Top Tag

The Atlantic Politics & Policy Daily: A Barr Walks Into Congress

What We’re Following Today

It’s Tuesday, April 9.

Barr Some: At a congressional budgetary hearing, Attorney General William Barr told lawmakers that they’ll receive a copy of the Mueller report “within a week.” But the copy they get will be heavily redacted—and Congress isn’t too happy about that, reports Russell Berman.

A Crossroads for Israel: Israel’s general election on Tuesday was a tight race between Prime Minister Benjamin Netanyahu and his challenger, the former military chief Benny Gantz—both of whom are claiming victory. During the run-up, Netanyahu’s opponents accused him of damaging the relationship between Israel and diaspora Jews, and recent events have exposed the depth of those fractures. Under Netanyahu’s government, discontent among liberal and middle-of-the-road Jews will likely escalate, writes Emma Green, and “marks a pinnacle in the fracture between Israeli and American Jews.

A man in Jerusalem walks past a Likud campaign billboard depicting President Donald Trump shaking hands with Israeli Prime Minister Benjamin Netanyahu. (Ammar Awad / Reuters)

Raising Cain: Trump wants to nominate the former presidential candidate Herman Cain to the Federal Reserve Board. Cain isn’t exactly “taken seriously” by the political establishment, but his potential nomination shows that Trump is moving to strengthen his grip on the central bank—just in time for 2020, reports Peter Nicholas.

Invisible Middlemen: Before the heads of five pharmacy benefit managers (PBMs)—often known as pharmacy “middlemen”—testify before Congress this week about high drug prices, Olga Khazan examines the outsize role PBMs play in how patients receive care. They handle rebates and payments between drug manufacturers, health insurers, and pharmacies, and their role as middlemen can slow down the delivery of crucial medicine, which sometimes proves deadly.

Madeleine Carlisle and Olivia Paschal


Demonstrators protest against Egyptian President Abdel Fattah el-Sisi near the White House, as President Donald Trump meets with el-Sisi. (Jose Luis Magana / AP)

Ideas From The Atlantic

Troubled Countries Can’t Keep People From Leaving (Eliza Willis and Janet Seiz)
“The same factors that lead to outmigration—crushing poverty, widespread crime and violence, and weak government institutions—also limit these governments’ ability to entice residents to stay.” → Read on

Elizabeth Warren Had Charisma, and Then She Ran for President (Peter Beinart)
“Warren’s troubles … are being compounded by journalists who analyze her image without recognizing how bound up it is with her gender. The media aren’t responsible for the fact that many male, and some female, voters demand that women presidential candidates work so much harder to prove their competence—and then react negatively once they do so. But journalists do have an obligation to explain what’s going on.” → Read on

Democrats Need to Emphasize Responsibility, Not Just Rights (Rahm Emanuel)
“We can begin by issuing a simple but powerful call: a policy that requires all 18-year-olds to give at least six months of their life to national service. People from different walks of life, with different backgrounds, would serve with one another as a rite of passage.” → Read on

It Wasn’t ‘Verbal Blackface.’ AOC Was Code-Switching. (John McWhorter)
“Ocasio-Cortez’s critics seem to assume that since she is not black, her use of Black English must be some kind of act. This, however, is based on a major misreading of the linguistic reality of Latinos in America’s big cities.” → Read on

Obama’s Presidential Library Is Already Digital (Dan Cohen)
“As the highly anticipated Obama Presidential Library in Chicago morphed into the Obama Presidential Center—without a place to hold the records of his administration—reactions ranged from slight confusion to rote dismissiveness … Is a digital library a library?” → Read on

What Else We’re Reading

The Democratic Electorate on Twitter Is Not the Democratic Electorate in Real Life (Nate Cohn and Kevin Quealy, The New York Times)  (? Paywall)
Will Congress Leave the Colorado River High and Dry? (Naveena Sadasivam, Grist)
Congress Is About to Ban the Government From Offering Free Online Tax Filing. Thank TurboTax. (Justin Elliott, ProPublica)
‘Beto’ and Other Names in Politics and Life (Jay Nordlinger, National Review)
I Worked as a Bail Bond Agent. Here’s What I Learned. (Joshua Page, The Appeal)

And One More Thing …

‘We Can Do This’: The documentary Community Patrol, which premiered today on The Atlantic, depicts a crime-ridden area of Detroit attempting to police itself rather than report offenders to the police.

We’re always looking for ways to improve The Politics & Policy Daily. Comments, questions, typos, grievances and groans related to our puns? Let us know anytime here.

Were you forwarded this newsletter? Sign up for our daily politics email here. We have many other free email newsletters on a variety of other topics. Find the full list here.

Trump’s War on the Rule of Law Is Reaching the Breaking Point

There’s a disturbing cycle to Donald Trump’s war on immigrants. It starts with the president’s demand for harsher policies on the southern border, no matter how legally or morally dubious they may be. His subordinates have two options: to do what he says, or try to change his mind. If the former, the courts usually intervene to stop the policy, and Trump only gets more enraged, more extreme. If the latter—well, Trump only gets more enraged, more extreme.

Over the weekend, Trump ousted Homeland Security Secretary Kirstjen Nielsen, who was hardly a disloyal cabinet member. She agreed to put traumatized migrant children in cages last year and defended Trump’s “zero tolerance” border policy to no end. But in recent weeks, she reportedly resisted Trump’s orders for more dramatic crackdowns. He then purged most of the department’s upper ranks on Monday in a bid to replace the current slate of hardliners with more pliable figures.

