Thursday, 9 February 2017

9th Circuit begins path to Constitutional crisis

The 9th Circuit’s decision to allow this process to go forward puts us directly on the path to a Constitutional crisis. The Executive branch will most probably directly appeal the decision to the Supreme Court. The Supreme Court will then most likely split on any decision. The consequence of this is anyone’s bet.

Trump being reasonable our last hope?

Apparently our  last hope is that the Administration will not “bully up” and go straight to the Supremes but rather give the trial judge an opportunity to remedy his previous decision.  (The simple fix is narrow it to only apply to those individuals on US soil.)

Going back to the trial court will take time, and creates the impression of giving a last chance to the trial judge.  During this time they will go nuclear in the Senate to get the Supreme Court seat filled.  If the trial judge doesn’t rule correctly, they then appeal any decision directly to the Supremes who give Trump his victory.

It’s a strange world when we need to rely on Donald Trump to be a good strategist in order to avoid a Constitutional crisis.

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from
http://marcabramsonline.com/2017/02/10/9th-circuit-begins-path-constitutional-crisis/

The pandora’s box of Trump’s ban

What’s swirling around the 9th Circuit Court of Appeal’s review of the Trump Executive Order is something neither party nor the court wants to explicitly deal with, because it opens a Pandora’s box for our political system. The issue comes down to whether campaign speech or rhetoric can be used by a court to infer actual intent. The arguments and questions currently being discussed are only the first set and as a matter of procedure, almost exclusively limited in scope to the issue of the court’s power to review and issue the temporary restraining order. However one requirement for the restraining order is that the party needs to show a strong likelihood of success.

Herein lies the conundrum. An Executive Order by a President specifically stating what this order states, is clearly permitted under our Constitution and for the most part beyond the jurisdiction of the courts. Simply put, a President can suspend entry of citizens of another country without the approval of the court or legislature.

The real problem in the present case is not what is written in the Order, it is whether the Order was actually instituted because President Trump wants to discriminate against people on the basis of religion. Now the problem becomes clear. Candidate Trump made many comments about his desire to ban Muslims. It could be argued his desire for the ban even then, was driven by a wrongheaded view it would make the United States safer. If that were the case, with the order written more broadly, we would be facing a true Constitutional crisis, so let’s leave that for another day. In the present situation, what is clear is that candidate Donald Trump is on record advocating for a ban based on religion and the current Executive order would at least indirectly advance this general sentiment.

Now many may not see a problem yet but that’s because they haven’t considered the impact of the precedent being created and the havoc it would cause in the future. If the court allows for this case to proceed it will have no choice but to create a bad rule or a worse one regarding the office of President and foreign policy. On the one hand if they go forward and agree to look to the actual intent by reviewing the campaign statements, then forever onward political opposition will have fodder to file preemptive lawsuits whenever they disagree with official actions, even when clearly permissible as written.

In contrast if this goes forward and the statements cannot be used to show intent, it will be quite damaging to the public’s perception of the courts and promote the view that its elected leaders can take “illegal” actions as long as they word them correctly. Neither result is beneficial and highlight how the trial court seriously erred in ever allowing the temporary restraining order to go forward. This mistake is now exacerbated by the Appellate hearing where the Judges’ questions seemed to suggest they would be looking at the actual intent without saying so.

Simply put, politicians have never been legally held to their campaign rhetoric in any form and it is a terrible idea to open this Pandora’s box now. There is a path to void illegal actions or unconstitutional laws. In a nutshell, that means either showing that they are unconstitutional as written or in their application. The court should not make a new path because of this President, no matter how vile his campaign rhetoric.

The post The pandora’s box of Trump’s ban appeared first on Marc Abrams.



from
http://marcabramsonline.com/2017/02/09/pandoras-box-trumps-ban/

Tuesday, 3 January 2017

Democrats Risk Cyberwar with Russia

As a lifelong Democrat but moreover a dedicated advocate for protecting our Constitutional due process protections, I feel strongly that it’s important to speak out against the childish, insanity being advocated by certain establishment leaders on both the right and the left, that seem to be driven by childish frustrations over the results of our Presidential election.

