We can’t blame Trump and the Republicans alone for the Supreme Court. Democrats had a big hand in it too.

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The Supreme Court has been around as long as the Constitution itself, more than two centuries now. Since the Warren court of the 1950s, Republicans have been open about their intention to pack it with judges who will repeal birth control, civil rights, labor rights, minimum wages, environmental regulation and most of the 20th century. Democrats, if they were ever a party of the people, as opposed to another party of the elite, have had sixty-some years to craft their own strategy to thwart Republicans. Democratic elected officials have never done this because of course they have more in common with their elite Republican counterparts than they do with the unwashed masses who vote Democratic, and who can always be rallied with the cynical cry that only Democrats can save them from an evil Republican Supreme Court.

Back in 2005 the second President Bush nominated John Roberts as chief justice. The ranking Democrat on the Senate Judiciary Committee was the 2004 Democratic presidential nominee John Kerry. The most celebrated, widely quoted, and closely watched Democrat on the judiciary committee was the acclaimed constitutional scholar and freshman from Illinois, Barack Obama. These were the guys on point for Democrats that season.

John Roberts had a long history of hostility to birth control, to voting rights, to organized labor, black and brown people, anti-discrimination laws and to anything else which might mitigate or restrain the rule of the rich in even the smallest degree. As a DC circuit court judge he “legalized” after the fact Bush’s illegitimate detention and torture at offshore black sites. As a private attorney he represented mining companies defending the horrifically destructive practice of mountaintop removal, and he was part of the Bush V. Gore legal team which succeeded in letting the Supreme Court overrule the ongoing tally of votes in Florida and declare Bush the winner. Roberts was also a board member of the rabidly right wing Federalist Society, which seeks to overturn virtually all civil rights and environmental law, and all regulation of so-called “free markets” whatsoever.

Republican leaning corporate media rejoiced, saying they were finally gonna get what they wanted. Environmental, voting rights and civil rights organizations sounded the alarm, but to little avail. Elected Democrats, their supposed champions, along with Democrat-leaning corporate media whined that there was insufficient evidence of Roberts’ rightward leanings to invest much effort in stopping his ascent to the court. Bush was a hugely unpopular president, and congressional Democrat candidates across the country were campaigning not on local issues, but against the president, a winning strategy for the following year as it turned out.

Ranking Democrat John Kerry and Barack Obama were urged to filibuster the Roberts nomination. They pretended to entertain the idea a while, but did not. Kerry and Obama failed to oppose the Roberts nomination in committee, where they could have imposed substantial roadblocks and opened an ongoing debate about the sinister role of the corporate funded Federalist Society. They voted against the nomination on the Senate floor, where it made no difference, and John Roberts got on the Supreme Court with no serious opposition.

The next summer, in 2006 when Bush nominated Sam Alito to the Supreme Court the exercise was repeated. Samuel Alito had an even more balls-out reputation as an opponent of civil and human rights. Republicans exulted while lawyerly Democrats and their media mouthpieces claimed there were no smoking guns to tell whether Alito was actually the kind of judge Republicans claimed he was. Kerry and Obama, both lawyers of course were urged again to vigorously oppose the nomination in committee, and above all to make Alito’s membership in the Federalist Society a major point in opposing him and the entire wave of Republican judges it vets and spawns for local benches and the federal judiciary.

The Federalist Society was founded during the first term of Ronald Reagan in 1982, and immediately attracted lavish funding from a galaxy of right wing foundations, deep corporate pockets and wealthy individuals including the Walton Family Foundation, the Koch Brothers, the Scaife, Coors and Heritage Foundations. It swiftly established chapters in law schools across the country and became the go-to portal for young Republican lawyers on the make. The Federalist society also has working groups of law school professors and groups where practicing attorneys and prominent jurists meet and associate with law students, and in which legal arguments for new corporate rights are developed, rehearsed and fine tuned. For about a generation now, practically no Republican attorney has snagged a spot on state or federal judicial or prosecutorial benches, or appointed to federal agencies without the stamp of the Federalist Society on his or her resume.

As the two Democratic leaders of the Senate Judiciary, Kerry and Obama were urged again and again by civil rights, environmental groups, by labor unions – by all the advocacy groups which supposedly represent the Democratic party’s base voters, to stall, to delay and to vigorously oppose the Alito nomination. By the summer of 2006 it was clear that Democrats would take back the house in November, and possibly the Senate as well. This time, Kerry and Obama said they were considering filibustering the nomination. But they didn’t, and even worse, they refused to question Sam Alito on his association with the Federalist Society, which might have made that organization’s stranglehold on Republican prosecutorial and judicial nominees an ongoing issue.

After perfunctory questioning, Kerry, Obama and their committee they passed Alito out to the full Senate where he was confirmed with no significant opposition. To this day, the corporate funded Federalist Society is still choosing a huge share of judges and prosecutors.

