The New Neo

Did the head of La Prensa…

Posted on March 21, 2017 by neoMarch 21, 2017

I wonder whether the jerseys could be authenticated by DNA, even if they’ve been washed.

The NFL confirmed the suspect was indeed a properly credentialed media member. The league also confirmed that the primary failure appeared to occur when the individual was allowed access into the Patriots’ locker room during a private period. According to individuals who are part of the league’s security process, the entry point into the Super Bowl locker room is effectively where the security ends for vetting media members.

What got him? Video:

The source said authorities focused on the media member after cameras captured him leaving the locker room with a plastic bag under his arm following the private locker room period. Fox Sports broadcast video matching that description, showing a media member entering the private locker room period with his credential shielded by a necktie at 10:04 p.m. CT. The same video feed then showed the man leaving the locker room with a black plastic bag under an arm at 10:18 p.m.

That’s a pretty bold move. I would think the perp must have known there would be some sort of video record. I assume he thought he couldn’t be identified.

Is the GOP health care reform bill dead on arrival?

Posted on March 21, 2017 by neoMarch 21, 2017

I have no idea what the answer to the above question might be.

How’s that for incisive, cutting-edge blogging?

House conservatives are saying they have the votes to defeat the bill as it now stands. The bill’s proponents (who include President Trump) are furiously whipping the votes to get enough House members in line to pass it. Perhaps all the concessions to the conservative wing have already been made; perhaps there are more to come.

I’m not the only one who doesn’t know. I don’t think anyone knows.

This fight highlights the conflicts that have existed in the GOP for a long, long time, probably for most of my lifetime. And many people noted during the 2016 campaign that, particularly on the subject of health care reform, Trump was no conservative.

Now Republicans can’t just criticize Obamacare or even pass bills to repeal it when the repeal will vetoed. Now they must come up with a better bill to do something that is inherently very very difficult: redesign a health care coverage system that pleases most of the people most of the time.

Laptop ban on flights from eight Muslim majority countries

Posted on March 21, 2017 by neoMarch 21, 2017

The Department of Homeland Security under Trump has prohibited passengers from carrying certain types of electronic devices into the cabin of airplanes coming to the US:

Passengers traveling to the United States from 10 airports in eight Muslim-majority countries will be prohibited from bringing laptops, tablets and other portable electronic devices on board with them when they fly, according to new rules set to take effect Tuesday.

Fliers can still travel with these items, but they must be packed in their checked baggage on U.S.-bound flights from airports across eight countries including busy transit hubs in Istanbul, Dubai and Doha, Qatar.

Senior U.S. administration officials said the rules were prompted by “evaluated intelligence” that terrorists continue to target commercial aviation by “smuggling explosives in portable electronic devices.”

It’s another annoying inconvenience, although I am certain that some people will see it as a terrible trial. Passengers are still allowed to take their cellphones with them and use them, although that information isn’t made clear until nearly the end of the lengthy WaPo article. If you look at the comments to the article, you can see that a lot of people seem to think that this is one of the many terrible things the nefarious Trump has done—for example, here’s a rather typical remark in the comments:

A checked laptop is a huge problem to an international traveler. Soon, international conferences will stop being held in the US. Scientists and engineers will need to travel overseas to conferences. Tourists will stop coming to the US. This will all happen because Trump needs to create the illusion that his administration is doing something.

Other comments of the same sort are legion; some examples here:

“This ban seems more geared towards intimidation or harassment than security…”

“This seems to be more an attempt to do damage to middle east based airlines.”

“This sounds like another work around to effect a Muslim ban.”

I agree that it’s an inconvenience. But isn’t it the case that on a cellphone one can still read documents if loaded onto the device, surf the internet if there’s a connection, and even do some writing (albeit slowly)?

I’m of two minds about this sort of restriction. It seems to go too far while at the same time not going far enough. What do I mean by too far and not far enough? It’s not clear that it will stop any terrorist, and it’s highly unlikely to stop every terrorist (for example, what about rigged laptops in the luggage hold?), while it manages to inconvenience an enormous number of passengers. Terrorists will keep innovating, because—in an interconnected world in which international trade and travel is key and in which Islamic terrorism is also rampant—the terrorists are out to harm people and business in the Muslim world as much or even more than they are out to harm us. To them, the inconvenience is almost as good as the terrorist act.

