SCOTUS Strikes Another Blow Against Workers

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          The unanimous decision of the United States Supreme Court in the matter of Integrity Staffing Solutions, Inc. v. Busk, et al (No. 13-433, December 9, 2014) is further evidence that the alleged commitment of the American legal system to equal justice is little more than a sham and a platitude.



           The question before the court was whether the employees - warehouse workers who retrieved inventory and packaged it for shipment to Amazon customers - were entitled, as hourly, non-exempt  employees to be paid for time that they were required to undergo antitheft security screenings before they were allowed to leave the warehouse in which they worked each day.

          The record before the court showed that the class of employees who brought suit under the federal Fair Labor Standards Act of 1938  (FLSA) were routinely required to submit  to security inspections  and screenings that amounted to "roughly  25 minutes per day" after they had checked out but before they could go home. The employees alleged that the screenings were conducted "to prevent employee theft" and they were intended solely "for the benefit of the employers and their customers." The additional uncompensated time, based upon a five day work week, amounted to an additional 6.8 hours at the workplace each week.

             In proceedings below, the U.S. District Court for Nevada dismissed the complaint of the employees for a purported failure to state a claim under Fed. Rule Civ. Procedure 12. The court held that "the time spent waiting for and undergoing security screenings was not compensable under FLSA" because the employees could not show that the screenings were an indispensable and principal part of the activities that the employees were required to perform."

          The United States Court of Appeals for the Ninth Circuit reversed the district court's decision, finding that "postshift activities that would ordinarily be classified as noncompensable postliminary activities are nevertheless compensable as integral and indispensable to an employee's principle activities if postshift activities are necessary to the principal work performed and done for the benefit of the employer," as the record before the court showed.

             Inexcusably, the Obama administration - despite the consistent support that it has received from organized labor - supported the employer's appeal and urged that the decision of the Ninth Circuit Court of Appeals be reversed.

               Writing on behalf of court, Justice Thomas disagreed with the Court of Appeals. In an extensive and tortured exegesis of the language of the Portal-to-Portal amendments to the Fair Labor Standards Act that were passed by a Republican-controlled Congress in 1947 to exempt employers from liability for future claims for "activities which are preliminary to or postliminary to said activities or principles." Thomas insisted that question was the sole issue before the court.

             Not surprisingly, given his narrow definition of what he and the other eight judges agreed was the sole issue before the court, Thomas opined that "the security screenings at issue here are noncompensable postliminary activities" because "Integrity Staffing did not employ its workers to undergo screenings" and that the "screenings were not integral and indispensable"' to the employees' duties as warehouse workers.  Left unanswered were the obvious questions: What would have happened if the employees refused to wait for the screenings and insisted upon their right to go home immediately after they finished work? Would they still be employed the next day?

              The American legal system has long been a captive of the powerful, the wealthy and the well-connected, and almost uniformly hostile to unions and to the rights of workers. Throughout the nineteenth century most state courts treated labor unions and strikes as illegal conspiracies in restraint of trade.

             With the enactment of the National Labor Relations Act in 1935, the right of all workers "to organize and bargain collectively through representatives of their own choosing" was pronounced for the first time to be national public policy. Other New Deal legislation included the Walsh-Healey Government Contracts Act, which required the payment of prevailing wages on government contracts in excess of $10,000; the Railroad Retirement Act; and the Fair Labor Standards Act, which provided for the first time, with certain exceptions, a nationwide minimum wage floor and maximum workweek of 40 hours per week within three years of its enactment date.

             Since the 1940s, however, the American labor movement has been forced into retreat. After the death of Franklin Roosevelt and the election of a Republican Congress in 1946, the rights of workers have been continuously under siege. The first great success of New Deal critics was achieved with the enactment of the Taft-Hartley Act in 1947, an act that was passed over President Truman's veto. The effect of that legislation was to outlaw "closed shops" and to permit individual states to allow "open shops" - i.e. shops in which elected unions could not require all of the employees to belong to the unions, irrespective of whether the non-union employees also received and enjoyed the benefits of collective bargaining.

             As a result of that Taft-Hartley Act, corporations began an inevitable migration to the South where welcoming state legislatures hastily enacted "right-to-work" laws. The migration of these manufacturing companies away from the unionized urban centers of the Midwest and North left hundreds of mill towns impoverished and desolate, and the union movement was effectively eviscerated. Thereafter, it did not take long for the owners of corporations to discover that, once they had escaped from the threat of unionization, they could also escape almost all government regulation by moving their businesses and manufacturing operations out of the United States to low-wage countries in the Third World.

             Since the advent of the Reagan administration, the assault upon the rights of unions and employees has accelerated. The Democratic administrations of Bill Clinton and Barack Obama have been equally culpable as reflected in the former's support for NAFTA and the latter's endorsement of the proposed TransPacific Partnership Agreement. They, too, have been uncritical supporters of the myth that "free trade" is somehow a positive good for the economy, despite all of the evidence that shows that out-sourcing has been an unmitigated disaster for American workers and has created soaring trade deficits that converted the United States from an exporting country to a net importer increasingly dependent upon foreign goods.   

            Because of pervasive hostility to unions and the demise of organized labor as a movement, the American workplace is increasingly governed by the nineteenth century doctrine of employment-at-will. The doctrine of at-will employment is a legal fiction that was created by state courts during this country's first Gilded Age in an era. The doctrine repudiated the long-standing presumption set down by Blackstone in his Commentaries that any indefinite employment contract was for one year. Forty-nine states - with the exception of Montana (which has abolished at-will employment by statute) - still subscribe to that legal concept.

             The legal fiction of at-will employment essentially posits an equality of bargaining power between individual employers and employees: Each is free to accept or reject employment, resign or be fired without cause or restriction. However, since employers in "union-free" environments are legally permitted to unilaterally impose, almost without restriction, whatever conditions of work they require as to hours, compensation, and often restrictions on re-employment after discharge in the form of non-competition agreements, the relationship is most often one of inequality in which the employees are burdened and the employers benefited.

              The market-based paradigm upon which at-will employment is based continues to inform and control public policy decisions. It has also further exacerbated the increasing economic inequality, destroyed the livelihoods of American employees and made the American Dream to a cruel hoax for everyone except the1%.

             Historically, those nominated as justices to the Supreme Court, with precious few exceptions, have had little experience litigating cases on behalf of employees or fighting for the rights of the downtrodden. With one or two exceptions, this is true of the current court. In addition, as graduates of elite law schools, with successful prior careers in the private and public sectors, Supreme Court justices have cultivated scores of influential and well-heeled friends and acquaintances over the years whose values they share. One also suspects that they have never forced to stand in a line to purchase concert tickets or have ever shopped at Wall-Mart. 

             For their efforts, the eight associate justices are paid $213,000 per annum; the chief justice receives a salary $223,500. The justices enjoy life tenure for good behavior; their pensions will never be lower than their exiting salary should they choose to retire; they enjoy the same generous healthcare available to all federal employees; they have opportunities to travel to all judicial districts throughout the United States and its overseas territories at taxpayer expense; and they enjoy a minimum of 3 full months of vacation each year. For those reasons, the chasm between the nine judges in the court and the hard-scrabble hourly employees who toil for Amazon in its warehouses is vast, but is it asking too much to expect a little empathy? 

              Sadly, the unanimous decision of the United States Supreme Court in this case is further evidence that all nine of the judges are tone deaf, oblivious to the existence of economic and legal inequality, and unable to articulate a vision of justice that does more than comfort the already comfortable and afflict the already sorely afflicted. 

             Merry Christmas from the Supreme Court. 


Thanksgiving and Immigration

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In 1863, President Abraham Lincoln issued a proclamation for the first national celebration of Thanksgiving. Over the years, Thanksgiving has increasingly become a time for families and friends to gather together and to collectively express their gratitude for the friendships that they enjoy and the bounties that they have received. This year's Thanksgiving presents a special challenge to us as citizens and as human beings because it raises two important question that each of us should answer: who precisely are our neighbors and should they be given a place at our collective table?


           courtesy of the New Yorker magazine

            The current debate - or rather hysteria - over immigration and President's Obama's administrative decisions concerning undocumented aliens illustrates how profoundly divisive the issue remains.


          House Speaker John Boehner accused President Obama of ignoring the will of the American people and opined," President Obama has cemented his legacy of lawlessness and squandered what little credibility he had left." Rep. Mo Brooks ( R, AL) said there is a federal statute that made it a felony to aid, abet, or entice a foreigner to illegally enter the U.S.  "At some point, you have to evaluate whether the president's conduct aids or abets, encourages, or entices foreigners to unlawfully cross into the United States of America," and he added,  "That has a five-year in-jail penalty associated with it."         


        Not to be outdone, Oklahoma Senator Tom Coburn insisted, "The country's going to go nuts," he predicted, "because they're going to see it as a move outside the authority of the president and it's going to be a very serious situation." "You're going to see -- hopefully not -- but you could see instances of anarchy ... You could see violence."  Senator Ted Cruz urged congressional Republicans to fight back against President Barack Obama's executive action on immigration, by refusing to confirm the president's nominees until he reverses course.  "If the president announces executive amnesty, the new Senate majority leader who takes over in January should announce that the 114th Congress will not confirm a single nominee -- executive or judicial -- outside of vital national security positions, so long as the illegal amnesty persists," Cruz wrote in a recent Politico Magazine op-ed.


            Once upon a time every American school child could recite from memory Emma Lazarus's poem, "The New Colossus:"

               Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
"Keep ancient lands, your storied pomp!" cries she
With silent lips. "Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!

 Although her words restated the official American mythology, the reality has always been quite different.                   

            From the very beginning, the earliest English settlers - Pilgrims and Puritans- waged war against the aboriginal population and appropriated the lands that the Indians had always believed that the "Great Spirit" had given to all men in common. Early Colonial legislation restricted the rights of Catholics, Jews, Quakers and dissenters to express their religious convictions and were intended to make them feel unwelcome. 