Let’s be clear… the courts in the US were never intended to be a small d democratic institution. The founding fathers were quite open about their intention to insulate judges from the will of the electorate, even when only white men with substantial property were allowed to vote. From the nation’s beginning, its courts have always been an elite institution, staffed by and answerable to elites, not to the people. And the US elite is thoroughly bipartisan. Vigorous Democratic opposition to Federalist Society nominees a dozen years ago by leading Democrats, most notably by then senators Barack Obama and John Kerry might have made kept dozens or hundreds of right wing judges off the bench and made it impossible for Trump to nominate his latest corporate mouthpiece. It didn’t happen because elite Democrats have far more in common with elite Republicans than they do with mere Democratic voters.

So the answer to Democrat excuse makers who sagely assure us that elections DO make a difference is yeah, sometimes they do, and sometimes they don’t. But fighting, resisting injustice, exploitation and oppression always makes a difference. Too bad that’s simply NOT what Democratic elected officials actually DO.

By Bruce A. Dixon/BAR

Posted by The NON Conformist

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North Korea says talks with Pompeo were ‘regrettable’

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PYONGYANG, North Korea (AP) — High-level talks between the United States and North Korea appeared to hit a snag on Saturday as Pyongyang said a visit by U.S. Secretary of State Mike Pompeo had been “regrettable” and accused Washington of making “gangster-like” demands to pressure the country into abandoning its nuclear weapons.

The statement from the North came just hours after Pompeo wrapped up two days of talks with senior North Korean officials without meeting North Korean leader Kim Jong Un but with commitments for new discussions on denuclearization and the repatriation of the remains of American soldiers killed during the Korean War.

While Pompeo offered a relatively positive assessment of his meetings, North Korea’s Foreign Ministry said in a statement that the U.S. betrayed the spirit of last month’s summit between President Donald Trump and Kim by making “unilateral and gangster-like” demands on “CVID,” or the complete, verifiable and irreversible denuclearization of North Korea.

It said the outcome of the follow-up talks was “very concerning” because it has led to a “dangerous phase that might rattle our willingness for denuclearization that had been firm.”

“We had expected that the U.S. side would offer constructive measures that would help build trust based on the spirit of the leaders’ summit … we were also thinking about providing reciprocal measures,” said the statement, released by an unnamed spokesman and carried by the North’s official Korean Central News Agency.

“However, the attitude and stance the United States showed in the first high-level meeting (between the countries) was no doubt regrettable,” the spokesman said. “Our expectations and hopes were so naive it could be called foolish.”

According to the spokesman, during the talks with Pompeo the North raised the issue of a possible declaration to formally end the 1950-53 Korean War, which concluded with an armistice and not a peace treaty. It also offered to discuss the closure of a missile engine test site that would “physically affirm” a move to halt the production of intercontinental range ballistic missiles and setting up working-level discussions for the return of U.S. war remains.

However, the spokesman said the United States came up with a variety of “conditions and excuses” to delay a declaration on ending the war. The spokesman also downplayed the significance of the United States suspending its military exercises with South Korea, saying the North made a larger concession by blowing up the tunnels at its nuclear test site.

In criticizing the talks with Pompeo, however, the North carefully avoided attacking Trump, saying “we wholly maintain our trust toward President Trump,” but also that Washington must not allow “headwinds” against the “wills of the leaders.”

In comments to reporters before leaving Pyongyang, Pompeo said his conversations with senior North Korean official Kim Yong Chol had been “productive,” conducted “in good faith” and that “a great deal of progress” had been made in some areas. He stressed that “there’s still more work to be done” in other areas, much of which would be done by working groups that the two sides have set up to deal with specific issues.

Pompeo said a Pentagon team would be meeting with North Korean officials on or about July 12 at the border between North and South Korea to discuss the repatriation of remains and that working level talks would be held soon on the destruction of North Korea’s missile engine testing facility.

In the days following his historic June 12 summit with Kim Jong Un in Singapore, Trump had announced that the return of the remains and the destruction of the missile facility had been completed or were in progress.

Pompeo, however, said that more talks were needed on both.

“We now have a meeting set up for July 12 — it could move by one day or two — where there will be discussions between the folks responsible for the repatriation of remains. (It) will take place at the border and that process will begin to develop over the days that follow,” he said as he boarded his plane for Tokyo.

On the destruction of the missile engine plant, Pompeo said, “We talked about what the modalities would look like for the destruction of that facility as well, and some progress there as well, and then we have laid out a path for further negotiation at the working level so the two teams can get together and continue these discussions.”

Earlier, Pompeo and Kim Yong Chol both said they needed clarity on the parameters of an agreement to denuclearize the Korean Peninsula that Trump and Kim Jong Un agreed to in Singapore. The trip was Pompeo’s third to Pyongyang since April and his first since the summit.

Unlike his previous visits, which have been one-day affairs during which he has met with Kim Jong Un, Pompeo spent the night at a government guesthouse in Pyongyang and did not see the North Korean leader, although U.S. officials had suggested such a meeting was expected. State Department spokeswoman Heather Nauert said no meeting had been planned.

As they began their talks on Saturday, Kim Yong Chol alluded to the fact that Pompeo and his delegation had stayed overnight in Pyongyang.

“We did have very serious discussions on very important matters yesterday,” Kim said. “So, thinking about those discussions you might have not slept well last night.”