When Trump does find someone to carry out his policies, though, it only extends his unprecedented losing streak in the courts. Last month, The Washington Post tabulated 63 different cases where federal judges ruled against the administration. Trump sometimes wins on appeal, as he did with the Muslim travel ban last summer, but judges have halted many of his border-related efforts. On Monday night, a federal judge in California blocked a policy implemented by Nielsen last December to send asylum seekers to Mexico while their legal proceedings in the U.S. unfolded.

Those defeats, in turn, only spur Trump to take more aggressive steps in the future. According to The New York Times, Trump wants to restart family separation, impose even more barriers to asylum claims, build the wall more quickly, and revoke birthright citizenship by executive order. And the cycle repeats itself.

Something’s got to give. The president isn’t likely to abandon his Ahab-like obsession with border security, and the courts aren’t likely to start ignoring his contortions of federal immigration law. As the 2020 election draws closer, and Trump’s need to inflame his supporters grows more urgent, the risk only grows that he’ll start ignoring the rule of law altogether to achieve his unattainable goals.

Trump himself has already raised the possibility of flouting the courts. Last week, he traveled to Calexico, California, to highlight ongoing construction of his border barrier. “We’re full, our system’s full, our country’s full—can’t come in!” he told reporters. In private conversations with Border Patrol agents, the president allegedly took that message a step further: CNN’s Jake Tapper, citing two unnamed sources, reported that Trump urged the agents not to let migrants in the country and to ignore court orders to keep them out: “Tell them we don’t have the capacity, he said. If judges give you trouble, say, ‘Sorry, judge, I can’t do it. We don’t have the room.’”

Trump’s contempt for the judiciary and the law run deep. He has complained that a federal judge couldn’t oversee the Trump University lawsuits because he was “a Mexican,” asked the FBI director to go easy on a political ally and then fired him to halt the Russia investigation, and dangled pardons to encourage his former campaign staffers not to cooperate with special counsel Robert Mueller.

These were all acts of desperation, as are Trump’s latest slate of potential border policies. CNN reported on Monday that one day last month, he ordered Nielsen to close southern ports of entry without warning, a move that could easily send the U.S. economy into a recession. He later threatened publicly to do so, then failed to follow through on it. I noted last week that Trump’s authority to close lawful ports of entry along the border is legally dubious at best. Congress has given the executive branch wide discretion on many immigration-related matters, but there are still many areas where the letter of the law stands in Trump’s way. And he knows it.

“We have the worst laws of any country in the world, whether it’s catch-and-release, or any one of them, I could name any of them,” he complained to reporters on Tuesday. “If you’ve ever heard of catch-and-release, chain migration, visa lottery. You have to fix the asylum situation, it’s ridiculous.” Congress disagrees with that assessment. Even when Republicans controlled both chambers, lawmakers declared Trump’s effort to rewrite federal immigration law as dead on arrival. The American public also doesn’t share his views: Support for higher levels of immigration have risen since he took office.

Trump is well aware he’s already lost most Americans. He also knows that his only hope for political survival are the anti-immigration supporters who turned out for him in 2016 and largely have stuck with him. That may be why his latest immigration demands read like a love letter to them (though he has denied that family separation is on the table). Each policy would face an uphill battle in the courts. His birthright citizenship proposal is especially egregious—not just unconstitutional, but fascist.

Trump’s disregard for basic legal practices isn’t limited to immigration matters, of course, and the result is that he usually loses in court. My colleague Emily Atkin noted last summer that former EPA Administrator Scott Pruitt’s campaigns to halt or roll back environmental regulations often ran aground when they came under judicial scrutiny. New York University’s Institute for Public Integrity, which tracks the Trump administration’s record in defending deregulatory moves before the judiciary, found that the government has won less than 6 percent of the time.

“We’re bucking a court system that never, ever rules for us, and we’re bucking really bad things in Congress with the Democrats who aren’t willing to act,” Trump said on Tuesday. “They want open borders, that means they want to have crime [and] drugs pouring into our country. They don’t want to act. We have to close up the borders. We’re doing it. I could do it much faster if they would act.”

Don’t doubt that Trump will try to do it. During the closing stages of last year’s midterms, Trump doubled down on measures to satiate his political base. He sent thousands of troops to the border, allegedly to protect the U.S. from a migrant caravan of desperate refugees fleeing violence in Central America, and first floated the idea of revoking birthright citizenship. And Trump wasn’t even on the ballot. As he fights for his political life over the next 18 months, the risk of even more drastic steps will rise. There’s no telling what the consequences will be for the American rule of law, and for the immigrants whom it’s supposed to protect.

What Barr Told Congress About the Mueller Report

The long-awaited Mueller report will be out “within a week,” Attorney General William Barr assured impatient lawmakers in a hearing on Tuesday. Exactly how much of the book-length document either the public or Congress will be able to see, however, remains a mystery.

The attorney general made his first appearance before Congress since he sent his four-page letter read ’round the world on March 24, in which he declared that Special Counsel Robert Mueller had not found a conspiracy between Donald Trump’s campaign and Russia, nor had he found enough evidence to either charge President Trump with obstruction of justice or exonerate him of that crime. Barr was due before the House Appropriations Committee to testify on the president’s annual budget request, but Democrats used the opportunity to press him on his handling of the nearly 400-page report and his decision to outline its “principal conclusions” in a manner that allowed Trump to claim full vindication.

