Archive for the ‘Law’ Category

How Far We Must Go

Wednesday, April 21st, 2021

In 1675, the first and one of the deadliest wars ever fought on what is now American soil began. Fifty-six years after the sailing of the Mayflower, the tenuous Native American-Puritan bonds, built with careful distrust, burst asunder with disastrous results for everyone.

In 1616, European traders had brought yellow fever to Wampanoag territory, which covered present day Provincetown, Massachusetts, to Narragansett Bay, Rhode Island. The epidemic wiped out two-thirds of the entire Wampanoag Nation (estimated at 45,000 at the time). So, when the first batch of Puritans landed in 1619, Massasoit, Sachem of the Wampanoags, was on high alert. He waited until 1621 to meet the new immigrants, and then forged a guarded relationship between his people and theirs. In late-March, 1621, he and Governor John Carver signed the Wampanoag-Pilgrim Treaty. In the Treaty the two peoples agreed to do no harm to each other, to come to each other’s aid if attacked by third parties and to have equal jurisdiction over offenders: if a Wampanoag broke the peace, he would be sent to Plymouth for punishment; if a colonist broke the law, he would be sent to the Wampanoags. In addition, the Wampanoag leaders agreed to tell neighboring indigenous nations about the treaty.

For fifty years, the entente, occasionally fraying, held. But as more and more English immigrants arrived with weapons native Americans had never seen, and as the new immigrants began asserting themselves more and more over the indigenous nations, it became a when, not an if, a war would break out.

When Massasoit died in 1665, his son Philip became Sachem. Philip had few of his father’s diplomatic skills, and his people were becoming more and more angry at the dictatorial actions taken by the white people. After three of his trusted lieutenants were executed by the pilgrims in a woeful miscarriage of justice, Philip had no choice but to go to war if he wished to remain in power. In 1675, he did just that.

King Philip’s war brought tragic consequences for all. As so often happens, the white settlers of Plymouth Colony grossly underestimated the tactical skill of the warring indigenous nations, but in the end European firepower won out. Before the war, historians estimate about 80,000 people lived in New England. Nine-thousand died during the fourteen months of King Philip’s War, more than 10% of the total population. Proportionately, that’s more than in both the Civil War and the Revolution. One-third of the towns in New England lay in ashes, farms were abandoned and the fields lay fallow. Philip was hunted down in Rhode Island’s Misery Swamp and killed. His body was quartered and pieces hung from trees. The man who killed him, John Alderman, sold his severed head to Plymouth Colony authorities for 30 shillings.

And so we come to war’s end in 1676, and Josiah Winslow, the governor of Plymouth Colony, had a problem. Namely, what to do with hundreds of native Americans—surviving leaders of King Philip’s War and their families.

Winslow decided to get rid of them by loading them all, including Philip’s wife and nine-year-old son, onto several ships bound for the Caribbean, one of which, ironically, named Seaflower.

As Nathaniel Philbrick writes in his masterful Mayflower (Viking Penguin, 2007):

In a certificate bearing his official seal, Winslow explained that these Native men, women and children had joined in an uprising against the colony and were guilty of “many notorious and execrable murders, killings and outrages.” As a consequence, these “heathen malefactors” had been condemned to “perpetual slavery.”

Thus, joining Rome and other ancient societies, our white ancestor enslaved a conquered people.

Yesterday, 345 years after the Seaflower sailed from Plymouth harbor, a jury of his peers, a diverse jury, convicted Derek Chauvin on all three counts of murder in the death of George Floyd. What struck me most, the image that cannot be unseen, is the smirk on Chauvin’s face as he kneeled the life out of a man who did not look like him. I imagine it to be the same look Governor Winslow had on his face as he signed the certificate condemning hundreds of indigenous people, who did not look like him, into perpetual slavery.

How far we’ve come. How much, much farther we must go.

 

The Georgia Election Integrity Act: A Desperate Attempt By The Republican Party To Retain Power

Monday, March 29th, 2021

There was already a perfectly fine election statute in the state of Georgia. Perfectly fine. Chapter 2 of Title 21 of the Official Code of Georgia Annotated had just completed governing the November election for President and the January election for two US Senate seats. The Presidential election had withstood lawsuits and multiple audits and been judged to have been exemplary on all counts. It was a perfectly fine statute, except for one thing: The wrong people won. And they were Democrats.

The Republican elites, who currently hold the key to the Governor’s office, as well as majorities in both the Georgia House of Representatives and Senate, could not abide that. Something had to be done. And something was. Senate Bill 202 amended the perfectly fine Chapter 2 of Title 21 of the Official Code of Georgia Annotated. It became the Election Integrity Act.

The Election Integrity Act was signed into law last Friday by Governor Brian Kemp behind locked doors, no reporters allowed, in the presence of six other aging white guys (and a photographer, for whose presence and work we are grateful) and in front of a painting of the Calloway Plantation, where, in the mid-19th century, more than 100 Black Slaves toiled day and night to make the very white Calloway family ever so comfortable and rich.

As Governor Kemp, who, ironically, served as Georgia’s Secretary of State from 2010 to 2018, was getting ready to sign this obviously much-needed legislation, State Representative Park Cannon, who is Black, knocked on the locked door asking to be let in to observe. For her trouble, she was arrested by three burly state troopers and hauled off in handcuffs, and now faces two charges: willful obstruction of law enforcement officers by use of threats or violence and preventing or disrupting general assembly sessions. Video taken at the time showed none of that.

After the unfortunate interruption, Kemp signed the amended legislation, shook hands with the six aging white guys, and that was that.

