Obama,Syria and Asylum

Peter Wehner, in his Op-Ed article (Nov.28,2015, p.A19), attempts to create the false impression of fair-mindedness by referring, in passing, to Republican shortcomings as a contributing factor to the sorry state of affairs in Syria. Yet, the principal thrust of his essay is to perpetuate the Republican libel that the President, by choice, has been historically polarizing.
Wehner chooses to ignore the unprecedented hostility which his party has directed at Obama even before he assumed office. Any attempt by the President at compromise was almost unanimously rejected by a party unified in its common goal of obstruction, even if that meant voting against programs Republicans had previously proposed or embraced.
And when the President stated that he was prepared to enforce by arms his "red line" ultimatum but bent to the outcry that only Congress could declare war, Republicans blocked congressional action, effectively repudiating Obama's authority to act.
Yes, there are legitimate concerns about terrorists posing as refugees but the President's upbraiding of Republican opposition to asylum must be seen as the exasperated response of one who has endured seven years of unyielding and unreasonable opposition at every turn.

TO THE EDITOR:

Unquestionably, it is scandalous to hold suspects in jail pending trial simply because they are too poor to make bail and Chief Judge Lippman is to be commended for addressing the issue in his final months in office (NYT Oct.3, Page 22).

However, the solution to the problem does not require new laws or even a new policy. It merely calls for judges to better use their existing discretion to release defendants on their own recognizance when it is clear that they are not a flight risk.

Judges are already provided with data in each case documenting a defendant's community ties, thus enabling the court  to assess the likelihood that he will return for trial.

As a criminal court judge in Manhattan I frequently released defendants pre-trial without bail, even over the objection of prosecutors, when it was clear, as in many if not most cases, that requiring cash bail or a bond was not warranted. My willingness to utilize parole was rooted, perhaps, in the lessons learned from my participation as a law student in 1961 in the Manhattan Bail Project conducted by the newly-formed Vera Foundation, which demonstrated that accused persons with ties to their community were more likely to return to court then those released on bail.

Judges can, and should, be making far greater use of their existing authority to release defendants pre-trial. It is the humane and sensible thing to do and will ensure that poor persons accused of minor crimes do not languish in jail awaiting trial.

Gerald Harris

Topless in Times Square a Legal View

The "problem"  of bare-breasted women soliciting tips in Times Square is just one part of a larger panorama which includes naked cowboys, action heroes and muppet characters saturating the pedestrian plazas established as oases in the traffic-congested "Cross-roads of the World". City officials are scratching their heads and wringing their hands over how to address this phenomena without invading the civil rights or constitutional protections of these self-professed performers.

The first issue to be determined is whether the presence and actions of these costumed accosters truly is a problem. After all, Times Square's appeal has always been its tawdry character which for decades has drawn, titillated and frightened tourists. On the other hand, local merchants claim that the aggressive nature or erotic appearance of these panhandlers deters visitors, particularly families with young children, and damages their business. It is for the City Council, after careful study and extensive public hearings, to determine the kind of neighborhood that best serves the City's overall interests.

Second, the criminal justice system is not the appropriate instrument for resolving this patently societal tension. Arresting and prosecuting the actors merely implicates knotty constitutional and legal issues premised primarily upon protection of freedom of speech and would require satisfying the high bar of proof beyond a reasonable doubt.

Instead, the City Council could conclude that commercial activity within the pedestrian plazas is inimical to their primary purpose of rest and reflection and adopt an ordinance which designates those areas as commerce-free zones. It would not be a stretch to find that posing with tourists for tips is a commercial endeavor and courts have regularly upheld limitations on the use of park space or solicitations on subways. An injunction could be sought in civil court barring persons from engaging in the proscribed conduct including presentation of so-called performance art.

The Romney Plan

 

So, now we have it. Romney’s plan to save the economy and restore America’s greatness. Every economic indicator shows, and most experts agree, that the major impediment to recovery and job creation is lack of consumer confidence. That lost confidence manifests itself in reduced spending which leads business owners to defer expansion and suppress production.

Romney’s solution; lower taxes on the wealthiest while ending the tax deductions that most benefit the middle-class, such as mortgage interest, local tax payments child care expenses, etc. The result, more money in the hands of the top 2%, whose expenditures least impact the economy and higher taxes and less spending money for the middle-class, whose purchasing power most influences the economy.