“I must say,” Committee Chairwoman Nita Lowey told Barr at the outset, “it is extraordinary to evaluate hundreds of pages of evidence, legal documents, and findings based on a 22-month-long inquiry and make definitive legal conclusions in less than 48 hours. Even for someone who has done this job before, I would argue it is more suspicious than impressive.”

[Ken White: Barr’s startling and unseemly haste]

While refusing to further characterize Mueller’s findings, Barr offered the lawmakers a few additional morsels that were not previously known. He said the process of redacting the report for public consumption is “going along very well” and that he would release it “within a week”—keeping to his mid-April timetable.

Democrats have assailed Barr’s plan for redacting four categories of information, warning that the attorney general could use the excisions to shield damaging findings about Trump from the public. And while lawmakers acknowledge that some information—such as classified intelligence on the Russian government—should be withheld from the public, they have argued that Congress needs the full, unredacted report to exercise its constitutional oversight responsibilities.

On that front, Barr left Democrats disappointed. He suggested that Congress might never see the most sensitive portions of Mueller’s report, much less the evidence the special counsel used to arrive at his conclusions, which Democrats have also demanded to see. Democrats on the House Judiciary Committee have already voted to authorize subpoenas for the full report and its underlying evidence, likely setting up a court battle with Barr.

“I don’t intend at this stage to send the full, unredacted report to the committee,” the attorney general told the appropriations panel. He was responding to a question from Republican Representative Tom Graves of Georgia, who sought to elicit a warning to members of Congress not to leak redacted portions of the report to the public.

[Read: The critical part of Mueller’s report that Barr didn’t mention]

The attorney general said it would be “unfortunate” if Judiciary Committee Chairman Jerrold Nadler or some other lawmaker leaked the full report. But he voiced doubts that Nadler would get his hands on it.  “I’m not sure where he would get it,” Barr said. “If he got it directly from the [special] counsel, that would be unfortunate. I doubt that would happen.”

The special counsel did not assist in drafting either of Barr’s two letters to Congress; Mueller, the attorney general said, was given the opportunity to review the first letter before it went out, but declined for reasons Barr said he did not know. Mueller’s lack of involvement in that letter is important given a report from The New York Times that members of his team believe the attorney general “failed to adequately portray the findings of their inquiry and that they were more troubling for President Trump than Mr. Barr indicated.”

[Read: Even Congress might not get the full Mueller report]

Mueller’s team is, however, participating in the redaction process, as are members of the intelligence community and prosecutors working on cases that could be affected by the public disclosure of certain information in the report, Barr said. In his second letter to Congress, the attorney general had outlined four categories of information that would be redacted:

(1) material subject to Federal Rule of Criminal Procedure 6(e) that by law cannot be made public; (2) material the intelligence community identifies as potentially compromising sensitive sources and methods; (3) material that could affect other ongoing matters, including those that the Special Counsel has referred to other Department offices; and (4) information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.

On Tuesday, Barr told lawmakers that the redactions would be “color-coded” with explanations as to why the information was being blacked out. That could provide a road map for Democrats to challenge the redactions in court, and Barr acknowledged that Nadler could ask a judge to authorize release of certain material redacted because it involves secret grand-jury proceedings. But, under questioning from Democratic Representative Ed Case of Hawaii, the attorney general said he did not intend to seek a court order himself.

Case took issue with the final category of redactions, pressing Barr to explain what legal authority required him to shield information based solely on the “personal privacy and reputational” concerns of “peripheral third parties.” The attorney general said that was based on Department of Justice regulations, but he acknowledged that he would be using his own discretion in applying them. “It seems to me that’s an exception that you can drive a truck through,” Case told him.

By the end of Tuesday’s hearing, Barr had opened up some wiggle room: Members of Congress won’t get the full, unredacted Mueller report, but they might end up seeing more of it than the public. The attorney general said that once the public version is released, he would talk with Nadler and Senate Judiciary Committee Chairman Lindsey Graham “about what additional information they feel they require, and whether there’s a way of accommodating that.”

He also said that “under appropriate safeguards,” some members of Congress might get a peek at classified intelligence blocked out in the report. A group of lawmakers comprising the leadership of each party and the bipartisan heads of the House and Senate intelligence committees regularly receives briefings on highly sensitive investigations not shared with the full Congress or the public.

Unsurprisingly, Barr’s willingness merely to discuss releasing additional information to Congress did not satisfy Nadler. “Congress is—as a matter of law—entitled to each of the categories AG Barr proposed to redact from the Special Counsel’s report,” the chairman said on Twitter. “Full release of the report to Congress is consistent with both congressional intent and the interests of the American public.”

For now, Barr said he was prioritizing the release of the public, sanitized version of the Mueller report. The fight over the rest of it, he seemed to suggest, can wait. That it is about to erupt, however, is no longer in doubt.

Tuesday round-up

Tony Mauro reports at The National Law Journal (subscription or registration required) that “[t]wo U.S. Supreme Court justices said Monday they did not need to recuse themselves from participating in the recent cert denial of a case in which one of the parties was owned by United Technologies, a company whose stock they hold.” At Bloomberg, Greg Stohr reports that Justices Stephen Breyer and Samuel Alito “said there was ‘no way’ to know” about the conflict of interest because the respondent waived the right to respond to the petition, “meaning that under the court’s rules it didn’t have to file a corporate disclosure statement showing United Technologies’s ownership.”


