Blue States’ Rights: How California And Other Blue States Can Hold America To The Paris Accords

This week, Donald Trump decided (or by the tone of his speech, Steve Bannon decided) to withdraw the United States from the strictly voluntary Paris Accords.  This decision was a tragic abdication of American leadership, and it is entirely possible that it marks the end of the American era. Why would any country ever enter a long term agreement with us again if our word is worthless? It was one of the most ridiculous self-inflicted wounds I have ever seen, and Trump’s prediction that the world would end up laughing at us has already become a reality. However, Trump’s destruction of American’ leadership may not actually destroy the planet. California, New York, and Washington have created the United States Climate Alliance, and intend to work with other countries, regions, and provinces to meet the Paris Accords. If they play it right, these states, and others that will hopefully join them, can use their constitutionally protected right to tell Trump to eat coal and enact laws that will keep the US to its Paris commitments.

States’ Rights Aren’t Just For Living Confederate Monuments Like Jeff Sessions

Those of us who take a dim view of America’s history of slavery and segregation tend to recoil at the term “States’ Rights,” because the concept has most often been invoked to promote institutionalized white supremacy. However, the Tenth Amendment, which says all powers not granted to the Federal Government belong to the States, is an essential check on federal power. It is there to protect California’s right to control carbon emissions just as much as it was ever there to help South Carolina persecute its black citizens. California already has a cap and trade system in place as well as other progressive environmental regulations. A State’s right to regulate internal  carbon commerce has already been established.

The United States Climate Alliance may not be able to control all carbon emissions in the US, but they may just be able to offset the transgressions of the Koch brothers and other polluters in states they cannot reach, and curb some big polluters in the bargain. Most carbon emissions don’t come from the federal government (although the Tennessee Valley Authority accounts for quite a few); they come from people and corporations. Just imagine that Oregon, New Jersey, Connecticut, Massachusetts, Rhode Island, New Hampshire, Vermont, Delaware, and Maryland join the Climate Alliance. About 100 million consumers live in those and existing Climate Alliance states. No business wants to voluntarily give up that many domestic customers over a few environmental regulations. A third of the American population uses a lot of power and a lot of cars and a lot of plastic, all of which come from fossil fuels (at least for the moment). Any business wanting to sell to consumers or do business in those states will have to adhere to whatever regulations the alliance may impose. The great news is that most big polluters are big companies, and big companies’ policies can be manipulated by a minority of states thanks to the power of capitalism.

Large Corporations have to set policies based on all states in which they do business

Big companies tend to develop internally consistent policies based on the most restrictive state law they have to obey. Let me give you an example: If 1/3 of American states pass a law mandating that all small SUVs must have 35 mpg as of 2020, American car manufacturers are not going to make a Ford Escape that gets 25 mpg for Alabama and one that gets 35 mpg for California.  They are going to create a product (given the technology already exists) that they can sell in all states.  Streamlining their products and policies to comply with all applicable regulations is a better and cheaper way for them to do business. There are also non-product related examples. Before marriage equality was decided by the Supreme Court, many large companies offered health benefits to same sex domestic partners.  This was often because some states required it.  It is easier for HR departments (or any other departments) in large organizations to have 1 policy to apply to all of its operations than different policies for every jurisdiction. Exxon, BP, and every other major oil company sell gas in California and every blue state. After all, that’s where most of the people are. Seems like a fair bet to me that they will be unwilling to forgo 100 million consumers – more than the entire population of Germany – just to avoid a little carbon cutting.

It’s time to use the tools we have to achieve the ends we want

With a petulant toddler at the head of the Federal Government, we need to look for alternative means to achieve our goals, and California has the right idea. For a hundred years, the South used their state laws to achieve the horribly discriminatory policies they wanted, and they succeeded, despite the existence of a constitutional amendment designed to prevent those policies. We have no such impediment! There’s no reason we can’t use our state laws to try to save the planet, or anyone else who needs saving, for that matter. One excellent aspect of federalism is that people in other states generally don’t kick up a fuss about what the state next door is up to, as long as it does not fundamentally offend human dignity, and it took almost two hundred years to nip that one in the bud. It’s time for us to support the United States Climate Alliance and any other state-level initiatives that can move our country forward. The more states sign on, the more consumers fall under a climate-protective umbrella, and the more polluters have to listen to us. Let the era of Blue States’ Rights begin.

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Should the Supreme Court nullify the Election?

With every day that Donald Trump drags the federal government further into chaos, his opposition tries to think of ways to remove him without relying on Congress.  As Democrats, liberals, and progressives, it has become second nature for us to turn to the Court to protect our rights, so it is not surprising that some petitioners have asked the Court to solve this problem. Some less than reputable “news” organizations on the Left , like Occupy Democrats and Politicususa (yes, we resisters have our own fake news),  have recently reported that the Supreme Court has “advanced” a petition to nullify the results of the election.  Now, the Supreme Court hasn’t “advanced” anything, and the petitioners’ legal argument is pretty meritless, but it is still worth asking: should we be looking to the Court to save us from Trump?