 
On the left we have essentially a bunch of sore losers that can’t seem to accept that their campaign was fatally flawed in its assumption that the great “unwashed” “deployables” couldn’t find their local polling booths on election day and that the issues of real concern to Americans are not jobs and their future but whether the candidate meets the “civilized” person test derived from the cultural elite class; (for a complete assessment read my previous blog). And, on the right, we have a cadre of disgruntled establishment Republicans that pre-election wrote off Trump but now find themselves searching for relevance.

 
The three key Republicans that most quickly come to mind are Mitt Romney, John McCain and Lindsay Graham. The first recognized his self-righteous nonsense didn’t have any legs, except with the Democratic Party’s limousine liberals and religious zealots, and consequently groveled his way back to relevance over golf and dinner. He has now properly vanished back to political obscurity.

 
The latter two however have decided to double down and join some immature Democrats in engaging in old school, nonsense politics that puts the whole country at risk. (It’s always helpful to have context so let’s not forget that Lindsay Graham was one of the lead House Members to advocate and prosecute, then President Bill Clinton for having oral sex in the oval office – so clearly he’s a serious guy. And of course we have John McCain whose most important public policy decision was to select Sarah Palin as his candidate for Vice President – so clearly he has ace judgment as well; but alas I would be amiss if I didn’t also remind of McCain’s public corruption troubles stemming from the Keating five which he wiggled his way out of prosecution and imprisonment. (back then that was just how DC business got done..)

 
So what is the situation as it seems to be becoming more dire every day? Well apparently the CIA and now after much cajoling, the FBI and other US government agencies have concluded that Russia was likely behind the hacking into private email servers and disclosure of embarrassing emails that occurred during the presidential campaign. The timing and manner of this announcement is without a doubt peculiar but let’s just assume for argument’s sake that the allegations are true: Russia hacked the servers and released private emails that embarrassed people and showed that one candidate seemed to be speaking out of both sides of her mouth.

 
Unfortunately the leaked emails matched the public’s long standing opinion of the candidate and may have in turn done some real damage to her message and campaign. (However let’s insert some fact checking – the day before the WikiLeaks disclosures came out, Hillary’s polling numbers were slightly lower than the actual votes she later received. Thus at best it can only be argued that the release of the information may have impeded her ability to turn undecided voters. However to suggest that anyone was truly undecided about Hillary Clinton at this point in time is speculative at best and most likely just hopeful nonsense.)

 
Irrespective of the “damage” disclosure caused, there is another level of review that is critical to a fair evaluation. That is simply whether the information was true or false. It appears the disclosed information was true, albeit private. In fact, the accuracy of the emails was never denied. (To be fair, they were also not confirmed, and as an aside for those political junkies out there: it’s a bit uncanny how team Clinton’s response was exactly the same approach that Anthony Weiner attempted in response to questions about whether pictures of a certain member’s “member” were accurate.. Can anyone say “Huma..”.)

 
Now that we have clarified that the great horror of the election of 2012 was twofold. First, that private emails were leaked that showed one candidate’s private conversations didn’t exactly match her public rhetoric and in fact that the Democratic Party may have taken sides in a primary contest; and the second horror is that the Russians (for argument’s sake at least) engage in cyber espionage. One embedded assumption in all of this anger and calls for “retaliation” is that the Russians favored Donald Trump over Hillary Clinton as President. (This is something I’ve found quite interesting as I have yet to have the question answered as to why the Russians would prefer an unpredictable, potentially unstable and irrational leader to one that they have great experience with and is completely predictable in her foreign policy views and responses.)