Those who predictably and repetitively blame this sort of rule on Trump are ignoring the fact that Britain is set to implement very similar regulations:

…[T]he Prime Minister’s Official Spokesman said: “The additional security measures may cause some disruption for passengers and flights, and we understand the frustration that will cause, but our top priority will always be to maintain the safety of British nationals.”

In the US, the question is whether some district judge in Hawaii or Maryland will decide that this is an unconscionable, unconstitutional case of religious discrimination and overrule the DHS. Watch for it.

The book review section: fanning anti-Trump paranoia

Posted on March 20, 2017 by neoMarch 20, 2017

Decades ago, the book review section of the NY Times used to be one of my favorite portions of the paper to read of a Sunday, back when I read it in the paper version. Implicit in my mind—without my even thinking about it consciously at the time—was the idea that these reviews were written by people who were not only erudite but even wise, writing their impressions of books that had been written by people who (for the most part) were also not only erudite but even wise.

That hasn’t seemed to be true for a long, long time.

Yesterday I was in New York visiting family, and I picked up the dead tree version of ye olde Times book review section, something I hadn’t done for ages. I saw that a certain obsession/compulsion seems to have crept into the prose of the reviews. Every single one that I read—and I got to around to about fie or six of them before I stopped reading—made some reference, oblique or direct, to these harsh Trumpian times in which we live. This was true whatever the subject matter of the book might have been.

And these weren’t just references to the discord of the American people about the Trump presidency, either. Each reference seemed to come with a set of assumptions that implied agreement among the Times’ readers on the following:

(1) we all detest Trump
(2) Trump is a totalitarian about to take our rights away any moment
(3) these things don’t need much demonstration at this point; they are a given and we all understand what we’re referring to

I’m very familiar with reading authors or periodicals that assume liberal agreement among their readers. But this seemed different: more constant, more gratuitous in terms of having anything to do with the subject matter of the books being reviewed, and more extreme in the nature of the presumably shared and obviously-true assumptions.

I didn’t read every review, of course. But I read enough to safely say that I don’t remember seeing anything quite like it before, even in the Times. The entire thing ended on the last page with these essays debating whether we’ve now been catapulted into a future that has more resemblance to Brave New World or to Nineteen Eighty Four (both essays appear to have first been published in the book review in early February, but were now being repeated).

One of the essays (by Charles McGrath, former editor of the Times book review) contained passages such as this:

Two months ago I would have said that not only is “Brave New World” a livelier, more entertaining book than “1984,” it’s also a more prescient one. … [Huxley’s] novel much more accurately evokes the country we live in now, especially in its depiction of a culture preoccupied with sex and mindless pop entertainment, than does Orwell’s more ominous book, which seems to be imagining someplace like North Korea.

Or it did until Donald Trump was inaugurated. All of a sudden, as many commentators have pointed out, there were almost daily echoes of Orwell in the news, and “1984” began shooting up the Amazon best-seller list. The most obvious connection to Orwell was the new president’s repeated insistence that even his most pointless and transparent lies were in fact true, and then his adviser Kellyanne Conway’s explanation that these statements were not really falsehoods but, rather, “alternative facts.” As any reader of “1984” knows, this is exactly Big Brother’s standard of truth: The facts are whatever the leader says they are.

My, my, my. I suppose those assertions of McGrath sound petty convincing (and scary) to those who never noticed the constant and multiple lies of President Obama, and Obama’s “repeated insistence that even his most transparent lies were in fact true” (I left out “pointless” because I don’t think any of Obama’s lies were pointless at all). And then, of course, McGrath follows it up with an ignorant and/or purposeful mischaracterization of the meaning of Kellyanne Conway’s comment, a mischaracterization that has become a favorite of the left. Conway was trying to say that facts are sometimes reported correctly and sometimes reported inaccurately, and that when facts clash we must read both sets and try to sort out the alternatives if we want to make a decision about which may be true (or closest to the truth). And nowhere was she saying anything remotely like, “The facts are whatever the leader says they are”—much less exactly like that.

McGrath’s essay drips with so much condescension that I almost felt the need to wring it out and dry it off.