The answer is: absolutely not. For one thing, the Court lost a hell of a lot of credibility when it installed George W. Bush as President in Bush v. Gore, and a repeat won’t improve anything. For another thing, the ongoing Russia investigations involve the Trump campaign’s collusion with Russia to influence voters and spread disinformation, not hack the actual mechanics of an election. The remedy for criminal conspiracy to hack the DNC is to kick the criminals out of office, not nullify an election that was properly conducted. We can’t expect the Court to repeat its Bush v. Gore mistake and nullify an election when it was the American people, not the electoral process, that were hacked by Russia.

In the interest of self-preservation, the Court can’t touch this

The Court really screwed the pooch the last time it helped picked a President, and it behooves us all to avoid asking the Justices to do it again. To recap Bush v. Gore, there were manifold voting irregularities in the State of Florida during the 2000 election, and the Gore campaign, behind by about 500 votes, asked for recounts in several parts of the state. The George W. Bush campaign tried to stop the recounts, and there were conflicts between the Republican Secretary of State for Florida, who worked for Jeb Bush, and the Democratic Supreme Court of Florida, sending the suit up and down the state courts and to the US Supreme Court.  Ultimately, the case ended in the Supreme Court for a second time, and the Court stopped all recounts, in one of the most controversial decisions in recent history. This decision was widely seen as an example of unelected judges imposing their personal political opinions on the electoral process. Justice Sandra Day O’Connor, the swing vote on the case, has said the Court shouldn’t have taken the case.  Justice Stephen Breyer has said that it damaged the Court’s credibility, though not permanently. Preserving Court credibility is crucial for anyone interested in resisting Trump. It is against our interests as opponents of the Administration to ask the Court to compromise itself.

Even if the Court would hear it, there isn’t a good case for nullification

There are two major problems with the idea of judicial nullification of Trump’s election based on Russian hacking.  The first problem is that the Russians didn’t hack the electoral process; they hacked the people voting in the electoral process. The second problem is that voters don’t elect the President of the United States, Electors do. Those Electors are supposed to be the stopgap against demagogues hoodwinking the people into bad decisions.

The Russian government did not hack the hardware or processes of the election in the states, like voting machines, computers, or other data management tools.  The legal process of counting votes appears to have proceeded properly in all fifty states and the District of Columbia. By hacking the DNC and John Podesta’s e-mail account, Russia attacked a private political organization and a private citizen’s personal e-mail account, and disseminated controversial information that targeted the decisionmaking of individual voters.  Russia hacked us, the American public, not the legal process.

The Court can’t nullify an election based on the fact that voters believed Russian propaganda.  The Founders did predict that voters might be influenced by demagogues, or even by disinformation. Fake news and airing dirty secrets ain’t new, and Tom Jefferson would swear to you those Election 1800 broadsheets about Sally Hemmings were libel! James Madison et. al. created the much maligned Electoral College to act as a check on uninformed democracy. Despite wide-ranging discussion of so-called faithless electors turning the election for Hillary Clinton, the Electors cast their votes largely as expected, and we got Donald Trump. Unless someone produces evidence that Russia actually interfered with the mechanics of voting -changing the tallies, inventing voters, or stuffing ballot boxes – the Court can’t nullify anything.

Trust the Constitution, support the Press, and impeach Trump for his lies

The Justices don’t need me to tell them not to take this case – I’d bet my bottom dollar they will not. However, I do think it’s important to think about why the rest of us shouldn’t be asking them to in the first place. The Constitution lays out one remedy for removing criminals from executive office: impeachment. Currently, the Press is digging for every connection Trump has to Russia, every lie, every dirty trick, and hopefully his tax returns. There is a profusion of leakers in the intelligence community and the Executive. The path is clear – we need to amass as much information as possible, help the legitimate Press expose Trump and his cronies, and take back Congress in 2018. We, as Americans of both political parties, have done enormous damage to our Republic in the past by pushing one branch of government to impinge on the authority of another to achieve our ends. The Court is the only branch of government consistently acting as a check against Trump. We should not ask it to compromise itself because we are scared of Paul Ryan and the Turtle.

Trump’s Russian Roulette: we’ve got the cover-up, but where’s the crime?

The circumstantial evidence that Donald Trump, his campaign, his family, and his businesses have unsavory ties to Russia has grown to near-undeniable levels. Still, criminal offenses have yet to be uncovered. Currently, the Trump Administration’s only crime is lying by Michael Flynn and Jeff Sessions about non-criminal communications with Russian Ambassador Sergei Kislyak. Now, the news that Jared Kushner and disgraced former National Security Adviser Michael Flynn met with Kislyak together suggests Flynn’s interactions with Russia were undertaken with Trump’s knowledge.  When a leader runs Play #7 in the Dictator’s Playbook: Let a Henchman Take the Fall, the involvement of multiple close advisers almost always means that the leader was involved in the relevant high jinks. The problem with calls for impeachment and consistent comparisons to Watergate is that Watergate started with an actual crime committed by Nixon’s associates; when it comes to Trump and Russia, his henchmen are behaving as if he is covering something up, but we don’t know what it is, or how we could possibly prosecute it.