 
But back to the first impending catastrophe. We now find ourselves at the Electoral College phase of the election. Typically an irrelevant phase, but because of the catastrophic election results, if you ask certain Democrat members of the Electoral College (and what is truly unfortunate, the Clinton campaign) they apparently think we need to redo the election in the House of Representatives. (I’m not quite sure how they see it happening, but I’m sure there’s some back room discussed nutty plan of how this will lead to Hillary winning the Presidency.)

 

 

Apparently they don’t think this would look like a coup by a bunch of cultural elitists, so they must be the same strategists that performed Hillary’s campaign polling. The reality is pretty straightforward, it’s just stupid. There is no basis in fact or history that would suggest that the electorate ever would foresee that the electors were not bound and thus it would clearly violate due process in every regard imaginable for them to change the electoral outcome.

 
The Clinton campaign lost and the Democrats need to get over it and move on. The dynasty is over and its time we re-read the tea leaves and saw that people want their leaders to work hard and get results. They don’t need their leaders to be angels and role models, (is Bill Clinton really who you want your daughter to marry?) they just want their leaders to talk straight to them and make sure opportunity is available to anyone willing to work hard to achieve it. (Basically Bill Clinton’s campaign slogan in ’92). We need to stop decision-making based on the identity of a person and base it on the content of character and intellect. It’s time our message returned to an inclusive message of opportunity; not a message premised on amassing different factions against a common enemy.
It may be hard for some to swallow, but now is the time to wish Donald Trump the best of luck and hope that his administration and all of Congress can work together to solve the common problem of a dying middle class and structural unemployment for decades to come. When the time to disagree comes, and it will, then will be the time to disagree on the solution and offer better ones – not continue this nonsense of character assassination and labeling. This campaigning against one’s “fitness” to lead started with Lee Atwater, was perfected by the Clinton machine and was eagerly adopted by both parties ever after.

 
However we need to return, or go to, for that matter, a place where the substance of our discussions is debated, not the author of divergent opinions simply muddied and discredited. It’s not too late my fellow Democrats to get serious, but it is approaching a dangerous point. We cannot have a political system where the process is ever tainted by the participants. We must return, or demand for the first time, that our Presidential candidates and opposition party understand that they must be better than just caring about winning – that at the end of the political match – the sides must agree the process worked. Was the process fair? What in life is fair? It’s time to stop acting like children and move on.

 
Now a quick word on Harry Reid, certain Democrats and the mavericks, McCain and Graham, and their nonsensical attacks against Rex Tillerson and other Cabinet nominees. Senators you apparently can’t stand being out of the spotlight so you decided to out Trump Donald Trump when it comes to over the top statements; but you apparently don’t have his backbone when it comes to the final assessment. You have basically said that certain nominees shouldn’t be confirmed because of “ties”, “relationships” to Russia and other wimpy buzz words. However, what you are really saying is these people can’t be trusted not to be spies for the Russians or use their positions to make their previous companies more money. That’s the bottom line of your nonsense and it is simply abhorrent in its anti-capitalism underpinnings but moreover just stupid.

 

 

However it does comport to the destructive approach that runs through Harry Reid’s tenure in the Senate and can be boiled down to one simple sentence: He was such an intellectual lightweight that he changed the rules of the Senate to get legislation passed, but was such a fool in the way he did it, that he perverted the Senate rules and left the Senate no longer needing to be a place of collegiality, but simply a dangerous twin to the House: where the minority party has little power. His stewardship then put his own Party into that helpless minority that is now little more influential than an advisory board. Good job Harry, hope retirement goes better than your performance in the Senate.

 
Now, what do we do about the Russians? Well if you listen to Harry, or Lindsay Graham or John McCain or some other childish officials, then you are hearing that the Russians and even Putin need to pay for what they did. Ok great, let’s make them pay. What should we do? I keep hearing that we need hearings to find out, but what do we want to find out? The truth is the Russians didn’t hack into the vote tabulation for our presidential election. The reason they didn’t, isn’t very inspiring. The reason is because our voting machines and systems are so antiquated that they aren’t online. So guess what, our unwillingness to spend money on new voting technology that would protect our democracy; has wound up protecting our democracy.