       In the 1840s, the Native American Party - the Know-Nothings -  emerged in the Northeastern United States in response to a climate of intolerance and fear that had been preceded by the burning and sacking of an Ursuline convent in Charlestown, Massachusetts in 1834, and by frequent attacks upon Irish and other Catholic immigrants. The Chinese Exclusion Act was a United States federal law signed by President Chester A. Arthur on May 6, 1882prohibited all immigration of Chinese laborers. Although the legislation was intended to last for 10 only years, it was renewed in 1892, made permanent in 1902, and was only finally repealed in 1943.


            Still later, the Immigration Act of 1924 limited the annual number of immigrants who could be admitted from any country to 2% of the number of people from that country who were already living in the United States in 1890, which was reduced from a 3% cap set by the  prior Immigration Restriction Act of 1921, according to the Census of 1890. The law was enacted to restrict the immigration of Southern Europeans, Eastern Europeans, and Jews. In addition, it restricted the immigration of Africans and prohibited the immigration of Arabs, East Asians, and Indians. According to the U.S. Department of State Office of the Historian, the purpose of the act was "to preserve the ideal of American homogeneity."

             Depending upon whose statistics one wishes to accept, before the financial meltdown that began in 2008, there were anywhere from 12 million to 20 million illegal immigrants present in the United States. Although these individuals violated American immigration law, their crimes were compounded by the thousands upon thousands of American employers who illegally employed and exploited them while feigning ignorance of their status as ineligible employees.

            There are at least three proposals that would reduce the influx of illegal immigrants into the U.S., enabled those who have met all immigration criteria to quickly receive green cards, and enable this country to control its borders without thousands of additional border patrol agents, a even more militarized border, and the expenditure of billions of additional dollars of taxpayer money.  


         First, current federal laws require that prospective employees present proof of citizenship or show that they are lawful alien residents. However, the fear of government control along with purported concerns about privacy and individual rights by privacy absolutists on the right and left have stymied the adoption of a very simple mechanism to ascertain citizenship status and to control immigration--a national identification card, which virtually all policy analysts concede would be effective. As an additional benefit, a national identification card would also quickly resolve all of the political posturing about alleged illegal voting.


          By way of contrast, the European democracies - with the exception of the U.K., Denmark, Iceland, Ireland, Norway  - have all embraced the use of national ID cards with little difficulty or divisive political debate. In the United States, however, the debate focuses almost entirely upon concerns about alleged government intrusion and threats to privacy and individual liberty. Ironically,, the enormous and intrusive amount of personal financial information and data that Equifax, Transamerica and Expirian--three unelected, private, for-profit credit reporting agencies--currently compile and maintain on almost every American citizen barely elicits a critical comment.


           A second simple legislative fix would be to require all employees to use the U.S. Department of Labor's E-Verify Program to ascertain the status of all recent immigrants.  Sadly, however, this proposal is rejected by so many business owners who would no longer be able to employ - and exploit - undocumented aliens and claim ignorance as to their status.

             A third proposal - that might assuage concerns about continued out-sourcing by multi-national corporations - would be to restrict the number of H1B visas granted to foreign workers. Contrary to the claims of many IT executives, for example, there is no shortage of educated Americans able to perform IT jobs. Rather, there is an unwillingness by corporations in the Silicon Valley to pay competitive wages. Why should they need to, when H1B visas provide an endless supply of cheap, unquestioning workers whose legal status is little better than indentured servants?  


            The endless whining about a purported lack of skilled workers in the U.S. is a brazen effort to rewrite economic history and persuade a gullible public and policy-makers to ignore the fact that the jobs of 162,000 U.S. architects and engineers were shipped to third-world counties between 2000 and 2009, according to Bureau of Labor Statistics; and the 180,000 computer IT and programming professionals who, according to Yale University's Jacob Hacker, lost their jobs between 2000 and 2004. Where documented needs can be shown to actually exist, offering immediate green cards and eventual citizenship to educated aliens with identifiable skills that are in short-supply would benefit the long-term interests of the country, rather than the short-term interests of some employers.       

          Pervasive economic insecurity, stagnant wages, fear of the unknown and, yes, racism have all stocked the flames of resentment and made a rational debate about immigration infinitely more difficult. However, if this is a season to give thanks, it is also a time in which each of us should reflect upon the struggles and tribulations of our forebears. Whether they came her freely, in shackles on galley ships, or were dispatched by covetous landlords and consigned to the steerage of a ship, after great perseverance, they were able to carve out a life in this New World and improve the lives of their descendants.



Veterans Day, 2014

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        On this Veterans Day, it is important to honor all of our veterans for their service and sacrifices. Many young people will not know that, prior to World War II, this day was called Armistice Day - in honor of the "war to end all wars" - World War I. Obviously, that designation was a misnomer.



           As we sit in our comfortable offices and homes today, we should also reflect upon the terrible toll that wars inflict upon a country and its citizens. Since the founding of this Republic, more than 1,300,000 military have perished in all of the wars, here and abroad, in which this country has been involved.  In addition, the lives of the loved ones and those who have been left behind have been forever profoundly diminished and saddened.


        Since the events of September 11, 2001, this country has been continuously involved in two major misbegotten foreign adventures and a series of other counter-productive and disasterous incursions in the Middle East in which we are viewed as the invaders and in which we had little prospect of  achieving "favorable outcomes." In addition to the 6700 military whose lives were lost, thousands more have been physically injured or traumatized, and hundreds of thousands of innocents in Iraq and Afghanistan have been killed and maimed.


      When all of the accounts have been tallied and reconciled,the U.S. wars in Afghanistan and Iraq will cost taxpayers $4 trillion to $6 trillion, including medical care for wounded veterans and expensive repairs to a military depleted by more than a decade of fighting, according to a study by a Harvard University professor Linda J. Bilmes, in a report that was released in March of 2013.


    According to a another recent report prepared by the Peter G. Peterson Foundation, the United States today spends more on defense than the next 8 countries combined. "Defense spending accounts for about 20 percent of all federal spending - nearly as much as Social Security, or the combined spending for Medicare and Medicaid. The sheer size of the defense budget suggests that it should be part of any serious effort to address America's long-term fiscal challenges." The report quotes Admiral Mike Mullen, the past Chairman of the Joint Chiefs of Staff, "The single greatest threat to our national security is our debt."


        As of August 2013, despite the putative end of U.S. involvement in Iraq and the winding down of the of U.S. military presence in Afghanistan, there were approximately 1.43 million active-duty military personnel on duty in the armed forces of the U.S. States and more than 850,000 in the active duty reserves of all branches.


      For the fiscal year 2015, the U.S. Department of Defense and military-related budget is $756.4 billion. That sum includes $495.6 billion for the base budget of the Department of Defense; $85.4 billion for Overseas Contingency Funds for the wind-down of the War in Afghanistan;  $175.4 billion for defense-related agencies and functions; $65.3 for the Veterans Administration ; $42.6 billion for the State Department; 38.2 billion for  Homeland Security; $17.6 billion for FBI and Cybersecurity in the Department of Justice; and $11.7 billion for the National Nuclear Security Administration in the Department of Energy. Because of the newly announced initiative to confront ISIL, that estimate is likely to be far too conservative.


        Further, a recent "Base Structure Report" of the Department of Defense stated that "the Department's physical assets consist of As one of the Federal government's larger holders of real estate, the DOD manages a global real property portfolio hat consists of more than 557,000facilities (buildings, structures, and linear structures), located on over 5,000 sites worldwide and covering over 27.7 million acres." Most of these locations listed are within the continental United States, but 96 of them are located in U.S. territories around the globe, and 702  are situated in foreign countries.


           Currently also, the United States has active duty personnel stationed in more than 150 countries. While many of these deployments involve assignments to American embassies and special training projects overseas, the presence of U.S. active duty military personnel throughout Europe, and in Japan and Korea remains significant, sixty-nine years after the end of World War II in Europe and sixty-one years after an armistice was declared in Korea. 


    More than 100,000 active-duty American military are presently assigned to these three regions, the cost of which is still largely borne by U.S. taxpayers. Because of the U.S. military shield,  the European countries, especially Germany, and Japan and South Korea have been able to invest in the modernization of their manufacturing sectors and to increase the number of their exports to the United States at a time when American manufacturing has been increasingly out-sourced to third world countries. Japan and Korea, in particular, have adopted onerous, restrictive trade policies that make it almost impossible for American automobile companies and heavy equipment manufacturers to compete successfully in those countries.


        Since conscription was ended as a result of the Vietnam War protests, and the idea of an "all-volunteer" military gained enthusiastic favor among military planners and defense contractors, ever fewer Americans have been forced to decide, from a very personal perspective, their support for foreign military adventures.

As our professional officer corps has increasingly become composed of the children of previous officers, and the ranks of enlisted troops increasingly beckon to men and women to whom our country has extended few other options, the concept of the citizen-soldier has receded from the consciousness of most Americans. "Out-of-sight" has become "out-of-mind." For that reason, President Eisenhower's prophetic warning about the growth of the military-industrial complex has metamorphosed into our collective nightmare and has become a detriment to our ability to address urgent domestic needs.  


         War exacts a terrible toll on its perpetrators as well as its victims. We are all diminished as citizens and as human beings because of our indifference in the face of such horror. The best pledge that we can make to one another on this Veterans Day is to demand an end to our "welfare through-warfare" economy. We need to bring our troops home and support international institutions that will promote ways to create a more peaceful future for all of God's creation.

Spec 4 Paul Nevins, conscript                                                  

United Sates Army, 1968-1970


Should Politics and the Marketplace Trump Public Health?

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    The current Ebola crisis raises profound questions about whether the public health system of the U.S. and our political institutions are equipped to cope with contagious diseases and related, potential health emergencies. The answers to these questions are likely to become more pressing in the wake of global climate change and the significant ecological changes and population shifts that are likely to occur as a result, along with the migration of new and dangerous pathogens. The existing evidence is not reassuring.

    First of all, our public health system is hopelessly fragmented. Because the federal system of the U.S. is based upon vertical and horizontal distributions of power, the responsibility  for public health in the United States, under the Tenth Amendment to the U.S. Constitution, has been delegated to state and local government, many of which have inefficient and inadequately trained personnel who are ill-equipped to deal with pandemics and other medical emergencies that are not local in origin but that require a coordinated national or international response.