The goal of all of this is to deliver the message that the Times and its readers are all in this terrible Trump thing together, and that it’s not only every bit as bad as you might think it is, it’s worse. And that they don’t have to prove it, because anybody who’s anybody (and anybody literate enough to read the NY Times book review section) already knows it.

Let’s get back to one of my favorite passages in the world, from Milan Kundera’s Book of Laughter and Forgetting (how’s that for being literary?):

Circle dancing is magic. It speaks to us through the millennia from the depths of human memory. Madame Raphael had cut the picture out of the magazine and would stare at it and dream. She too longed to dance in a ring. All her life she had looked for a group of people she could hold hands with and dance with in a ring. First she looked for them in the Methodist Church (her father was a religious fanatic), then in the Communist Party, then among the Trotskyites, then in the anti-abortion movement (A child has a right to life!), then in the pro-abortion movement (A woman has a right to her body!); she looked for them among the Marxists, the psychoanalysts, and the structuralists; she looked for them in Lenin, Zen Buddhism, Mao Tse-tung, yogis, the nouveau roman, Brechtian theater, the theater of panic; and finally she hoped she could at least become one with her students, which meant she always forced them to think and say exactly what she thought and said, and together they formed a single body and a single soul, a single ring and a single dance.

By the way, this is the cover of the paperback version of Kundera’s book that I own:

Comey’s testimony: much ado

Posted on March 20, 2017 by neoMarch 20, 2017

On Russia and the election, and on wiretapping:

Comey confirms the FBI started the investigation in July. All he can tell the committee is what they’re investigating: Collusion between Trump campaign and the Russians…

[NSA Director Mike Rogers] said that the NSA has not changed its assessment on Russian interference from January. That report found that Russia did launch a campaign, but it did not change the election outcome. Rogers said NSA found no evidence of vote changes and that no one stole information from the RNC or the Trump campaign…

Nunes and Schiff could not find evidence of wiretapping on the Trump Tower. Nunes said in his opening statement the wiretap didn’t exist, but other forms of surveillance possibly existed.

Comey has no information to support Trump’s tweets that Obama wiretapped Trump Tower and that no president can order a wiretap.

Much ado about nothing at this point, on both sides. That does not mean that all of this won’t have propaganda value for the left; it does and it will.

And the emphasis on the word wiretapping (which Trump originally had in scare quotes) is unfortunate. I believe Trump used the word both as shorthand for the more general word “surveillance,” as well as to get attention. But I think its use gave the left an unfortunate amount of ammunition against him.

Countdown to Brexit

Posted on March 20, 2017 by neoMarch 20, 2017

A two-year process starts a little more than a week from now:

Britain will begin divorce proceedings from the European Union on March 29, starting the clock on two years of intense political and economic negotiations that will fundamentally change both the nation and its European neighbors.

Britain’s ambassador to the EU, Tim Barrow, informed European Council President Donald Tusk of the exact start date on Monday morning.

“We are on the threshold of the most important negotiation for this country for a generation,” Brexit Secretary David Davis said. “The government is clear in its aims: a deal that works for every nation and region of the U.K. and indeed for all of Europe – a new, positive partnership between the U.K. and our friends and allies in the European Union.”

Some personal divorces take a lot longer than that to iron out.

Whatever the specific subject or program that’s in place, political divorces are not easy. We in the US don’t belong to the EU, but we face a not-completely-dissimilar situation in the attempt to dismantle Obamacare.

The process of undoing would seem to be easy—after all, knocking a building down is simpler and quicker than erecting one. It’s the decisions about what will replace that building that are hard. Whether it be Brexit or Obamacare or any number of other systems (as opposed to buildings) people may want to do away with, the clock can’t simply be turned back to a previous time. Old institutions surrounding and supporting the structure have been dismantled, too. New expectations and dependencies have been created (health care as a right, for example). And the press that is against the dismantling is careful to keep stoking fears of what will happen without that thing that’s being torn down.

Those who favored the programs in the first places and fought to get them adopted were well aware of such phenomena. They knew that inertia, dependence, and time’s arrow all tend to combine to keep programs and policy structures in place once adopted:

“The Moving Finger writes; and, having writ,
Moves on: nor all thy Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all thy Tears wash out a Word of it.”

