harm, to give you a future with hope. Then when you call upon me and come and pray to me, I will hear you. When you search for me, you will find me; if you seek me with all your heart, I will let you find me, says the Lord, and I will restore your fortunes and gather you from all the nations and all the places where I have driven you, says the Lord., and I will bring you back to the place from which I sent you [Jerusalem] into exile.”

According to Rev. Brouwer, this passage reminds us today to shed our expertise and judgment, relearn old ways and accept marginal status in the current pandemic in order later to flourish.

================================

[1] Coronavirus Map: Tracking the Global Outbreak, N.Y.Times (July 26, 2020, 9.21 a.m. EDT); Coronavirus in the U.S.: Latest Map and Case Count, N.Y.Times (July 26,2020, 9.21 a.m. EDT); Minnesota Coronavirus Map and Case Count, N.Y.Times (July 26,2020, 9:21 a.m. EDT); Hyatt, Minnesota COVID-19 cases up by 871; 3 more deaths reported, StarTribune (July 26, 2020). See also List of Posts to dwkcommentaries–Topical: Pandemic Journal.

[2] Davidson, Coronavirus Spending Pushes U.S. Budget Deficit to $ 3 Trillion for 12 Months Through June, W.S.J. (July 13, 2020); Kiernan, Evictions Loom for Millions Who Can’t Afford Rent, W.S.J. (July 16, 2020); Chaney & Mackrael, Jobs Recovery Shows Signs of Slowing as Coronavirus Surges, W.S.J. (July 17, 2020);Benoit, What Banks Tell Us About Business: Everybody Is Struggling, W.S.J. (July 18, 2020); Morath & Chen, As $600-a-week Jobless Aid Nears End, Congress Faces a Quandary, W.S.J. (July 19, 2020).

[3] Kumar, Half of Black workers in Minnesota have lost work during pandemic, StarTribune (July 18, 2020).

[4] E.g., Achenbach, Wan, Brulliard & Janes, The crisis that shocked the world: America’s response to the coronavirus, Wash. Post (July 19, 2020).

[5] E..g., Sonmez, Trump declines to say whether he will accept November election results, Wash. Post (July 19, 2020). See also, Election Officials’ Dread About This Year’s U.S. Election, dwkcommentaries.com (July 11, 2020).

 

 

Gary Hart Concerned About Emergency Powers of President 

 Gary Hart, the former U.S. Senator from Colorado and a former presidential candidate, has said, “We have recently come to learn of at least a hundred documents authorizing extraordinary presidential powers in the case of a national emergency, virtually dictatorial powers without congressional or judicial checks and balances.” And this March President Donald Trump bragged, “I have the right to do a lot of things that people don’t even know about.” [1]

According to Hart, “What little we know about these secret powers comes from the Brennan Center for Justice at the New York University Law School, but we believe they may include suspension of habeas corpus, surveillance, home intrusion, arrest without a judicial warrant, collective if not mass arrests and more; some could violate constitutional protections.”[2]

Hart, therefore, presses for an investigation and public disclosure of such powers. Indeed, he says, “public hearings should be held before the November elections, especially with rumors rife that the incumbent president might interfere with the election or refuse to accept the result if he felt in jeopardy of losing.”

“The most obvious first question is why these far-reaching powers are kept secret, not only from Congress but also from the American people. The second question is why they are necessary at all. And ultimately, should not there be permanent congressional oversight of any suggestion for calling these powers into operation? Under what dire conditions should our system of checks and balances among the executive, legislative and judicial branches be abandoned in favor of a dictatorship? And once a dictatorship is declared, what would be required to return us to our historic democratic system of government?”

Hart’s concern is made even more pressing by the recent disclosure that the Trump Administration is collaborating with attorney and law professor John Yoo on his expansive view of presidential power to rule by executive order.[3]

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[1] Hart, How Powerful Is the President?, N.Y. Times  (July 23, 2020).

[2] Brennan Center for Justice, Emergency Powers. presid

[3] President Trump Prepares To Rule by Decree, dwkcommentariews.com (July 23, 2020).

 

President Trump Prepares To Rule By Decree

There are grounds to believe that the Trump Administration is preparing to bypass Congress and attempt to rule by presidential decree on many important issues in the months before this year’s election. We see this in Trump’s comments in his June 19th Fox News interview by Chris Wallace and articles about the Administration’s recent consultations with Professor John Yoo regarding his interpretation of the Supreme Court’s  June 18th decision invalidating the Trump Administration’s 2017 rescission of the DACA (Deferred Action for Childhood Arrivals) program.

Trump Comments in Fox News Interview[1]

Near the end of the lengthy Fox News interview of President Trump on July 19, Wallace said that Trump did not yet have a plan to replace Obamacare. Trump disagreed in the following lengthy response:

  • “We’re signing a health care plan within two weeks, a full and complete health care plan that the Supreme Court decision on DACA gave me the right to do. So we are going to . . . sign an immigration plan, a health care plan, and various other plans. And nobody will have done what I’m going to do in the next four weeks. The Supreme Court gave the president of the United States powers that nobody thought the president had, by approving, by doing what they did—their decision on DACA. And DACA’s going to be taken care of also. But we’re getting rid of it because we’re going to replace it with something much better. What we got rid of already, which was most of Obamacare, the individual mandate. And that I’ve already won on. And we won also on the Supreme Court. But the decision by the Supreme Court on DACA allows me to do things on immigration, on health care, on other things that we’ve never done before. And you’re going to find it to be a very exciting two weeks.”

Note that Trump cleverly did not mention John Yoo by name as the legal architect of this strategy.

Wallace apparently was not prepared for this answer, because he had no follow-up questions and instead immediately switched to asking about the Mary Trump book, Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man.

.The Supreme Court’s Decision on DACA[2]

The Court in a 5-4 Opinion by Chief Justice Roberts invalidated the 2017 decision by the Acting Secretary of the Department of Homeland Security (DHS), Elaine C. Duke, to terminate the Deferred Action for Childhood Arrivals (DACA) because that termination was “arbitrary and capricious” even though the Attorney General had determined that the DACA program was illegal. The defects in the DHS termination decision, said the Court, were failure to recognize that the defining feature of DACA was deferring removal of DACA recipients from the U.S. and the failure to assess “the existence and strength of any reliance interests” on that deferral by  DACA recipients.

Therefore, the only valid way for the DHS to terminate the DACA program, said the Court, was to proceed under the cumbersome Administrative Procedure Act.

Mr. Justice Thomas in his dissenting opinion for himself and Justices Alito and Gorsuch, said, “DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end.”

Moreover, said Mr. Justice Thomas, “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government.”

Yoo’s Interpretation of That Supreme Court Case[3]

Yoo, the Emmanuel S. Heller Professor of Law and Director of the Public Law & Policy Program at the University of California Berkeley School of Law, believes that the Supreme Court’s opinion is erroneous. In Yoo’s words, the opinion “upends the text, structure, and history of the Constitution, which generally prevents the occupants of a branch of government (who are temporary, after all) from binding their successors. . . . When a president wants to repeal an executive order, all he need do is issue a new executive order. . . . Recognizing a plenary power to reverse previous acts, contrary to the Supreme court’s DACA rule, comports best with the purposes behind the creation of the executive branch.”

Nevertheless, under this recent Supreme Court decision, in what may have intended as a reductio ad absurdum, Yoo said, “ presidents, including President Trump, may now stop enforcing laws they dislike, hand out permits or benefits that run contrary to acts of Congress and prevent their successors from repealing their policies for several years.” Thus, Trump, for example, could decline “to enforce the tax laws, and economic regulations . . . issue permits allowing federally financed or regulated construction project fully s to go forward . . . [and] defer action under environmental laws.”

In any event, we need an attorney knowledgeable about constitutional and federal administrative law to analyze and critique Yoo’s analysis of this Supreme Court opinion.

Trump Consultations with John Yoo[4]

We now have evidence that President Trump and others in the White House have been consulting with Yoo about this subject.