  • At the Human Rights at Home blog, Jeremiah Ho suggests that the court’s recent decision in Dunn v. Ray, in which the justices cleared the way for Alabama to execute a Muslim inmate after denying his request to have an imam in the execution chamber, reflects a willingness to “protect religion so long as that religion does not seem to displace or threaten the status quo.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] Thank you!

The post Tuesday round-up appeared first on SCOTUSblog.

Racists overwhelmed YouTube comments during a Congressional hearing about racism on YouTube

The official YouTube livestream of a House Judiciary Committee on hate crimes and white nationalism was so quickly overwhelmed by racist commenters on Tuesday it had to be removed.

In a painfully ironic twist, the live chat tool, which appeared beside a live-streaming of Tuesday’s committee hearing on hate crimes and tech’s role in the rise of white nationalism, lasted only 20 minutes after immediately being flooded by hateful comments, coded alt-right terms, and trolls.

A spokesperson for the social media company said it made the decision to disable comments because “hate speech has no place on YouTube.”

“We’ve invested heavily in teams and technology dedicated to removing hateful comments and videos and we take action on them when flagged by our users,” a YouTube spokesperson told VICE News. “Due to the presence of hateful comments, we disabled comments on the livestream of today’s House Judiciary Committee hearing.”

Representatives from Google, which owns YouTube, and Facebook joined civil rights experts and conservative activist Candace Owens, to testify before Congress.

And as they spoke about the many problems ailing these platforms, trolls online did their best to prove their point.

For example, as Dr. Mohammad Abu-Salha — whose two daughters and son-in-law were murdered at the University of Chapel Hill in 2015 in an apparent hate crime — gave a heartfelt opening statement, viewers spewed hateful sentiments in the chat bar. “Muslim American is an oxymoron,” one commenter wrote. Another posted emojis showing a clown (which the alt-right has recently claimed as a symbol) and the “okay sign,” which is used to signify “white power.”

Another wrote in response to Abu-Salha’s testimony, “HER NAME WAS EBBA ÅKERLUND,” in reference to a young Swedish girl killed in a terrorist attack in 2017. “Ebba had dreams too,” wrote another commenter.

Åkerlund’s death has become symbolic among white supremacists; they use her name to peddle the conspiracy that whiteness is under attack. The manifesto published online by the alleged New Zealand mosque shooter contained numerous references to Åkerlund. Her name was also carved into one of his guns.

Another commenter wrote “screw the dead kebabs.” The New Zealand shooter had painted “kebab remover” on one of his guns that he used to kill 50 people last month, and in his manifesto, he described himself as a “kebab removalist.” “Kebab removal” is a common 4chan or 8chan meme that references the genocide of Bosnian muslims, called Turks, in the 1990s.

YouTube’s snafu wasn’t lost on members of the committee. “This just illustrates the problem that we’re dealing with,” said House Committee Chairman Jerry Nadler, pointing to reports of the platform’s woes during the hearing.

Cover: A man with Smartphone stands before the Logo of the Internet platform YouTube. Photo by: Carsten Rehder/picture-alliance/dpa/AP Images

Argument preview: The interplay of state and federal law on the outer continental shelf

On April 16, the Supreme Court will hear argument in a case that raises familiar questions of federalism and statutory interpretation as applied in an unusual setting, to a platform anchored to the seabed more than three miles off the California coast. More specifically, Parker Drilling Management Service, Ltd. V. Newton requires the court to parse the Outer Continental Shelf Lands Act to determine whether California wage-and-hour law pertains to workers employed on such platforms.

Understanding the dispute requires a dollop of history. During the first half of the 20th century, individual states and the federal government agitated for control over the submerged coastal lands bordering each state. These disputes, which had been spurred by the possibility that such lands would be mined for rich natural-resource deposits and might even eventually serve as the home to significant populations, were settled by the OCSLA and companion legislation that ceded control of coastal lands within three nautical miles of the coasts (and slightly different measures in the Gulf of Mexico) to the states and subjected the remainder of the “continental shelf” within United States jurisdiction to exclusive federal control. With a bit of hyperbole, the leading contemporaneous law review article on the new act (written by future Secretary of State Warren Christopher) was entitled “The Outer Continental Shelf Lands Act: Key to a New Frontier.”

The OCSLA expressly defines the law that applies in the “outer continental shelf,” the area under exclusive federal control. Under 43 U.S.C. § 1333(a)(1), “[t]he Constitution and laws and civil and political jurisdiction of the United States” apply on the outer continental shelf “to the same extent as if the [shelf] were an area of exclusive Federal jurisdiction located within a State.” Recognizing that federal law does not compose a complete code of criminal and civil regulation, this general rule is supplemented by the proviso that “[t]o the extent that they are applicable and not inconsistent with” federal law, “the civil and criminal laws” of each adjacent state (other than its tax laws) are considered to be part of federal law for the purpose of regulating activity in the outer continental shelf.

The Supreme Court has interpreted this provision several times but has never had an opportunity to interpret the crucial language of Section 1333(a)(2)(A) and to establish the scope of state law’s role on the outer shelf. As the parties’ briefs in this case demonstrate, in the context of this statute, “applicable” and “not inconsistent with” are amenable to vastly different interpretations with concomitantly divergent consequences for the balance of federal and state regulatory authority over individuals working on the continental shelf.