That quote from the Rubaiyat is certainly true. Time cannot run backwards, and we can’t undo any event. But we can undo a program, and the electorate has spoken in both the case of Brexit and of Obamacare: they want Britain out of the EU and they want Obamacare gone. I agree with both decisions. But now the big question is what will replace each, how long it will take to implement it, and whether the replacement will be meet with favor or disfavor.

[NOTE: And yes, I’m well aware that some conservatives want government out of the health care policy business (the business formerly known as health insurance) totally. Not gonna happen.]

Compare and contrast: the endings of “Pygmalion” and “My Fair Lady”—and life

Posted on March 18, 2017 by neoMarch 18, 2017

First, the straight play “Pygmalion,” movie version with Leslie Howard and Wendy Hiller:

Now, the musical “My Fair Lady” with Rex Harrison and Audrey Hepburn:

The scene continues in this next brief clip. The part where Howard as Higgins furiously paced in the street in “Pygmalion” now features Harrison as Higgins (what’s up with all those “h”s?) singing the song “I’ve Grown Accustomed to Her Face,” which demonstrates (as the movie of “Pygmalion” shows in a far more subdued and subtle manner) how he softens and comes to realize how much he cares about Eliza. I’ve left the song out of this clip (although you can go back to an earlier spot in it and watch it if you care to), and I’ve cued it up to start when Higgins re-enters his house, in order to have it better match the “Pygmalion” action:

Audrey Hepburn is gorgeous and charming. Wendy Hiller is attractive, but more cute than beautiful (two more “h” names, by the way). And yet I’ve always felt Hepburn to be grievously miscast in the role of Eliza. She does the best she can, but always seem too mannered and measured—too much of a lady, even at the beginning. Hiller convinces you that she is this person, and the emotions that flit across her face are more changeable and realistic.

Rex Harrison is so much older than Hepburn that the musical version feels a bit unbalanced in terms of age in addition to the class and education issues that are part of the script. Harrison also plays it for laughs, deliciously. But Howard is not only closer in age to Hiller, he has the intensity and seriousness—and those eyes!—that make you believe something else, something much more serious, is going on with him. He’s more of a bastard, too.

And notice how often the camera allows Howard (and Hiller, at times) to turn their backs to the audience. We watch Rex Harrison’s face as he asks Eliza for his slippers at the end; we can see that he’s joking and affectionate. With Howard, we’re not sure, because all we see is the back of his hat. We know he cares, but he’s still holding back a big part of himself. He is who he is, and although he’s changed he’s not transformed. He remains in character, consistent.

Still, despite its cooler emotional tone than “My Fair Lady,” the ending of the movie “Pygmalion” that you saw in that first clip was different than the ending of Shaw’s original stage play. The film “Pygmalion” is more conventionally romantic than the stage play of the same name, and “My Fair Lady” (both on stage and on film) retained the ending of the film “Pygmalion.” In contrast, the original “Pygmalion” stage play had a sort of “Gone With the Wind”-ish ambiguous, will-they-or-won’t-they ending, and Shaw even wrote a post-play explanation saying that of course Eliza and Higgins really don’t get back together:

[Shaw] wrote a “Sequel” to Pygmalion and, like most sequels, it’s not nearly as good as the original. It’s just a really long explanation of what happens. It “need not be shewn in action,” he says. Shaw just wants us to know that everybody reading the play is silly and sentimental, and, no, Higgins and Eliza aren’t reunited. Instead, she marries Freddy and they open a flower shop and they pretty much live happily ever after.

But hey, what did he know? In the movie and the musical film they do get back together. But how long do they last together? Methinks not so very long.

By the way, Leslie Howard the actor was known as a ladies’ man, who “once said that he ‘didn’t chase women but ”¦ couldn’t always be bothered to run away.'” As for Rex Harrison—well, take a look. And Shaw? Shaw was unusual, to say the least:

For many people, the one detail of Shaw’s life which seems to transcend all others is the fact that his marriage, at the age of 42, to the Irish heiress and fellow Fabian activist Charlotte Payne-Townshend was apparently never consummated, an arrangement arrived at by mutual consent. “Do not forget,” he wrote in Sixteen Self Sketches, “that all marriages are different, and that marriages between young people, followed by parentage, must not be lumped in with childless partnerships between middle-aged people who have passed the age at which the bride can safely bear a child.” Still, while Shaw’s admiration for strong, emancipated, and independent women was genuine, his attitude towards sexual relations remained a curious mixture of disdain as well as an almost obsessive interest. His first physical relationship was an eight-year affair with a widow, Jenny Patterson,15 years his senior, who was his mother’s friend and vocal student. They eventually broke up over his involvement with Florence Farr, an actress, following several heated scenes among the three of them, which went directly into one of his earliest plays, The Philanderer…