Pompeo, who spoke with Trump, national security adviser John Bolton and White House chief of staff John Kelly by secure phone before starting Saturday’s session, replied that he “slept just fine.” He added that the Trump administration was committed to reaching a deal under which North Korea would denuclearize and realize economic benefits in return.

Kim later said that “there are things that I have to clarify” to which Pompeo responded that “there are things that I have to clarify as well.”

There was no immediate explanation of what needed to be clarified, but the two sides have been struggling to specify what exactly “denuclearization” would entail and how it could be verified to the satisfaction of the United States.

Pompeo and Kim met for nearly three hours Friday and then had dinner amid growing skepticism over how serious Kim Jong Un is about giving up his nuclear arsenal and translating the upbeat rhetoric following his summit with Trump into concrete action.

___

Lee reported from Tokyo. Kim Tong-Hyung in Seoul, South Korea, contributed.

Trump Refuses Call to Lower Flags in Honor of Victims of the Mass Shooting in Maryland Newsroom: Report The White House has previously lowered flags in response to other mass shootings.

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President Donald Trump refused to order flags to be lowered in honor of the victims of the mass shooting that killed five people at the Capital Gazette newsroom in Annapolis, Maryland, last week, despite an official request from Mayor Gavin Buckley, the paper reported Monday.

As the paper noted, Trump has ordered the American flag to fly at half-mast in response to other mass shootings. After 17 people were killed at Marjory Stoneman Douglass High School in Parkland, Florida, he issued the following statement:

As a mark of solemn respect for the victims of the terrible act of violence perpetrated on February 14, 2018, by the authority vested in me as President of the United States by the Constitution and the laws of the United States of America, I hereby order that the flag of the United States shall be flown at half-staff at the White House and upon all public buildings and grounds, at all military posts and naval stations, and on all naval vessels of the Federal Government in the District of Columbia and throughout the United States and its Territories and possessions until sunset, February 19, 2018.

“Obviously, I’m disappointed, you know? … Is there a cutoff for tragedy?” the Annapolis mayor told the Gazette of the White House’s refusal. “This was an attack on the press. It was an attack on freedom of speech. It’s just as important as any other tragedy.”

Gov. Larry Hogan ordered the state flags lowered in response to the killings.

Trump has already faced criticism for his tepid response to the attacks. Many observers noted that the president himself frequently stokes anger at the media, diminishing his ability to offer a full-throated defense of the free press.

And indeed, when he finally made remarks concerning the attack, he made no mention of the important place an unrestrained media plays in furthering democratic values.

By Cody Fenwick / AlterNet

Posted by The NON-Conformist

The facts about Trump’s policy of separating families at the border

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“I hate the children being taken away. The Democrats have to change their law. That’s their law.”
— President Trump, in remarks to reporters at the White House, June 15

“We have the worst immigration laws in the entire world. Nobody has such sad, such bad and actually, in many cases, such horrible and tough — you see about child separation, you see what’s going on there.”
— Trump, in remarks at the White House, June 18

“Because of the Flores consent decree and a 9th Circuit Court decision, ICE can only keep families detained together for a very short period of time.”
— Attorney General Jeff Sessions, in a speech in Bozeman, Mont., June 7

“It’s the law, and that’s what the law states.”
— White House press secretary Sarah Huckabee Sanders, at a news briefing, June 14

“We do not have a policy of separating families at the border. Period.”
— Homeland Security Secretary Kirstjen Nielsen, on Twitter, June 17

The president and top administration officials say U.S. laws or court rulings are forcing them to separate families that are caught trying to cross the southern border.

These claims are false. Immigrant families are being separated primarily because the Trump administration in April began to prosecute as many border-crossing offenses as possible. This “zero-tolerance policy” applies to all adults, regardless of whether they cross alone or with their children.

The Justice Department can’t prosecute children along with their parents, so the natural result of the zero-tolerance policy has been a sharp rise in family separations. Nearly 2,000 immigrant children were separated from parents during six weeks in April and May, according to the Department of Homeland Security.

The Trump administration implemented this policy by choice and could end it by choice. No law or court ruling mandates family separations. In fact, during its first 15 months, the Trump administration released nearly 100,000 immigrants who were apprehended at the U.S.-Mexico border, a total that includes more than 37,500 unaccompanied minors and more than 61,000 family members.

Children continue to be released to their relatives or to shelters. But since the zero-tolerance policy took effect, parents as a rule are being prosecuted. Any conviction in those proceedings would be grounds for deportation.

We’ve published two fact-checks about family separations, but it turns out these Trumpian claims have a zombie quality and keep popping up in new ways.

In the latest iteration, Homeland Security Secretary Kirstjen Nielsen tweeted and then said at a White House briefing that the administration does not have “a policy of separating families at the border.” This is Orwellian stuff. Granted, the administration has not written regulations or policy documents that advertise, “Hey, we’re going to separate families.” But that’s the inevitable consequence, as Nielsen and other Trump administration officials acknowledge.

“Operationally what that means is we will have to separate your family,” Nielsen told NPR in May. “That’s no different than what we do every day in every part of the United States when an adult of a family commits a crime. If you as a parent break into a house, you will be incarcerated by police and thereby separated from your family. We’re doing the same thing at the border.”