That was that, that is, until certain people, including the current President of the United States, upset with the whole thing, noticed the wording in lines 1,872 through 1,881, which is this:

So, unless you have a 26 foot pole with a drink on the end of it, you’re not giving water to anyone standing in the Georgia Sun patiently waiting to cast a ballot. If you do, you’ll share Representative Cannon’s fate. In his nationally broadcast press conference, President Biden called this provision of the law, “sick.”

A new national study led by economist Keith Chen of the University of California, Los Angeles, found voters in predominantly black neighborhoods waited 29 percent longer, on average, than those in white neighborhoods. They were also about 74 percent more likely to wait for more than half an hour.

The new food and drink prohibition quite understandably got a lot of press attention. It oozes racism. But throughout the amended statute one will find other instances of intentional voter suppression. For example:

  • Drop boxes: Created by emergency rule due to the pandemic, these proved extremely popular during the two elections in question. In heavily democratic Fulton County, alone, 146,000 votes were made by absentee ballots placed in drop boxes. Republicans noticed immediately.

“As soon as we may constitutionally convene, we will reform our election laws to secure our electoral process by eliminating at-will absentee voting,” the Georgia Senate Republican Caucus wrote in an 8 December email. “We will require photo identification for absentee voting for cause, and we will crack down on ballot harvesting by outlawing drop boxes.”

The result in the Election Integrity Act: No more than one drop box per county. Officials, at their discretion, may place others, but no more than one per every 100,000 voters.

  • Voter challenges: In Georgia, voters are called “electors.” Prior to the new legislation, any elector could challenge the qualifications of anyone applying to register to vote or could challenge anyone whose name appeared on a list of registered electors. The Election Integrity Act added the following sentence: There shall not be a limit on the number of persons whose qualifications such elector may challenge. One can imagine an entire group of people being challenged.
  • Mobile Voting Buses: Under the old legislation, groups could use buses, approved by the Secretary of State, as mobile voting centers. Two were used in predominantly minority Fulton County (I cite Fulton County again, because in his infamous call with Secretary of State Raffensperger, President Trump mentioned the County 11 times in his quest to get Raffensperger to find him 11,780 votes). The Election Integrity Act prohibits Mobile Voting Buses.
  • Absentee Ballots: The Election Integrity Act, which is 2,427 lines long, devotes more than 1,450 to redesigning Georgia’s entire absentee ballot system. It is obvious Georgia’s Republican Party abhors the very thought of absentee ballots, even though a significant number of Republicans vote by absentee ballot. The law prohibits no-excuse absentee ballot application, as well as the universal sending of absentee ballot applications to all registered voters. Absentee ballot violations are considered felonies by the new legislation.
  • The Secretary of State: Until Brian Kemp signed the Election Integrity Act, the Secretary of State, as in most U.S. states, was responsible for conducting elections. But Raffensperger and those in his office angered many fellow Georgia Republicans during the presidential and senate races, because, after exhaustive audits, they found no fraud significant enough to change anything. The new law strips him of his authority by creating an Elections Board, whose chairperson will be elected by the legislature. The Secretary of State is now an ex-officio, non-voting member of the Board.

It is understandable why Georgia republicans are going to such lengths to suppress minority voting. Consider this from statistics from Georgia’s Secretary of State:

  • Since 2000, the percentage of white voters in Georgia has decreased from 68% to 58%. At the same time, the Black voting percentage has increased from 27% to 33% of total voters.
  • From 2000 through 2019, Georgia’s eligible voting population grew by 1.9 million; 48% were Black. White growth was only 26%.
  • The majority of single-race Blacks live in the South – 59%

As the proportion of white voters in the nation continues to shrink, the Republican Party is shrinking right along with it. It is unmovably the Party of Barry Goldwater and his small tent, Ronald Reagan and his “welfare queen,” and, of course, Donald Trump and his racist white supremacy. It is exhibiting all the characteristics of the self-cannibalistic rat snake that cannot stop itself from eating itself. Georgia’s Election Integrity Act is nothing more than a desperate attempt by the aforementioned aging white guys to blunt the impact of an irresistible demographic force.

In the end, it will fail.  Democracy will prevail.

The WCRI And Sidney Powell’s “No Reasonable Person” Nutty Defense

Tuesday, March 23rd, 2021

Interesting day today at the first 3-hour day of the Workers’ Compensation Research Institute’s virtual and strange two-day conference where all the presenters looked as if they’d really rather be in the Grand Ballroom of Boston’s Westin Hotel. I’ll have a wrap up of the two-day, six-hour conference after it ends tomorrow. But for today…

In early February, 2021, an Associated Press-NORC* poll found 65% of Republicans believed Joe Biden was not legitimately elected President of the united States. One week ago, a Monmouth University National Poll found exactly the same thing. Nothing had changed in a month and a half. Why do you suppose that is?

 

 

You don’t have to be Albert Einstein to know that since the election, in fact since well before it, authority figures in the Republican Party, including the President, insisted the only way Donald Trump could lose the election would be through massive fraud. One of the leaders of this disinformation campaign is the lady pictured here: Attorney Sidney Powell, Trump’s on-again off-again lawyer in his attempt to overturn the election result.

Powell manufactured far-fetched claim after monstrously far-fetched claim of election fraud beginning two days after the election. Powell and her team of conspiracy theorists filed more than 60 lawsuits around the country that all died in court. But that didn’t stop her and her sidekick Rudy Giuliani from sharing their bird-brained ideas from the stage of the Republican National Committee in a November press conference carried on C-Span. Neither did it stop them from doing the same dozens of times on Fox News and Fox Business, never challenged by anybody from the network.