 
This indirectly alludes to the bigger question. What should we do to retaliate against the Russians for apparently hacking into private servers? And apparently they also sent malware to our Defense department and cost us a bit in new computers and servers as a result. So what do we do? Do we issue an arrest warrant for Putin? He would surely get a chuckle out of that. Do we launch a nuclear attack? Hopefully not. The sad answer is we don’t have much we can do. Worst of all there is nothing we can do publically, that would make any logical sense.

 
The situation is pretty clear to anyone who wants to be thoughtful. When it comes to conventional and nuclear warfare we are superior to all, by leaps and bounds. However when it comes to cyber warfare, we are pretty good. The simple fact is many other countries – especially our enemies are equal or better – they simply do not have freedom for their citizens. The consequence is their best and brightest tech people are not designing apps to maintain our standard of leisure, but rather they are working for the government (often whether they want to or not) at cyber warfare.

 
So what do all of the arm chair cyber-warriors want to do? Start a cyber war? Well that may work, but we may want to take all our financial institutions, electric grids, safety personnel and every other critical component to our civilization off-line before we start. Of course we could also go with sanctions and other threats. Unfortunately, we tried sanctions and threats with Iran. But at the end of the day, when you speak with people in the know, they hit us a few times with cyber warfare and all of a sudden we decided that signing a peace deal was a better idea. We apparently preferred their scientists spent their time on developing “nuclear energy” rather than new viruses.
The bottom line is the Russians unfortunately seem to have had some fun with our election. Unfortunately it seems like the same type of “fun” that our intelligence community has probably engaged in a few times themselves, if not a lot worse, in a lot of countries.

 
So if this is the case, why are two hawks like Graham and McCain so out and about? Well it goes back to relevance but unfortunately it also goes to a more offensive reason as well – which normally means the old adage, “follow the money” is involved.

 
When Dwight Eisenhower left office he warned in stark terms about the emergence of an industrial military complex that would feed upon itself and grow. That complex has grown and has been unstoppable due to its patron’s in Congress like Graham and McCain, and they have each benefited from their largess to defense contractors. Not only did they pick the wrong horse in the Presidential race, but they are being told that their golden goose – the military procurement process – is going to be revamped so we stop paying absurd prices for shiny toys that don’t arrive on time and on budget. There is a lot a Senator will put up with, but messing with his campaign funding, meal ticket just isn’t one of them.

 
What has become abundantly clear in this campaign and election is that we are facing a critical time for our nation. Unfortunately what makes it so critical is not the inhabitant of the White House (we’ve had some real doozies throughout our history; but because of due process and our Constitutional structure, the union has endured). But what is making this a critical time is unfortunately that our very system of democracy is being undercut by the very people that profess to believe in it, and why? Because a candidate lost.

 
Why are our elected leaders foaming at the mouth with public outcries and demands to make Russia pay – hopefully not to start a war that no thoughtful American would ever want to start, so why? Because a candidate lost and apparently our Party forgot how to lose.

 
So my advice to my fellow Democrats: let Trump take on his own party’s sold out establishment and use it for our country’s advantage. Let’s finally get our out of control military industrial complex spending reigned in and reinvest it into our infrastructure. And when Trump’s wrong – correct him on policy and prove our solutions are better than theirs.

 
Shouting Democrats are better, smarter and more intellectual hasn’t been such a winning argument, and until the cultural elite class becomes the majority, it isn’t going to get any better. The best politics has always been good policy. So let’s get to work already.

The post Democrats Risk Cyberwar with Russia appeared first on Marc Abrams.



from
http://marcabramsonline.com/2017/01/03/democrats-risk-cyberwar-russia/