Although we’ve fact-checked these family-separation claims twice, we hadn’t had the opportunity to assign a Pinocchio rating yet. We’ll do so now.

The Facts

Since 2014, hundreds of thousands of children and families have fled to the United States because of rampant violence and gang activity in El Salvador, Guatemala and Honduras. U.S. laws provide asylum or refugee status to qualified applicants, but the Trump administration says smugglers and bad actors are exploiting these same laws to gain entry. Nielsen says the government has detected hundreds of cases of fraud among migrants traveling with children who are not their own. President Trump says he wants to close what he describes as “loopholes” in these humanitarian-relief laws.

The Central American refugee crisis developed during President Barack Obama’s administration and continues under Trump. The two administrations have taken different approaches. The Justice Department under Obama prioritized the deportation of dangerous people. Once he took office, Trump issued an executive order rolling back much of the Obama-era framework.

Obama’s guidelines prioritized the deportation of gang members, those who posed a national security risk and those who had committed felonies. Trump’s January 2017 executive order does not include a priority list for deportations and refers only to “criminal offenses,” which is broad enough to encompass serious felonies as well as misdemeanors.

Then, in April 2018, Attorney General Jeff Sessions rolled out the zero-tolerance policy.

When families or individuals are apprehended by the Border Patrol, they’re taken into DHS custody. Under the zero-tolerance policy, DHS officials refer any adult “believed to have committed any crime, including illegal entry,” to the Justice Department for prosecution. If they’re convicted, that triggers deportation proceedings.

Illegal entry is a misdemeanor for first-time offenders, and a conviction is grounds for deportation. Because of Trump’s executive order, DHS can deport people for misdemeanors more easily, because the government no longer prioritizes the removal of dangerous criminals, gang members or national-security threats. (A DHS fact sheet says, “Any individual processed for removal, including those who are criminally prosecuted for illegal entry, may seek asylum or other protection available under law.”)

Families essentially are put on two different tracks. One track ends with deportation. The other doesn’t.

After a holding period, DHS transfers children to the custody of the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services. They spend an average 51 days at an ORR shelter before they’re placed with a sponsor in the United States, according to HHS. The government is required to place these children with family members whenever possible, even if those family members might be undocumented immigrants. “Approximately 85 percent of sponsors are parents” who were already in the country “or close family members,” according to HHS. Some children have no relatives available and in those cases the government may keep them in shelters for longer periods of time while suitable sponsors are identified and vetted.

Adding it all up, this means the Trump administration is operating a system in which immigrant families that are apprehended at the border get split up, because children go into a process in which they eventually get placed with sponsors in the country while their parents are prosecuted and potentially deported.

ENOUGH of the misinformation. This Administration did not create a policy of separating families at the border. pic.twitter.com/y0uuYUkSEL

— The White House (@WhiteHouse) June 18, 2018

This is a question of Trump and his Cabinet choosing to enforce some laws over others. The legal landscape did not change between the time the Trump administration released nearly 100,000 immigrants during its first 15 months and the time the zero-tolerance policy took effect in April 2018.

What changed was the administration’s handling of these cases. Undocumented immigrant families seeking asylum previously were released and went into the civil court system, but now the parents are being detained and sent to criminal courts while their kids are resettled in the United States as though they were unaccompanied minors.

The government has limited resources and cannot prosecute every crime, so setting up a system that prioritizes the prosecution of some offenses over others is a policy choice. The Supreme Court has said, “In our criminal justice system, the government retains ‘broad discretion’ as to whom to prosecute.” To charge or not to charge someone “generally rests entirely” on the prosecutor, the court has said.

Katie Waldman, a spokeswoman for Nielsen, said the administration does not have a family-separation policy. But Waldman agreed that Trump officials are exercising their prosecutorial discretion to charge more illegal-entry offenses, which in turn causes more family separations. The Obama administration also separated immigrant families, she said.

“We’re increasing the rate of what we were already doing,” Waldman said. “Instead of letting some slip through, we’re saying we’re doing it for all.”

Waldman sent figures from fiscal 2010 through 2016 showing that, out of 2,362,966 adults apprehended at the southern border, 492,970, or 21 percent, were referred for prosecution. These figures include all adults, not just those who crossed with minor children, so they’re not a measure of how many families were separated under Obama.

“During the Obama administration there was no policy in place that resulted in the systematic separation of families at the border, like we are now seeing under the Trump administration,” said Sarah Pierce, a policy analyst at the Migration Policy Institute. “Our understanding is that generally parents were not prosecuted for illegal entry under President Obama. There may have been some separation if there was suspicion that the children were being trafficked or a claimed parent-child relationship did not actually exist. But nothing like the levels we are seeing today.”

Trump administration officials say they’re trying to keep parents informed about their kids.

But some families instead have wound up in wrenching scenarios.

“Some of the most intense outrage at the measures has followed instances of parents deported to Central America without their children or spending weeks unable to locate their sons and daughters,” The Washington Post’s Nick Miroff reported. “In other instances, pediatricians and child advocates have reported seeing toddlers crying inconsolably for their mothers at shelters where staff are prohibited from physically comforting them.”