The respondent in this case, Brian Newton, worked for two years on a drilling platform operated by Parker Drilling and located in the Santa Barbara Channel. Like most of the employees on the platform, he worked on the platform for 14 consecutive days and then rotated off for 14 days. When on the platform, he worked a 12-hour shift and then spent the next 12 hours on the platform, sleeping or resting, but available to be called back into service if necessary. Under prevailing interpretations of the Fair Labor Standards Act, employees in these situations need only be compensated for the parts of the day they were actually working. In early 2015, however, California courts clarified California wage-and-hour laws to establish that employees in similar situations have broader rights to compensation for periods of “controlled standby” than they do under federal law. In light of that decision, Newton filed a putative class action seeking compensation for all the hours he spent on the platform.

The district court granted summary judgment for the employer, relying on the broader structure of the OCSLA and language from scattered appellate opinions to hold that the act only incorporates state law when it is necessary to do so to fill a significant gap in federal law. A U.S. Court of Appeals for the 9th Circuit panel reversed, holding to the contrary that the plain language of the statutory scheme extends state law to the outer continental shelf whenever such law is relevant to resolving a dispute and federal law does not preclude the coexistence of state rights and remedies. Parker Drilling sought and obtained certiorari, emphasizing an alleged conflict with the U.S. Court of Appeals for the 5th Circuit, the potential for states to create mischief if given broader authority to regulate offshore drilling, and the financial costs to the oil industry if the 9th Circuit’s interpretation prevails.

In their briefs, the parties elaborate upon but largely repeat the dueling perspectives of the lower courts. Parker Drilling argues both that California wage-and-hour law is not “applicable” to this dispute within the meaning of the act and that, for similar reasons, California wage-and-hour law is inconsistent with federal law given the OCSLA’s broad goals of establishing federal sovereignty over and a generally uniform set of federal rules for the outer continental shelf. In Parker Drilling’s view, the language of the relevant sections needs to be interpreted in light of Congress’ then-controversial decision to apply federal law rather than state law to the outer continental shelf. Parker Drilling argues that Congress’ choice to apply federal law was part of a larger decision to manage these resource-rich territories exclusively at the federal level and without significant state regulatory interference. That approach, which Parker Drilling maintains is manifest in the plain language of the choice of law provisions, is reinforced by other provisions of the act, most notably neighboring sections that specifically indicate that even where state law is borrowed it will be administered exclusively by federal officials and will not give rise to any claims of state “jurisdiction” over the outer shelf.

Given that framing, Parker Drilling asserts that state law never applies on its own terms on the outer continental shelf and only becomes relevant when federal law provides no rule of decision to regulate particular activities or transactions there. In support of that reading, Parker Drilling draws upon selected language from the OCSLA’s legislative history and prior Supreme Court opinions emphasizing that gap-filling role. Because state law only applies as a gap filler, it is not “applicable” unless such a gap exists. Similarly, because state law is never applicable on its own terms but is only incorporated into federal law under rare circumstances, different state regulatory standards on issues already discussed by federal law are “inconsistent” within the meaning of the statute even if they would pass muster under normal pre-emption principles.

The federal government, intervening as a friend of the court in support of the company, largely echoes Parker Drilling’s claims, putting special emphasis on the degree to which the statute invokes background principles about the law regulating federal enclaves (federal territory, such as military bases, located within states) and warning the Supreme Court about possible adverse consequences for that area of law if they rule for Newton.

Unsurprisingly, Newton offers a very different reading of the statute. Hewing closely to the 9th Circuit’s reasoning, he argues that OCSLA’s plain language allows a much broader role for state law in regulating activity in the outer continental shelf. Although he acknowledges that some of the legislative history and some language in prior court opinions emphasize the importance of state law in filling gaps in federal law on outer shelf, he both cites countervailing evidence that suggests a somewhat broader role for state law and argues that those sources are insufficient to import a gap-filling requirement into the statute when its plain language adopts a much broader rule. According to Newton, state law is “applicable” if it meets standard dictionary definitions of that word, such as “relevant,” “suitable,” or “fit.”

With regard to the requirement that state law only applies if it is “not inconsistent with” federal law, Newton suggests that the proper approach is to look to normal pre-emption principles and to the specific provisions of the relevant federal laws to determine whether federal law precludes the application of state law. In this case, because the FLSA contains a specific savings clause that affirmatively authorizes states to impose more stringent wage-and-hour laws, such laws are “not inconsistent with” federal law. As Newton frames the issue, his approach not only hews more closely to the relevant language but also better accords with prevailing federalism norms.

Both parties’ merits briefs succeed in raising serious questions about the other’s approach. On the one hand, Newton’s heavy emphasis on the plain language of the statute puts Parker Drilling on the defensive and may present problems for some justices otherwise sympathetic to the company’s claims. On the other hand, Parker Drilling’s approach — while not required by prior decisions of the court — is likely more consistent with the legislative and judicial history of the statute thus far, which might raise for some justices serious questions about settled expectations and disruptive economic consequences.

The post Argument preview: The interplay of state and federal law on the outer continental shelf appeared first on SCOTUSblog.