There were apparently additional pre-marital conquests, as well as some curious involvements in which Shaw inserted himself into other marriages, playing a subtle game of flattery and innuendo with the wife, while using his friendship with the husband as a safety net for when he danced too close to the edge…

Shaw’s devotion to and abiding love for his wife might have been driven by a deep and enriching sympathy. But, while he did remain loyal to her, and would do nothing to cause her pain or embarrassment, he was still amazingly flirtatious with other women and would remain so throughout his life. Shaw was actively pursued by women well into his seventies, but more seriously troubling for Mrs. Shaw was the period of her husband’s middle-aged infatuation with the actress Patrick (Stella) Campbell. Although he had no intention of leaving his wife, and Campbell was already engaged to the man who became her second husband, it seemed for a few dangerous months in 1912 that infatuation had slipped into genuine love. In his letters, the fiercely anti-romantic Shaw fell into the high-flown rhetoric of romance…

Happily ever after? Not quite.

Terrorist shot dead at Orly Airport

Posted on March 18, 2017 by neoMarch 18, 2017

A man on the French terror watch list shot and wounded a police officer in northern Paris before traveling to Orly airport where he tackled a female soldier and tried to take her rifle. She was among the French soldiers on anti-terror patrols of the airport. She did not release her weapon to the terrorist, and he was subsequently shot and killed by other soldiers.

The dead terrorist has been identified as Ziyed Ben Belgacem, a radicalized Muslim whose apartment was among those searched following the coordinated Paris terror attacks in November 2015.

Another “known wolf.”

I’m also thinking that a female officer may have been targeted because she was presumed to be easier to physically overpower. If someone is carrying a weapon, that person had better look strong as well as be strong.

Obama’s judiciary legacy

Posted on March 18, 2017 by neoMarch 19, 2017

I don’t recall that in my youth people spoke all that much about a president’s “legacy.” In recent decades it’s been all the rage, though, and that legacy usually gets evaluated and re-evaluated while a person is president, and not just afterwards.

Legacies are written by the winners, and the academics. What will Obama’s legacy be? It depends who’s talking or writing, and it depends what happens next.

I see his legacy as ISIS, for example, Obamacare, and a heightening of racial tension. I also see the election of Donald Trump as part of his legacy. Trump was elected for many reasons, but one of them was to create a legacy that involves undoing some of Obama’s would-be legacy (particularly concerning immigration, but certainly not limited to that). Whether Trump will succeed remains to be seen.

Lately we’ve had a dramatic demonstration of a particular part of Obama’s legacy, one that I am fairly certain is very dear to Obama’s heart and which has directly affected the ability of his successor Trump to do what he was elected to do. That legacy concerns the makeup of the federal judiciary, something to which a lot of voters don’t pay much attention. And yet it affects us dramatically in a host of ways, and its effects can persist.

President Trump will get to appoint many federal judges, too, now that the nuclear option has been activated (by the Democrats in the Senate, back when Obama was president) for these positions. That’s a sort of Obama legacy, too, and it’s a significant one.

The following was written in 2014, and it describes how Obama has changed the federal judiciary’s balance:

When President Barack Obama entered the White House in 2009, the federal appeals court based in Virginia was known as one of the most conservative benches in the country.

Two Obama terms later, Democratic appointees hold a 10-5 majority on the 4th U.S. Circuit Court of Appeals, a panel of which issued a groundbreaking ruling this April backing transgender rights…

Since President Barack Obama came into office in 2009, he has shifted the alignment of several federal appeals courts to the left, resulting in nine of the 13 now having a majority of Democratic appointees.

That certainly doesn’t reflect the party breakdown of the country, which is not 70% Democratic/liberal. But the federal appeals courts are about 70% liberal-dominated, thanks to Obama.