Administration officials have pointed to a set of laws and court rulings that they said forced their hand:

  • A 1997 federal consent decree that requires the government to release all children apprehended crossing the border. The “Flores” consent decree began as a class-action lawsuit. The Justice Department negotiated a settlement during President Bill Clinton’s administration. According to a 2016 decision by the U.S. Court of Appeals for the 9th Circuit, the Flores settlement requires the federal government to release rather than detain all undocumented immigrant children, whether they crossed with parents or alone. The agreement doesn’t cover any parents who might be accompanying those minors, but it doesn’t mandate that parents be prosecuted or that families be separated. Moreover, Congress could pass a law that overrides the terms of the Flores settlement. Waldman said the Flores settlement requires the government to keep immigrant families together for only 20 days, but no part of the consent decree requires that families be separated after 20 days. Courts have ruled that children must be released from detention facilities within 20 days under the Flores consent decree, but none of these legal developments prevents the government from releasing parents along with children.
  • A 2008 law meant to curb human trafficking called the Trafficking Victims Protection Reauthorization Act (TVPRA). This law covers children of all nationalities except Canadians and Mexicans. Central American children who are apprehended trying to enter the United States must be released rather than detained under the terms of the TVPRA, and they’re exempt from prompt return to their home countries. The law passed with wide bipartisan support and was signed by a Republican president, George W. Bush. No part of the TVPRA requires family separations.
  • The Immigration and Nationality Act of 1952. This comprehensive law governs U.S. immigration and citizenship and makes a person’s first illegal entry into the United States a misdemeanor. Clinton, Bush and Obama — the presidents who were in office during the immigration boom of the past few decades — never enforced the INA’s illegal-entry provision with the Trump administration’s zeal. The INA says nothing about separating families. It was sponsored by Democrats and passed by a Democratic-held Congress. President Harry Truman, also a Democrat, tried to veto the bill, describing it as a reactionary and “un-American” measure meant to keep out immigrants from Eastern Europe. Congress overrode his veto.

“What has changed is that we no longer exempt entire classes of people who break the law,” Nielsen said at a White House briefing June 18. “Everyone is subject to prosecution.”

It’s unclear whether 100 percent of adults are being prosecuted. Experts on the ground say there are not enough resources on the border to process all these cases. Trump administration officials say immigrants should show up at a port of entry to request asylum if they want to avoid prosecution, but there’s usually a big crowd and people often get turned away at these entry points, according to reporting from Texas Monthly.

It’s strange to behold Trump distancing himself from the zero-tolerance policy (“the Democrats gave us that law”) while Nielsen claims it doesn’t exist (“it’s not a policy”) and Sessions defends it in speech after speech.

“We do have a policy of prosecuting adults who flout our laws to come here illegally instead of waiting their turn or claiming asylum at any port of entry,” Sessions said in a speech on June 18 in New Orleans. “We cannot and will not encourage people to bring children by giving them blanket immunity from our laws.”

In a June 7 speech, he said: “I hope that we don’t have to separate any more children from any more adults. But there’s only one way to ensure that is the case: it’s for people to stop smuggling children illegally. Stop crossing the border illegally with your children. Apply to enter lawfully. Wait your turn.”

The attorney general also suggested on June 7 that legal developments are forcing his hand. “Because of the Flores consent decree and a 9th Circuit Court decision, ICE can only keep families detained together for a very short period of time,” he said. But as we’ve explained, this is misleading. Neither the consent decree nor the court ruling forces the government to separate families. What they do provide is accommodations for children that the government could extend to parents if it wanted to.

For Trump, the family-separation policy is leverage as he seeks congressional funding for his promised border wall and other immigration priorities, according to reporting by The Washington Post. Top DHS officials have said that threatening adults with criminal charges and prison time would be the “most effective” way to reverse the rising number of illegal crossings.

The Pinocchio Test

The doublespeak coming from Trump and top administration officials on this issue is breathtaking, not only because of the sheer audacity of these claims but because they keep being repeated without evidence. Immigrant families are being separated at the border not because of Democrats and not because some law forces this result, as Trump insists. They’re being separated because the Trump administration, under its zero-tolerance policy, is choosing to prosecute border-crossing adults for any offenses.

This includes illegal-entry misdemeanors, which are being prosecuted at a rate not seen in previous administrations. Because the act of crossing itself is now being treated as an offense worthy of prosecution, any family that enters the United States illegally is likely to end up separated. Nielsen may choose not to call this a “family separation policy,” but that’s precisely the effect it has.

Sessions, who otherwise owns up to what’s happening, has suggested that the Flores settlement and a court ruling are forcing his hand. They’re not. At heart, this is an issue of prosecutorial discretion: his discretion.

The Trump administration owns this family-separation policy and its spin deserves Four Pinocchios.

Four Pinocchios

by Salvador Rizzo/WAPO
Posted by The NON-Conformist

Obamacare Critics and Defenders Team Up Against the Trump Administration’s Refusal to Defend the Health Law in Court The DOJ’s argument for striking down the health law’s preexisting conditions rules is weak.

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Last week, in response to a legal challenge filed by Texas and a group of conservatives states, the Trump administration took an unusual step by announcing that it would not defend Obamacare in court. Instead, the Trump administration took the position that the health law’s was unconstitutional, and that its preexisting conditions regulations should be struck down.