At least that is what Professor Yoo said to Julian Borger, the author of an article in the Guardian of London on these issues. There also are reports by Axios that “President Trump and top White House officials are privately considering a controversial strategy to act without legal authority to enact new federal policies-starting with immigration,” that a copy of Yoo’s article on the subject in the National Review was “spotted atop Trump’s desk in the Oval Office” and that “White House thinking is being heavily influenced by John Yoo.’”

Reactions[5]

 Yoo’s interpretation of this case was called “indefensible” by constitutional lawyer and  professor Laurence Tribe with these additional comments. “I fear that this lawless administration will take full advantage of the fact that judicial wheels grind slowly and that it will be difficult to keep up with the many ways Trump, aided and abetted by Bill Barr as attorney general and Chad Wolf as acting head of homeland security, can usurp congressional powers and abridge fundamental rights in the immigration space in particular but also in matters of public health and safety.”

Of the same opinion is Alka Pradhan, a Lecturer in Law at the University of Pennsylvania Law School and defense counsel in the 9/11 terrorism cases against inmates in the Guantánamo Bay prison camp. She said, “John Yoo’s so-called reasoning has always been based on ‘What can the president get away with?’ rather than ‘What is the purpose and letter of the law?’ That is not legal reasoning, it’s inherently tyrannical and anti-democratic.”

In the New Republic, Matt Ford has a more extensive analysis. He says Yoo has “a disfigured reading” of the DACA case. In Ford’s opinion, “The Supreme Court did not explicitly rule that DACA itself was legal or illegal last month, only that Trump’s efforts to reverse it violated the Administrative Procedure Act, a federal law that sets out how executive agencies write new rules and regulations. Roberts, writing for the court, concluded that the Department of Homeland Security ran afoul of the APA by not providing enough justification for its sweeping move. ‘We do not decide whether DACA or its rescission are sound policies. The wisdom of those decisions is none of our concern,’ the Chief Justice wrote. ‘We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.’”

In addition, Matt Ford asserts, “Yoo’s Trumpian turn is far from surprising. In both government service and academic life, he has advanced an untrammeled vision of executive power that brushes aside most constraints imposed upon presidents by Congress or international law. His highest-profile work came during George W. Bush’s first term in office, when he worked in the Justice Department’s Office of Legal Counsel, which provides legal advice to other parts of the executive branch. In that role, Yoo helped draft a series of memos that effectively authorized torture of terrorism suspects and justified warrantless surveillance of Americans, arguing that the president’s wartime powers trumped almost all other constraints.”

Those memos by Yoo and Jay Bybee, says Ford, were castigated in 2009 as “professional misconduct” by the Justice Department’s Office of Professional Responsibility, which conclusion was rejected the next year by a senior official at the Department with this comment: “While I have declined to adopt OPR’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client.”

Matt Ford also notes that Yoo’s new book, Defender in Chief, is about to be published. According to its publisher, “Far from considering Trump an inherent threat to our nation’s founding principles, Yoo convincingly argues that Washington, Jefferson, Madison and Hamilton would have seen Trump as returning to their vision of presidential power, even at his most controversial. It is instead liberal opponents who would overthrow existing constitutional understanding in order to unseat Trump, but in getting their man would inflict permanent damage on the office of the presidency, the most important office in our constitutional system and the world.”[6]

Finally Matt Ford sees President Trump’s July 21st executive order excluding undocumented immigrants from the executive branch’s report to Congress on this year’s census  as a sign “that the White House is embracing Yoo’s mutilated logic.” This executive order, says Ford, contradicts the Constitution’s providing that members of the House of Representatives “are allotted according to ‘the whole number of persons in each State, excluding Indians not taxed.’ Since Congress automatically granted citizenship to all Native Americans by 1924, the ‘whole number of persons’ now truly means the whole number.” This conclusion was unanimously affirmed by the U.S. Supreme Court four years ago, but was ignored by this executive order and by President Trump’s July 21st statement that excluding undocumented immigrants from the report to Congress “reflects a better understanding of the Constitution and is consistent with the principles of our representative democracy.”[7]

It also should be noted that these latest moves by Yoo contradict what he said in February 2017, one month after Trump’s inauguration. Then Yoo had “grave concerns about Mr. Trump’s uses of presidential power” and was troubled by “little sign that he understood the constitutional roles  of the three branches.” Unless he changed, Yoo said, “our new president will spend his days overreacting to the latest events, dissipating his political capital and haphazardly wasting the executive’s powers.”[8]

Conclusion

 As an opponent of the re-election of Donald Trump, I believe he knows he is far behind Biden in nearly all the polls and needs to change his campaign message. I, therefore, believe that he will do what he mentioned in the Fox News interview and will argue that he is doing many things to meet the problems and challenges facing the U.S.

Be on guard, citizens and the Biden campaign!

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[1] Fox News, Transcript: ‘Fox News Sunday’ interview with President Trump (pp. 17-18), foxnews.com (July 19, 2020); Borger, Trump consults Bush torture lawyer on how to skirt law and rule by decree, Guardian (July 20, 2020); Marcus, Trump wants to be king. Did John Yoo just hand him the crown?, Wash. Post (July 21, 2020).

[2] Department of Homeland Security v. Regents of the University of California, No. 18-587 (U.S. Sup. Ct. June 18, 2020.

[3] Yoo, How the Supreme Court’s DACA Decision Harms the Constitution, the Presidency, Congress, and the Country, National Review (June 22, 2020); Yoo, How Trump Can Weaponize the DACA Decision and Cut Taxes, Newsweek (June 24, 2020): Treene & Kight, Scoop: Trump’s license to skirt the law, Axios (July 19, 2020); Borger, supra; Marcus, supra. Ford, John Yoo’s Twisted Path to Trumpism, New Republic (the Soapbox) (July 22, 2020). https://newrepublic.com/article/158589/john-yoo-twisted-path-trumpism

[4] Treene & Kight, supra; Borger, supra; Marcus, supra.

[5] Borger, supra; Marcus, supra; Ford, supra.

[6] Macmillan, Defender in Chief: Donald Trump’s Fight for Presidential Power (2020).

[7]  White House, Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census (July 21, 2020); White House, Statement from the President Regarding Apportionment (July 21, 2020); White House, President Donald J. Trump Is Taking Action to Ensure American Citizens Receive Proper Representation in Congress (July 21, 2020); Rogers & Baker, Trump Seeks to Stop Counting Unauthorized Immigrants in Drawing House Districts, N.Y. Times (July 21, 2020).

[8] Yoo, Executive Power Run Amok, N.Y. Times (Feb. 8, 2017).

 

Other Opinions About the U.S. Electoral College

A prior post discussed the July 6 Supreme Court decisions about the “faithless electors’ in the U.S. Electoral College for electing the president and vice president and initial reactions to those Supreme Court cases. Here are some additional reactions to those cases as well as other commentaries about the U.S.’ complicated system for election of a president and vice president.

Jesse Wegman[1]

Jesse Wegman, a member of the New York Times editorial board and the author of a book about the Electoral College, rightly says these recent cases did not address the issue of the continued existence of that institution, which, he says,” is rotting American democracy from the inside out.” First, it potentially can award “the presidency to the candidate who earns fewer votes among the people as a whole — which violates the fundamental premise of majority rule.” Second, it violates “the constitutional mandate of ‘one person, one vote.’ In the presidential election, the value of your vote depends on where you live. If you live in one of the half-dozen or so ‘battleground’ states, it matters hugely. If you happen to live in a ‘safe state,’ as a vast majority of Americans do, it’s effectively irrelevant.”

The Electoral College was created in the late 18th century Constitution because its “framers worried that most voters — who rarely ventured far from home and had no easy way of getting information quickly — couldn’t know enough about national candidates to make an informed decision.” However, Wegman says, the College has never worked that way with the immediate formation of national political parties.