That’s a president’s prerogative, of course; to reshape the judiciary if and when he/she gets the opportunity. And Obama, as a lawyer and a former con law teacher, is well aware of what he was doing and why. It has borne fruit, as we can see by the recent decision blocking Trump’s EO: both judges are recent Obama appointees, Watson of Hawaii in 2013, and Chueng of Maryland confirmed in 2014.

I’ve already written at some length about what I think of their decisions, so I’ll just say here that I find their legal reasoning not just poor but shocking in its reach. Although I sometimes think I have lost the capacity to be shocked by such things, apparently I retain it.

When I was in law school, many moons ago, the main occupation of the student was to read judgments which often consisted of a majority and a minority opinion, plus dissents. The student therefore was exposed to the reasoning and logic on both sides. Usually I agreed with a certain point of view, as did most students (not always the same point of view, of course). But almost always I read the opinions of judges espousing the opposite point of view and felt respect—sometimes a grudging respect, but a respect nevertheless—for the tightness of their arguments and the aptness of their citations.

That’s not how I feel about these most recent decisions on Trump’s EO, which are troubling in a host of ways, and I’m not referring to their outcomes when I say that. Judges often seem to come to their conclusions and then find the legal justification for them. But in these cases the legal justification is simply too flimsy to sustain the conclusions. The decisions constitute an extreme and dangerous case of judicial overreach (one I’ve also described elsewhere, so I won’t bother to go into the details now).

These judges and these decisions are Obama’s legacy, too. When he was issuing his executive orders as president, it was always known that his executive orders could be reversed by a subsequent president. Most people—and certainly Obama—thought that subsequent president would be Hillary Clinton. It’s not; it’s Donald Trump. But Obama’s hand reaches out through his judges to tie Trump’s hands, at least for now.

Note, for example, that the 4th Circuit—the one the Reuters article described in 2014 as having switched under Obama from being “one of the most conservative in the country” to being 10-5 Democratic—is the very court to which Trump will be appealing Judge Chuang of Maryland’s decision to block his travel ban.

Why is Trump not appealing (at the moment, anyway) the Hawaii decision? Because the federal appeals court there is the 9th, which is even more liberal than the 4th.

[NOTE: I highly recommend this article. Here’s an excerpt from it (and by the way, the authors do not appear to be the least bit pro-Trump or conservative):

Our point here is not that the district judges are clearly wrong. It’s merely that they are not clearly right””on a whole lot of points. And in the face of real legal uncertainty as to the propriety of their actions, they are being astonishingly aggressive. It is not, after all, a normal thing for a single district judge to enjoin the President of the United States nationally from enforcing an action that the President contends is a national security necessity, much less an action taken pursuant to a broad grant of power by the legislature in an area where strong deference to the political branches is a powerful norm. And it really isn’t a normal thing for multiple district judges to do so in quick succession””and, moreover, to do so in the face of substantial uncertainty as to the actual parameters of the constitutional and statutory law they are invoking and powerful arguments that they are exceeding their own authority.

“Substantial uncertainty” is an understatement.]

Turning up the heat

Posted on March 17, 2017 by neoMarch 17, 2017

It occurs to me that one consequence of the election of Donald Trump has been to turn up the heat on politics in this country.

Trump’s election is both a result of greater anger on the part of many voters, and of more willingness to take risks and vote for someone highly unconventional; and a cause of greater anger on the part of the opposition.

That last sentence is observation only, rather than an assignment of blame to Trump. He is a lightning rod for various feelings that have been brewing for a long long time.

A lot of people compare what’s going on at present to the turmoil of the Sixties. I don’t see it that way. I actually think things are worse now, but perhaps that’s because I was young then—and although I was paying attention to events, I wasn’t quite as involved in the news of the day (and its details) as I am now. What I see at present is a more basic undermining of the social contract and the rule of law, and a more profound lack of knowledge on the part of much of the populace about the underpinnings of our government and what makes this country special.

Extremely distressing and disturbing. That’s why, no matter what the topic du jour on which I’m writing may be, there’s an underlying concern that’s become extreme.

But perhaps it’s just mud season—although the mud got covered over with quite a bit of snow this past weekend. But March snow melts pretty quickly, even in New England.