Watergate and Russiagate have a lot of similarities . . .

Both scandals started with attacks on the DNC. The DNC has got to get its act together on the security front. In 1972, Tricky Dick and his (apparently quite poorly trained) henchmen kicked off the Watergate scandal by getting caught in flagrante delicto bugging the DNC offices in the Watergate hotel. In 2016, the Democratic primary and general election were thrown into turmoil, much to the detriment of the ultimate democratic nominee, by the hacking and leaking of private DNC e-mails. Its offices were apparently bugged again as well.

The immediate culprit indicated a larger conspiracy. While it took much longer to link the President and his men to the burglary and its perpetrators, it was quickly discovered that one of those men was a security consultant for the Republican Party. Likewise, in 2016, three days after the first DNC e-mails were released by Wikileaks, analysts had already discovered the DNC servers were hacked by individuals using a Cyrillic keyboard in Moscow.

The sabotage was undertaken in favor of the Republican candidate. In October 1972, the Washington Post reported the FBI’s conclusion that the Watergate break-in was part of a widespread campaign of political sabotage undertaken on behalf of the Committee for the Reelection of President Nixon. Mr. Trump has received a similar assist, if from a different actor. In December 2016, 17 US intelligence agencies concluded that Vladimir Putin ordered Russian operatives to hack the DNC in order to get Donald Trump elected.

Henchmen have lied about their contact with conspirators. In the Watergate scandal, the first lying henchman to be unmasked was John Mitchell, former US Attorney General and the Director of Nixon’s reelection campaign. Mitchell initially denied that the campaign had anything to do with the Watergate break-in, and was contradicted by evidence found by the FBI and Washington Post (See above link to the Post’s chronology of Watergate). Obviously the dominos fell from there. Dominos seem to be teetering among Trump’s cronies. Michael Flynn had to resign for lying about his communications with Kislyak, and now Jeff Sessions has had to recuse himself from future investigations as penance for his fibbing.  The problem is, both mens’ actions, while somewhat irregular, weren’t illegal. We only see a cover up because they are acting like they are conducting a cover up (which makes them pretty terrible conspirators).

But it’s the differences that count . . .

Russia changes the ballgame. The involvement of a hostile foreign power makes Russiagate a whole different animal from Watergate or any other Presidential scandal. Watergate started with a petty, prosecutable crime committed within the jurisdiction of the United States. Within a couple of months the authorities had hard evidence linking Richard Nixon’s reelection campaign to the burglary.  After that, reporters and the FBI just had to prove the intuitively obvious notion that someone in the White House knew about the crime. Nixon’s henchmen went to jail for obstructing justice in association with a burglary.  They were covering up a simple crime. Russiagate is not going to be that simple.

Russian hacking won’t take Trump down. Starting at square one, to do anything about Trump’s ties to Russia, we would need to impeach, and for impeachment, we need a “high crime or misdemeanor.” The impeachment of Bill Clinton for perjury and obstruction of justice actually sets the bar for what constitutes a “high crime or misdemeanor” pretty low. However, we only know about one crime so far: the hacking of the DNC, and we know that was committed in Moscow by the Russian government or agents thereof. In order to prosecute Trump or any of his advisers on that charge, we would have to prove that they knew about it and conspired to enable it in some fashion, or covered it up afterward. This seems improbable.  Vladimir Putin does not need the Trump campaign to figure out how to hack a server, nor does Wikileaks need help leaking it. On top of that, in order to prosecute Trump and his henchmen for a crime committed by a foreign government, a prosecutor would pretty much have to prove treason, and that seems like a stretch, given that the hack was against the DNC, a private political organization, not the US government.

How do we get a conviction for Russiagate? We may not. This may just be a seedy association that looms over the administration like a bad smell.  For all the strange praise of Putin and lying henchmen, the very diligent Press has yet to find any concrete favoritism or quid pro quo granted to Russia (though with time, Trump may be foolish enough to supply one). The Steele dossier (the one with the peeing prostitutes) alleged that a Trump adviser was bribed with 19% of the Russian Rosneft corporation in exchange for the US lifting sanctions on Russia and its oligarchs, but there has been no quid pro quo, so no one has done anything provably wrong – yet. We know the Trump Organization has extensive financial ties to Russia, but can’t prove it. However, I think financial misconduct is where to look for a cover up. A group of legal scholars has filed a suit demanding that Trump open his books.  If and when that lawsuit succeeds, we will be able to follow the money, and if there is anything we know, it’s that Trump has been extremely shady with money his entire career. Like Al Capone, I think Trump’s horrible financial practices are most likely to bring him down, whether he is conspiring treacherously with Russia or not.