As a result, Wegman argues, “there is no remaining rationale for the Electoral College. What remains is a system that serves no purpose other than to erase the votes of 100 million Americans every four years, making them bystanders to the most consequential election of all.” In short, amend the Constitution to eliminate the Electoral College.

Wall Street Journal[2]

A Wall Street Journal editorial also points out that these new cases do not “address the most controversial question about the Electoral College, which is whether the U.S. should have one at all.”

The editorial, however, does not address that issue either. Instead, it discusses the National Popular Vote Interstate Compact whereby some states agree to grant their electors to the winner of the nationwide popular vote and which presumably is valid under the Opinion of the Court. However, says the Journal, Justice Thomas in his concurring opinion, points out that the Constitution in the last clause of Article I, Section 8, states, “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State.”

In any event, that compact currently has 16 members (15 states and the District of Columbia) with a total of 196 electoral votes and by its terms would go into effect when enough additional states join to constitute a majority of the Electoral College (270 votes).

Richard L. Hasen[3]

 Just before these Supreme Court decisions, Richard L. Hasen, a professor of law and political science at the University of California, Irvine and the author of a leading book on problems of the U.S. election system, noted several problems with that system.

  • First, it “features deep fragmentation of governmental authority over elections. Not only does the United States use a highly decentralized and localized election system that gives many powers over national elections to state and local bodies, but also, even within the approximately 10,500 bodies expected to run the 2020 election, there is sometimes disagreement over who has decision making authority over voting rights decisions.”
  • Second, “protection of voting rights in the United States is marked by polarized and judicialized decision making.”
  • Third, U.S. “ constitutional protections for voting rights remain weak. The U.S. Constitution contains no affirmative right to vote. It speaks of voting rights mostly in the negative: thanks to a number of constitutional amendments, it is now illegal to bar someone from voting on the basis of race, gender, age of at least 18, or through the use of a poll tax.”
  • Fourth, this “decentralized, federalist approach to voting rights has led to a self-perpetuating system of voting inequality, where in some places you may be disenfranchised even if you do everything right.”

Therefore, Hasen proposes the following short-term remedies. “All states need to expand opportunities for online voter registration in time” for this November’s presidential election. . . . Congress needs to adequately fund additional expenses related to running an election during the pandemic. . . .  States need to form independent bipartisan task forces to conduct full and independent investigations into why areas with more poor voters and voters of color saw significant problems voting in person during the primaries.”

In addition, Hasen advocates for a new constitutional amendment that would “guarantee all adult citizens the right to vote in federal elections, establish a nonpartisan administrative body to run federal elections that would automatically register all eligible voters to vote, and impose basic standards of voting access and competency for state and local elections.

 Wilfred Codrington III [4]

Last year Codrington, a Fellow at the Brennan Center for Justice at NYU School of Law, pointed out a racist motivation for the creation of the Electoral College at the Constitutional Convention.

“The populations in the North and South were approximately equal, but roughly one-third of those living in the South were held in bondage. Because of its considerable, nonvoting slave population, that region would have less clout under a popular-vote system. The ultimate solution was an indirect method of choosing the president, one that could leverage the three-fifths compromise, the Faustian bargain they’d already made to determine how congressional seats would be apportioned. With about 93 percent of the country’s slaves toiling in just five southern states, that region was the undoubted beneficiary of the compromise, increasing the size of the South’s congressional delegation by 42 percent. When the time came to agree on a system for choosing the president, it was all too easy for the delegates to resort to the three-fifths compromise as the foundation.”

This racial impact affected the election of 1800, when Thomas Jefferson defeated John Adams, 73-65 in the Electoral College and “metaphorically rode into the executive mansion on the backs of slaves,” according to a Yale Law School professor, Akhil Reed Amar.

In the 1876 presidential election, Democrat Samuel Tilden won the popular vote but not the Electoral College vote due to disputes about the status of some electors. An ad hoc commission ultimately awarded the disputed electors to Republican Rutherford Hayes with his agreeing to remove federal troops in the South that were intended to maintain order and protect black voters.

Max Boot[5]

Boot, an historian and Washington Post columnist, reports that he recently participated in a “war game” over a hypothetical narrow Biden victory in the Electoral College, 278-260, including narrow wins in three swing states—Michigan, Wisconsin and Pennsylvania—where Republicans control both houses of their legislatures. Although all three states have Democratic governors, who usually certify election results, there is nothing to prevent the legislatures from certifying different results, especially if Trump “will stop at nothing to avoid the stigma of being branded a ‘loser’” and if hypothetically he and his allies concocted allegations of election fraud in those three states. The resulting dispute over these three states and hence the results of the election could well end up in the Supreme Court, and who could predict how they might resolve the dispute, given what it did in the 2000 election contest between George W. Bush and Al Gore.

A related concern is whether local, state and federal funding for the expenses of conducting the upcoming election in this pandemic will be adequate. This especially is true for the U.S. Postal Service with the anticipated mailing of election ballots.

David Rothkopf[6]

A lot of these current issues about the Electoral College are prompted by the outrageous conduct of our current president, Donald Trump, who is the “embodiment of the Founders’ worst fears.” So says David Rothkopf, a former professor of international affairs at Columbia University, Johns Hopkins and Georgetown University, former CEO and editor-in-chief of Foreign Policy magazine and a senior official in the Clinton Administration.

Rothkopf continues, Trump “has invited our enemies to interfere with our elections to help him win, then sought to do it again. He has misused federal resources, inappropriately elevated his own family members, and enriched his own businesses. He has repeatedly attacked the First and the Fourteenth Amendments. He has had infants thrown in cages and denied relief to Puerto Rico in the wake of Hurricane Maria at the cost of thousands of lives. He has gutted environmental protections and attacked alliances that the US spent decades building and maintaining. And now he has mismanaged the worst public health crisis in a hundred years, overseen the greatest economic crisis since the Depression, and attempted to use the US military to crush legitimate protests on the streets of the capital.”

Moreover, “in the space of just a few days, . . . [Trump] was revealed to have endorsed concentration camps in China and to have again sought the assistance of a foreign adversary in winning a US election, was quoted as calling for the deaths and imprisonment of US journalists, defended the slave power traitors of the Confederacy, admitted that he suppressed testing during the pandemic because true data about the rate of infections would harm him politically, sought to fire more truthtellers in the administration and had his attorney general remove an official in charge of investigations into him and his supporters. He was reportedly briefed about a Russian scheme to place bounties on American and allied troops in Afghanistan, and not only did nothing about it but continued to act as an advocate for Putin. And so it goes on… before we even consider the many complaints about his character—his racism and misogyny, his ignorance and contempt for science and history, his lies, his narcissism, his vulgarity, his demagoguery. Has there ever been a public official in US history so unable to relate to others, show an emotion besides anger, or view the world through any means but his own self-interest?”

Conclusion

 Support a constitutional amendment to abolish the Electoral College!

==========================

[1] Wegman, Can We Please Pick the President by Popular Vote Now? N.Y. Times (July 6, 2020)

[2] Editorial, States and the Electoral College, W.S. J. (July 6, 2020); Kendall & Bravin, Supreme Court Rules States Can Prohibit Electors From Breaking Rank, W.S.J. (July 6, 2020); Astor & Stevens, Did the Popular Vote Just Get a Win at the Supreme Court? N.Y. Times (July 6, 2020); National Popular Vote, nationalpopularvote.com.

[3] Hasen, Bring on the 28th Amendment, N.Y. Times (June 29, 2020).  Since there are now 27 amendments to the U.S. Constitution, this article calls for a 28th amendment even though an existing non-profit organization has drafted and is promoting what it calls the 28th Amendment “to end the escalating influence of big money that dominates our elections . . . [by enabling} Americans to enact reasonable limits on campaign contributions and dark money political spending [and] reversing the 2010 Supreme Court Citizens United decision.” (American Promise, The 28th Amendment.)

[4] Codrington, The Electoral College’s Racist Origins, The Atlantic  (Nov. 17, 2019); 1800 United States presidential election, Wikipedia.