When none of that worked, Powell went for the big time and won the Gold Medal for the craziest claim of 2021 (thus far). To wit, Smartmatic and Dominion Voting Systems conspired with Venezuela’s communist leadership, ditto with Cuba, and “likely” China to create software to fix the election for Joe Biden against Donald Trump. On 8 November on Fox Business she was interviewed by Maria Bartiromo and claimed Dominion created a secret “algorithm to calculate the votes they would need to flip. And they used the computers to flip those votes from Biden to—I mean, from Trump to Biden.”

In late January, after the Dominion Voting Systems leaders had heard this lie a few thousand times, they had enough and sued Powell, Giuliani and others for $1.3 billion for defamation. That’s billion.

Yesterday, Powell’s defense team responded to the lawsuit. It’s 90-page filing can be summarized in two words: Just kidding.

In legalese, what her lawyers said was, “no reasonable person would conclude that [Powell’s] statements were truly statements of fact.” Moreover, her high-priced defense team writes that Dominion itself “characterize(s) the statements at issue as ‘wild accusations’ and ‘outlandish claims,’” and that “Such characterization of the allegedly defamatory statements further support Defendants’ position that reasonable people would not accept such statements as fact…”

In otherwords, if the company she defamed considers the accusations off-the-chart lunacy, then nobody else could ever possibly believe them.

Finally, the Powell team claims she never knew her accusations were false. “In fact,” they write, “she believed the allegations then and she believes them now.” So, she’s not guilty; she’s just crazy.

This would all be riotously funny if it weren’t so deadly serious. Deadly, as in five people died and more than 140 were injured at the Insurrection of 6 January, a day, to quote Franklin Roosevelt, “that will live in infamy.”

But notwithstanding the Insurrection, could Sydney Powell’s defense team actually be right? Would no one believe her claims, as well as all the other ridiculous claims made by Trump apologists, because they are all so nutty? The early February AP-NORC and the mid-March Monmouth University polls, as well as the Insurrection itself, appear to give the lie to that defense. Sixty-five percent of Republicans still believe Biden cheated his way to the Oval Office. They’re getting that belief from somewhere. And unless we figure out how to disconnect this significant faction of the American public from the Big Lie, it will continue as a grotesque cancer on our society.

In the 1930s, Joseph Goebbels made famous the Big Lie.

“If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.”

We have seen this movie before. And it never ends well.
________________
* The National Opinion Research Center at the University of Chicago, founded in 1941 whose name is now officially NORC.

 

Now What?

Tuesday, February 16th, 2021

The Trial of the Century —  So Far

During and after the second impeachment trial of Donald Trump, even Republicans admitted the House Managers had done a masterful job of presenting their case. Having voted the trial constitutional by a margin of 55 – 45, the Senate subsequently acquitted Trump with Republicans contending the trial was an unconstitutional abuse of power. And, as I have written earlier, that became the painted hook on the Senate wall upon which they hung their acquittal hats, all 43 of them.

The entire proceedings seemed scripted and predicable — that is, until Saturday morning, originally scheduled for closing arguments. That was when the leader of the House Managers, Representative Jamie Raskin, of Maryland’s 8th Congressional District, announced that overnight the Managers had learned of a phone conversation between House Minority Leader Keven McCarthy and President Trump at the height of the insurrection on the 6th. Representative Jaime Herrera-Beutler, Republican of Washington, had issued a statement saying McCarthy had described the conversation to her, a conversation in which McCarthy had begged Trump to forcefully call off the mob. Trump had dismissed the request cavalierly, saying, “Well, Kevin, I guess these people are more upset about the election than you are.”

Herrera-Beutler, one of the ten House Republicans who voted for impeachment, had said she was willing to testify under oath about the conversation with McCarthy, and that’s what Manager Raskin said was going to happen. Instead, Hellzapoppin happened.

Trump defense attorney Michael van der Veen, who is a personal injury lawyer, not a civil liberties lawyer, objected strenuously (to be kind about it; as I was watching I thought the Republicans were going to have to peel him off the Senate ceiling), saying if Herrera-Beutler were called to testify, he had at least a hundred witnesses he wanted to call, starting with Nancy Pelosi, and, by the way, he would depose all of them in his office in Philadelphia, because “that’s how these things are done.” At this point, the bell sounded and the fighters went to their separate corners to decide what to do next.

The House Managers, having made their point, and realizing that nothing short of something akin to the parting of the Red Sea, would persuade seventeen Republicans to vote to convict, and even that might not be enough, decided not to call Representative Herrera-Beutler as a witness. Instead, they and the defense team compromised by reading her statement into the record of the proceedings, thereby sparing us of more of Mr. van der Veen’s histrionics.

Shortly thereafter, Donald Trump was acquitted — again.

This was a show trial. With the conclusion foregone, the House Managers knew their real audience was the American public, not the 100 Senators in the chamber. It remains to be seen whether they won their case with the public. An Ipsos poll conducted Friday evening after the Defense had wrapped its case, if you could call it that, but before the Herrera-Beutler bombshell, revealed 55% of Americans believe Trump was “fully” or “largely” responsible for inciting the violence, but only 50% believe he should have been convicted. Strangely, 53% said he should be barred from holding public office again. The poll, which had a confidence level of 4%, shows in stark relief how deeply polarized this nation remains.

There will be more Trump litigation, a lot more. We may never see the end of it. Mitch McConnell, after voting to acquit, specifically mentioned this in a fiery speech (for him) putting Trump on notice that criminal and civil penalties are appropriate for what he did.