Germany and its Turkish residents: Erdogan’s referendum

Posted on March 17, 2017 by neoMarch 17, 2017

Germany has many Muslim residents, the majority of whom are of Turkish origin and citizenship. This article is a must-read if you want to understand what’s happening in Turkey right now and how it affects Germany:

The evening’s events exposed the deep divisions in Turkish society that have been created by the constitutional referendum campaign. President Erdogan is seeking to tighten his grip on power by making himself head of government in addition to his current role as head of state. But it is by no means clear that he will get his way. Which is why he is also doing all he can to secure the vote of Turkish citizens living overseas, thus making the conflict over Turkey’s future into a German conflict as well — one which is becoming a threat, and deepening rifts within German society as well.

On the one hand, the Turkish community is perhaps more divided than it has ever been in the 50 years since Turks began coming to Germany as guest workers. On the other, German skepticism of their Turkish neighbors has grown of late. How is it possible, they wonder, that so many young people who grew up here venerate a man who is seeking to erode those democratic values of which Germans are so proud? Conversely, many of those with Turkish roots wonder why Germans still see them as Muslim aliens, even if they are cosmopolitan, successful and perfectly integrated. Why are the group’s achievements so rarely highlighted?

We certainly have our problems with immigration and immigrants, and questions of citizenship and assimilation. Birthright citizenship is another bone of contention. But this article illustrates the problems inherent in having an immigration policy that favors the importantion of workers from other countries that differ greatly in terms of culture, and in not having birthright citizenship. It creates a huge group of people within their new country who have daul allegiance (or even primary allegiance to another country), and offers an even greater incentive for them to fail to assimilate:

Around 3 million people with Turkish roots live in the country. If they have a problem, Germany does too. Every political tremor in Turkey triggers aftershocks in Berlin, Cologne and Stuttgart. When the Turkish military launches a putsch to topple Erdogan, tens of thousands of people in Germany likewise sit glued to their televisions out of concern for Turkey’s future…

The atmosphere, particularly on the radical fringes of the two camps, is becoming more hostile to the point that German security officials have now become concerned that the conflict could erupt in violence in Germany as well. “The fault lines between the various camps in Turkey are mirrored in Germany,” says Hans-Georg Maassen, head of Germany’s domestic intelligence agency. There is, in short, a part of Germany that is deeply affected by Erdogan.

You might say the solution is obvious: don’t import so many people from a country such as Turkey in the first place. If you do, be aware of the minefield of cultural conflicts you will be entering. But it’s too late for that for Germany (and if our federal courts have anything to say about it, it may be too late for us as well).

Many AKP [Erdogan] supporters, though, have a different understanding of democracy — despite their integration in Germany and lessons on politics and civics in school. If the majority of a population decides to place its faith in a single party and a single head of state, then other countries simply have to accept that, many believe. The lessons of German history — the reflex most Germans have to think back to 1933 when hearing such arguments — are not as deeply rooted among all of those with Turkish roots. They view the separation of powers as largely unnecessary because they believe that Erdogan’s patriotism will lead him to act in Turkey’s best interests. Plus, those in Germany who watch pro-government broadcasters from Turkey have difficulty separating the propaganda from reality. Because they live in Germany, they have little experience with the more ominous elements of Erdogan’s rule.

I would say that lack of historical knowledge, as well as ignorance about the importance of separation of powers (and of equality of the branches of government), is not limited to Germany or its immigrants. I observe something similar as a general trend in this country, particularly among the young.

Judicial review and political shenanigans

Posted on March 17, 2017 by neoMarch 17, 2017

If you had to study American history, you may recall that the 1803 SCOTUS case of Marbury v. Madison established the right of federal courts to review acts of Congress and declare them unconstitutional:

This conflict raised the important question of what happens when an Act of Congress conflicts with the Constitution. Marshall answered that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In support of this position Marshall looked to the nature of the written Constitution””there would be no point of having a written Constitution if the courts could just ignore it.

It may be obvious why I suddenly decided to revisit Madbury; if not, read yesterday’s post of mine about two federal courts’ blocking of Trump’s new executive order on immigration and travel.

I may have more to say about the issue of judicial review than I’ll be writing in this post, because it’s a very rich topic. But I’ll mention here that you’d do well to review the fact situation that led to Marbury and reflect on it. It might remind you—as it did me—that the tricky machinations of political parties back then were every bit as twisted and opportunistic as they are now, if not more so.