[5] Boot, What if Trump loses but insists he won? Wash. Post (July 6, 2020); Reuters, ‘Epic failure’: U.S. Election Officials Warn of November Chaos Due to Budget Crunch, N.Y. Times (July 10, 2020); McCarthy & Jameel, The Postal Service Is Steadily Getting Worse—Can It Handle a National Mail-In Election?, propublica.org (June 15, 2020). See also Will Upcoming U.S. Presidential Election Be Legitimate? dwkcommentaries.com (July 5, 2020).

[6] Rothkropf, “The Most Ignorant and Unfit’: What Made America’s Worst Ever Leader? N.Y. Rev. Books (July 3, 2020).

 

 

Will Upcoming U.S. Presidential Election Be Legitimate? 

Any country that claims to be a democracy in the midst of the Covid-19 pandemic should be taking steps to encourage maximum voter participation while protecting voters from risking their health. Such steps would include facilitating voter registration and maximizing the use of voting by mail. That seems self-evident. Yet it is not happening throughout the U.S., and, as is usual in our complex federal system, the rules governing this November’s U.S. election are complicated.[1]

Introduction

While every presidential election year brings an increase in voting rights litigation, the current pandemic has multiplied the number of lawsuits filed in the past 3½ months. Democrats and voting rights advocates are pursuing cases to make it easier to vote by mail, filing more than 60 lawsuits in 25 states.

These lawsuits “are now poised to shape the details of how roughly 130 million registered voters are able to cast ballots in upcoming contests.” However, “conflicting court decisions could exacerbate the differences in voters’ experiences at the ballot box in November. And as the fights play out, the uncertainty is further complicating election officials’ ability to prepare for the vote.”

The American Civil Liberties Union’s Dale Ho, who supervises its voting litigation, says, “I think it’s clear we have a potential disaster on our hands on Election Day if we can’t process as many votes as possible beforehand. The alarm bells are going off. It’s not just some sort of hypothetical as a problem — we’ve seen it as a problem multiple times. It will repeat in November. The question is how much and in how many places and how badly.”

A Democratic elections attorney, Marc Elias, agrees. “When the political branches fail to protect voting rights, it is left to the courts to do that. If the political branches were functioning the way they’re supposed to, you would have Republicans and Democrats agreeing to increase access to absentee voting. You’d be putting in place safeguards to make sure every eligible voter who casts a ballot has that ballot counted. . . . Unfortunately, the Republican Party is taking its cues from Donald Trump.”

Common Cause’s director of voting and elections, Sylvia Albert, said decisions about how to handle voting during a pandemic are not easy but “have to be made.” She added,“There is no waiting it out,” noting that as more time passes, the shorter the window for educating voters about any changes becomes. “As a state legislator, as a secretary of state, as a governor, you are responsible for ensuring that voters can access the ballot. By not moving ahead, they’re really abdicating their responsibility to the voters.”

President Trump’s Opposition to Mail Voting

The principal cause of the problem of this election is President Trump, who has made it clear that he is determined to curtail access to mail ballots, claiming without evidence that their use leads to widespread fraud. “My biggest risk is that we don’t win lawsuits,” the president said in June in an interview with Politico. “We have many lawsuits going all over. And if we don’t win those lawsuits . . . I think it puts the election at risk.” As a result, the GOP is pushing to limit the expansion of voting by mail, backed by a $20 million Republican National Committee effort and help from conservative groups.

However, there is no evidence that mail voting leads to the kind of massive fraud Trump has described. A recent analysis by The Washington Post found that cases of potential fraud have been exceedingly rare in states that conduct voting exclusively by mail.

Nevertheless, with “Republican governors under pressure from President Trump not to expand voting by mail and many legislatures adjourned for the year or deadlocked along party lines, changes in the coming months are likely to come through court decisions.” As a result, this blogger fears that the Trump Administration will do anything and everything to try to steal this year’s presidential election.

Fortunately former Republican Governor of Massachusetts, Bill Weld, has come out against Trump on this (and other) issues. He says,“absentee voting has been around since the Civil War and . . ., increasingly, states both red and blue are not just allowing but also encouraging citizens to vote by mail.”[2]

Indeed, Weld says, “Public support for voting-by-mail was in place long before the novel coronavirus came along. In the past week, Colorado and Utah conducted successful, smooth primary elections almost entirely by mail, with strong turnouts and no need for voters to stand in unhealthy lines. For a highly contested June 23 primary, Kentucky’s Democratic governor and Republican secretary of state worked together to make absentee voting less cumbersome. It worked, and turnout was at near-record levels. . . . The only problems Kentucky encountered resulted from the covid-19-driven consolidation of in-person, Election Day polling places.”

Weld also notes that public opinion polls show nearly 80 percent of voters support giving all voters the option of voting in person or voting absentee. That includes a majority of Republicans — the president’s paranoia notwithstanding.”[3]

Therefore, Weld concludes, “To my fellow Republicans, I plead with you to not follow Trump off this cliff. A political party that brands itself as the party of exclusion, disregard for citizens’ safety and thinly veiled vote suppression is not a party with a future.”

 State Developments on Mail Voting

Here is an attempted analysis of where at least some of the states stand on rules for the November 3, 2020 election.

Alabama. Because of the virus, Alabama officials are allowing any registered voter to cast an absentee ballot in the upcoming election without having to cite a valid reason. In  a lawsuit filed by civil rights groups citing coronavirus dangers, Birmingham-based U.S. District Court Judge Abdul Kallon on June 15 struke down a requirement for absentee voters to submit a copy of a photo ID and to have their ballots signed off by two witnesses or a notary public as well as lifting a statewide ban on curbside voting at polling places. The judge said he would permit willing counties to allow drive-up voting, but he stopped short of requiring such an accommodation. This order was upheld by the 11th Circuit Court of Appeals, but on July 2, the U.S. Supreme Court, 5-4,  reversed that order for the July 14 primary runoff election for the U.S. Senate between Jeff Sesssions and Tommy Tuberville.[4]

California, Nebraska (counties < 10,000) and North Dakota provide counties the option to conduct all voting by mail. In addition, California Gov. Gavin Newsom (Dem.) ordered election officials to proactively send absentee ballots to all active registered voters in the state for the general election. This move drew fierce opposition from the right, including a lawsuit from the Republican National Committee, but the change subsequently was authorized by a new state law.[5]

Colorado, Hawaii, Oregon, Utah and Washington authorize all voting by mail. “For these elections, all registered voters receive a ballot in the mail. The voter marks the ballot, puts it in a secrecy envelope or sleeve and then into a separate mailing envelope, signs an affidavit on the exterior of the mailing envelope, and returns the package via mail or by dropping it off.”[6]

District of Columbia. It will send absentee ballots to all registered voters.

Georgia. The GOP Secretary of State mailed absentee ballot request forms to voters for the June 9 primaries. The Republican House Speaker, however, warned that expanded absentee voting could lead to fraud, and a state House committee approved a measure that would bar the mailing of absentee request forms for the fall, but the bill failed to pass before the legislature adjourned. The Georgia Secretary of State, however, already had said his office lacked funds to send ballot request applications for the general election, even though,

“By a wide margin, voters on both sides of the political spectrum agree that sending absentee applications to all active voters was the safest and best thing our office could do to protect our voters at the peak of COVID-19.”

Illinois and Michigan. This year these states will mail absentee ballot applications to all registered voters.

Iowa. Gov. Kim Reynolds (Rep.) signed a bill into law that will require the secretary of state to seek legislative approval to send absentee ballot request forms to voters before November. This was seen as a rebuke to Iowa’s Republican Secretary of State, who mailed the forms to voters for the primary last month, resulting in a new turnout record for a June primary in the state.

Massachusetts. For the rest of this year this commonwealth has chosen to abandon its requirement for an excuse for an absentee ballot.