And today, it begins. This morning, Representative Bennie G. Thompson (D-Miss.), the chairman of the House Homeland Security Committee, filed a federal lawsuit accusing former president Donald Trump, attorney Rudolph W. Giuliani and two extremist groups whose members have been charged in the 6 January storming of the Capitol with illegally conspiring to intimidate and block Congress’s certification of the 2020 election. Citing an 1871, rarely used law aimed at the KKK, Thompson is suing in his personal capacity and is joined by the NAACP.

So many miles to go

With the conclusion of the world’s fastest impeachment trial, the Biden presidency can take center stage. Job #1: Defeat the pandemic and, in the words of someone who knew a thing or two about national division, “bind up the nation’s wounds.” However, right out of the gate we keep getting reminded just how delicate an undertaking that’s going to be.

Case in point: The scary growth of far right extremism in America and around the world got a boost from the Covid-19 pandemic.

Using historical data-sets from Germany, Kristian Brickle, of the Federal Reserve Bank of New York, concludes influenza mortality during the pandemic of 1918 – 1920 was directly correlated with both lower per-capita spending in the next decade, especially by the young, and the rise of extremist parties in 1932 and 1933, primarily the National Socialist Workers Party (the NAZI party). In her study, Pandemics Change Cities: Municipal Spending and Voter Extremism in Germany, 1918-1933, (May 2020, Revised June 2020), Brickle shows how Germany suffered high mortality in the pandemic, mortality that varied significantly across the country’s municipalities and regions. This variation represented tangible differences between cities and regions that reflected the beliefs and preferences of the inhabitants. In effect, the pandemic served as a means to exacerbate beliefs already held. One of these exacerbated beliefs was distrust for and hatred of minorities, predominantly Jews. Hence the significant increase of the deep-seated antisemitism of the late 1920s and 1930s.

Although Brickle’s work does not blaze a new trail — she builds on the work of many others — her research paints a clearer picture of what can be the unfortunate and unforeseen consequences of a pandemic. The United Nations and others have documented an “explosion” of antisemitism throughout the tenure of the Donald Trump presidency, but with a significant spike during 2020, the first year of the Covid-19 pandemic.

Joe Biden is going to need all the help he can find.

 

 

The Second Impeachment of Donald Trump Approaches

Wednesday, February 3rd, 2021

Next Tuesday, the 9th of February, the Senate will begin the second impeachment trial of Donald Trump. With ten Republican Representatives voting in the affirmative, the House impeached the former president for inciting insurrection on 6 January, an insurrection that has resulted in the deaths of five people.

Trump supporters in Congress and around the country have viciously attacked the ten House Republicans who voted for impeachment. Wyoming Representative Liz Cheney, the third most powerful Republican in the House, has come under particular fire. Die-hard Trump disciples have petitioned Minority Leader Kevin McCarthy to remove her from her leadership post. That group is reported to have more than 100 signatories to its petition. The entire caucus will meet about this later today. It could happen that when the dust settles tonight, Liz Cheney, who, with Leader McCarthy’s approval, gave voice to her conscience, could become the only person to this point punished for anything that happened on the 6th of January. I make this point to illustrate just how far the devolution of Congress has progressed.

On the Senate side of the building, Trump’s latest lot of lawyers yesterday filed a 15 page initial brief that bases their defense of the former president on two major points. First, Trump did nothing wrong either before or during his 6 January rally in DC; he was simply exercising his First Amendment rights. Second, they contend it is unconstitutional to impeach Trump, because he is no longer in office and therefore cannot be “removed,” a view that is shared by most Senate Republicans ( there is also a third defense position – the Bill of Attainder defense – that is altogether too wacky to go into).

With respect to the first defense, the question before the Senators is whether Trump’s oratory was advocacy or incitement. The U.S. Supreme Court explained in Brandenburg v. Ohio (1969) that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”  The Court’s ruling in Brandenburg meant that KKK leader Clarence Brandenburg’s statements such as “it’s possible that there might have to be some revengeance taken” did not amount to criminal syndicalism under Ohio law.

In addition to the “incitement to lawless action” charge, there is the “clear and present danger” test. In applying the clear and present danger test in Schenck v. United States (1919)Justice Oliver Wendell Holmes, Jr., observed: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Holmes cited the example of a person who falsely shouts “Fire!” in a crowded theatre, causing a panic. The impeachment prosecutors will doubtless advocate that Trump really did, metaphorically, shout “fire” on 6 January, causing his followers to panic and storm the Capitol.

Regardless, the House Trial Managers are going to have great difficulty in convincing people who do not want to be convinced, in fact, refuse to be convinced, that Trump’s words at his rally on 6 January presented a clear and present danger to incitement to lawless action. This, despite the video and myriad recordings showing Trump egging on his followers to “fight” and “be strong,” because he “won in a landslide” and “the election was stolen” from him.

The Trump defense team’s second claim, that impeaching an out of office president is unconstitutional, will be equally difficult to counteract, even though the Congressional Research Service (the best research agency you’ve probably never heard of), at the request of House members, published a study on 15 January that showed clearly the precedence and constitutionality of such an action. The study, which is quite the civics history lesson, should be required reading for every high-school student.

In the study, Legislative Attorneys Jared P. Cole and Todd Garvey meticulously analyze this issue and write:

The Constitution does not directly address whether Congress may impeach and try a former President for actions taken while in office. Though the text is open to debate, it appears that most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office. As an initial matter, a number of scholars have argued that the delegates at the Constitutional Convention appeared to accept that former officials may be impeached for conduct that occurred while in office. This understanding also tracks with certain state constitutions predating the Constitution, which allowed for impeachments of officials after they left office.