You might also want to take a look at what Jefferson had to say about Marbury’s flaws:

You [Justice Marshall] seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

Marbury concerns a very different fact situation from what’s going on today with President Trump’s EO and the courts. But it established the idea that federal courts are able to declare actions of another branch of Congress to be unconstitutional. This does tend to establish the Supreme Court as potentially supreme over the other branches, which is what Jefferson warned against (the only redress I can think of would be a constitutional amendment, notoriously difficult to enact).

Marbury concerned the constitutionality of an act of Congress, whereas the present-day Trump court decisions concern executive orders about immigration (as did the previous federal court decisions regarding Obama’s EOs). In other words, the constitutionality of executive actions is presently the issue. The Court decided it had the power to review executive actions in 1804, the year after Madbury was decided, in Little v. Barreme, in which “the Court found that the President of the United States does not have ‘inherent authority’ or ‘inherent powers’ that allow him to ignore a law passed by the US Congress.” You can see from that language that the issue in the case wasn’t just executive orders in a vacuum, but executive orders in contrast with conflicting acts of Congress.

One of the major bases for the challenges to Obama’s EOs on immigration was that they failed to carry out acts of Congress and the intent of Congress. In fact, I just found a concurring opinion by Justice Scalia in one of those cases, in which Scalia cites and discusses (pages 12-14 of this document) Little v. Barreme as it relates to Obama:

If Congress purported to vest the President with the unfettered discretion to enforce a law, or not, without any guidance, the executive would be engaging in a legislative act. He could not “execute” such a law, faithfully, or otherwise. He would be legislating.

A quick search I did just now seems to be indicating that most of the successful court challenges to EOs have occurred under similar circumstances, involving not just an EO but a Congressional statute as well, and/or conflicts between the EO and a Congressional statute. For example, Korematsu was the famous case in which SCOTUS declared the Japanese camps during WWII to be constitutional. They were originally established by EO, but shortly thereafter (about two weeks later) Congress enacted a statute authorizing the enforcement of FDR’s EO on the subject. Putting aside for now the weighty question of whether Court’s decision was right or wrong on the merits, I’m citing it merely to indicate the difficulty I had (so far) in finding a case in which a federal court overturned an EO without an act of Congress also being involved in some way (in Korematsu not only was there a statute backing up FDR’s action, but the Court upheld that action).

I’ll add that I haven’t yet had time to carefully read the two recent court opinions (Hawaii and Maryland), although I’ve read a couple of reactions to them,and I also have skimmed the Hawaii one. It’s my impression that the opinions don’t cite conflict with an act of Congress as the basis on which they made their decision—although the issue appears to have been one of many raised by the plaintiff in the Hawaii case. [see ADDENDUM below]

Andrew C. McCarthy has previously dealt with the issue of conflict between Trump’s EO and a Congressional statute in this article of his:

The [Trump executive order on immigration] has predictably prompted intense protest from critics of immigration restrictions (most of whom are also critics of Trump). At the New York Times, the Cato Institute’s David J. Bier claims the temporary suspension is illegal because, in his view, it flouts the Immigration and Nationality Act of 1965. This contention is meritless, both constitutionally and as a matter of statutory law.

I suggest you read McCarthy’s piece in its entirety to get the reasons why he says there is no conflict between Trump’s EO and that 1965 act of Congress; suffice to say for the moment that his arguments seem very persuasive.

It occurs to me that, if any of the cases involving Trump’s most recent EO go to the Supreme Court, the decision by Republicans in Congress to block Obama’s choice to replace Justice Scalia could loom larger than ever. Of course, if Scalia’s replacement by Trump isn’t approved soon by Congress, the Court would probably be issuing a tie decision if it agrees to hear any of these cases at all. And a tie would allow the injunction to continue.

I don’t necessarily consider it a matter of great danger if the temporary ban doesn’t go into effect; we still have ways to vet arrivals, and I hope that nothing terrible will happen in the meantime. However, the legal issues involved are of great magnitude, and the precedent being set here in terms of judicial power are terrible.

[NOTE: Also please read Alan Dershowitz on the matter, as well as David French.]

[ADDENDUM: I just came across this article, which mentions that the Maryland court’s decision did indeed cite conflict with that 1965 act of Congress in the ruling, although the ruling seems to have been based on other issues as well.]