Missouri. As a result of an ACLU lawsuit, the Missouri Legislature adopted a statute expanding voting by mail during the pandemic, while retaining the statutory requirement for a notarization of the ballot with the legitimacy of that requirement still being litigated under a ruling by the Missouri Supreme Court.[7]

Pennsylvania. The Trump campaign recently sued to stop voters from using drop boxes to return completed absentee ballots and block ballots from being counted if they do not arrive inside the provided secrecy envelope. The Complaint alleged that mail voting “provides fraudsters an easy opportunity to engage in ballot harvesting, manipulate or destroy ballots, manufacture duplicitous votes, and sow chaos.” The Democratic Party obviously is opposing this lawsuit

Tennessee. Last month a Nashville judge ruled that any eligible voter who is concerned about contracting covid-19 at a polling place may cast an absentee ballot this fall, even though state law would typically require that voter to qualify using an excuse. The state Supreme Court declined last week to stay that decision after a request from Republican Secretary of State Tre Hargett.

Texas. The Texas Democratic Party and several voters sued in federal court to allow all eligible Texas voters to vote by mail, at least during the coronavirus pandemic, on the ground that the state’s over-65 age limitation for such voting allegedly was unconstitutional, which contention was upheld by a trial court’s injunction, but reversed by the appellate court with the U.S. Supreme Court on June 26th rejecting an emergency appeal by the plaintiffs and remanding the case to the appellate court. (Justice Sotomayor urged the appellate court to consider the case “well in advance of the November election”).[8]

Wisconsin. On June 29, the U.S. Court of Appeals for the 7th Circuit ruled that after more than three years, Wisconsin must reinstate several Republican-backed voting restrictions, including limits on early voting. The original GOP policies were struck down in 2016 for discriminating against minority voters, a conclusion the appellate panel rejected this week.[9]

Guarding Legitimacy of this Year’s Presidential Election

Great concern over the integrity of this presidential election has been expressed by William A. Galston, the Ezra K. Zilkha Chair in the Brookings Institution’s Governance Studies Program, a former policy advisor to President Clinton and a Wall Street Journal columnist.  He said, “After a quarter-century of toxic division, our democracy is imperiled. A contested election could tip the U.S. into a devastating crisis of legitimacy, a prospect that every patriot must regard with dismay.”[10]

Therefore, Galston suggested four ways to minimize the risks in this upcoming election.

First, “To reduce pressure on the mail-in option, localities must provide the fullest possible opportunity to vote in person, as New York University law professor Richard A. Pildes has argued. This means increasing the number of polling places while expanding opportunities for early voting. Many elderly poll workers will be reluctant to do the job this year; large numbers of younger Americans should be recruited and trained to replace them. Schools should continue to serve as polling places, as they have for decades, and Election Day should be a school holiday.”

Second, “states should do what they can to facilitate the fastest possible count of mail-in ballots. Mr. Pildes recommends processing the mail-in ballots that arrive before Election Day so that they can be tallied in time for the results to be included in the count soon after the polls close, a procedure that California now employs. Other states—including Michigan, North Carolina and Pennsylvania—would have to change their laws to permit this, and they should.”

Third, “As Nathaniel Persily, a co-director of the Stanford-MIT Healthy Elections Project points out, the media have a crucial role to play as well. Reporters should educate themselves and the public about the all but certain delay in the vote count that the flood of mail-in ballots will entail. Above all, media organizations should resist the urge to call the election ahead of their competitors and instead wait until enough ballots have been tallied to know the result with confidence. In the past, ill-judged early calls of key states have sown confusion. This year, the consequences could be far worse.”

Fourth, “America’s elder statesmen must do all they can to ensure election integrity. Former Presidents Bill Clinton and George W. Bush should spearhead the formation of a bipartisan committee including respected figures such as former Senate Majority Leaders Tom Daschle and Trent Lott, former Secretaries of State Madeleine Albright and Condoleezza Rice, and former Secretaries of Defense Leon Panetta and Robert Gates, along with lawyers and election experts from both parties who have served in previous presidential campaigns. Committee staff should be ready to investigate charges of fraud as soon as they arise and observe the counting of mail-in ballots if asked. Committee leaders should announce their findings as quickly as accuracy permits and stand united in their defense.”

Such a committee’s “most important tasks would be meetings soon after Labor Day with Senate Majority Leader Mitch McConnell and House Speaker Nancy Pelosi. These leaders should be asked for a public pledge to stand together against unsubstantiated claims that the election has been stolen and to do their utmost to persuade elected officials in their respective parties to stand with them.”

Conclusion

In addition to all of the above litigation, the Supreme Court still has to resolve two cases about so-called “faithless” electors in the Electoral College that actually elects the President. Presumably decisions in those two cases will come down this coming week and will be discussed in a future post.[11]

Another future post will examine ways to create stronger voting rights from Richard L. Hasen, Professor of law and political science at the University of California, Irvine and the author of “Election Meltdown: Dirty Tricks, Distrust and the Threat to American Democracy.”

Comments to this post for corrections and supplementation for new developments are earnestly solicited.

===================================1~

[1] See generally Viebeck, Voting rules changed quickly for the primaries. But the battle over how Americans will cast ballots in the fall is just heating up, Wash. Post (July 3, 2020).

[2] Weld, Please, Republicans don’t join Trump’s crusade against voting-by-mail, Wash. Post (July 3, 2020). See also Strauss, ‘We’ve got to do something’: Republican rebels come together to take on Trump, Guardian (July 2, 2020).

[3] See also Brennan Center for Justice, Americans of All Stripes Want a Mail Ballot Option.

[4] Liptak, Splitting 5-4, Supreme Court Grants Alabama’s Request to Restore Voting Restrictions, N.Y. Times (July 2, 2020); Gerstein, Supreme Court blocks judge’s order loosening Alabama voting requirements due to virus, Politico (July 2, 2020).

[5] National Conf. State Legislatures, All-Mail Elections (aka Vote-By-Mail).

[6] Ibid.

[7] ACLU, Press Release: Court Rules Lawsuit To Allow All Missourians to Vote By Mail Without a Notary During Covid-19 Can Proceed (June 23, 2020).

[8] Liptak, Supreme Court Turns down Request to Allow All Texans to Vote by Mail, N.Y.Times (June 26, 2020); Assoc. Press, Supreme Court doesn’t wade into mail-in voting battle, Wash. Post (June 26, 2020); Barnes, Supreme Court won’t force Texans to allow absentee ballots for all voters, Wash. Post (June 26, 2020).

[9] Earlier this year there was federal court litigation over the Wisconsin primary election that lead to counting of ballots that had been mailed no later than election day. (See these posts and comments to dwkcommentaries.com: Pandemic Journal (# 10): Wisconsin Primary Election (April 10, 2020); Comment: More Criticism of Republican Strategy of Limiting Voting (April 12, 2020; Comment: More Comments on Wisconsin Election (April 13, 2020); Comment: Surprising Results in Wisconsin Election (April 14, 2020); Commnet: George F. Will’s Opinion on Voting By Mail (VBM) (April 15, 2020); Comment: Emerging Battles Over Changing State Election Laws (April 15, 2020); Comment: New York Times Editorial on Wisconsin Election (April 20, 2020; Comment: Thousands of Wisconsin Absentee Ballots Counted After Election Day (May 3, 2020).

[10] Galston, How to Prevent an Electoral Crisis, W.S.J. (June 30, 2020).

[11] Liptak, Supreme Court Seems Ready to Curb ‘Faithless Electors,’ N.Y. Times (May 13, 2020); Wegman, The Electoral College Is a Confusing Mess, N.Y.Times (May 13, 2020).