The federal government’s suit has drawn rebuke from some unlikely quarters. An attorney with 20 years of experience at the Justice Department resigned this week as a result of the administration’s position. Sen. Lamar Alexander (R-Tenn.) said it was “as far-fetched a legal argument as I think I’ve ever heard.” Senate Majority Leader Mitch McConnell distanced his party from the argument, saying that “everyone” in the Senate favored maintaining coverage for people with preexisting conditions.

Even Health and Human Services (HHS) Sec. Alex Azar, who signed the brief in question, described it as a “constitutional and legal position, not a policy position.”

It doesn’t appear to be much of one.

Among the more unusual responses to the administration’s argument came today in the form a brief filed by five academic experts with wildly divergent views about Obamacare. The brief is signed by Jonathan Adler, Nicholas Bagley, Abbe Gluck, Ilya Somin, and Kevin Walsh. Bagley and Gluck have both defended the health law’s legality in the past. Walsh has published several analyses of the legal arguments surrounding Obamacare. But Adler and Somin, notably, are libertarian-leaning law professors who have been quite critical of the health law over the years. (Both are also contributors to the Volokh Conspiracy, which is published at Reason.com.)

The opening of the brief stresses that the signers have spent the last several years disagreeing with each other, in some cases quite forcefully, about the legal and constitutional merits of the health law. The brief takes no position on the mandate itself. But in this case, they all agree that the federal government’s argument for striking down the law’s preexisting rules is, legally speaking, pretty terrible.

Understanding the brief requires a little bit of background. In 2012, the Supreme Court ruled that although Obamacare’s mandate was unconstitutional when viewed as a purchase requirement or economic command, it could stand because it raised revenue and therefore functioned as a tax. But last year, as part of tax reform legislation, Congress eliminated the penalty for not complying with Obamacare’s individual mandate. The mandate remained on the books, but for all practical purposes it had been repealed. And it no longer raised any revenue.

As a result, a group of conservative states, led by Texas, challenged the legality of the (now unenforceable) mandate, and further argued that because it is the centerpiece of the health law, all of Obamacare should be struck down.

This is an argument about what’s known as “severability” — whether the remaining parts of a law should be struck down if a court finds one provision to be illegal.

The Trump administration’s argument does not go quite as far as the states. It agrees that the mandate is now unconstitutional, and takes the position that although much of the law, including the Medicaid expansion and private insurance subsidies, can stand, the preexisting conditions rules should be tossed along with the mandate, because the mandate and the preexisting conditions rules are not severable. To back up its argument, the administration cites findings associated with the statute of Obamacare (that were also cited by the Obama administration in court) declaring that the mandate and the preexisting conditions rules are a bundle that should not be separated.

For critics of Obamacare, there is something naturally appealing about this argument: It uses the text of the health law, and the Supreme Court’s decision to uphold it, to attempt to knock it down. I have been open to arguments along these lines under the Obama administration, and I think they made sense at the time.

The problem, as the new brief points out, is that determining severability is about determining congressional intent. And the current Congress has made its position on the matter quite apparent. Often, this requires some sort of guessing. But at this point, we know exactly what Congress thinks about the law it chose to amend, because it very clearly chose to eliminate the mandate penalty while leaving the preexisting conditions rules in place. That is about as clear a statement of intent as you can ever imagine from Congress.

The brief argues that the administration’s argument relies on “time shifting” to make its case, and that the administration’s case effectively gets severability backward by “[disregarding] the clearly expressed intent of Congress and seek judicial invalidation of statutory provisions that Congress chose to leave intact.”

The findings about severability that the administration cites to back up its arguments about the preexisting were made by a different Congress, prior to the elimination of the mandate penalty and other alterations to the law. They were made in the context of what is now, essentially, a different law. They don’t apply.

I have been a critic of Obamacare for years, and I continue to believe there are many problems with the law. The preexisting conditions rules, while popular, distort the individual market and have contributed to rising premiums in the exchanges. (The popularity of those rules, of course, is one reason why Republicans haven’t touched them, and why GOP officials are distancing themselves from the policy implications of their argument.) But critics of the health law do themselves no favors by signing on to a fundamentally weak legal challenge like this.

The bigger problem with this case is that it has the potential to serve as a substitute for a policy agenda. Republicans still need a broad health policy vision that goes beyond simply attacking Obamacare. But as long as they are basing their hopes on a legal manuever as poorly thought out as this one, that’s not something we’re likely to see.

By Peter Suderman/reason

Posted by The NON-Conformist

At the Singapore summit, President Trump got played

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President Trump got played.

After all the hoopla and pageantry and Trump braggadocio at the Singapore summit, with Kim Jong Un standing alongside the U.S. president in front of thousands of journalists, the North Korean leader came out the winner.

Kim had already racked up points just by standing alongside the U.S. president as an equal, showered with Trump’s praise and transformed from pariah to international rock star.  In recent weeks he was welcomed to Beijing and Seoul, and invited to Moscow. China and Russia have already started to loosen up sanctions.