     Larry Copeland, reporting for USA Today ("U.S. lacks a single standard for Ebola esponse," October 13, 2014) asked the question "Who is in charge of the response to Ebola?" Copeland was reminded by Michael Osterholm, the director of the Center for Infectious Disease Research and Policy at the University of Minnesota, that "One of the things we have to understand is the federal, state and local public health relationships. Public health is inherently a state issue. The state really is in charge of public health at the state and local level. It's a constitutional issue. The CDC can't just walk in on these cases. They have to be invited in."

    Copeland noted that the Emergency Operations Center which was set up to address the Ebola outbreak at Texas Health Presbyterian Hospital was comprised of officials from Dallas County, the city of Dallas, the Center for Disease Control, as well as county and state health departments and the Dallas County Sheriff's Department and that "This was the team that made decisions on matters such as isolating people who had been in direct contact with Duncan, including his fiancée, Louise Troh, her teenage son and two other male relatives."

     Robert Murphy, director of the Center for Global Health at Northwestern University's Feinberg School of Medicine, expressed his opinion to Copeland, "In Texas, they really were slow to the plate. Texas is going to be the example of what not to do. The question is, who's in charge?" Murphy stated. "The states can follow all the guidelines and take the advice, which they usually do, but they don't have to. It's not a legal requirement. So there really is no one entity that's controlling things."

     Secondly, the public health system in the U.S. is severely underfunded. In large part, this is because of austerity measures insisted upon by the GOP's Congressional caucus and their ideological antipathy to government in general. Joan McCarter expressed an opinion in the Daily Kos ("Republican budget cutting nearly halved CDC's emergency preparedness since 2006", October 16, 2014)  that "The Republican fetish with starving government has helped land West Africa in an Ebola crisis. The director of the National Institutes of Health made that clear when he told Huffington Post that steep budget cuts by Congress has set back the institute's work on both prevention and treatment for the disease and that if it hadn't been for a decade's worth of cuts, "we probably would have had a vaccine in time for this that would've gone through clinical trials and would have been ready."

    McCarter reported that the emergency preparedness budget of the Center for Disease Control had been cut almost in half during the past seven years. The CDC's discretionary funding was reduced by $585 million during the 2010-2104 fiscal years, and  the annual funding for the CDC's public health preparedness and response efforts were $1 billion lower in 2013 fiscal year than in fiscal year 2002. As a result of these ill-considered measures, the funding decreases resulted in the loss of more than 45,700 job in state and local health departments during the past six years.

    Third, partisan politics has exacerbated the response to Ebola. Intense opposition from the National Rifle Association caused GOP Senators and "pro-gun" Democratic Senators to put an indefinite hold on a vote to approve the appointment of Dr. Vivek Murthy as President Obama's nominee for surgeon general. For that reason, the United States lacks a  recognized medical spokesman with the gravitas necessary to assuage public concerns and to provide accurate and unbiased medical information.

    GOP politicians and professional right-wing fear mongers  - who thrive in the current environment of scientific illiteracy and denial  - have also enthusiastically stoked the flames of public hysteria. Rebecca Kaplan of CBS News (October 15, 2014 ) reported that New Hampshire Senate candidate Scott Brown became the most recent Republican to claim that a "porous" southern border could cause to Ebola-stricken immigrants or terrorists to spread the disease from Mexico into the United States. Not to be outdone, Texas Congressman Louie Gohmert, a certifiable lunatic, lambasted President Barack Obama for dispatching troops to Africa to fight an Ebola outbreak, and he prophesied that they would bring the disease back to infect American citizens.

     Further, as public anxiety has risen, a number of  GOP legislators willingly sacrificed ideological consistency for political expediency. House Speaker John Boehner issued a statement that called for "a temporary ban on travel to the United States from countries afflicted with the virus is something that the president should absolutely consider."

    Meredith Shiner, writing in Yahoo News ("GOP senators who opposed Obama 'czars' now want one for Ebola" October 15, 2014), observed the irony that "Republican Senator Jerry Moran of Kansas was one of the first lawmakers to call on the Obama administration to appoint a czar to help coordinate the U.S. response to the Ebola crisis in Africa, along with a cluster of cases at home. The problem? Almost five years earlier to the day, Moran introduced legislation urging Obama to cease the practice of appointing czars. Moran, who was then a congressman running for the U.S. Senate, also sponsored a bill that would prohibit the federal government from using taxpayer money to pay the salaries of such unconfirmed administration officials -- which would have effectively ended the practice of appointing them."

    Fourth, there is ample evidence that this country's reliance upon a largely private hospital system and private medical insurance, driven as they are by cost-considerations and bottom-line accounting concerns, are not conducive to best medical practices. The Associated Press reported on October 15, 2014 that Thomas E. Duncan, the Liberian Ebola patient, was not placed in isolation after his second visit to the emergency room at Texas Health Presbyterian Hospital, but was allowed to remain in an open area of a Dallas emergency room for hours, while the nurses who treated treating him for days were not  provided with proper protective gear and faced constantly changing protocols, according to a statement released by the country's largest U.S. nurses' union.

     Deborah Burger of National Nurses United said that she had received complaints that nurses at the hospital who said they were forced to use medical tape to secure openings over their flimsy garments, and they and were concerned because their necks and heads were exposed as they cared for a patient with explosive diarrhea and projectile vomiting. The nurses also alleged that other patients who may have been exposed to Duncan were kept in isolation only for a day before being moved to areas where there were other patients; that the nurses treating Duncan simultaneously cared for other patients in the hospital; that, other than one optional seminar for staff, there was no preparation for Ebola at the hospital; and that, in the face of constantly shifting guidelines, nurses were allowed to follow whichever ones they chose. Ms. Burger concluded, "There was no advance preparedness on what to do with the patient, there was no protocol, there was no system."

    Other news reports stated that, when a nurse supervisor insisted that Duncan be removed to a isolation unit, a hospital administrator challenged her decision.

    One suspects that a subsequent post-mortem will show that, despite the hospital's tax-exempt status and its putative obligation as a charity to give back to the community, Duncan was refused admission the first time that he reported to the hospital because he did not have health insurance, and that the reluctance of the hospital to place Duncan in an isolation unit and to assign specialty nurses to him was also driven by cost considerations.

    The Word Bank reports that, as of 2012, the United States spent 17.9% of its GDP on a health care system that still excludes millions of Americans because of the premiums assessed by profit-driven insurance companies.  These uninsured Americans are among the most vulnerable in the event of an epidemic because they lack access to primary care physicians and preventive medical treatment, and they are the least likely to receive immediate treatment for contagious diseases.

     By contrast, the French medical system - which is viewed as the best in the world - consumes only 11.7 % of that country's GDP. Canada - which has a single-payer system - spent 10.9% of its GDP on health care in 2012, while the U.K. and Spain - both of which have socialized, single-provider systems - devoted 9.4% and 9.6% respectively of their GAPS to provide free and accessible health care for all of their citizens.

    Further anecdotal evidence that suggests that high costs do not guarantee good outcomes is provided by Kevin Sack of the New York Times ("Downfall for Hospital Where Ebola Spread," Oct. 15, 2014). He reports that the most recent 2012 tax filings for Texas Health Presbyterian Hospital revealed that the hospital received $613 million in revenue and had $1.1 billion in net assets. Further, the president of the hospital at the time was paid $1.1 million.

    In his important book, What Money Can't Buy, Harvard Government Professor Michael Sandel warns that the values of the market place are continuing to encroach upon and are displacing all other values and measures of worth in our society. If everything and everyone is for sale to highest bidder, and money is the sole arbiter, justice, decency, compassion, empathy and what we owe to one another as fellow human beings become casualties of the marketplace.  

      Lastly, our culture apotheosizes individualism, as David Brooks grudgingly notes in the New York Times ("The Quality of Fear," October 21, 2014). That pervasive worldview  - which provides the ideological rationale for our federal system of limited, largely unaccountable and increasingly gridlocked political institutions as well as for market capitalism  - increases social isolation and fuels suspicions of government, of science and in our capacity to cooperate to address common concerns.

    Erich Fromm observed in Escape From Freedom that, "Once the primary bonds which gave security to the individual are severed, once the individual faces the world outside of himself as a completely separate entity, two courses are open to him since he has to overcome the unbearable stage of powerlessness and aloneness. By one course he can progress to 'positive freedom;' he can relate himself spontaneously to the world in love and work...he can thus become one again with man, nature and himself, without giving up the independence and integrity of his individual self. The other course is to fall back, to give up his freedom, to try to overcome his aloneness by trying to eliminate the gap which has arisen between his individual self and the world."

    Sadly, it appears that far too many Americans today are increasingly willing to surrender their true autonomy and sense of confidence to irrational fears, and to permit non-elected, private, and, more often than not, profit-driven entities to make decisions on their behalf to our collective detriment.

Netanyahu's Settler Policy Perverts U.S. Values

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           Is it in best interests of the United States to continue to arm and bankroll Israel with billions of dollars of taxpayer money, while Israel pursues policies that are inimical to the  peace process in the Middle East and, if unchecked, will inevitably draw the U.S. into further conflicts in that region?  


             On Oct. 1, 2014, President Barack Obama met with Israeli Prime Minister Benjamin Netanyahu in the Oval Office of the White House in Washington.  The meeting followed on the heels of Israel's announcement that its government had approved the building of 2,610 new housing units in East Jerusalem for Jewish settlers. The Israeli announcement had been criticized by the Obama administration's spokesman Josh Earnest who warned that the move would "distance Israel from even its closest allies."


            The morning before Netanyahu's scheduled meeting with President Obama, the Associated Press reported that Arab residents of Silwan neighborhood of East Jerusalem awakened to find that Israeli security guards and young male volunteers were protecting 25 apartment units in their hard-scrabble neighborhood and in an adjacent area. The surreptitious  purchase of those units represented the largest incursion by settlers since since rightwing Israeli Jews began to buy properties through straws in that overwhelmingly Arab neighborhood  two decades ago.