They also note:

Scholars have noted that if impeachment does not extend to officials who are no longer in office, then an important aspect of the impeachment punishment is lost. If impeachment does not apply to former officials, then Congress could never bar an official from holding office in the future as long as that individual resigns first. According to one scholar, it is “essential” for Congress to have authority to impeach and convict former officials in order to apply the punishment of disqualification; otherwise Congress’s jurisdiction would depend on the whims of the individual who engaged in misconduct. Another scholar notes that the grave nature of the disqualification punishment indicates that it should apply independently of the need for removal.

Some Trump defenders point to the Richard Nixon case. When Nixon resigned on 9 August 1974, the House of Representatives had already drawn up articles of impeachment. After his resignation, the House did not send the articles to the Senate for trial. Less than a month later, President Ford granted Nixon a full pardon, thereby ending the case. The Trump defenders claim not impeaching Nixon proves their case that a president cannot be impeached after leaving office. What they fail to mention is that Nixon had already served two terms as president and was barred from running again by the 22nd Amendment. The whole purpose of impeaching someone after leaving office is first, to set an example, and second, to disqualify them from future office. Donald Trump, if not impeached and convicted, is free to run again for President in 2024.

Let me end on a hypothetical question. Suppose a President commits an impeachable action on the 19th of January; say it is discovered a week later that he or she had been colluding with a foreign power for personal gain at the expense of our nation. If the action is committed while in office, but not discovered until after he or she flies off in Marine 1, what is to be done about it? It is almost sacred theology that a President cannot be criminally charged for actions committed while in office (See the Mueller Report). How else is the miscreant punished other than impeachment?

I have no illusions about the Senate convicting Donald Trump of “high crimes and misdemeanors,” although I think he is guilty as charged. Further, I think he is responsible more than anyone else for the deaths that happened during and after the storming of the Capitol.

It is dispiriting for me to have to conclude that, rather than suffering one day of punishment for any of it, he will just live in the lap of luxury for the rest of his horrid life, the same mass of stunted protoplasm he has always been.

 

Racial Justice: If Not Now, When?

Monday, June 8th, 2020

Since the nonchalant murder of George Floyd our nation has galvanized behind the cause of equal justice for all. We have moved past the chaos of the first day or two to a too-loud-to-be-ignored-any-longer chorus peacefully demanding systemic changes in race relations. Now, the question of the moment is: What will come of this? After all, we’ve had demonstrations and protests when abominations like this have happened before. And afterwards, after the thoughts and prayers stuff, life goes on. Is this going to be any different? Personally, I think it will be.

Why? Let me tell you a story.

It is 31 January 1968. In Vietnam, it’s the most important holiday of the year, the Tet Lunar New Year. In years past, this seven to nine day holiday has been the occasion for an informal cease fire between North and South warring forces. But not this year. Since the previous autumn, the North Vietnamese military commander General Vo Nguyen Giap has been secretly caching weapons, ammunition and Viet Cong troops throughout the country. In late autumn 1967, in a brilliant move of military misdirection, Giap has North Vietnamese regular army regiments attack U.S. strategically placed Firebases in the highlands of central Vietnam. The ferocious  battle of Khe Sang is an example. As U.S. commanders concentrate on repulsing these attacks, Giap prepares to spring the Tet trap.

And in the early morning hours of 31 January, 70,000 Viet Cong troops attack all over the country.

The Tet Offensive takes South Vietnamese and American commanders and politicians completely by surprise, shocks the U.S. public and begins the slow erosion of public support for the war. The fiercest fighting happens in the city of Hue, the ancient capital of Vietnam. The Viet Cong capture Hue and hold it until they are finally driven out on 24 February by American forces. During the time they hold the city, the Viet Cong exact a terrible price. They go house to house arresting all people thought to be South Vietnamese sympathizers, including a convent full of Catholic Nuns. They massacre them all and throw them into mass graves. Five thousand people.

In three to four weeks, Giap’s forces are resoundingly defeated. He has spread them too thin. The Tet Offensive will prove to be a military disaster for the North, but, more important, it will become its biggest strategic victory. American and South Vietnamese politicians now realize the contest will be longer and much more deadly than they have anticipated, the mood of the American people begins to shift, and U.S. army Killed In Action increases to 500 per week.

And then, twenty days after the recapture of Hue, comes the most horrific and gruesome stain on America’s character during the entire war: The My Lai Massacre.

It is 16 March, and at the village of My Lai an American nerve-frayed platoon of the Americal Division under the command of 1st Lieutenant William Calley massacres hundreds of innocent civilians – men, women and children – as they run from their huts. Then they round up the rest of the village, line them up along a large ditch and shoot them all. According to Vietnamese records, they slaughter 547 people that day (the U.S. admits to only 304).

Calley had been ordered by his Company Commander, Captain Ernest Medina, to enter My Lai and kill the Viet Cong that Army Intelligence thought were hiding there among the civilian population. But there are no Viet Cong at My Lai that day. The Platoon troops don’t care. They kill everyone. And Calley, their commanding officer, stands by and watches. He does nothing to stop it.

Afterwards, Calley’s commanders in the Americal’s 11th Infantry Brigade will cover up the massacre by simply saying there wasn’t one. But the truth eventually comes out when American reporter Seymour Hersh breaks the story a year later (for which he will win a Pulitzer Prize). Calley is court-martialled, found guilty and sentenced to life in prison. President Nixon will reduce the sentence to three years and allow Calley to serve it by house arrest at Fort Benning, Georgia. The army also charges fourteen other people up and down the chain of command. All either have their charges dismissed or are acquitted at trial. Everyone seems to live happily ever after, even Calley, who doesn’t publicly admit any regret until 41 years later.