All this might have been an acceptable cost for achieving the U.S. goal: to get Kim to commit specifically to shedding his nuclear weapons within a reasonable time frame, in a verifiable fashion.  But, on this, Trump failed big time: The joint statement that emerged from the summit included no such firm commitments, using vague language on denuclearization that is interpreted very differently by the two sides. “It does not meet the minimum requirements in terms of what we expected them to do,” Ambassador Joseph Y. Yun, the former Special U.S. Representative to North Korea, told CNN.

>> READ MORE: Analysis: By Trump’s own yardstick, North Korea pact falls flat

Instead, Trump made a huge concession up front stopping joint U.S. military exercises with South Korea, a key tool for keeping pressure on the North. And he didn’t even inform the Seoul government beforehand, leaving it publicly grasping for information on U.S. intentions.

“I gave up nothing,” the president insisted in a press conference. He was clearly oblivious to the fact that he was playing into North Korea’s longtime game plan: to emerge as an internationally recognized state, recognized by America and the world — without surrendering all of its nukes.

Let’s look at what the president did give up.

In the run-up to the summit, U.S. and Korean negotiators were wrestling over whether North Korea would make a substantial pledge of denuclearization up front, including details of its nuclear program and a timeline for dismantling it.

But, going into the summit, the two sides could not even agree on a common definition of the term  “denuclearization.”

“Our definition of denuclearization is they give up all their fissile material, facilities, nuclear material taken out, irrevocably and verifiably,” says Dr. Jung Pak, top Korea expert at Brookings and former senior CIA Korea analyst.

The joint statement, however, contained only a vague commitment to “complete denuclearization of the Korean peninsula” – terminology favored by Pyongyang and Beijing.  In North Korea’s interpretation, say North Korea experts, this means an end to the U.S. troop presence in South Korea and nuclear umbrella over that country and Japan – without any corresponding specifics on eliminating its own nuclear program.

By using this language – and ending joint exercises – Trump acceded to Kim’s game plan. He went even further, repeating his desire to pull U.S. troops out of Korea (although not immediately) and emphasizing his desire to save money by so doing.  All this before North Korea makes any firm commitment to giving up its nuclear weapons and missile programs.

True, Kim has frozen his nuclear tests and missile tests – for now.  And he has destroyed an already collapsing nuclear test site and promised Trump more on other sites.  But none of this speaks to the onetime American demand that North Korean completely, irrevocably and verifiably destroy its weapons.

Negotiations will now commence, but if the past is history, they could drag on for a very long time and never reach a firm conclusion.  Meanwhile, U.S. leverage on North Korea is declining,  as China and Russia push to loosen sanctions.  A push for a formal peace between North and South Korea will further weaken any future pressure.  And Trump’s eagerness to halt joint military excercises – and remove U.S. troops – undermines U.S. leverage further.

This gives North Korea little reason to swiftly negotiate an end to its weapons program.  After all, the U.S. president has told the world that Kim is “very smart” and “honorable” and “wants to do the right thing.”  Trump even sloughed off questions at the press conference about North Korean forced labor camps where thousands are tortured and murdered, saying such things happen elsewhere.

How embarrassing it would be for Trump to resume insulting the great Korean leader.  Much easier to insult a democratic prime minister like Justin Trudeau.

The irony here is that, contrary to Trump’s exaggerated claims, Presidents Clinton and George W. Bush got much more specific commitments from Pyongyang. In 1992, 1994 and 2005, the North Koreans pledged to eliminate all their nuclear weapons.  They reneged.

When asked why he’d do better, Trump bragged: “This is a much different president.”  Clearly this president believes his smarts will get results from North Korea, where previous presidents met failure.

The good news is that war on the Korean peninsula looks far less likely than a few months ago. But judging from the Singapore summit, it is Kim Jong Un who has mastered the art of dealing with Trump.

By Trudy Rubin/Phillynews

Posted by The NON-Conformist

 

‘Everything’s on the line’: AT&T’s showdown with DOJ over Time Warner finally gets a decision today

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A federal judge is expected to rule Tuesday on whether to block AT&T’s $85 billion Time Warner merger, in what has become America’s most closely watched antitrust trial in decades.

The opinion by Judge Richard Leon could determine AT&T’s future in digital entertainment as the company seeks to go toe-to-toe with tech titans such as Facebook, Google and Netflix. But the stakes are equally high for the Justice Department, which has not litigated a case of this kind since the Nixon administration. A court victory for the government, analysts say, could symbolize the beginning of a tough new era in antitrust enforcement. But an AT&T win could give pause to regulators — and perhaps deter them from blocking mergers in the future that might otherwise be deemed anticompetitive.

Though the Justice Department has sought to tamp down concerns about the AT&T case being a bellwether, analysts widely anticipate more deals to be announced in the event of an AT&T court victory, particularly mergers involving corporations that primarily operate in different industries. These types of so-called vertical deals are becoming more popular. In recent months, Verizon has purchased the digital media companies AOL and Yahoo. Amazon.com expanded its grocery business by buying Whole Foods. (Amazon chief executive Jeffrey P. Bezos also owns The Washington Post.) Comcast, meanwhile, is gearing up to fight Disney for control over 21st Century Fox.