             The organization that orchestrated the purchases of those units, the Elad Foundation, described the acquisitions as perfectly legal and said it had settled hundreds of Israeli Jews among an estimated Arab population estimated of 30,000 in an area it calls the City of David - a place where Jewish tradition holds King David established Jerusalem as Judaism's central holy city.  Consistent with the President Obama's foreign policy objectives, Josh Earnest also condemned the occupation of the properties "by individuals who are associated with an organization whose agenda, by definition, stokes tensions between Israelis and Palestinians."


          During his meeting at the White House, Netanyahu guardedly expressed his support for a two-state solution and the establishment of a Palestinian state at some future date, a commitment that he had studiously avoided making at his UN General Assembly speech earlier. "I remain committed to the vision of peace for two states for two peoples based on mutual recognition and rock solid security arrangements. We should make use of the new opportunities think outside of the box and see how we can include the Arab countries to advance this very hopeful agenda," Netanyahu declared.  


            During that meeting, as reported by the Israeli media and the Islam Times, Netanyahu  expressed annoyance with the Obama's administration's criticisms of his support for the expansion  of settlers into Abab neighborhoods in East Jerusalem and in the West Bank after he had once again presented the President Obama with a two fait accompli that would only further stock the indignation of the Israeli Arab and Palestinian populations and render a two state solution as virtually impossible. Public radio quoted the ever petulant Netanyahu as urging US President Barack Obama to "study the facts and details before making statements" about the settlement plan.


           In an interview on "Face The Nation" the following day, Netanyahu characterized the administration's continued criticism of his party's support for settler expansion as "baffling" and as "against the American values." And it doesn't bode well for peace," he contended. "The idea that we'd have this ethnic purification as a condition for peace, I think it's anti-peace."


            Ever since the 1967 Six-Day war, Israeli settlements have continued to expand throughout the West Bank, into East Jerusalem, and in the Golan Heights that was seized from Syria despite. These expansions have continued, notwithstanding condemnation by the United Nations which has repeatedly stated that Israel's construction of settlements constitutes a violation of the Fourth Geneva Convention. The International Court of Justice has also stated in a 2004 advisory opinion that these settlements are illegal and, in April 2012, UN secretary general Ban Ki-Moon emphasized that the illegal expansion of the settlers in the occupied territories "runs contrary to Israel's obligations under the Road Map and repeated Quartet calls for the parties to refrain from provocations."


            Within  Israel, the settlers -  with the support of religious and secular rightwing nationalists - are determined to "reclaim" all of  "Greater Israel" - i.e. the lands of ancient Judea and Samaria that they claim Yahweh granted to them in perpetuity. The fact that many of these rightwing zealots may have recently immigrated to Israel from Brooklyn or Odessa, or that Christians and Muslims have populated the lands of greater Israel for more the past 1900 years are irrelevant to these religious fanatics.


       The continued expansion of the settler movement and the  intransigence of Prime Minister Netanyahu and his coalition government would be impossible were it not for the largely uncritical  support that Israel has enjoyed from the U.S. political establishment - including every presidential  administration since Harry Truman and an overwhelming majority of past and present U.S. Senators and Representatives. Beating the drums for the Israeli lobby are prominent mainstream Jewish organizations such as American Israel Public Affairs Committee (AIPAC), as well as various evangelical Protestant organizations such as Christians United for Israel, and rightwing billionaires such as Sheldon Adelson.

             As a result of the efforts of the Israeli lobby in the U.S., and a timid political elite who are fearful of criticizing the policies of the current Israeli government lest they be accused of ant-Semitism, Israel has received more than 130 billion dollars of U.S. assistance since its founding. Today, Israel has a GDP of over $130 billion yet the U.S. continues to pay for 23-25% of Israel's military budget annually.


            President Obama's criticism of the settler encroachments in East Jerusalem and throughout the West Bank do reflect the best of American values. Sadly, the kind of territorial expansion that Prime Minister Netanyahu and his extremist government endorse are, in fact, the antithesis: They are reminiscent of the worst of this country's past  - when this country's westward expansion was justified on the basis of an equally messianic fantasy that went by the name of Manifest Destiny.  It led to the virtual extermination of the indigenous aboriginal population.


        The difference today is that, while the Indians lacked firepower and modern technology, Israel, the Arab countries of the Middle East and Iran could easily ignite that region and the world in a conflagration from which there will be no opportunity to offer subsequent mea culpas.  



A Coalition of the Unwilling

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        Rod Normand reports from Kabul in the New York Times, that in his farewell speech, Hamid Karzai of Afghanistan stated that "America does not want peace in Afghanistan, because it had its own agendas and goals here." Karzai continued "I have always said this: that if America and Pakistan want peace, it is possible to bring peace to Afghanistan."


        In a previous story in the Times, Thomas Erdbrink ("For Many Iranians, the 'Evidence' Is Clear: ISIS Is an American Invention," Sept 10, 2014) reported from Tehran that "Iranians are as obsessed as Americans these days with the black-clad gangs roaming Iraq and Syria and killing Shiites and other 'infidels' in the name of Sunni Islam. At the supermarket, in a shared taxi or at a family gathering, conversations often turn to the mysterious group, the Islamic State in Iraq and Syria, and how it came to be. And for most Iranians, the answer is obvious: the United States."


   In the Boston Globe, Brian Bender reports ("Stolen US-made equipment a key focus in ISIS fight") that "Over the past six weeks, US warplanes destroyed at least three dozen US-made Humvees that were by stolen by the Islamic State. Earlier this week, Islamic State forces used Humvees to overrun an Iraqi army post."  Bender further reported that "The Islamic State's reliance on American-made equipment has highlighted concerns about plans to supply $500 million in high-tech weapons to the rebels known as the Free Syrian Army. Congress approved the plan but the majority of the Massachusetts delegation opposed it, with some basing their opposition partly on concerns about where the arms may end up."

        The hallucinations of President Karzai, those of many Iranians, and the U.S.'s inadvertent arming of ISIS depict the magnitude of the challenge that this country and its tax-payers have permitted President Obama to commit us to, without informed discussion or debate.  If history is any kind of a guide, the president's attempts to cobble together an alliance that would somehow bring peace and order to a disorderly part of the world will prove to be naive and unlikely to succeed. 

        The  Arab allies upon whom president Obama must depend - Saudi Arabia, Qatar, the U.A.E., Egypt, Jordan, and Iraq as well as the non-Arab Turks - are riven by conflicting tribal loyalties, increasing hostilities between Sunni and Shia Muslims, and festering grievances against the West and its secular democracies that date back centuries.  Among the historic grievances that many Muslims and jihadists often invoke are the Crusades and the sacking of Jerusalem in 1099, the expulsion of the Moors from Spain in 1492, the battle of Lepanto in 1571, the Treaty of Karlowitz in 1699, and the colonization of the Levant, Palestine, Egypt, Algeria, Morocco by the French and British in the 19th and early part of the 20th centuries.

         Since the collapse of the Ottoman Empire at the end of World War I, the rise of autocratic governments, pervasive economic backwardness, illiteracy and intense anger spawned by the emergence of the State of Israel - exacerbated by Israel's mistreatment of its own Arab citizens and the Palestinian population in its occupied territories - have created an unstable region in which the grudging acceptance of other religious faitrhs has all but disappeared. With the demise of the Ottoman Caliphate, during the past seventy years the Middle East has become virtually depopulated of Catholic, Orthodox and Nestorian Christians, while the few who remain endure constant discrimination and persecution. Sadly, the Middle East - which was the birthplace of Christianity - has become hostile to the adherents of a major religion whose presence there predated Islam by more than six centuries.

         Today in the Middle East the rise of Islamic fundamentalism, fueled by fanatics as exemplified by ISIS, has made the Middle East even more unstable. Islam's insistence that it alone has an exclusive claim to the Truth - a Truth is derived entirely from the Qur'an which is accepted as the unmediated word of the living God - has made the instability even more intractable. 

         Islam does not present a challenge to the Western world as a political philosophy. Rather, it represents a challenge posed by a set of religious dogmas that have been hijacked by Wahhabis and other fundamentalists whom Saudi Arabia's theocrats have continued to support through their funding of madrassas throughout the Muslim world. 

        The religious extremists who have been brain-washed by the madrassas insist upon interpreting the Qur'an as a rigid and unforgiving set of religious commands. Their fanaticism has widened the chasm that separates Western secular democracies from much of the Muslim world, imposed insuperable obstacles that impede the development of civil societies and their institutions, and constrained critical economic development.Their demand that truly observant Muslims must focus upon the next life rather than the present condemns millions of Muslims to lives of penury and misery, and left many with only rage and a false sense of victimization to sustain them.

         Absent the equivalent of the Protestant Reformation - or the Thirty Years War followed by an edict of toleration such as in the Peace of Westphalia - Muslims throughout the Middle East are not likely to embrace the idea of toleration, as a central social concept, anytime soon.Until a new generation of Arab leaders emerge who are willing endorse the idea of religious toleration unequivocally and to also acknowledge the importance of other Western notions - e.g.  - that social change can best be achieved through political discussion, through the emergence of new ideas, and by the evolution of policies - the chasm between the West and Islam will remain wide and deep, and the Middle East will continue to be consumed by internecine conflicts.

      If ISIS and the multitude of other Muslim extremists are to be defeated, the Arab countries themselves - and not the U.S. or the other Western democracies - must rise to the challenge since they are the entities that are directly threatened. Their soldiers and theirs alone should provide any "boots on the ground" since the presence of Western "infidel" soldiers only serves to reinforce the false narrative of Muslim victimization by Crusaders. 

        For their part, the United States and the other Western democracies should show infinite patience, and they might consider collectively adopting a policy of containment and quarantine, coupled with limited, targeted strikes where and when needed. The expansion of the scope of air strikes against ISIS into Syria and the siren calls for more ground involvement by U.S. troops are counter-productive and inimical to this country's best interests.

        In the long run, overreaction, bluster and jingoism, a President who is too fearful to say no, a craven Congress, a supplicant media, and a profoundly uninformed public serve only to engorge the ever- expanding security-surveillance-military-industrial-welfare-through-warfare state and its beneficiaries to the detriment of urgent, unmet domestic needs.