Climate Catastrophe and Extinction Rebellion

Photograph by Nathaniel St. Clair

In the last years of his life, Dr. Martin Luther King spoke against what he called “the triple evils that are interrelated” – economic inequality, racism, and militarism. If King were alive today, he’d be talking about the five evils that are interrelated, adding patriarchy and Ecocide, the destruction of livable ecology.  He’d also be noting the dangerous rise of a new national and global fascism linked to the presidency of a malignant racist who glories in accelerating humanity’s environmental self-destruction while the media obsesses over matters of far slighter relevance.

I was given three questions to answer today. The first question runs as follows: “How have you as a historian mapped the trajectory of Climate Change over time? What do we have to worry about right now?”

Let me say as politely as I can that I don’t like the phrase “Climate Change.” It’s too mild.  Try Climate Catastrophe.  If a giant oak tree is about to collapse on to your little house, you don’t say that you are risk of housing change. You say “holy shit we’re about to die and we better do something fast.”

I haven’t really tracked climate change as an historian.  I am an urban and labor historian, not an environmental one.  The climate issue really started being noticeable to me with the often-forgotten Chicago heat wave of July 1995, when hundreds of people, very disproportionately Black, died.

I rely on climate scientists to crunch the time-series numbers on planetary warming and what they are telling us is not good, to say the least. We are at an oak tree tipping point for the house of humanity.  It’s the biggest issue of our or any time. As Noam Chomsky told Occupy Boston 8 years ago, if the environmental catastrophe led by global warming isn’t averted in the next few decades, then nothing else we progressives, egalitarians, and peaceniks care about is going to matter.

In 2008, NASA’s James Hansen and seven other leading climate scientists predicted “irreversible ice sheet and species loss” if the planet’s average temperature rose above 1°Celsius as they said it would if carbon dioxide’s atmospheric presence reached 450 parts per million. CO2 was then at 385 ppm. The only way to be assured of a livable climate, Hansen said, would be to cut CO2 back to 350 ppm.

Here we are eleven years later, well past Hansen’s 1°C red line. We’ve gotten there at 410 ppm, not 450.  It’s the highest level of CO2 saturation in 800,000 years, 600,000 years before the first fossil evidence of homo sapiens.   I recently attended an Extinction Rebellion meeting in which it was reported that 22% of all human industrial-era carbon emissions have taken place since 2009, one year after Hansen issued his warning.

The United Nations Intergovernmental Panel on Climate Change’s latest report reflects the consensus opinion of the world’s leading climate scientists.  It tells us that we are headed to 1.5°C in a dozen years.  Failure to dramatically slash carbon emissions between now and 2030 is certain to set off catastrophic developments for hundreds of millions of people, the IPCC warns.

The IPCC finds that we are headed at our current pace to 4°C by the end of century. That will mean a planet that is mostly unlivable. Tipping points of unlivable existence are already being reached by millions in Sub-Saharan Africa, Sub Continental and Southeast Asia, parts of Central America and other regions where climate-driven migration is underway, with significant political consequences.

Numerous Earth scientists find the IPCC report insufficiently alarmist. It omits research demonstrating the likelihood that irreversible climatological “tipping points” like the thawing of the northern methane-rich permafrost could occur within just “a few decades.”

We really don’t know how quickly the existential threat may unfold. This is an experiment that’s never been run. What do we have to worry about? Extinction. Current female life expectancy in the United States is 81 years. A baby girl born this year would in theory turn 81 in 2100, when, at the current Greenhouse Gassing pace, Antarctica will have melted and the Amazonian rain forest will have long ceased to function as the lungs of the planet.

I was also asked by this conference’s organizers to discuss “connections between Climate Change, class inequity, and imperialism” and to offer ideas on why “this intersectionality [is] often overlooked.”  Let me to be as brief as I can because that’s a doctoral dissertation or two. Eco-Marxists like John Bellamy Foster are right about capitalism.  It is a system not just of class disparity but of plutocratic and corporate class rule, the rule of the owners and managers of capital. And there are a number of environmental problems with capitalist class rule. The fist problem is that the owners and managers of capital don’t really care about anything other than the accumulation of capital and profit. They are systemically compelled to commodify anything and everything they can get their hands on. They have always been perfectly content to profit from anything and everything.  They cash in on slavery, fascism, mass-incarceration, endless war, and even on turning the planet into a giant Greenhouse Gas Chamber – a crime that quite frankly makes the Nazis look like small-time criminals by comparison.

The second problem is that the owners and managers of capital are constantly throwing masses of human beings out of livable wage employment and off of social safety nets and out of common lands and public schools and public housing and the only so-called solution to the mass poverty that results from this constant Enclosure process  they’ve ever been able to offer is the promise of new jobs through ever more expansion and growth, an environmental disaster on numerous levels.

The third problem is that Wall Street and Bond Street and LaSalle Street and the rest of the big financial streets and exchanges have huge fixed and sunken investments in a vast Carbon Industrial Complex. They do not want to see that giant portfolio devalued by home sapiens choosing to survive by keeping fossil fuels in the ground where they belong.

The fourth problem is that capital is inherently and systemically opposed to and threatened by social, public, and environmental planning on the scale required for the task of moving humanity off fossil fuels and on to renewable energy and broadly sustainable environmental practices.

Fifth, class rule regimes insulate their top decision-makers from the worst environmental consequences of their growth-addicted systems.  By the time people living in ruling-class bubbles begin to sense existential threat to themselves, it is generally too late for them to do anything about it except stuff like trying to get the Tesla guy to fly them to Mars or to download their consciousness into an Artificial Intelligence satellite to roam the galaxy for eternity.