 

 

 

Former Minneapolis Mayor Discusses Police Reform Problems

R.T. Rybak, former Mayor of Minneapolis (2002-2013) believes that police unions and their leaders are major reasons why past efforts at reforming policing in Minneapolis and elsewhere in this country have had problems and why current reform efforts are facing difficulties.[1]

He says this as he struggles with competing police images. On the one hand, Rybak has seen “police officers perform extraordinary acts of courage at explosive crime scenes, protect women from domestic abuse, build trusted relationships with immigrants who are terrified the government will take their children, and so much more.” On the other hand, he also has seen “toxic us-versus-them police cultures—in which an officer who might individually make the right call becomes silently complicit when a fellow officer goes rogue.This culture enabled three officers in my city to stand by while [George] Floyd was killed.” [2]

The latter culture is understandable when “officers see the worst things happening in their city on any given shift. After being in danger every night, officers gradually stop seeing the humanity in the people and neighborhoods they patrol. Instead, they go back to the precinct with the only people who can really understand what they are going through. People with exceptionally tough jobs serving complex humans naturally vent when they are together.”

“But the tribalism that can build up within police departments is far more consequential. Us versus them—meaning police versus criminals—slowly curdles into police versus the people: Who would live in these crime-infested neighborhoods where we risk our lives? Waiting to stoke that resentment are police-union leaders such as [Bob] Kroll [the President of the Police Officers Federation of Minneapolis], who defend even the more aggressive acts of officers and, even in a case as extreme as [George] Floyd’s death, prevent any self-examination by blaming the victim.”

“As matters stand, the public—through its elected representatives—has also ceded far too much power to the police unions that enable bad behavior. Floyd’s death underscores that police work should be subject to oversight, and officers who violate policy and misuse their power should be subject to discipline. But the unions’ power is most notable in contracts that limit the accountability that, as the community can now see, is so desperately needed. The lack of accountability seems incongruous because the mayors and city councils that negotiate with police unions include some of the country’s most progressive elected officials and represent some of the country’s most progressive constituencies.”

“Yet when duly elected officials propose reforms, police unions do not merely oppose them; they actively work to thwart them. Last year, Minneapolis Mayor Jacob Frey banned so-called warrior-style training, which emphasizes physical threats to police officers rather than the benefits of de-escalating confrontations. . . . Kroll and the police federation defied Frey’s move by offering warrior-style training of their own.”[3]

“Some local officials have also hesitated to demand tougher reforms in contracts because police unions often spend heavily in local elections to oppose any politician who challenges them. I know what that’s like. The union supported me near the end of my first race for mayor. But after I took office, we disagreed over the police budget and my choice of police chief. When I ran for reelection, the police union went all out to defeat me: It helped pay for polling to identify the strongest candidate to run against me and pounded voters relentlessly with literature and broadcast ads that portrayed me as soft on crime. [Nevertheless,] I got more than 60 percent of the vote. The police federation also made a massive investment to defeat an incoming council member, Betsy Hodges, who still won overwhelmingly. Eight years later, again, despite massive police opposition, she was elected mayor.”

“Electing mayors and city-council members who support such reforms is not enough. Police-union leaders use back channels to go around local officials and get more conservative state legislators to block meaningful changes. That dynamic holds true in Minnesota, where a Republican state representative, who was also a Minneapolis [police] officer, helped overturn a residency requirement for police. Today more than 90 percent of Minneapolis officers live outside the city. The legislature also has stonewalled attempts by the city to get supervisory positions removed from police-federation ranks. As a result, some of the people directing and disciplining officers, and developing the union contract, are actually negotiating with the union of which they are a member.”

“In return, police unions have helped their enablers on the state and national levels. Police-federation leaders endorse Republicans in most gubernatorial races. Last fall, Kroll appeared with President Donald Trump at a rally in Minneapolis and was interviewed wearing a ‘cops for trump’ T-shirt on Fox News.”

“If progressive local officials want wholesale reform of police tactics and culture, they will have to do something that runs counter to their own culture: take on union leaders. [After all,] Minnesota’s chapter of the American Federation of Labor and Congress of Industrial Organizations—an umbrella group that does not include the police federation—recognizes that Kroll isn’t merely taking his members’ side in a labor-management dispute. In a recent statement calling for Kroll’s resignation, the Minnesota AFL-CIO president, Bill McCarthy, faulted him for trying to justify Floyd’s killing rather than participate in a dialogue about reform. McCarthy also accused Kroll of failing the labor movement. ‘Unions exist to protect workers who have been wronged,” McCarthy declared, “not to keep violent people in police ranks.’”

“I used to say that the majority of officers are good but silently let a minority set the dominant culture. But now I believe that no one can be called a ‘good officer’ if they are not working actively and openly to change the culture and unseat their toxic union leaders. The silence of the ‘good officers’ so far is deafening, but a glimmer of hope came recently when more than a dozen brave Minneapolis officers bucked their union, condemned the officer who murdered George Floyd, and vowed to regain the community’s trust.”[4]

“In general, intimidated local officials overestimate the political muscle of police unions. Their credibility with the public is even more diminished in the aftermath of [George] Floyd’s death. So now is the time to push for reforms that hold police departments more accountable to the public.”

“I am not suggesting that cities should try to bust police unions. Far from it. Working people need and deserve the protections that collective bargaining provides. In a better world, a police-union leader could help the public understand how hard the job can be—but could also set the moral and professional standards for officers, rather than defend them no matter what they do.”

“While the breakdown between the police union and the public’s elected representatives has been especially acute in Minneapolis, I know from my discussions with other mayors that many other communities experience similar tensions. These relationships must be fundamentally reshaped. When cities lack the power to provide basic oversight of their officers and cannot break down an us-versus-them culture, they cannot prevent future deaths like that of George Floyd.”

================================

[1] Rybak, I Was Mayor of Minneapolis. I Know Why Police Reforms Fail, Atlantic (June 10, 2020). See also Mannix, Killing of George Floyd shows that years of police reform fall far short, StarTribune (June 20, 2020).

[2]  It must not be forgotten that the Minneapolis Chief of Police immediately fired the four officers involved in the killing of George Floyd, that soon thereafter serious criminal charges were filed against all four and the City banned chokeholds and neck restraints under an agreement with the Minnesota Department of Human Rights that was incorporated in a court injunction. See List of Posts to dwkcommentaries—Topical: GEORGE FLOYD CASE.

[3] Jany, Minneapolis police union offers free ‘warrior’ training, in defiance of mayor’s ban, StarTribune (April 24, 2019).

[4] Olson, Minneapolis police officers issue open letter condemning colleague in George Floyd’s death, pledging to work toward trust, StarTribune (June 12, 2020); The Criminal Complaints Against the Other Three Policemen Involved in George Floyd’s Death, dwkcommentaries.com (June 14, 2020).

 

 

U.S. Insulting Proclamation of May 20th as Cuba’s Independence Day

On May 20, President Trump and Secretary of State Pompeo stated that May 20 was Cuba’s Independence Day. Cuban officials immediately rejected that assertion.

Presidential Message on Cuban Independence Day, 2020[1]

“On Cuban Independence Day, we recognize the patriots who fought to liberate Cuba from its colonial oppression and build a society founded on freedom. We continue to stand with the Cuban people as they seek those fundamental rights, and we express our commitment to supporting them as they continue to fight for freedom and democracy.”

“The United States has historic ties to the Cuban people and remains in solidarity with the millions who have fled the oppression of Cuba’s tyrannical regime in search of a new life. Cuba’s people deserve a government that promotes individual liberties, basic human rights, and opportunities to prosper. The Cuban model represents failed socialism, and we will continue to ensure that Cuba does not export its repression anywhere else in the Western Hemisphere. That is why I took action early in my Administration to implement a strong policy toward Cuba that promotes respect for human rights, free markets, and a transition to democracy in Cuba. America will keep working with our allies and partners in the Western Hemisphere to bring stability, religious liberty, cooperation, and a freer future to the great people of Cuba.”

“Today, we celebrate the many contributions of Cuban Americans to our American story, and we pledge to continue working with them to secure a better tomorrow for Cuba.”

Later that same day Trump delivered a video message to Cuban-Americans. “We proudly stand with the people of Cuba. We’re with you. We’re fighting with you. We’re thinking with you. Cuban Americans, we’re extremely proud of you. And I am glad you are on my side.”