     The United States has little capacity or credibility to create stability in a geographic region of the world where we are viewed as unwanted intruders by a majority of the Arab population. President Obama needs to be reminded that power brings with it the responsibility to exercise it wisely and appropriately, and that sometimes restraint is the most effective and prudent foreign policy.      

When Economists Become Theologians

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  The University of Paris economist Thomas Piketty has marshaled a wealth of impressive data in his book Capital in the 21st Century. From an historical  perspective, the data shows that the market-based economies in the Western World - save for the brief, unique period caused by the economic disruptions of two world wars - have spawned increasing economic inequality.

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        Piketty also predicts that, without vigorous public intervention in the marketplace - as the rate of return on investments continues to exceed the rate of economic growth - economic inequality will continue to accelerate. Not surprisingly, Piketty has been denounced on the right as a neo-Marxist or a dangerous social democrat because he has had the audacity to suggest, as a basic proposition of democratic governance, that economic policy should be subordinate to political policy.  

         Simultaneously, Piketty's colleague and collaborator at the London School of Economics, Gabriel Zucman, has reported in one of his many studies, Tax Evasion on Offshore Profits and Wealth, that U.S. corporations now declare 20%  of their profits in tax  havens - a  tenfold increase since the 1980s - and that tax avoidance policies have reduced corporate tax revenues by up to a third.  At the global level, Zucman argues that 8% of the world's personal financial wealth is now being held offshore, costing more than $200 bilion to governments annually and that decisions to shift to tax havens and offshore wealth havens are increasing.

        In the current economic debate, Piketty and Zucman - along with a few other prominent exceptions such as Paul Krugman and Joseph Stiglitz - remain the outliers in a profession that is overwhelmingly dominated by defenders of the status quo and conventional economic wisdom. One such pathetic example of the latter is Tyler Cowan, an economist at George Mason University.

        In an op ed piece in the Sunday edition of the New York Times last month "(All in All, a More Egalitarian World," July 20, 2014). Cowan enthusiastically cited a study which noted that, although economic inequality was rising in countries such as the U.S., "the economic surges of China, India and some other nations have been among the most egalitarian developments in history."


        Cowan piously concluded that "the true egalitarian should follow thee economist's inclination to seek

wealth-maximizing policies, and that means less worrying about inequality within the nation...

[C]apitalism and economic growth are continuing their historic roles as the greatest and most effective equalizers

the world has ever known."        


        In a prior book, Average is Over, Cowan extolled the rise of what he chronicles as the "big earners" in the emerging meritocracy that he foresees. He also argues that, rather than expand the safety net, governments should curtail spending.

        As an alternative and to maintain civic peace, Cowan suggests that local governments might offer engaging distractions to those whom he has identified in his Darwinian dystopia as the "big losers" and the "zero marginal product" workers. These "big losers" and "zero marginal product" workers presumably include the 162,000 U.S. architects and engineers whose jobs were shipped to third-world counties between 2000 and 2009, according to Bureau of Labor Statistics, and the 180,000 computer IT and programming professionals who, according to Yale Univesity's Jacob Hacker, lost their jobs between 2000 and 2004.

        Perhaps taking an unconscious cue from Aldous Huxley's Brave New World, Cowan proposes a palliative that he suggests would enable the 49% mooching class that Mitt Romney decried to live contented lives, albeit with reduced means and with substantially reduced expectations: "What if someone proposed that in a few parts of the United States, in warmer states, some city neighborhoods would be set aside for cheap living? We would build some 'tiny homes' [that]...might be about 400 square feet and cost in the range of $20,000 to $40,000. We would build some very modest dwellings there, as we used to build in the 1920s. We would also build some makeshift structures there, similar to the better dwellings you might find in a Rio de Janeiro favela.  The quality of the water and electrical standards might be low by American standards, but we could supplement the neighborhood with free municipal wireless..."  

        Cowan's paen to globalization and the onward march of capitalism blithely ignores the systematic, well-documented failures of the capitalist system he extols. His apologia offers small solace to the millions of Americans whose jobs have been lost to out-sourcing and the de-industrialization of the U.S.; his soothing entreaty that, in the long run, everything will work out nicely - some fine day - ignores Keynes's sage observation that "In the long run, we will all be dead."  One also suspects that Cowan would be less sanguine about the economic landscape he surveys if he were informed that his tenured  position at George Mason University were about to be converted into an adjunct faculty position.  


        The defenders of the classical market model of unbridled competition still refuse to concede that, left to their own devices, entrepreneurs and corporations inevitably engage in practices that have harmful consequences to the public. Their anti-regulatory biases are not diminished, despite the fact that their business activities are heavily subsidized by taxpayer money - e.g. roads, trains, airports, and intangible infrastructure such as public education, employee training, R&D, favorable tax policies, legal immunity for business entities, and protection for trade secrets and intellectual property.

         These guardians of the economic canon also continue to discount the evidence that shows that entrepreneurs and corporations know that, if they are unable to escape the ultimate consequences of their poor decisions - if all else fails - they will be allowed to screw their creditors, discharge their debts in bankruptcy, and re-emerge with a new corporate persona. The sole goal is to maximize profits to enrich themselves and their shareholders. Given a mind-set that sincerely believes that the pursuit of self-interest is somehow a public good, they and their economist defenders remain oblivious to the adverse effects of poverty, lack of health care, pollution, climate change and to basic principles of social justice.

         Ultimately, the entire process is self-defeating and creates a negative-sum game: As entrepreneurs seek to maximize their profits by paying the lowest possible costs for labor and materials, the middle class is hollowed out. As the income of the middle class contracts, aggregate demand is reduced. As domestic spending contracts, the purchase of goods and services contract. Without the intervention of the government into market economies, the buyers and sellers of goods and services become locked in mutually destructive death throes.

        All of the empirical evidence, Cowan and other apologists notwithstanding, suggests that out-sourcing, deregulation, austerity, the commitment to the myth of "free-trade," -i.e. "laissez-faire" in trade policies - and reduced government regulation have been major contributing factors to the loss of manufacturing, stagnating wages and the growing impoverishment of the former middle class.

        The net effect of current economic policies - sadly endorsed by Democrats as well as Republicans-  has been an extraordinary concentration of wealth and power into the hands of financiers and other moneyed interests who have become the winners in this game of  economic Russian roulette. As a result, the decisions and predilections of fewer and fewer individuals now determine the outcomes in the American economy, while the overwhelming majority of Americans have little ability to influence macro-economic trends or economic and political policies.

         In the 1950s, John Kenneth Galbraith bemoaned the existence of "private affluence and public squalor" in the America. The contrast has only grown worse in the subsequent decades. The disparity between the few who are wealthy and the many who are poor has widened alarmingly in the United States since the advent of the Reagan era and the kind of "trickle-down" economics to which he and his advisers subscribed.

        In his General Theory, Keynes observed that "the ideas of economists and philosophers, both when they are right and when they are wrong, are more powerful than commonly understood. Indeed, the world is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influences, are usually the salves of some defunct economist....But, soon or late, it is ideas, not vested interests which are dangerous for good or evil."

        Political and economic philosophies, unlike religious dogmas, are neither true nor false per se, irrespective of their competing attempts to comprehend and to explain the Truth about the human condition. Rather, these philosophies help us to define our understanding of ourselves as political beings - who we think we are, and what we think we can or cannot achieve as participants in the political process.  Paradoxically, through these political and economic philosophies, we simultaneously modify and recreate social reality  - "the shared field of meaning" - in which we participate.

        Equally important, because competing political and economic philosophies inevitably suggest specific policies, they have important, teleological consequences. For that reason, the consequences of any particular policy suggested by a particular political or economic philosophy can be observed, measured, and tracked.

        As such, the political, economic and ethical effects of the policies and programs can be scrutinized and evaluated. Policy makers and informed citizens then become able to determine whether the respective claims and promises of a particular political or economic concept should be implemented as public policy, and whether the effects will be beneficial or inimical to the health and vitality of the civil society.

        There are no easy solutions to the present economic malaise, but it is a serious mistake to confuse the purported "laws of economics"  with the laws of physics as so many do. Economic systems do not operate in a vacuum; and there is nothing inevitable about the continuation of economic trends. Economic systems and political systems are the products of human imagination and ideology as shaped by historical forces. 

        Because there is nothing inevitable about economic trends and developments, they can be countered by intelligent and carefully crafted monetary and fiscal policies as well as intelligent legislation. In extremis, even the "laws of economics" can be suspended by operation of law, as was required during World Wars I and II.  

        The classical liberal paradigm of the market economy has long since ceased to explain present day economic reality, but the intellectual chains of that received wisdom from long since dead economists continue to control the public narrative. Unfettered competition, based upon allegedly free market decisions made by solitary actors in which goods and services are sold to the most willing buyers, is a myth that does not create individual opportunity for most Americans, nor has it maximized business opportunities.

        Rather, the insecurities of the marketplace persuade those who are successful to institutionalize their advantages. Monopolies and plutocracy are the inevitable result and, as the Forbes 400 list shows, economic inequality becomes more pronounced.

        The critical need in today's politics is to restore the proper balance between the pursuit of wealth - as a purely private activity - and the public interest. In a democracy, citizens have the ability and the right to imagine and to demand new political, economic and social structures and arrangements that are rooted in a shared commitment to social justice and that also recognize the mutual obligations that we owe to one another as members of a political community. By law, policies can designed and imposed to protect the rights of workers to join unions, to create an industrial policy, to re-impose protective barriers and selective tariffs (just as China, South Korea and Japan now do), to enact a tax code that punishes out-sourcing and domestic disinvestment and provides incentives for job-creation and domestic reinvestment.

        Market economies are affected by the frailties and the foibles of human actors. Although many of these actors are motivated by selfish, short-sighted concerns, the consequences of their actions harm everyone else. It is for that reason that regulation in the public interest and investment in public goods by the government - as the agent of the people in a democracy - are essential antidotes to the temper the excesses of capitalism and to create the foundations for a truly just society.