With imperialism the connections are less abstract. Eating up more than half the nation’s federal discretionary spending and sustaining more than 1000 military installations across more than 100 nations, the Pentagon system itself has the single largest carbon footprint of any institutional complex on Earth The so-called defense budget steals trillions of dollars that need to be spent on green infrastructure and green jobs if we are going to reduce carbon emissions to a livable scale. At the same time, America’s global super-power has long depended on U.S. control over global oil and gas reserves: the remarkable economic and geopolitical power that flows to control over the flow, pricing, and currency denomination of those reserves and the super profits that result from their extraction and sale. Oil control has long been a great source of American critical leverage in the world system. (The fact that the United States under Obama achieved so-called energy independence through accelerated fracking and drilling in the homeland doesn’t change the strategic calculation. It’s never been primarily about getting access to the oil for our cars and trucks and facilities.  It’s been about the critical imperial leverage oil control grants Washington). A planet that depends on renewable energy rather than petroleum to run its economies will be less susceptible to that sort of imperial domination.

Why are these intersectional connections overlooked?  Because it’s a capitalist media and its sponsors are not interested in talking about how capitalism and its evil twin imperialism are about profit over people including in this case profit over people as an organized presence on the planet.

The final question I was given is “What effective solutions and political strategies do you have to offer?” This isn’t what you are asking, but I do want to say six things regarding the path forward. First, there’s a whole bunch of information out there to use to counter the standard “cost and benefit” arguments that we can’t afford to undertake a national and global Green New Deal and  that shifting to renewable energy is a job killer.  Both of those arguments are false. The technologies are available and affordable. Green jobs do pay and will continue to pay better than fossil fuel jobs.  I have sources I’ll be happy to share on all that.

Second, we can’t afford NOT to make the transition. It is darkly hilarious to hear corporate Democrat and Republican right-wing commentators advance critical so-called cost-benefit analyses of the big scary Green New Deal.  Whatever you think of whether or not the Green New Deal is radical enough to get the job done, at least Green New Dealers are talking seriously about the benefit of a livable earth. It seems like society might want to absorb significant costs to achieve the continuation of the species. It’s a green cliché but it’s true:there are no jobs on a dead planet. There is no economy on a dead planet.

Third, we need to be ready to talk about green jobs and what they do and might pay and about how we can create social safety nets for fossil fuels sector workers if we want to sell environmental reconversion to the populace. The carbon-capitalist Exxon-Mobil-Donald Trump-Joe Manchin right has propagated the notion that green transformation is a giant job-killer. We must counter that claim in ways that show we understand and care about the concerns of the working-class majority.

Fourth, we need to be existentialists, not catastrophists.  It’s not about the crystal ball.  We can’t care about the odds.  The betting line on Green Transformation does not matter.  Maybe it’s just 1 in 10.  Maybe it’s better. It doesn’t matter. The odds go to zero in ten if we don’t take action. Let Vegas take the bets.  We are on the field of action.

Fifth, Howard Zinn was right.  It’s not just about who’s sitting in the White House or the Governor’s mansion or the Mayor’s office or the city council seat.  It’s also and above all about who’s sitting in the streets, who’s disrupting, who’s monkey-wrenching, whose idling capital, who’s occupying the pipeline construction sites, the highways, the workplaces, the town-halls, the financial districts, the corporate headquarters, and universities beneath and beyond the biennial and quadrennial candidate-centered big money big media major party electoral extravaganzas that are sold to us as “politics” – the only politics that matters. This is true about fighting racist police violence. It’s true about labor rights and decent wages.  It’s true about all that and more and it’s true about saving livable ecology.

Sixth, know your climate enemies.  If you think it’s just the eco-fascist Republicans, you are sadly mistaken. Yes, unlike Donald Trump, Barack Obama did not deny the existence of anthropogenic, really capitalogenic global warming.  But so what?  As Kevin Zeese and Margaret Flowers noted last year, “Obama watered down global climate agreements and grew oil and gas output and infrastructure in the United States.…Obama presided over the highest gas production in history and crude oil production rose by 88%, the fastest rate in the 150-year history of the U.S. oil industry.”  Obama bragged about this to a bunch of petroleum executives at the Baker Institute last year.

Vote if you think it’ll make any difference but don’t drink the full Kool Aid of American electoral fake-representative politics, the longtime graveyard of American social movements. Become a Gilet Jaune or a Gilet Verde. Get your yellow, green, red and black vests on. Learn how to build barricades. Study civil disobedience. Join the great Extinction Rebellion, which has a dynamic new Chicago chapter and will be making some splashes here and around the world this year. Remember the words of Mario Savio: “There’s a time when the operation of the machine becomes so odious, makes you so sick at heart that you can’t take part! You can’t even passively take part! And you’ve got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus — and you’ve got to make it stop!”

If you’re waiting for some elite politician to fix this ecological mess you will be hung out to dry well past humanity’s expiration date.

A significantly shorter version of these comments were delivered at the Chicago Peace Summit at Loyola University in Chicago last Saturday.

US Expands 'Catch And Release' Amid Surge In Migrants…

US expands 'catch and release' amid surge in migrants

EL PASO, Texas (AP) — The surge of migrant families arriving at the southern border has led the Trump administration to dramatically expand a practice President Donald Trump has long mocked as “catch and release.”

