Tag Archives: 14th Amendment

If You’ve Got At Least Five Votes, You Can Do Whatever You Want

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The reactionary 2/3 of the Supreme Court announced today that the kind of affirmative action that favors black college applicants, simply because they’re black, is no longer legal. That’s not what earlier Supreme Courts thought, but legal precedent doesn’t matter if you’ve got enough votes.

Race-based affirmative action has always been controversial and even with the Court’s 6-3 decision today, what’s legal and what isn’t will remain murky. The Court now says race can be a factor in college admissions if it played a sufficiently significant role in the applicant’s life. Obviously, this isn’t the end of the matter.

The decision (full text here) talks a lot about the 14th Amendment to the Constitution. That’s the one that says “no state shall … deny to any person within its jurisdiction the equal protection of the laws”. The amendment was adopted after the Civil War to protect black Americans, especially former slaves, from discrimination.

But the notion of “equal protection” is vague. When a college admits somebody based on their athletic prowess, are applicants with no athletic skills being equally protected? How about the children of alumni or university staff? Are applicants whose parents never went to college or don’t work at the university in question equally protected?

I was trying to answer this question for myself when the internet led me to the Civil Rights Act of 1964. It famously prohibits discrimination on the basis of race, color, religion, sex or national origin. That seems to be a clearer, although not necessarily clear, rule to follow than the 14th Amendment’s equal protection clause. In fact, Wikipedia says the Civil Rights Act was enacted in order to clarify the meaning of “equal protection”.

Looking to see what today’s decision said about the Civil Rights Act, I found a concurring opinion from Justice Gorsuch (a prominent reactionary). This is what Gorsuch says:

For some time, [Harvard and the University of North Carolina] have decided which applicants to admit or reject based in part on race. Today, the Court holds that the Equal Protection Clause of the Fourteenth Amendment does not tolerate this practice. I write to emphasize that Title VI of the Civil Rights Act of 1964 does not either. [p. 107]

… a clear rule emerges. Title VI prohibits a recipient of federal funds from intentionally treating one person worse than another similarly situated person because of his race, color, or national origin. It does not matter if the recipient can point to “some other … factor” that contributed to its decision to disfavor that individual… It does not matter if the recipient discriminates in order to advance some further benign “intention” or “motivation”. [p. 109]

Gorsuch concludes that since the Civil Rights Act doesn’t mention, for example, athletic prowess or whether your parents ever went to college, it’s fine to discriminate against lousy athletes and applicants whose parents only finished high school. That makes a certain amount of sense, although there are devils in the details.

If you want to hire somebody to teach Chinese, it is discrimination if you favor somebody born in Shanghai over somebody born in Iowa? If the drama club is casting Hamlet, is it discrimination to lean toward a woman playing Ophelia instead of a man? The blunt language of the law suggests it would be illegal to do so.

Presumably, a college can still favor an applicant who grew up in Alabama or Compton over one from Darien, Connecticut, or Malibu. That’s one way to indirectly and haphazardly consider race in college admissions.

But this is why we have legislators and judges, to clarify such matters (it’s really too bad so many of them are Republicans).

Even though Gorsuch thinks the Civil Rights Act presents a clear rule — not simply a clearer one — the six reactionaries included this exception in their decision:

The United States [government] contends that race-based admissions programs further compelling interests at our Nation’s military academies….This opinion … does not address the issue, in light of the potentially distinct interests that military academies may present.

In other words, our military academies may continue to factor race into who they admit, the rationale for this exception being that the officer corps shouldn’t be a lot whiter than the regular troops. Yet having a racially diverse officer corps is just one of those “other factors” or “benign intentions or motivations” that Gorsuch says are irrelevant.

Is having a racially diverse student body a factor to be considered when deciding who gets to attend and graduate from our nation’s most prestigious universities? Apparently not.

So much for right-wing consistency (but, after all, they have the votes).

PS: The Court also issued a decision today in a case involving a Christian who worked for the post office. When the post office began making deliveries on Sundays, this employee told his supervisor that he couldn’t work that day of the week because of his religious beliefs (he sought a religious “accommodation”).