The Brouhaha over Immigration and the Border

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         The current brouhaha over child refugees from Central America appearing at the U.S. Mexican border has spawned lots of invective and strident commentary but provided little in the way of insight.


             By way of background, shortly before he left office, on Dec. 23, 2008, George W. Bush signed into law the William Wilberforce Trafficking Victims Protection Reauthorization Act. The purpose of this bipartisan measure, named after a 19th century British abolitionist, was to extend and increase efforts to prevent and prosecute human trafficking and protect the victims of trafficking. The legislation contained numerous provisions that regulate the treatment of children, unaccompanied by adults, who present themselves at the U.S. border by the Department of Homeland Security.

             Under the law, the Customs and Border Patrol are required to turn undocumented children from Central America over to the Department of Health and Human Services within 72 hours. Because of the turmoil in Central America, the law mandates that HHS hold the refugees humanely until they can be released to a "suitable family member" in the United States. HHS is also required to ensure "to the greatest extent practicable" that these detained children "have counsel to represent them in legal proceedings " who could then explain to them how to apply for asylum or to find other ways to remain legally in the U.S.

              The complexities and difficulties of enforcing this law need to be viewed in the light of the overall immigration program in the U.S. which all sides concede is broken beyond redemption. Not surprisingly, this country's unwillingness to control its borders through sensible immigration policies - that could include an expanded guest-worker program, preferences for highly skilled foreigners, a mandatory E-Verify system for all employers and national identification cards similar to those issued in almost all of Western European democracies - provides fertile ground for the worst kind of xenophobia and anti-immigrant hysteria. 

            Never one to miss on opportunity to pander to the basest instincts of those people who find her appealing, on July 14, 2014, GOP Congresswoman Michele Bachmann complained to Van Jones on CNN's Crossfire that "since April, we've had an invasion of 300-500 thousand foreign nationals." After Jones pressed her about her use of the word "invasion," Bachmann chose to obfuscate with a classic non sequitur: "My heart is broken for a female college student in Minnesota who was raped, murdered and mutilated by a foreign national who came into our country," Bachmann stated in an effort to somehow link the surge of unaccompanied refugee children to increased crimes. "We had a school bus full of kids in Minnesota - four children were killed on that school bus because an illegal alien driving a van went into that school bus."

             To his credit, Van Jones challenged her. "There are lines that can't be crossed here. I'm sorry, congresswoman. Are you gonna scapegoat children for the crime of this despicable person?"  Bachmann, ever the demagogue, remained unabashed, "Don't scapegoat the American people. Van, don't scapegoat the American people right now who are losing jobs."

            A few weeks later, Rep. Bachmann - much like proverbial Senator John Yerkes Iselin in The Manchurian Candidate who announced, after examining the label on a bottle of Heinz Tomato Ketchup, that there were 57 card-carrying members of the Communist Party in the Department of Defense - conjured up an even more preposterous theory to explain the presence of so many unaccom-panied minors at the southern U.S. border.  On July 30, 2014, she appeared on "WallBuilders Live," a far-right radio program, and now claimed that the reason President Obama hasn't solved the refugee crisis at the U.S. southern border is because he wants to use the child refugees for "medical research." "President Obama is trying to bring all of those foreign nationals, those illegal aliens to the country and he has said that he will put them in the foster care system," Bachmann insisted.

              "[W]e can't imagine doing this, but if you have a hospital and they are going to get millions of dollars in government grants if they can conduct medical research on somebody, and a Ward of the state can't say 'no' - a little kid can't say 'no' if they're a ward of the state so here you could have this institution getting millions of dollars from our government to do medical experimentation and a kid can't even say 'no.' It's sick," Bachmann intoned.

             Rep. Bachmann is not the only politician who appears to have become unhinged by the contretemps over refugees. On July 16, 2014, Leslie Larson, a columnist for the New York Daily News, described an incident that occurred in Arizona. Adam Kwasman, a state legislator and Tea Party candidate for Congress, joined a demonstration of anti-immigrant protestors the day before on the road to Oracle, Arizona.

             The demonstrators were outraged of the prospect of migrant children being sent to a nearby shelter. Kwasman, reportedly disdainful of President Obama's efforts to address the border crisis, saw a yellow school bus approach and tweeted a picture with the caption, "This is not compassion. This is the abrogation of the rule of law." 

              Kwasman claimed that the children who were being bused to the shelter appeared to be sad and fearful.  "I was actually able to see some of the children in the buses. The fear on their faces," he told a local reporter after the incident, according to the Arizona Republic. The reporter then questioned him about what children he was referring to. "I saw a school bus with plenty of children on it, so I'm assuming that was the bus."  After the reporter pointed out the youngsters on the bus he saw were in fact local schoolchildren en route to a YMCA camp, Kwasman said, "They were sad too. I apologize, I didn't know. I was leaving when I saw them. So if that was a school bus - people are not happy down the line."

             A more disturbing incident was chronicled by Kate Taylor and Jeffrey Singer of the New York Times ("In Queens, Immigrants Clash With Residents of New Homeless Shelter," July 25, 2014). They reported that, in early June of this year, the City of New York began to move homeless families into a defunct hotel in Elmhurst, Queens. The city's decision prompted a series of protests, culminating in one on July 22, 2014 that drew approximately 500 people. The crowd was said to comprise, among others, grandmothers, small children, Chinese immigrants and the president of a local Republican club, all of whom complained that Mayor de Blasio had trampled upon their rights.

             The local residents expressed their fears about the presence of the new arrivals and cited rumors of shoplifting from a local supermarket and episodes of public urination and panhandling. These were the kind of antisocial acts that, the residents contended, had been unheard-of in their neighborhood until now. 

            During the protest that night, one of the organizers spoke through a bullhorn in Mandarin, as a few people looked out the windows of the hotel. "Speak in English!" a woman who was leaning out of a window was reported to have shouted, and held up her phone, possibly to videotape the protest. "Homeless with money" was the response of a protester to the woman with phone.

             Pathetically, because many of those opposed the use the hotel as a shelter in Elmhurst were recent Chinese immigrants, the conflict has pitted immigrant families and the mostly black and Latino homeless families against one another. Earlier, in late June, The Times' article reported, a local civic group organized a series of demonstrations in which some of the protesters were reported to have chanted at the shelter residents "Get a job. The homeless families retorted that the protesters should "go back to China."

             How does one explain the current vitriol and the hysteria?  At least part of the explanation can be traced back to the political ideas upon which the "American experiment" was created and the culture of individualism that it apotheosized.

             Historically, the emergence of liberalism as a political theory during the Protestant Reformation engrafted onto this unfolding political paradigm a permanent sense of anxiety and apprehension. Luther's insistence that personal salvation could be gained by one's one receptivity to the Word alone released the self from the bonds of obedience to the universal church and its magisterium, but the penalties for personal emancipation have, to the present, continued to exact a severe psychological toll. As Hobbes observed, the severance of man from nature - the natural order, natural law - estranged man and left him alone and afraid. Fear and a sense of personal isolation, and therefore personal vulnerability, in turn, can lead to panic and hysteria.

             With the gradual demise of the Great Chain of Being came also the demise of the imperium  - the traditional authority of the magistrate to bind his subjects and his power to command. Even the ascension of the Protestant William of Orange to the throne of England in 1689 was effectuated, not by the right of succession, but by an invitation from the Parliament.

            Thereafter, the power to command would depend upon the need to receive formal, legislative consent. While a significant advance for democracy, this political change was not without its downside: since political institutions were, in the view of John Locke and other liberal thinkers, of dubious legitimacy and should be allowed to exercise only limited, arbitral, transitory authority, it instilled within the corpus of the liberal consensus a sense of the fragility of social and public institutions. This has been especially true in the U.S. where many of the thirteen colonies and later the republic itself were explicitly created by acts of covenanting - contracts.

             As one unforeseen and unintended consequence, a toxic brew of fear, anxiety, vulnerability, and concern about the fragility, and hence, stability, of political and social institutions has contributed to the periodic eruptions of extremely ugly incidents in American politics that Louis Hartz in The Liberal Tradition in America described as "irrational Lockianism." The Salem Witch trials and the frequent preemptive forays into Indian territories by colonial settlers who feared Indian insurrections (which, in turn, lead to the extermination of countless numbers of the aborigines) were precursors to the kind of hysteria that gripped the newly-independent United States after the French Revolution. The XYZ and Citizen Genet affairs were the precipitants for the passage of the Alien and Sedition Acts in the administration of John Adams.

             Later, recurrent fears of slave insurrections in the first half of the nineteenth century prompted the enactment of ever-more punitive laws in the slave-holding states to punish "run-aways," abolitionists, and anyone who tried to educate the slaves. In the 1840s, the Native American Party - the Know-Nothings - emerged in the Northeastern United States in response to a climate of intolerance and fear that had been preceded by the burning and sacking of an Ursuline convent in Charlestown, Massachusetts in 1834, and by frequent attacks upon Irish and other Catholic immigrants.

             In the twentieth century, the imprisonment of war critics, such as the socialist Eugene Debbs during World War I, and the aggressive acts of Attorney General Palmer's "Red Raids" after the Bolshevik Revolution exemplified the kind of war frenzy and jingoism to which Americans have so often succumbed. Two decades later, after the isolationism espoused by Father Coughlin and the America First Committee proved to be delusional, the attack on Pearl Harbor made palatable the confinement of thousands of American citizens - citizens of Japanese ancestry on the West Coast of the United States were forced into internment camps, without trial or any evidence of personal guilt, for the duration of World War II.

             Justice Black's infamous decision in Korematsu v. United States, 321 U.S. 760 (1944), which excused this mass imprisonment, is stark evidence that has been confirmed on countless other occasions throughout American history of the refusal of the federal judiciary - as the designated arbiter of constitutional rights within this putatively liberal democracy - to defend the most basic civil liberties whenever the courage to decry public hysteria is required. Instead, the courts have, with few precious exceptions, routinely deferred to the executive branch's claims of a national emergency even after the evidence has shown that the alleged emergency - such as the terrorist attack on September 11, 2001 - did not threaten or imperil the continued existence of the United States.