In furtherance of this strategy, Romney would slash the programs that enable poor Americans to have and spend money, thus drying up their contribution to the economy even as it puts their well-being at the mercy of private and religious charities.

Romney’s plan is to remove regulation and put Wall Street and the Big Banks back in the business of pursuing enormous gain by issuing exotic securities and taking huge gambles on transactions that have no economic justification and add nothing to the creation of goods or services.

Romney’s economic vision is that reduced government spending, on roads, bridges and infrastructure and on the maintenance of a social safety net, will somehow be offset by increased spending on armies and armaments. In his universe the deficit will not be increased by the revenue lost in giving tax reductions to the wealthiest, by lowering or ending taxes on capital gains and by excusing corporations from the payment of taxes. Instead, the deficit will be magically reduced by greater economic activity and by closing the “loop-holes” that most experts agree will serve only to increase the tax burden on the rapidly disappearing middle-class.

And American greatness around the world will be restored and enhanced by substituting threats for negotiations, bluster for reason and the restoration of cold-war tensions with Russia and China.

So let the oceans rise and the climate deteriorate. The important work is to return America to those days of yesteryear when government did not grant civil and voting rights ( only God and Nature did ), women’s rights and choices rested in the capable hands of mostly male legislatures, unions were weak or non-existent, robber barons ruled and every hand could hold a gun.

Gerald Harris

August 31, 2012

 

 

Let Them Eat Broccoli

 

 

It is hard to comprehend how jurists who are presumably learned and sophisticated, can subscribe to a line of argument that is so childish and simplistic.

The health care mandate is not about forcing people to eat broccoli or join a gym. Those are activities that may or may not affect health and, therefore, the cost of providing health care. Mandatory insurance doesn’t mean people will be healthier – it simply means that when they inevitably become ill, the burden of paying for their care will not be shifted to others.

The mandate is not “ creating commerce in order to regulate it “. The commerce being regulated is the health care system, an existing industry. That industry is impacted by the decisions made by individuals, to buy or not to buy health insurance. It is a given, and inevitable, that every person in this country will, at some point in their life, require medical assistance because people become ill, are injured and ultimately die. Our society will inevitably respond to those who are injured, ill or dying and attempt to cure illness, repair injury and save or prolong life. There is a cost for such intervention which will be paid by patients with adequate funds, or by insurers, or by Society at large ( in the case of those who have no insurance and are unable to pay for care ).

So, unlike abstention from broccoli, the failure to buy insurance will shift the burden of paying for medical care from the recipient to the provider or the taxpayer. Congress has determined there are at least 43 million uninsured, potential cost-shifters and it has the power to impose requirements that prevent such an unfair imbalance from destabilizing the interstate health care industry.

 

Gerald Harris

March 27, 2012

The Supreme Court and Same-sex Marriage

Hypocrisy, thy name is the conservative bloc on the Supreme Court. Justices Roberts, Scalia and brethren lectured, in the same-sex marriage case, that democracy is threatened when lawyers-turned-judges substitute their social preferences for the will of the people as expressed through the actions of their legislators. Yet, when the issues before the Court were affirmative action and voting rights, these same defenders of the Constitution rejected the findings and enactments of Congress and offered their own judgment that racial bigotry had ended in this Country and there was no longer a need for government intervention to level the playing field. I guess the strike zone of "umpire" Roberts varies depending upon who is at bat.


June 27,2015

Eight Centuries of Liberty

The Magna Carta, as Daniel Hannon appropriately notes in his WSJ article, "Eight Centuries of Liberty" (May 30-31, page C1), was the forerunner of  and inspiration for our Declaration of Independence and Constitution. And yes, it introduced the overarching concept of "rule of law". However, his trope is misleading in several respects and puts a modern varnish over ancient flaws.
  The Magna Carta, indeed, was more about the protection of property of the landed gentry and the real estate rich clergy than it was about recognizing the individual rights of the common man. As Hannon concedes, the Magna Carta " conceived freedom and property as two expressions of the same principle." It did little or nothing to secure the individual freedom of those enslaved or landless.