With Groff unwilling to work on Sundays, USPS made other arrangements. During the peak season, Sunday deliveries that would have otherwise been performed by Groff were carried out by the rest of the [local] staff, including the postmaster, whose job ordinarily does not involve delivering mail. During other months, Groff ’s Sunday assignments were redistributed to other carriers assigned to the [region]. Throughout this time, Groff continued to receive “progressive discipline” for failing to work on Sundays. Finally, he resigned.

He then sued the post office. The Supreme Court unanimously sent the case back to a lower court for further proceedings. But weren’t the non-Christian employees forced to work on Sunday being discriminated against for not being Christians? Wouldn’t their treatment violate the Civil Rights Act of 1964, which outlaws discrimination based on religion? Thank heavens we have distinguished jurists to answer these questions.

We Shouldn’t Expect Much From Republican Senators

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How many Republican senators will vote to convict our former president and bar him from running for president again? Paul Waldman of The Washington Post says there won’t be enough of them:

Donald Trump’s second impeachment trial is coming soon. Senate Majority Leader Chuck Schumer announced Friday that the House will transmit the one impeachment article to the Senate on Monday, clearing the way for the trial to commence. Now begins the wrangling to determine whether 17 GOP senators might join (presumably) all 50 Democrats to convict Trump of inciting the Jan. 6 assault on the Capitol.

There’s been lots of discussion about what it would take to get to those 17 votes, in particular whether Minority Leader Mitch McConnell will vote to convict and bring others with him. There are almost certainly many more than 17 Republicans who in their hearts believe that Trump is guilty and would like their party to make a clean break with him. But whether they’ll take that position publicly is a very different matter.

Don’t bet on McConnell, or more than a couple of Republicans, coming through in the end. It’s a tricky political question for them, but the weight of their incentives will push them toward acquittal, no matter their personal feelings about Trump and what he has done to their party.

It’s true that there’s an effort to get them to convict. CNN reports that “dozens of influential Republicans around Washington — including former top Trump administration officials — have been quietly lobbying GOP members of Congress to impeach and convict Donald Trump.” One unnamed Republican member of Congress even said, “Mitch said to me he wants Trump gone.”

Which you might have gathered from the speech McConnell gave the day before Joe Biden’s inauguration. “The mob was fed lies,” he said. “They were provoked by the president and other powerful people.”

But it’s one thing to offer some harsh words about a specific misdeed and another to actually vote to convict the former president. As McConnell surely understands, while he other Republicans might want to make a clean break from Trump, the problem is that there will be no such thing. Any break from Trump will be painful and ugly.

Think of it this way: What does McConnell have to gain from voting to convict Trump, and what does he have to lose? He really has nothing at all to gain, even if he could gather 16 other Republicans to join him. That wouldn’t make his whole party turn the page and walk proudly into its post-Trump future. It would just touch off an internecine war, one that nobody would win.

Loyalty to Trump is still intense within the GOP. “If you’re wanting to erase Donald Trump from the party, you’re going to get erased,” said Trump advocate Sen. Lindsey Graham (R-S.C.), adding that trying to move forward without Trump would be “a disaster for the Republican Party.”

Graham may be wrong on the second part, but he’s right on the first. If McConnell were to vote to convict and bring others with him, he’d immediately be hit with a tsunami of rage from the right. Talk radio and Fox News would mobilize their audiences to pour down contempt upon a figure that they never much liked or trusted anyway. Enterprising Republican politicians would demand he be removed from leadership.

That’s already happening to Rep. Liz Cheney. In the days since the third-ranking member of the House Republican leadership voted to impeach Trump, she has earned a primary challenge from the right for her reelection. According to Politico, more than 100 House Republicans “have communicated to the leaders of that effort that they would support removing Cheney from leadership on a secret ballot.”

But standing up and saying it was just fine and dandy that Trump spent two months lying to his supporters, culminating with his incitement of a violent attack that could have resulted in the deaths of some of the very people who will be voting on impeachment, is not all that appealing. So Senate Republicans are coalescing around a plan: They can avoid defending what Trump did by finding safe harbor in a procedural objection.

The problem, more and more of them are saying, is that the Constitution doesn’t allow for the impeachment of a president who has left office, and therefore there shouldn’t be any trial at all.

In fact, the Constitution doesn’t say that the president can’t be impeached once he departs. While some legal scholars insist otherwise, the weight of opinion is that his impeachment would be perfectly fine.

But that doesn’t matter; for Republicans it’s an argument of convenience. And it’s one McConnell will eventually join.