             In his extremely insightful book, Escape From Freedom, Erich Fromm observed that "The individual became more alone, isolated, became an instrument in the hands of over-whelmingly strong forces outside of himself; he became an 'individual' but a bewildered and insecure individual..... Once the primary bonds which gave security to the individual are severed, once the individual faces the world outside of himself as a completely separate entity, two courses are open to him since he has to overcome the unbearable stage of powerlessness and aloneness. By one course he can progress to 'positive freedom;' he can relate himself spontaneously to the world in love and work...he can thus become one again with man, nature and himself, without giving up the independence and integrity of his individual self. The other course is to fall back, to give up his freedom, to try to overcome his aloneness by trying to eliminate the gap which has arisen between his individual self and the world."

             In his Theory of Moral Sentiments, Adam Smith extolled the importance of what we  today call empathy: "How selfish soever man may be supposed, there are evidently some principles in his nature, which interest him in the fortune of others, and render their happiness necessary to him, though he derives nothing from it except the pleasure of seeing it. Of this kind is pity or compassion, the emotion which we feel for the misery of others, when we either see it, or are made to conceive it in a very lively manner. That we often derive sorrow from the sorrow of others, is a matter of fact too obvious to require any instances to prove it.... As we have no immediate experience of what other men feel, we can form no idea of the manner in which they are affected, but by conceiving what we ourselves should feel in the like situation..."

            To experience empathy, as Smith would have it, one must put oneself in another's place. Where fear, insecurity and anger, however, are given free vent, however, empathy itself becomes a casualty.

             There is little doubt that millions of Americans, burdened by the failure of the market economy to improve their standards of living and befuddled by the unwillingness and the inability of this country's political institutions to address their most basic needs, feel extremely insecure and vulnerable. This sense of vulnerability and fear of imminent danger has been continually stoked by politicians since the beginning of the Cold War. Joseph McCarthy, Richard Nixon, Ronald Reagan, and a cabal of professional fear-mongers and political opportunists successfully intensified the worries and concerns of ordinary citizens about the evils of foreign, left-leaning ideas and the purported infiltration of American institutions by individuals by assorted "pointy-headed" intellectuals, and "fellow-travelers" and naive "do-gooders" who relentlessly sought to undermine the "American way of life."

              After the attack the Twin Towers, this lamentable penchant to induce, and then to pander, to the basest fears and anxieties of ordinary Americans for purely partisan political purposes was honed and perfected by the administration of Bush-Cheney and by their Svengali, Karl Rove. Perhaps as appalling was the unsuccessful attempt by Rudolph Guliani to win the 2008 Republican Presidential nomination by running, as then-Delaware-Senator Joseph Biden sagely remarked, "on a noun, a verb, and 9/11."        

            The resulting hysteria - endorsed by a largely compliant elite and its political and media surrogates and at least tacitly supported by a totally clueless population - led directly to the catastrophes of Iraq and Afghanistan. An estimated $14 trillion dollars of that has been squandered to date on these two misbegotten wars. Had $8 trillion of those dollars been invested, instead, in infrastructure, jobs creation and other urgent needs, the money would have substantially addressed almost every pressing domestic need.

            If only a part of the remaining $4 trillion dollars had been invested in programs to aide our county's troubled neighbors to the south - that are suffering from many  problems that the U.S. has exacerbated  - i.e., the spill-over effects of our gun culture, our unquenchable appetite for drugs, and our continued support for repressive, self-serving elites, the spectacles  of thousands of waifs appearing at the Texas border would not by an almost daily phenomenon.

 It would also provide an opportunity for the Rick Perrys and Ted Cruzs of contemporary American politics not to embarrass themselves - and the rest of us - by their brazen displays of demagoguery and insensitivity.  Both Perry and Cruz claim to be God-fearing, Christian believers. What then do they make of the injunctions contained in the Gospel of Matthew, "But Jesus said, Suffer little children, and forbid them not, to come unto me: for of such is the kingdom of heaven," Matthew 19:13, and "Blessed are the merciful, for they shall obtain mercy," Matthew 5:7?  

And what are we to make of them and the rest of the naysayers among us who are habituated to criticism yet are unwilling to participate in the quest for solutions?


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The Federal Courts Pander to the 1%

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      Last week's 2-1 decision by the D.C. Court of Appeals in Halberg v. Burwell,, No. 14-501 followed closely on the heels of the U.S. Supreme Court's decision in Burwell v. Hobby Lobby, 573 U. S. ____ (2014). In that earlier case, a 5-4 majority of the Supreme Court held that a contraceptive mandate set forth in the federal regulations that implement the Affordable Care Act, when applied to the Christian owners of closely-held for-profit corporations who claim to have sincere beliefs that life begins at conception, violated the Religious Freedom Restoration Act passed by Congress in 1993.


            In the Halberg, two judges with long-standing, publicly-identified relationships with the Federalist  Society and other rightwing groups opined that one hard-scribble, putative appellant,  David Klemencic, had legal standing to challenge a provision  of the Affordable Health Care Act that proposed to penalize individuals who refused to purchase health insurance on West Virginia's federally-operated Health Insurance Exchange. Klemencic, who claimed to oppose the Affordable Health Care Act, made approximately $20,000 a year and would have been able to obtain health insurance, according to the Appeals Court, at a subsidized "cost of less than $21 per year or pay a somewhat greater tax penalty." Sadly but not surprisingly, Klemencic's appeal was bankrolled by a smörgåsbord of rightwing think-tanks and political action groups.  

             In their decision, the two errant judges of D.C. Court of Appeals held that the plain language of the Health Care Exchange provisions that proposed to impose tax penalties under the individual mandate requirement applied only to state-operated exchanges, of which there are only sixteen, and could not be imposed upon the residents of the other 34 states whose governors and legislators refused to establish their own state-run exchanges.

             The two judges sought to minimize the enormous harm and mischief that their decision would do with a sanctimonious rationalization, "Thus, although our decision has major consequences, our role is quite limited: deciding whether the IRS Rule is a permissible reading of the ACA. Having concluded that it is not, we reverse the district court and remand with instructions to grant summary judgment to appellants and vacant the IRS Rule."

             The dissenting judge, Harry Edwards, challenged his colleagues' modest characterization of their role: He noted that the effect of their decision, if upheld, would be to deny coverage to millions of American families who reside in the 34 states that do not have their own state-operated health insurance exchanges. "This case is about Appellants not-so-veiled attempt to gut the Patient Protection and Affordable Health Care Act."

             No one who has studied the history of federal jurisprudence should be surprised that a federal court once again refused to vindicate the concept of equal rights and access for all citizens, or that unelected federal judges, who are accountable to no one but themselves, would be unable to hold in abeyance their ideological proclivities, or refuse to grant any deference to the Executive and Congress as elected officials.

             Article III, § 1 of the U.S. Constitution establishes a Supreme Court and vests in the Congress the authority power to establish "such inferior Courts as Congress may from  time to time ordain and establish."  Since its creation, the Supreme Court and the subordinate courts of the federal judiciary, with the rare exceptions of the courts presided over by John Marshall and Earl Warren, have done little to promote fundamental fairness or justice. Instead, the federal judiciary, by and large, has served throughout its history as an instrument determined to uphold 18th and 19th century notions of individualism, to protect the status quo and to promote the interests and rights of property owners and businesses over those ordinary citizens. 

             For those reasons, it was not surprising that in Dred Scott v. John F. A. Sanford , 60 U.S. 393(1856), Chief Justice Taney transformed the slave Dred Scott into a commodity - mere property - and repeated Thomas Jefferson's calumny that it was the British alone who were responsible for the introduction of slavery into the colonies and in  perpetuating that institution in this county.  

             Ironically, in the latter part of the nineteenth century, the Supreme Court chose to grant the equal protection of the laws long before the same civil rights were accorded to black Americans in the Southern States. In Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394(1886), the court, in some inscrutable way, divined that corporations were persons within the meaning of the Fourteenth Amendment. (Incredibly, that decision was introduced into the report of the decision by the case law reporter in the syllabus, and it appears nowhere in the text of the decision.) According to the observers, Justice Waite simply pronounced from the bench, sua sponte, before the beginning of argument that "This court does to wish to hear argument on the question whether the provision of the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the law, applies to these corporations. We are of the opinion that it does."

             That decision was especially perverse in that the Court was generally hostile to all claims for the enforcement of equal rights claims of the those recently freed slaves, as guaranteed by the Fourteenth Amendment, and ten years later would decide the infamous case of Plessy v. Ferguson, 163 U.S. 537 (1896). Once again the protection of property rights was held to be more vital than the protection of living human beings.

             At the beginning of twentieth century, the United States Supreme Court enthusiastically adopted Herbert Spencer's unequivocal defense of the rights of free contract in the infamous case of Lochner v. New York, 198 U.S. 45 (1905). Writing for the majority, Justice Peckham struck down a New York statute which prohibited employers from requiring employees to work in excess of a sixty hour work week. Disingenuously, the Court found that, "The employee may desire to earn the extra money which would arise from his working more than the prescribed time, but this statute forbids the employer from permitting the employee to earn it. The statute necessarily interferes with the right of contract between the employer and employees concerning the number of hours in which the latter may labor in the bakery of the employer..." 

             Justice Holmes, in dissent, unsuccessfully sought to remind his colleagues that the law was supposed to be an even, impartial instrument, blind to prevailing ideology: "This case is decided upon an economic theory which a large part of the country does not entertain....The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."


            Later, the administration of Franklin Roosevelt found itself engaged in a tug-o-war with equally reactionary federal jurists. After three adverse decisions in Humphrey's Executor v. United States, 295 U.S. 602 (1935), Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935), and  Schechter Poultry Corp. v. United States,295 U.S. 495 (1935), in which the Supreme Court struck down New Deal legislation, Roosevelt filed legislation to increase the size of the court. In response to that threat, a majority of the jurists wisely chose to reverse course and opted not challenge subsequent legislation.  