Secretary Pompeo’s Statement on Cuban Independence Day[2]

“On Cuban Independence Day, I extend my warm regards and best wishes to the people of Cuba.  The United States joins you in celebrating the anniversary of Cuba’s independence, 118 years ago today.  The struggle of the Cuban people continues.  Your democratic system was overthrown by a military dictator at the middle of the last century.  But the revolution your forefathers fought for your rights, freedoms, and prosperity was hijacked by a communist dictatorship that has inflicted the worst forms of abuse on the Cuban people for 61 years.”

“Both Americans and Cubans alike value our independence and we seek to provide a better, more prosperous future for families, in realization of our God-given rights and dignity as individuals.  We salute the brave Cubans who carry on this struggle despite the threats and abuses of the Castro regime:  human rights defenders like José Daniel Ferrer and the Ladies in White; and journalists and truth-tellers like Roberto Quiñones, who by shining light on conditions in Cuba prevent the regime from hiding the truth.  We salute those demanding the right to exercise their faith in peace, like Pastors Ayda Expósito Leyva and Ramón Rigal, who chose to provide their children with a faith-based home-school education but were imprisoned for doing so.  These brave individuals, and many more who are unjustly imprisoned for their beliefs, or who daily face threats and abuse for standing up for what is right, are the true heirs to José Martí.”

“The United States stands with the Cuban people as you struggle to achieve your vision of a Cuba that is free and more just.  The day when your dream of freedom becomes reality is decades overdue, but that day will come.”

Cuba’s Responses[3]

An immediate response came in Tweets from Cuba Foreign Minister Bruno Rodriguez. He said, “The US Secretary of State is lying. Cubans do not commemorate this date, only remembered by the anti-Cuban groups which, from South Florida and with the broad support of the White House, still maintain annexationist interests and domination over Cuba.”

This thought was echoed by Rodrigo Malmierca, the head of Cuban Foreign Trade and Investment: Pompeo’s statement towards the Cuban people was “historical and politicized manipulation.”

In response to a similar message by President Trump in 2017, the Cuban government stated, “what was born on the day [May 20, 1902] was a Yankee neo-colony, which lived on until [the revolution on] January 1, 1959.”

Historical Context

This dispute over the “true” date for Cuba’s independence has been going on since at least 1959. The U.S. continued insistence on May 20 as the correct date is driven by U.S. hostility towards Cuba ever since the military defeat of the Cuban government by Fidel Castro-led rebels on January 1, 1959 (except for the period of normalization of relations led by President Obama,  December 2014—January 2017). An examination of history is necessary to understand this conflict.

May 20, 1902[4]

On April 24 and 25, 1898, Spain and the U.S. declared war against each other after the explosion of the U.S. battleship Maine in Havana harbor. The U.S. Senate’s authorization of that declaration included the Teller Amendment, which disclaimed any “inclination or intention to exercise sovereignty, jurisdiction or control” of Cuba and the U.S. intention to “leave the government and control of the island to its people.” Thereafter the U.S. entered Cuba’s war of independence from Spain, which formally was ended on December 10, 1898 with the Treaty of Paris whereby Spain ceded Cuba (and Puerto Rico, Guam and the Philippines) to the U.S. Cuba was not a party to that treaty.

Thereafter, the U.S. assumed military control of Cuba. On May 20, 1902, the supposed date of Cuban independence arrived when the U.S. flag was lowered in Havana and the new Cuban flag was raised. This was after the U.S. adoption in early  1901 of the Platt Amendment, whose terms Cuba on December 25, 1901, reluctantly included in its constitution granting the U.S. the right to intervene in Cuba to preserves its independence and imposing other restrictions on Cuba.

These provisions of the Cuban constitution existed until 1934 when the U.S. and Cuba executed a treaty allowing Cuba to delete them from its constitution.

October 10, 1868[5]

This is Cuba’s real Independence Day (Dia de la Independencia) when Carlos Manuel de Céspedes, the “Father of the Homeland,” gave freedom to his slaves and started the first war of independence against the Spanish colonial power.

July 26, 1953 [6]

This is the Day of the National Revolution (Dia de la Rebeldia Nacional) to commemorate the day that the Cuban rebels started the Cuban revolution with an attack led by Fidel Castro on the Cuban Government’s Moncada Military Barracks in Santiago de Cuba. The rebels lost that battle, Fidel was captured,, tried, convicted, imprisoned and eventually exiled to Mexico, from which he successfully returned to Cuba in 1956 aboard the boat Granma and thereafter orchestrated the successful overthrow of the Batista regime on January 1, 1959.

July 26th, therefore, was chosen as the date for a speech in Matanzas, Cuba in 1991 by Nelson Mandela only a year-and-a half after his release from prison in South Africa.

January 1, 1959 [7]

This is the Triumph of the Revolution (Triunto de la Revolución) public holiday to commemorate the triumph of the revolution led by Fidel Castro.

Conclusion

Yes, on May 20, 1902, Cuba officially ceased to be a colony of Spain. But on that same date Cuba became a neo-colony of the U.S. or a territory under a de facto U.S. protectorate. It, therefore, is an insult for the U.S. to use grandiose language to proclaim that date as Cuba’s independence day.The U.S. should stop doing so.

=================================

[1] White House, Presidential Message on Cuban Independence Day, 2020 (May 20, 2020); White House, President Trump’s Video Statement on Cuban Independence Day (May 20, 2020).

[2] State Dep’t, [Pompeo’s} Press Statement: Cuban Independence Day (May 20, 2020.  Secretary Pompeo also issued tweets with the same theme. (Bruno Rodríguez: May 20 is celebrated by those who ‘keep claims of imperialist domination over Cuba,’ Diario de Cuba (May 21, 2020).)

[3] Cuba Foreign Ministry, Bruno Rodriguez affirms Cubans don’t celebrate May 20th (May 20, 2000); Bruno Rodríguez: May 20 is celebrated by those who ‘keep claims of imperialist domination over Cuba,’ Diario de Cuba (May 21, 2020); Center for Democracy in Americas, U.S.-Cuba News Brief (May 22, 2020).

[4]  U.S. Entry Into Cuban War of  Independence and Establishment of Protectorate of Cuba, 1898-1934, dwkcommentaries.com (April 23, 2017); U.S. DeFacto Protectorate of Cuba, 1898-1934, dwkcommentaries.com (Aug. 27, 2019); Pérez, Cuba Between Empires, 1898-1902 (Univ. Pittsburgh Press 1983).

[5] Public Holidays in Cuba, Wikipedia. [This section was added to the original post after comments from several readers pointed out errors regarding its characterization of July 26th in Cuba.]

[6] Ibid.; Cuban Revolution, Wikipedia; Nelson Mandela Was Inspired by Fidel Castro’s Cuban Revolution, dwkcommentaries.com (May 18, 2018). [This section was revised after several readers pointed out errors regarding its characterization of July 26th in Cuba.]

[7] Public Holidays in Cuba, Wikipedia. [This section was added to the original post to complete the account of most of the major political holidays in Cuba.]

 

Pandemic Journal (# 17): More Demonstrations of Trump’s Incompetence

Pandemic Journal (# 11) set forth at least some of the reasons why, in my opinion, Donald Trump is utterly incompetent as president. Every day seems to bring more proof for that conclusion, and I prefer to avoid documenting those reasons so that I have time to do something more personally enriching.

However, two recent incidents are so outrageous that I cannot let them go without adding them to his many sins.

 Trump’s Interview in the Lincoln Memorial[1]

On Sunday, May 3, Trump arranged to have his interview by two Fox News anchors (Bret Baier and Martha MacCallum) televised from the Lincoln Memorial in Washington, D.C.

During the interview, the President said the death toll from the coronavirus pandemic may reach as high as 100,000, which was twice as high as he had forecast only two weeks ago. He also claimed that his efforts had prevented that total  from reaching “a million two, a million four, a million five, that’s the minimum. We would have lost probably higher, it’s possible higher than 2.2million.” Nevertheless, the President said he favored lifting the stay-at-home orders and other restrictions.