When the vote comes, McConnell will deliver a dramatic speech finally revealing his position. He’ll reiterate his criticisms of Trump, for lying about the election and whipping up the crowd.

However, he’ll say, all that’s in the past now. Trump is no longer president. And Democrats are just wasting time trying to score political points when they should be addressing the country’s problems. Therefore, he’ll say with sadness, I feel I have no choice but to vote to acquit.

In so doing, he’ll save himself a lot of grief. The alternative is a gesture that won’t get him what he wants — a truly post-Trump party — but will threaten his own authority and deepen the GOP’s internal divisions. It’s not even a close call.

Unquote.

It’s not true McConnell would have nothing to gain from convicting him. McConnell could immediately insure that the creep couldn’t run for president again, even as a third party candidate. Some Republican senators would love that to happen. But these same senators would prefer that 17 other Republicans vote to convict and prohibit the malignant narcissist from running. They don’t want to be on record voting against their party’s favorite demagogue.

PS: A small group of Democrats [is] pushing the idea of passing a resolution stating that Txxxx violated the 14th Amendment — which forbids federal officials from ever holding office if they “engaged in insurrection or rebellion” against the government — and ban him from running again for president in that manner.

Selected Reading On The Mess We’re In

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Historian Sean Wilentz makes a forceful argument in favor of Obama invoking the 14th Amendment to protect the world’s economy:

… the president would have done his constitutional duty, saved the country and undoubtedly earned the gratitude of a relieved people. Then the people would find the opportunity to punish those who vandalized the Constitution and brought the country to the brink of ruin.

http://www.nytimes.com/2013/10/08/opinion/obamas-options.html?pagewanted=2&hp

The New York Times editorial board is justifiably outraged that many people living in Republican-run states will still lack health insurance next year — they’ll earn too little to be covered by the Affordable Care Act and too much to be covered by Medicaid:

Their plight is a result of the Supreme Court’s decision last year that struck down the reform law’s mandatory expansion of Medicaid and made expansion optional. Every state in the Deep South except Arkansas has rejected expansion, as have Republican-led states elsewhere, [although] there is no provision in the ACA to provide health insurance subsidies for anyone below the poverty line … those people are supposed to be covered by Medicaid… Eight million Americans who are impoverished and uninsured will be ineligible for help of either kind.

http://www.nytimes.com/2013/10/04/opinion/a-population-betrayed.html?ref=opinion

Of course, Congress could easily fix this problem, but that would require You Know Who to cooperate.

At Jacobin, Shawn Gude writes about the fundamental tension between capitalism and democracy, in the context of living-wage legislation in the District of Columbia:

The controversy throws into sharp relief one of our era’s great unspoken truths: Capitalist democracy, if not an oxymoron, is less a placid pairing than an acrimonious amalgamation. The marriage that Francis Fukuyama famously pronounced eternal is in fact a union of opposites. Inherent to capitalism is inequality, fundamental to democracy is equality. Class stratification, the lifeblood of capitalism, leaves democracy comatose. The economic “base,” to put it in classical Marxian terms, actively undermines the purported values of the political superstructure.

http://jacobinmag.com/2013/08/capitalism-vs-democracy/

And finally, Nobel Prize-winning economist Joseph Stiglitz argues that we can undo the decisions that got us into this mess:

We have become the advanced country with the highest level of inequality, with the greatest divide between the rich and the poor… The central message of my book, The Price of Inequality, is that all of us, rich and poor, are footing the bill for this yawning gap. And that this inequality is not inevitable. It is not … like the weather, something that just happens to us. It is not the result of the laws of nature or the laws of economics. Rather, it is something that we create, by our policies, by what we do.  

We created this inequality—chose it, really—with laws that weakened unions, that eroded our minimum wage to the lowest level, in real terms, since the 1950s, with laws that allowed CEO’s to take a bigger slice of the corporate pie, bankruptcy laws that put Wall Street’s toxic innovations ahead of workers. We made it nearly impossible for student debt to be forgiven. We underinvested in education. We taxed gamblers in the stock market at lower rates than workers, and encouraged investment overseas rather than at home.

http://www.alternet.org/economy/joe-stiglitz-people-who-break-rules-have-raked-huge-profits-and-wealth-and-its-sickening-our