Why am I writing this? For two reasons. First, because the quality of leadership matters. All the leadership, top to bottom,  surrounding the My Lai massacre was horridly bad leadership, and, in the eyes of the public, leadership in many of America’s police departments is of a similar calibre. It is seen as suspect, at best, and despotic, at worst. Second, because the Tet Offensive and the My Lai massacre galvanized the American public into creating a movement that eventually became too powerful for politicians to resist and led to the end of the Vietnam war, a war that killed more than 50,000 Americans and millions of Vietnamese.

Today, we are in a similar situation of urgent morality. For hundreds of years, black children have been raised to fear whites, especially white police. “Don’t talk back, keep your hands on the steering wheel at all times, and never ever reach for anything.” Driving While Black is not fake news. The selection and training of police recruits continues to perpetuate this fundamental character flaw in the soul of America.

At the very least, what will reduce the worst in policing and increase the best is a thoroughly reimagined system of selecting and training new police officers. “Protect and serve” begins with empathy, actually seeing the people one is sworn to serve; actually listening to better understand them and their needs.

After My Lai, the army rebuilt its officer training programs. The Code of Military Justice and the Geneva Convention were given more attention. As we moved to an All-Volunteer Army, the selection criteria were rethought and enhanced. We have seen the benefit of that in our military’s improved conduct in Iraq and Afganistan. That kind of retooled selection and training has not happened in police academies. What has happened is more training in crowd control, more buying of military quality weaponry and a perpetuation of an us versus them mentality. These have been on stark display since the killing of George Floyd.

To change this will require sustained, dedicated and empathic leadership, which I’m guessing will not be coming from 1600 Pennsylvania Avenue, at least not in the immediate future. But the growing and forceful muilticultural demands for equal justice as vividly  demonstrated recently on the streets of America is a start, a start that urgently needs a finish.

How Are States Handling Workers’ Compensation During COVID-19?

Monday, May 11th, 2020

Last week we wrote about Governor Gavin Newsom’s Executive Order implementing a workers’ compensation rebuttable presumption for all essential workers who contract COVID-19 in California.

To review, a rebuttable presumption means an essential worker who contracts COVID-19 does not have to prove work-relatedness. The burden is on the employer to prove the disease was not caused by work.

Writing that other states have also taken action, I noted those actions varied widely across the country. But the monumentality of COVID-19 requires more on this topic. Just what are other states doing? Specifically.

Thirty-nine have either done nothing or have legislation pending. That is, they have taken no action via Executive Order, as Newsom did, or have yet to enact legislation. The District of Columbia is also in this group. Neither, have any of these states declared COVID-19 an occupational disease, although it obviously can be one.

The other 12 states have taken the following actions:

Akaska: On 9 April, Alaska Governor Mike Dunleavy signed legislation declaring a rebuttable presumption for first responders and other health care workers.

Arkansas: On 21 April Governor Asa Hutchinson issued an Executive Order creating a rebuttable presumption for first responders, other health care workers and National Guard personnel assigned to COVID-19 duties.

Florida: The state published a Memorandum saying first responders and health care workers “would be eligible for workers’ compensation benefits under Florida law.” Given the torment COVID-19 is causing throughout society, this is pretty wimpy, don’t you think?

Illinois: On 16 April, Governor J. B. Pritzker issued an Executive Order declaring a rebuttable presumption for first responders and other health care workers. Then, under intense pressure from the business and insurance communities, Pritzker, whose family owns the Hyatt hotel chain, rescinded the order. Obviously, a stand-up guy. So, I guess you could say Illinois now belongs in the camp of the other 38 states that have done nothing.

Kentucky: On 9 April, Governor Andy Beshear issued an Executive Order similar to Newsom’s, creating a rebuttable presumption for all essential workers who contract COVID-19. The business community isn’t happy, but, unlike Pritzker, Beshear has not changed his position.

Michigan: On 30 March, the Workers’ Disability Compensation Agency declared an Emergency Rule creating a rebuttable presumption for all First Response Employees, a term, as Michigan defines it, that includes just about everyone in health care.

Minnesota: On 7 April, Governor Tim Walz signed legislation establishing a rebuttable presumption for first responders, health care workers, correctional officers and child care workers.

Missouri: The Department of Labor and Industrial Relations issued an emergency rule, effective 22 April, declaring a rebuttable presumption for first responders, but, not, perplexingly, for other health care workers exposed to COVID-19. First responders are defined as “a law enforcement officer, firefighter or an emergency medical technician (EMT).”

New Mexico: On 23 April Governor Michelle Lujan Grisham issued an Executive Order creating a rebuttable presumption for state-employed first responders and volunteers to the health care system fighting the disease. Private sector employees are not covered.

North Dakota: On 25 March, Governor Doug Burgum issued an Executive Order creating a rebuttable presumption for all first responders and health care workers. On 16 April, he issued another one to cover funeral directors.

Utah: On 22 April, enacted legislation creating a rebuttable presumption for all first responders.

Washington: On 5 March, Governor Jay Inslee issued an Executive Order  creating a rebuttable presumption for first responders and other health care workers. The order also applies if the workers are merely quarantined.

The majority of states not listed here have some kind of legislation filed awaiting legislative action. But as anyone who has ever wandered the halls of a state capital watching the sausage being made knows, it doesn’t mean a thing until the Governor in the corner office signs it.

Time is wasting.

 

Quo Vadis, Kentucky?

Tuesday, July 10th, 2018

June 29, 2018. Thirteen days ago. I’m sitting in the Grand Ballroom of the Capital Hilton Hotel in Washington, DC, soaking in the presentations at the Annual Conference and CEO Summit of the Association for Community Affiliated Plans (ACAP). ACAP has grown to be quite the force for Medicare Advantage and Medicaid health plans around the country. So, the conference is an important event for Medicare and Medicaid professionals.