With immigrant processing and holding centers overwhelmed, the administration is busing people hundreds of miles inland and releasing them at Greyhound stations and churches in cities like Albuquerque, San Antonio and Phoenix because towns close to the border already have more than they can handle.

Relief organizations in some cities are struggling to feed and house the migrants and warning that a public health crisis is taking shape, especially with sick infants and children among the many immigrant families who need medical attention.

“We’re asking volunteer doctors and nurses and community members to step up and do what the government should be doing. If this was a hurricane, FEMA would be on the ground helping,” said Jim Gannon, CEO and executive director of Catholic Charities in Albuquerque, New Mexico.

For many years, families arriving at the border were typically released from U.S. custody immediately and allowed to settle in this country with family or friends while their cases wound their way through the courts, a process that often takes years.

Trump has railed against the practice, tweeting in November that it was over: “Catch and Release is an obsolete term. It is now Catch and Detain. Illegal Immigrants trying to come into the U.S.A., often proudly flying the flag of their nation as they ask for U.S. Asylum, will be detained or turned away.”

But in recent months, the number of families crossing into the U.S. has climbed to record highs, pushing the system to the breaking point. As a result, the government is releasing families faster, in greater numbers and at points farther removed from the border.

Since Dec. 21, Immigration and Customs Enforcement has set free more than 125,000 people who came into the U.S. as families.

Customs and Border Protection is also overloaded, and instead of holding families for up to 72 hours before turning them over to ICE, it has started releasing them directly into the U.S.

“The numbers are overwhelming right now,” said Gregory Archambault, ICE director of enforcement and removal operations in San Diego. “Everybody is stressed. The agency is stressed, the (local governments) are stressed, the law enforcement agencies. Everybody is stressed because there are these mass numbers of people.”

ICE has been releasing asylum-seeking families so quickly that they don’t even have time to make travel arrangements. Families are given court dates, a head of household is often fitted with an ankle monitor, and they are dropped off at a charity-run shelter or bus station.

San Antonio received part of that surge in recent days, forcing the city to open a help center with food for migrants.

In El Paso, where shelters and churches are at capacity and seats on buses headed out of the city are getting harder to find, authorities briefly resorted to holding migrants in a pen lined with concertina wire under the shade of a bridge that connects the American city to Juarez, Mexico. They closed the makeshift holding area over the weekend and moved the migrants to a place with more shelter.

“They treated us like animals,” said Herling Jerlyn, a teenager from Guatemala.

Eduardo De Jesus Bermudez Florez waited for a Greyhound bus Tuesday to take him to Arlington, Texas, after spending time held under the bridge, where he said women cried through the night in cold temperatures.

The immigrant from El Salvador himself teared up as he described his ordeal. He became separated from his wife and their 10-year-old daughter in Mexico before crossing the border, and he still doesn’t know where they are. As De Jesus cried waiting for a bus, his 13-year-old son held the charger for his ankle monitor battery.

“He’d say ‘dad, I want to leave this place,'” said De Jesus, whose wife was once attacked with machetes by gang members. “I just told him that from here we can’t go back. Your future is here. Our country is too violent.”

In Albuquerque, nearly 280 miles from the border, faith-based organizations have helped roughly 1,000 migrants since mid-February. The groups were small at first, but they have been growing and the arrivals have become more frequent.

San Diego County recently opened a shuttered downtown courthouse slated for demolition to house up to 150 asylum seekers. A coalition of religious and civic groups that manages the shelter said it has helped more than 11,000 members of asylum-seeking families since authorities began large-scale releases in late October.

About 22,000 immigrants have been released in Arizona in the past three months. In the Phoenix area, the nonprofit organizations and churches taking them in have a capacity of only 700 a week, said Connie Phillips, president and CEO of Lutheran Social Services in the Southwest.

That means immigration authorities have to drop off families by the busload at places not designed to take them in, like the Greyhound station in Phoenix.

The bus company is no longer allowing anyone without a ticket to wait inside, so immigrant families, including little children, stand outside until a volunteer can get them in touch with a relative to buy them a ticket. That sometimes takes hours.

“The federal government is saying, ‘This is not our responsibility,'” Phillips said. “And the cities and states have not stepped up to provide any kind of emergency funding.”

She added: “This is going to be a public health disaster. These are small children, these are families, these are babies, and we cannot have people just out in the heat.”

Authorities said family arrivals along the U.S.-Mexico border reached an all-time high in February of 45,827 arrests or denials of entry.

“We didn’t have family groups for years and years, like we have now,” ICE’s Archambault said. “Our facilities are not made for this. We have diapers and baby formula and all this stuff, like a nursery.”

In another sign of how U.S. authorities are being tested as rarely before, figures released Tuesday show a significant drop in prosecutions for illegal entry, even as arrests have climbed sharply. The numbers are at odds with Trump’s vow to prosecute everyone who enters the country illegally.

In February, Customs and Border Protection referred 8,998 illegal-entry cases to prosecutors along the border, a drop of 12% from January and 23% from October, according to Syracuse University’s Transactional Records Access Clearinghouse.


Galvan reported from Phoenix. Associated Press writers Elliot Spagat in San Diego; Nomaan Merchant in Houston; Colleen Long in Washington; and Susan Montoya Bryan in Albuquerque, New Mexico, contributed to this story.

Home Ethos About Contact
Terms Policy GDPR RichTVX
© Saeculum XXI U.S. Intelligence News