              Since the 1970s especially, an increasingly reactionary federal judiciary has repeatedly announced its hostility toward government regulation, civil rights, and legislation in the public interest. The net effect of this jurisprudence has been to unravel the gains of the New Deal and the Great Society, to empower corporations and the disproportionately influential while ratifying the status quo.

             After having declared an almost theological commitment to the legal fiction of "original intent," a majority of the Supreme Court chose to breathe new life into the Tenth Amendment, the effect of which is to further drive American jurisprudence back into the early decades of the nineteenth century when even the idea of minimal government regulation, ostensibly in the public interest, was unimaginable. See, for example, Justice Rehnquist's decision in U. S. v. Lopez. 514 U.S. 549 (1995). In that decision, by a 5-4 struck vote, the U.S. Supreme Court struck down a San Antonio gun conviction which occurred within a 100 yards of a school on the grounds that the interstate commerce clause did not apply. See also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), a case in which Justice Thomas and his equally determined colleagues within a "whisker" of returning American constitutional jurisprudence to the Articles of Confederation.

             In addition, since the beginning of the 1970s, a bare majority of these Supreme Court judges have not hesitated to impose their personal political preferences for free-market, anti-regulation policies through the judicial feat of federal preemption of state laws and regulations to the contrary. Most of the laws and regulations preempted were designed by state legislatures to protect the rights of workers and consumers. In Marquette National Bank of Minneapolis v. First of Omaha Service Corp.,439 U.S. 299 (1978), for example, the U.S. Supreme Court declared state usury laws to be unavailing against credit card companies engaged in interstate commerce. The effect of that decision, therefore, was to permit credit card companies to exact whatever interest rates they wanted, to the detriment of ordinary Americans.

             Equally unsettling, the U.S. Supreme Court's decision in Buckley v. Valeo, 424 U.S.1 (1976) severely undermined public confidence in the political system. In that decision, the court upheld some modest limits imposed by the U.S. Congress upon individual campaign contributions.  More importantly, however, the court held that campaign contributions by corporations and other large entities were protected by the U.S. Constitution. Congressional attempts to impose restrictions on the financial contributions by corporations and other organizations, because they conflicted with First Amendment guarantees of free speech, would, henceforth, invite strict scrutiny by the court and would require that a compelling state interest had to be shown to pass judicial muster.

             Thirty years after the Buckley decision, an even more reactionary court declared any restrictions upon campaign financing by corporations violate the free speech provision of the First Amendment. In  Citizens United v. Federal Elections Commission,  558 U.S. 310 (2010),   Justice Kennedy, writing for the majority in a 5-4 decision, reversed two previous precedents which had upheld modest campaign finance regulations. Justice Kennedy opined that the Court had previously recognized that First Amendment protection extended to corporations and that "under the rationale of these precedents cited, political speech does not lose First Amendment protection 'simply because its source is a corporation;" further "corporations and other associations, like individuals, contribute to the 'discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster."

             Students of the law understand that there has always existed a tension between fidelity to the letter of the law and the dictates of justice. The ancients reminds us that as human beings we are obliged to seek the summum bonum -i.e., the highest good, the ultimate end -  which is synonymous with justice.

             As the primary object of all human aspiration, true justice is something that can be achieved only through the law acting as an instrument of the social order. Thomas Aquinas remarks, quoting Isodore, "Laws are enacted for no private profit, but for the common benefit of citizens."  Further, "A law, properly speaking, regards first and foremost the order of the common good..." Finally, Aquinas invokes Cicero to the effect that "'the object of justice is to keep men together in society and mutual intercourse.' Now this implies relationship of one man to another. Therefore justice is concerned only about our dealings with others."

             Jacques Maritain, the French Catholic philosopher who followed in the footsteps of St. Thomas, has emphasized that "the primary reason for which men, united in political society, need the State, is the order of justice. On the other hand, social justice is the need of modern societies. As a result, the primary duty of the modern state is the enforcement of social justice."

             From the perspective of Maritain, Aquinas and the ancients, Judges Griffith and Randolph failed miserably in discharging their public responsibility as jurists in the D.C. Court of Appeals. By contrast, however, there remains a glimmer of hope that justice may yet triumph over ideology. A three judge panel sitting in the Fourth Circuit Court Appeals in Richmond, 109 miles away from Washington, D.C., saw the big picture - the reason why the Affordable Health Care Act was adopted in the first place. They got it exactly right three hours after the D.C. Court of Appeals released its decision on an identical set of claims.

             In denying the petitioners' claims in King v. Burwell, No. 14-1158 (7/22-2014), the three judges unanimously agreed that purpose of the act - to promote a common good - and Congress's intent must take precedence over pedantic, disingenuous arguments that rely upon linguistic and judicial feats of legerdemain. "The IRS Rule became all the more important a significant number of states indicated their intent to forego establishing Exchanges. With only sixteen state-run Exchanges currently in place, the economic framework supporting the Act would crumble if the credits were unavailable on federal Exchanges. Furthermore, without an exception to the individual mandate, millions more Americans unable to purchase insurance without the credits would be forced to pay a penalty that Congress never envisioned imposing upon them. The IRS Rule avoids both these unforeseen and undesirable consequences and thereby advances the true purpose and means of the Act."


The War-Mongers' Lament

      The growing turmoil in Iraq now provides the GOP with a marvelous opportunity to try to deflect the attention of a gullible American public from the war here at home that it is waging against ordinary Americans.   


         Senator John McCain, who has never seen a war or a conflict that he does not think the United States should not fight, appeared on MSNC's "Morning Joe" today. Not surprisingly, he excoriated President Obama and called upon him to fire his entire national security team.

       McCain claimed that the U.S. had won the war in Iraq, but was now losing the very war that he claimed we had won because the U.S. refused to garrison a residual force in that country. McCain also warned that the scheduled U.S.withdrawal from Afghanistan would engender the same chaos there.

       Missing from McCain's incoherent narrative was any glint of recollection that it was he and the other hawks who endorsed Bush II's ill-fated invasion of that country or that it was Prime Minister Maliki - and not President Obama - who forced the precipitous withdrawal of all American troops because the Iraqi government refused to agree to a new status of forces agreement that would have protected American soldiers against prosecution under Iraqi laws. Apparently, the good senator believes that the U.S. should have refused to exit from that country, even if it meant that the U.S. became an occupying army.

       Not to be outdone, New York Times columnist David Brooks has now returned to his "neo-con" roots. Brooks, who was an original cheerleader for Bush, Cheney and Rumsfeld, wrote in his Weekly Standard column on March 24, 2003 that "The president has remained resolute. Momentum to liberate Iraq continues to build. The situation has clarified, and history will allow clear judgments about which leaders and which institutions were up to the challenge posed by Saddam and which were not."

      In an op ed column last week ("The Big Burn The Sunni-Shiite Conflict Explodes in Iraq") Brooks notes "When the United States invaded Iraq in 2003, it effectively destroyed the Iraqi government.  Slowly learning from that mistake, the U.S. spent the next eight years in a costly round of state-building." According to Brooks, by 2011 the Iraqi Army was performing better and "American diplomats rode herd on Prime Minister Nuri Kamal al-Maliki to restrain his sectarian impulses. American generals would threaten to physically block Iraq troop movements if Maliki ordered any action that seemed likely to polarize the nation."

        And precisely who was responsible for this country's present failure to restrain Maliki's sectarian impulses? The answer is obvious. Brooks opines that "We'll never know if all this effort and progress could have led to a self-sustaining, stable Iraq. Before the country was close to ready, the Obama administration took off the training wheels by not seriously negotiating the NATO status of forces agreement that would have maintained some smaller American presence."

       In contrast to Senators McCain and Lindsey Graham, whom Brooks praises for their prescience, "President Obama adopted a cautious posture, arguing that the biggest harm to the nation comes when the U.S. overreaches. American power retrenched. The American people, on both left and right, decided they could hide from the world."

       McCain, Brooks and the gaggle of other discredited war-hawks who are now once again rearing their bellicose beaks inhabit a bizarre political world that can only be described as schizophrenic. As "conservatives" they fervently insist that the role of government in domestic affairs should be restrained. While advocating tax cuts and other welfare and incentives that solely benefit the 1%, they counsel against any policy initiatives that would address pressing domestic issues, such as growing economic inequality and joblessness, argue the virtues of limited government, and incessantly warn against the dangers of an "over-reaching" activist government.  


     By contrast, foreign policy seems to be an entirely different matter. McCain, Brooks and others of their persuasion seem to subscribe wholeheartedly to the myth of American omnipotence. In their view of the world beyond this country's borders, there are no limits to the projection of American military power, and if events turn out badly, it is solely because the occupant in the White House was incapable of controlling the outcome. 


     Absent from their analysis is any inkling that countries and civil societies evolve over time, that they are primarily responsible for own destinies, and that the process is often painful and messy. 

       Long become the U.S. became involved in a precipitous war in Iraq, the French and the British had already made a mess of that entire region. Thereafter, Bush I and Rumsfeld and Cheney stoked the fires of instability when they supported Saddam Hussein with billions of dollars in weapons and aide in his war against Iran in the 1980s.  And millennia before the U.S. became involved in Afghanistan, neither Alexander the Great nor later, all of Rome's legions could subdue the marauding tribes and fratricidal strife in that geographic region.

       Equally inexcusable, these armchair generals are utterly oblivious to the trillions of dollars of American treasure that was expended in this country's two ill-fated adventures, the military and civilian death toll,  and the enormous physical and psychological toll that the men and women who have served in this country's all volunteer military have had to bear. 

       Von Clausewitz observed that "war is the extension of politics by other means." Wars and military excursions should always be the option of last resort. American interests would be far better served through forging multinational efforts, as Zbigniew Brzezinski has recommended, with Iran and Turkey.

       Ill-considered U.S. policies have engendered enormous antipathy throughout the Middle East. For that reason, it would be wise to reduce our footprint there. A reckless, reflexive, "go-it- alone-cowboy policy" as urged by McCain, Brooks and the other foreign policy hawks will only serve to make matters worse. 

       Given their own abysmal track records, Senator McCain and David Brooks should at least have the common decency to shut-up.