I’m looking forward to the 3:30 p.m. session, Plans Involvement in the New World of Work Requirements, because Mark Carter and Carl Felix, CEO and COO, respectively, of Kentucky’s Passport Health Plan, are going to describe their efforts to implement the Bluegrass State’s Medicaid work requirements.

In early January, 2018, Kentucky became the first state to win CMS approval to institute work requirements for its Medicaid beneficiaries. As I sit in the Hilton’s ballroom, its new  Medicaid work requirement program, Kentucky HEALTH, is slated to go live in two days (state government is only outdone by the US Army in its genius-like ability to create acronyms; this one stands for Helping to Engage and Achieve Long Term Health; catchy, eh?). There’s a pesky lawsuit lurking in the wings aimed at getting the Court to declare the program unconstitutional, but on June 29 Kentucky bureaucrats are ready to drop the hammer.

So, I am really interested in learning about the looming work requirement program, because three other states have won approval and are putting their programs together, and more are waiting in the wings.

Unfortunately, at the last minute, Mark and Carl (remember them?) have to cancel, because in the mad dash to the finish line for Kentucky HEALTH’s launch, they actually can’t leave the office. But, not to worry. Kentucky HEALTH’s Chief Marketing Officer is here to fill us in.

As she takes us through Kentucky HEALTH’s creation, I have to say that I, and the three or four hundred other people in the room are absolutely astonished at the time, money, manpower and all-around effort involved in giving birth to this behemoth. In terms of planning and implementation preparation, Kentucky HEALTH may perhaps only be exceeded by Operation Overlord (look it up). Some highlights:

  • For the first time EVER, Kentucky’s Medicaid beneficiaries will have to pay premiums. The premiums aren’t a lot (to you and me), ranging from $1 to $15 per month. Pregnant women and children are exempt.
  • Individuals with income above the poverty level ($12,060) who do not pay their premiums in 60 days will be kicked out of coverage for six months. Enrollees can return to the program earlier if they pay two months of missed premiums and make one new premium payment. They also must complete a financial or health literacy course.
  • Individuals must either work, volunteer, be enrolled in schooling or do some kind of “qualified community engagement” for at least 80 hours per month.
  • Beneficiaries must report their work activity each month; failure to do so will cause Medicaid disenrollment for six months.
  • Healthcare providers will have to certify to the Commonwealth the health status of those individuals they deem physically unable to work.

Regarding that last bullet – Kentucky HEALTH created a seven page form providers must complete. Knowing how busy healthcare providers are, I ask, “What’s been the feedback from your providers about this seven page form, and, by the way, are you paying them to do it?” Answer: “We haven’t communicated with the providers about this. We consider it all part of an office visit.”

For a moment, put aside why Kentucky is going to all this trouble. The bottom line question is: What does it get for going to all this trouble? In its need to get freeloaders off Medicaid rolls, just how many people would Kentucky’s work requirements actually put to work?

The nonprofit Kaiser Family Foundation provides some answers. Let’s check the numbers. Nationally:

  • About 10% of Medicaid recipients are elderly, age 65 and older, and many of them are in nursing homes.
  • About 48% are children, age 18 and younger.
  • That leaves about 42% who are of working age and potentially subject to the requirements.
  • Of that 42% who could be subject to the rules, 42% of them are already working full-time, and 18% are working part-time.
  • Another 14% are not working due to illness or disability.
  • Six percent are in school.
  • Twelve percent are caregivers for family members.
  • All of the above would be exempt from Kentucky’s rules.

That leaves about 1% of all Medicaid beneficiaries who would qualify for a work requirement program like Kentucky’s. That’s about 740,000 people nationally and around 12,000 in Kentucky (Since 2014, when Kentucky accepted Medicaid expansion, its Medicaid population has about doubled, rising from around 650,000 to 1.2 million) .

Kentucky HEALTH’s CMO wouldn’t (or couldn’t) say how much the state has spent on putting the program together or how many people have been devoted to it. But its best case scenario is that out of 1.2 million current beneficiaries about 95,000 may be off the rolls in five years, because either they no longer qualify for Medicaid because they either make too much money due to full-time work or they fail to comply with work requirements.

The day after the Kentucky HEALTH presentation at the ACAP conference District court Judge James Boasberg ruled Kentucky’s plan unlawful, because the federal government is obligated under federal law to consider whether a Medicaid proposal advances the program’s objectives, the judge wrote, and the Trump administration failed to meet that standard before approving Kentucky’s plan.

One final thought. When he announced the Trump administration’s approval of Kentucky’s work requirement plan, Governor Matt Bevin said, “I was raised by a father who said, ‘Don’t take something that is not earned.’” So, here’s the question: Unlike the entirety of the rest of the developed world, in America is basic health care something that has to be “earned?”

 

 

The Iceman Cometh

Thursday, May 25th, 2017

This will be hard.

For a moment, squeeze yourself into the tight shoes of one of America’s 11 million unauthorized immigrants.

Eight million of you are working. You make up 5% of the civilian workforce. Twenty-six percent of you work in farming; 15% in construction. A lot of people complain you and your unauthorized, undocumented, illegal alien brethren are taking jobs from Americans who need them, although you haven’t seen a lot of those Americans lining up to pick the fruits and veggies in the hot sun.

You have a job. It’s in construction. Not important how you got it – phony papers, no papers, whatever. You live in one of the 14 states that expressly allow workers’ compensation coverage for unauthorized immigrants. There are another 24 where coverage is allowed in practice, but not expressly allowed in the statute. And, every once in a while some state legislature will try to expressly exclude you and all the others. But those attempts are always beaten back by, of all things, the business community, because adopting a law like that might lead to unfair competition.