Meanwhile, the Swiss are voting on whether to guarantee everybody a minimum monthly income of $2500 francs ($2800 dollars). They’re also voting on a proposal to limit executive pay to no more than 12 times what the company’s lowest-paid workers earn. Who knew that the businesslike, orderly Swiss were a bunch of commies? Or maybe they’re just fed up with rising inequality, even in Switzerland.

http://www.reuters.com/article/2013/10/04/us-swiss-pay-idUSBRE9930O620131004

How Obama Could Protect the Economy and Get Rid of Boehner at the Same Time

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The 14th Amendment was added to the U.S. Constitution in 1868 in the aftermath of the Civil War. It deals with issues resulting from that conflict. Its most famous language is the so-called “equal protection” clause: no state shall “deny to any person within its jurisdiction the equal protection of the laws”.

The rebellious Southern states were required to ratify the 14th Amendment in order to regain representation in Congress. Of course, since they were traitors (a.k.a. “rebels”), Southern politicians bitterly opposed the 14th Amendment. How dare the Federal government require that all persons, including former slaves, receive “equal protection of the laws”!

Now, 152 years after the Southern rebellion, we are facing a new crisis, primarily instigated by politicians from the same Southern states. This time it would be a financial and economic crisis, brought about by America’s failure to pay its debts. Nobody knows how the crisis would play out, but since bonds issued by the Treasury Department are the foundation of our nation’s banking system and play a vital role in the banking systems of other countries, it’s likely that America’s failure to honor its debts would do more damage to the global economy than the horrendous financial crisis of 2008.

The Constitution makes no mention of a debt ceiling. That limitation on the Treasury Department’s ability to take on new debt (i.e. to borrow money by selling government bonds) was foolishly imposed by Congress in the Liberty Bond Act of 1917. With that law, Congress gave itself the authority to set a maximum dollar amount for the federal debt, despite the fact that it’s Congress that tells the President how much money to spend when it approves the Federal budget.

Since the members of Congress are relatively sensible for the most part, they periodically raise the debt limit so the Federal government has enough money to do the various things the law requires it to do (make Medicare payments, buy cruise missiles, etc.).

If Congress refuses to raise the debt limit, therefore, the President is caught in a dilemma. He either has to borrow more money without Congressional approval or not pay what the government owes to bondholders, employees, government contractors, retirees and so on — thereby doing untold damage to the world’s economy and our own national security.

Fortunately, the 14th Amendment includes a clause devoted to the national debt. Section 4 of the amendment states:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Legal scholars are now arguing about which law the President should obey. I’m not a legal scholar, but I have no doubt that the appropriate thing for the President (any President) to do if Congress fails to raise the debt limit, thereby “questioning the validity” of the public debt, is to obey the Constitution and borrow whatever funds are necessary to pay the government’s bills.

The Constitution, after all, is the “supreme law of the land”. Even crazy Tea Party people claim to honor the Constitution. The Constitution, which requires the President to “preserve, protect and defend” it, should take precedence over the Liberty Bond Act of 1917.

The last time there was a Republican-generated debt ceiling crisis, the President ruled out the 14th Amendment as a solution. At yesterday’s press conference, however, he mentioned the 14th Amendment but didn’t rule it out. He did say it isn’t a “magic bullet” and made the valid point that bonds issued without clear Congressional approval might be of questionable value. For example, buyers would probably demand higher interest rates before purchasing such government securities.

Nevertheless, it still seems that the most prudent course would be for the President to ignore the debt ceiling and continue to issue government bonds. In fact, it might be a wonderful strategy.

One likely outcome is that the Republican majority in the House of Representatives would impeach the President, just like they impeached President Clinton. But the Democrats in the Senate would never convict Obama of “high crimes and misdemeanors” for using his emergency powers to protect our national security. In fact, it’s very likely that the House Republicans would become even less popular than they are now, leading to gains for Democrats in the 2014 mid-term election.

Some recent polling suggests the Democrats might pick up as many as 30 seats in the House if the election were held today. Since they only need 18 more seats to become the majority party in the House, Obama needs to do whatever he can to maintain the Republicans’ unpopularity. Goading them into a misguided impeachment vote could do the trick, giving the Democrats control of both houses of Congress for the last two years of his Presidency. No more Speaker of the House John Boehner!

The Republicans would still have the filibuster in the Senate, of course, but that’s a topic for another day.