“Everything’s on the line now for the Department of Justice,” said Gene Kimmelman, a former DOJ antitrust official who now leads the consumer advocacy group Public Knowledge. “They either come out as enormous victors … or they’ll face an avalanche of new transactions if they lose this case.”

Analysts predict a wide range of possible outcomes in the trial. Leon could determine the merger poses a competitive threat and block the deal outright, siding with the Justice Department. He could rule for AT&T and approve the entire acquisition without conditions, making it possible for the deal to close by June 18. Or he could strike a middle ground, imposing his own changes to the deal or asking the two sides to help him tweak it.

No matter how he rules, the full implications will take time to digest — and will likely hold implications for a string of other mergers and acquisitions on the horizon. Leon has previously said to expect at least a 200-page written opinion.

The lengthy decision reflects the grueling six-week legal assault that government lawyers mounted against AT&T and Time Warner this spring in a dim, windowless Washington courtroom. Both AT&T and the Justice Department declined to comment for this story.

The merged firm, prosecutors argued, would anticompetitively unite AT&T’s massive distribution infrastructure — its cellular and wired broadband networks — with Time Warner’s premium content including HBO, Warner Bros. and Turner Broadcasting, whose assets include the cable channels CNN, TBS and TNT.

AT&T executives defended the merger in court as a major strategic shift for the telecom giant, one that could prove as significant as the company’s decision more than a decade ago to enter the market for broadband and mobile data. In reinventing itself for an age of streaming media, AT&T aspires to deliver more television content over Internet connections to mobile and digital devices. With the viewing data it gathers from smart TVs, computers, tablets and smartphones, AT&T plans to build a targeted advertising empire resembling that of the Web’s biggest ad giants.

That effort could be aided by another major milestone this week: The official repeal on Monday of the federal government’s net neutrality rules. The rules, targeted for elimination by the Federal Communications Commission in a vote last year, had banned providers like AT&T or Verizon from prioritizing their own content over that of other websites. And they had laid the foundation for more stringent — though now also repealed — privacy regulations governing ISPs’ handling of customer data.

Winning the antitrust case could allow AT&T to capitalize on that deregulation, analysts say.

“Consumer groups are worried that the court will give AT&T powerful new content, and that the FCC will let them monetize it in anticompetitive ways,” said Paul Gallant, an industry analyst at Cowen & Co. “But investors are more sanguine. They like the hedge of AT&T owning content.”

Antitrust attorneys litigating the Time Warner case relied on complex economic models and testimony from AT&T’s competitors to outline a nightmare scenario in which AT&T could allegedly use its newfound control over Turner Broadcasting to unfairly benefit DirecTV, AT&T’s own subscription television service.

Turner’s control over live sports, news and other desirable programming would encourage AT&T to seek more money for that content when licensing it to competing TV services, the Justice Department argued. Those higher prices would allegedly be passed along to consumers to the tune of hundreds of millions of dollars per year. Meanwhile, the attorneys said, DirecTV would reap rewards by luring away any customers dissatisfied with the price hikes at other cable companies.

“AT&T would not want Time Warner content distributed in ways that increase competitive pressure on DirecTV,” the government wrote in its closing brief to the court.

Attorneys for AT&T and Time Warner lashed out at the government’s antitrust claims, calling them “preposterous.” Thanks to new targeted advertising revenue, AT&T argued, the deal would lead to price decreases for TV viewers, not increases. And to highlight its good faith in content negotiations, AT&T pointed to 1,000 letters it sent to rival TV services last year committing to an arbitration process after the merger, in the event those competitors felt they were being overcharged for Time Warner content. Opponents of the deal said the arbitration offer was insufficient, though in his questioning in court, Leon expressed significant interest in it.

AT&T’s legal team sought to dismantle the Justice Department’s economic analysis of the deal, poking holes in research done by the agency’s star witness, a University of California economist named Carl Shapiro. Shapiro’s analysis failed to consider enough real-world examples of programming disputes, AT&T argued, instead drawing on surveys and long-term projections to arrive at the conclusion that consumers will be harmed by the merger.

Hanging over the trial was also the political shadow of President Trump, who has publicly and repeatedly criticized the merger as concentrating too much power “in the hands of too few.” Arguing that it was being unfairly singled out for punishment, AT&T briefly demanded that the Justice Department hand over White House communications logs that could prove whether Trump inappropriately directed the agency to block AT&T’s merger. But Leon denied that request, focusing narrowly instead on the core antitrust arguments in the case.

The high-profile case is widely viewed as a bellwether for other mergers waiting in the wings. Should AT&T be allowed to buy Time Warner, analysts say an arms race will follow in which companies of all stripes will seek to consolidate with other businesses. An acquisition involving 21st Century Fox is already in the works, with Comcast and Disney poised for a bidding war over Fox’s lucrative film and TV studios, cable networks and other assets. Meanwhile, T-Mobile and Sprint have announced a merger of their own.

Wall Street will be looking for clues in the AT&T decision as to whether the government is likely to challenge those deals.

“At the simplest level, the market will draw a conclusion as to whether this administration is laissez faire or interventionist when it comes to big deals,” he said.

By Brian Fung/WAPO

Posted by The NON-Conformist

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