You’re married with three children, all born in the USA. You’ve been here for seven years, although two-thirds of all unauthorized immigrants have been here for at least a decade. You’ve never been in trouble. With anyone. You own a car, but no one will ever mistake it for a Tesla. It gets you around, though. It especially gets you to work.

Last week, you fell off a ladder at work and broke your leg. First time you’ve ever been hurt at work. A Supervisor took you to an Urgent Care Center where a doctor set your leg. Unfortunate, but you’re going to be out of work for eight weeks. Can’t be helped, but, because you live in one of the magical 14 states, you’ll get workers’ compensation.

Two days later the owner calls to tell you not to worry about anything. He says he wants to make things easier for you and the family. He thinks it would help if he gave you some cash to tide you over until the workers’ comp kicks in. Why not come into the office tomorrow at, say, 11:00, so he can do that? You’re grateful, and, in your broken English, you thank him and tell him you’ll be there.

Tomorrow comes. Eleven AM and you’re hobbling in the door to the office, broken leg and all, which is when the train comes off the rails. The owner’s not there, but ICE is. Immigration and Customs Enforcement, ICE, come to arrest you. And that’s what happens.

Two weeks later you and your broken leg are sitting in the county house of correction waiting to find out what will happen to you. You’re worried deep in your bones for your wife and three kids. Worried? No, you’re terrified. So, there you sit.

How’d that feel? Having a nice day, are we?

That story’s not fiction. It happened last week in Massachusetts. The man in whose shoes you were walking is 37-year-old Jose Flores who, with his wife Rosa Benitez, fled gang violence in Honduras seven years ago. Flores now has two lawyers, one for workers’ comp, the other for ICE. The lawyers know he’s entitled to workers’ compensation coverage, but wonder how he’ll collect it if he’s deported to Honduras. So far, the Iceman hasn’t come calling for Rosa Benitez, but that could change anytime. She and the kids are living in constant fear.

What about that owner who called ICE to come get Flores? He is Pedro Pirez. His company, Tara Construction, employs roughly ten people, and, so far, he has no comment about any of this. We do know one thing. On the day Flores fell off the ladder Tara Construction was not insured for workers’ compensation.

So, who’s committing the bigger fraud? Flores or Pirez? Something to think about.

 

Barack Obama, I Have A Bone To Pick With You

Monday, February 13th, 2017

Dear Mr. Former President,

I’m writing about the Patient Protection and Affordable Care Act, which you signed into law six years, ten months and twenty-one days ago. That’s 2,519 days. Nearly seven years. Didn’t take but about two hours to become ObamaCare.

The law has saved lives and money, a lot of both. It’s allowed nearly 20 million people to become insured, most of them poor. Those people were able to get that insurance because the law helped them pay for it. The Medicare Hospital Insurance Trust Fund, which in the year before the law’s passage was projected to run out of money right about NOW, is good for another 12 years as of today, according to Medicare’s actuaries as reported by the Kaiser Family Foundation.

No lifetime caps, no pre-existing condition denials, kids on the plan until age 26, free preventive care, donut hole gone, I could go on.

But you, sir, and your administration made a mess of what came after. Consider:

  • You did such a wonderful job of selling the ACA to the American public, that you got waxed in the 2010 mid-term elections. You lost the House big time, 63 seats, and also the super-majority in the Senate, six seats;
  • You had three and a half years to get Healthcare.gov ready, and what happened on 1 October 2013? A system crash that took months to fix. You were warned 18 times prior to scheduled launch that the project was mismanaged and in deep doo-doo, but your team did nothing;
  • You let a clever-as-a-fox, but dumb-as-a-doorpost former Governor of Alaska, of all places, get away with introducing Death Panels into the conversation, and to this day 29% of Americans still believe that lie;
  • You sat by and watched the House of Representatives vote 54 times to defund, delay or outright repeal the law you signed;
  • I could go on.

But it’s your failure to educate the American people and your failure to get down and fight for your signature legislation that bothers me the most. Maybe you should have demanded to get your cell phone back and taken to Twitter like the two-year-old who now sleeps in your used-to-be bedroom. Anything would have been better than the cerebral, thoughtful argument you brought to the battle. Right up there with the old knife to a gunfight thing.

And that is such a shame, because, sure, the law has flaws, but you could have fixed them if you’d been willing to approach the job like Lyndon Johnson, or even Harry Truman. But perhaps that kind of street fighting was beyond the Constitutional Lawyer, the Editor of the Harvard Law Review.

Obamacare had the potential, with a few tweaks here and there, to be a monumental achievement. Instead, it has had a tortured existence and may yet prove to be the only death panel victim.

But, wait. Hold on. Here’s a thought: It is looking more and more as if the Republicans, who now control all three branches of government (well, maybe not the Executive, after all) have become the dog that caught the bus. They do not appear to have a clue. For example, last Thursday the highly-respected Bob Laszewski wrote in his blog, “the repeal part is still on track to occur this spring, … likely in March.” But just the day before, the two-year-old with the Twitter account, who thrasonically said he’d repeal Obamacare on Day 1, told Bill O’Reilly we may not see any changes until sometime in 2018 (but they’ll be beautiful when they happen, really beautiful).

Here’s another thought: Maybe when the public actually begins to realize what it’s about to lose things will begin to change. Maybe when the 35% of Americans who still think Obamacare and the Affordable Care Act are different laws realize they are in danger of losing the Obamacare they hate as well as the Affordable Care Act they love, things will begin to change.

One can only “hope.”

Sincerely,

Tom

P.S. We miss you.