  Our own founding documents were also deficient in their original form. While they proclaimed liberty and equality, they sanctioned slaveholding and the vesting of rights tied to the  ownership of property. It took decades and centuries, civil war and constitutional amendments to end slavery, enfranchise women and extend voting rights to the landless and people of color.  

  Too much is made by Hannon of the role of English-speakers in preserving democracy which, he allows, was birthed by ancient Greeks. It is ethnocentric to celebrate "the law of the land" as emanating from the land itself, as the common inheritance of the people living there. Tell that to the native inhabitants who were slaughtered or driven from their ancestral homes.

  Our Constitution has come a long way from the Magna Carta and its own initial shortcomings. Hopefully, its continued protections and relevance will not be thwarted by narrow-minded jurists who elevate old concepts and textual obeisance over the evolving challenges of the modern world.

 

A Modest Proposal

The great issue of our time has emerged as the monumental disproportion of income; an overwhelming part of our national wealth is taken by a relative handful, leaving the vast majority to struggle to meet the daily needs of families. The unchecked growth of this disparity poses an increasing threat to the fabric and serenity of our society.
 Many reasons have been assigned for the widening wealth gap including deregulation, tax rates favoring the rich, the weakening of unions, the court-sanctioned role of big money in politics, unfavorable trade pacts, development of labor-saving technology and the stagnation of minimum wage levels.
 A listing of these putative causes suggests the solutions which have been advanced; greater governmental regulation, higher tax rates for the wealthy, increased taxation on wealth transfer (estate taxes), enhanced protection of labor in trade agreements, a higher minimum wage, stronger unions and limits on the spending of deep-pocket political donors.
 While these proposed remedies are relevant and potentially useful, I wish to offer a modest proposal for leveling the playing field. The compensation of corporate managers has ballooned to obscene proportions, especially in the area of securities trading which, arguably, adds little to the common good. These oceanic rewards are treated as expenses by the corporate payers, thus shifting the burden to the government and the tax-paying public.
 The solution is to modify the tax code to limit the extent to which a company may claim as an expense the amounts paid to executives. Presumably the loss of tax advantage would incline corporations to spread their income more broadly by increasing the pay of middle managers and lower paid workers. This approach does not prevent corporations from continuing to pay outlandish compensation should they choose to do so; it simply removes the public's unwilling participation in funding such extravagance and, perhaps, serves to dissuade unbridled corporate largess.
 Yes, we are a nation of unfettered opportunity and of freedom to amass great wealth. This proposal would not denigrate that oft-repeated credo; it merely makes more realistic the opportunity for the many to achieve at least a modicum of comfort even as it strengthens the ties that keep our diverse society whole.

The Dangers Of Unrepresentation

THE DANGERS OF UNREPRESENTATION


In days of yore, the downtrodden mostly accepted their lowly status and simply toiled from cradle to grave without much more than a low, murmured grumbling. From time to time, however, their complacency crumbled and their long-suffered grievances erupted into revolutionary violence. The French elite, the Russian aristocracy and other ruling classes were made to pay with their lives to assuage, temporarily, the anguish of unfulfilled lives.


In modern times, even as the oppression by the wealthiest continued, albeit in commercial rather than regal guise, new outlets for diverting pent up lower-class anger were developed. Thus, the troubled birth of unions gave working people a degree of bargaining power never before possessed. The extension of voting rights to the non-propertied gave at least the semblance of representation to the hitherto powerless. As a consequence, the uprisings and bloodlettings of an earlier time faded, replaced by a less violent form of class warfare.


Regrettably, that positive development is now being reversed. Somehow, the rich have persuaded the poor that their interests are closely aligned and that both are benefitted by dismantling the leavening effects of government intervention and the bargaining power of unions. The process of reducing working class empowerment is furthered by the acceleration of racial bias and ethnic division aimed at splintering solidarity and setting worker against worker. Voting restrictions that target minority blocs are intended to, and have had the effect of, disenfranchising those likely to favor progressive reform.


Wealth continues to stream to the wealthiest and the differences in income and lifestyle between the haves and the have much less have grown to vast disproportion. But now, the means to seek redress and relief, to vent frustration and to obtain meaningful representation are being stifled. When government is no longer representative and unions are weakened or nonexistent, we will return to a time when rebellion is fostered and relief is sought by resort to force.




January 2, 2015