While he admitted he had been warned about the virus on January 23, he said it was presented as “not a big deal.”  A week later, on January 30, he decided to block entry to the U.S. by most foreign nationals coming from China, but he said that was not caused by the earlier warning.

“I am greeted with a hostile press the likes of which no president has ever seen. The closest would be that gentleman right up there. They always said Lincoln – nobody got treated worse than Lincoln. I believe I am treated worse.”

Max Boot, an historian, best-selling author, foreign policy analyst and Washington Post columnist, places this Trump interview in a broader context. Boot observes, “We are in the midst of a once-in-a century crisis, with death totals having already exceeded the number of Americans killed during the Vietnam War and unemployment numbers approaching Great Depression levels. We are desperate for leadership of the kind provided by Abraham Lincoln and Franklin D. Roosevelt. We need a president who will empathize with an ailing nation while explaining why the current sacrifice is necessary on the road to victory.”

Instead, says Boot, “we have a president who threw a pity party for himself at the Lincoln Memorial, claiming he is ‘treated worse’ than a president who was assassinated. The Civil War leader whom Trump resembles is not the resolute Lincoln but the failed Gen. George McClellan — who was indecisive, conceited and intolerant of criticism.”

Dana Milbank, another Washington Post columnist, agrees. He says, “Only a man of Trump’s peculiar sense of victimhood could believe that he has been “treated worse” than a predecessor killed by an assassin’s bullet. And a review of press criticism of Lincoln confirms, as expected, that Trump’s self-pity is as silly as it sounds.”

In response to criticism about holding the interview in the Lincoln Memorial that his aides had arranged by getting the Secretary of Interior to waive a rule against political events inside the Memorial, Trump even said that this location was Fox’s choice, not his.

 Trump’s Response to President George W. Bush[2]

On May 2, former President George W. Bush’s three-minute videotaped segment was presented on TV as part of a 24-hour live-streamed “The Call to Unite” that also featured former President Bill Clinton, Oprah Winfrey, Tim Shriver, Julia Roberts. Martin Luther King III, Sean Combs, Quincy Jones, Naomi Judd, Andrew Yang and others.

Mr. Bush said, in part, “Let us remember how small our differences are in the face of this shared threat,” while in the background were music and photographs of medical workers helping victims of the virus and of ordinary Americans wearing masks. Bush then concluded, “In the final analysis, we are not partisan combatants. We are human beings, equally vulnerable and equally wonderful in the sight of God. We rise or fall together and we are determined to rise.” He did not mention President Trump.

Early the next morning, Trump fired off a tweet. First, he paraphrased a Fox News personality as saying, “Oh by the way, I appreciate the message from former President Bush, but where was he during Impeachment calling for putting partisanship aside.” Then Trump added, “He was nowhere to be found in speaking up against the greatest Hoax in American history!”

A Washington Post columnist, David Von Drehle, violated his own rule for not commenting on Trump’s Twitter comments by doing so for this one because it was “so nakedly revealing of its author’s values and character.” This Trump Tweet “embraced and simplified the idea that Bush’s remarks should properly be viewed through the prism of Trump’s political fortunes. . . . No doubt the president’s florid narcissism explains part of this reaction . . . . As the only noteworthy occupant of his own psychological state, Trump seems to think everything is about him. . . . Yet here, a plea for national unity [by a former president] is the occasion for a presidential rebuke. The only sensible explanation: the president has no interest in unity. . . . Bush’s statement hit Trump like an indictment. He knows that unifying the public is not on his agenda. He has no interest in bringing us together.”

Drehle concludes, “Our life-or-death struggle with a new disease has become, for Trump, just another chance to divide the country, to leverage resentments, to fuel suspicion, to antagonize his critics — in the slim hope that he’ll galvanize his supporters while demoralizing the opposition. That’s why he thinks the Bush statement is about him.”

More General Criticism of Trump[3]

Thomas Edsall, a New York Times columnist and a full-time member of the faculty at Columbia University Journalism School, quoted the following observations about Trump from prominent academics:

  • Stephen Walt, a professor of international affairs at Harvard, said that Trump has responded “to the [coronavirus] crisis with his now-familiar playbook: blaming others, denying responsibility, invoking racial differences and ‘foreign’ dangers, and trying to discredit honest reporting so that he can sell a false narrative about the great job he’s doing.”
  • Mira Rapp-Hooper, senior fellow for Asia Studies at the Council on Foreign Relations, wrote, “The U.S. government’s pandemic leadership has been its own special brand of catastrophe. The American president denied the threat, rejected scientific expertise, spread misinformation, and left state and local governments to fend for themselves in public trust violations of the highest order. With shambolic self-governance, the U.S. government has placed its own citizens in unnecessary peril, while sidelining itself from acting as a global crisis leader in a way that is unprecedented in the last seven decades. China is all too happy to fill the vacuum.”

As noted in a previous post, George Conway and several other prominent Republicans have formed a group (The Lincoln Project) to defeat Trump’s re-election this November. Conway recently reported that Trump had responded to this group in an early morning Tweet on May 5, attacking the members of this Project as “‘LOSERS,’ ‘loser types,’ ‘crazed” and ‘a disgrace to Honest Abe.’ About me, he said, ‘I don’t know what Kellyanne [Conway, a Trump aide] did to her deranged loser of a husband, Moonface, but it must have been really bad.”

This latest example of Trump’s outbursts prompted George Conway to say, “Now, it’s more obvious than ever. Trump’s narcissism deadens any ability he might otherwise have had to carry out the duties of a president in the manner the Constitution requires. He’s so self-obsessed, he can only act for himself, not for the nation. It’s why he was impeached, and why he should have been removed from office.”

“And it’s why he reacts with such rage. He fears the truth. He fears being revealed for what he truly is. Extreme narcissists exaggerate their achievements and talents, and so Trump has spent his life building up a false image of himself — not just for others, but for himself, to protect his deeply fragile ego. He lies endlessly, not just in the way sociopaths do, which is to con others, but also to delude himself. He claims to be a ‘genius,’ even though he apparently can’t spellcan’t punctuatecan’t do math and lacks geographic literacy, and even though his own appointees have privately called him a ‘moron,’ an ‘idiot,’ a ‘dope,’ and ‘dumb.’  Now, God help us, he fancies himself an expert in virology and infectious diseases.”

George Conway concluded, “Trump’s lying, his self-regard, his self-soothing, his lack of empathy, his narcissistic rage, his contempt for norms, rules, laws, facts and simple truths — have all come home to roost. Now he sees his poll numbers fall accordingly, and lashes out with ever-increasing anger. For deep in his psyche he knows the truth. Because he fears being revealed as a fake or deranged, he’ll call others fake or deranged. Because he fears losing, he’ll call them losers instead.”

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[1] Rogers, Most Events in the Lincoln Memorial Are Banned. Trump Got an Exception, N.Y. Times (May 4, 2020); Baker, Trump foresees Virus Death Toll as high as 100,000 in the United States, N.Y. Times (May 3, 2020); Wolfe, Dishonest Don’s Lincoln backdrop highlights his monumental errors, Guardian (May 6, 2020); Boot, Trump’s dithering proves one thing: We’re at war without a leader, Wash. Post (May 5, 2020); Milbank, ’I believe I am treated worse.’ Trump says. As if, Wash. Post (May 5, 2020).

[2] Baker, George W. Bush Calls for End to Pandemic Partisanship, N.Y. Times (May 3, 2020); Von Drehle, I usually ignore all Trump’s tweets. Not this one, Wash. Post (May 5, 2020).

[3] Edsall, Why Isn’t Trump Riding High? N.Y. Times (May 6, 2020); George Conway, George Conway: Trump went ballistic at me on Twitter. Here’s why he reacts with such rage, Wash. Post (May 6, 2020).