Author Archive for Tom Bird

Trump Nominee: the Road to the White House

In the last week or so we’ve been subjected to near-constant news about President Trump’s nominees for various posts and Democrats vowing to boycott or filibuster them. It’s a lot of show business but how does it work? Why is it an issue? How does a boycott or filibuster work and how likely are they to succeed in their goal?

Why Would Someone Care About a Nominee?

The President may nominate someone to be head of a government department. Heading a government department, the nominee would have the power to shape policy within that department.

Trump NomineeFor example, if confirmed, Senator Jeff Sessions would fill the seat of Attorney General. As Attorney General, Senator Sessions would be the head of the Department of Justice. The Department of Justice controls all federal criminal cases. As a big issue right now, Attorney General Sessions would be able to choose how strictly marijuana offenses are prosecuted and whether they are prosecuted at all.

The President may also nominate people to be judges on federal courts all the way from the district courts to the Supreme Court. These judges will hear cases and render verdicts and sentences. Judges, once seated on the bench, hold their position for as long as they show “good behavior”. Violating good behavior is typically very difficult, usually involving blatant corruption or disobedience of the laws, so these appointments usually last for life.

How the Nomination-Confirmation Process Work

The President, at their will, may nominate someone to be head of a government department. If there is an opening for a judge on a federal court, the President may nominate a judge to fill the opening. There are no constitutional requirements for the qualifications of the nominee, no requirement of experience or character.

Once the President has decided upon who they would like to nominate, they present the nominee to the Senate. Under the Constitution, the nominee must be confirmed by the Senate to take the post they have been nominated for. The Senate may confirm or deny any presidential nominee for any or no reason. There is no requirement in the Constitution that the Senate must consider or even give a hearing to every one of the president’s nominees. This caveat is referred to as the “Biden Rule”. It is named after the former Senator and Vice President because he made a speech laying out this rule in 1992 when George H.W. Bush was President. It is this rule that caused the Senate to ignore Merrick Garland nomination for Supreme Court in 2016.

How Does the Senate Fight a Nominee?

As the gatekeeper to confirmation, the Senate has a variety of tools at its disposal to fight a nominee it does not wish to confirm. If the Senate largely agrees on denying the nominee they may simply vote to deny the nominee their confirmation and be done with the issue.

The issue becomes more interesting when the Senate is split on whether to confirm a nominee. Both sides have the option of employing the filibuster or calling a boycott. Although either side can employ either strategy, it is usually the side that believes they would lose a vote who will employ the strategies.

What is a Filibuster? How Does It Work? How Successful is it?

Senate rules say that as long as a Senator speaks on the floor, debate will continue and any votes will be delayed. If a Senator does this with the intent that a vote will never be allowed, it is called a “filibuster”. The only way to force a vote once a filibuster is in motion is to call for “cloture”. Cloture is the ending of debate on a topic. Traditionally, to get cloture, the vote for cloture must get two thirds support. The difficulty in obtaining cloture is a big part of the power of the filibuster.

A filibuster can be, and is often, used on consideration of controversial nominees. Traditionally this would be a strong weapon against a nominee and would usually end up in the nomination being revoked by the President. However, in the years of Democratic control of Congress under President Obama, Senator Harry Reid became tired of Republicans using the tactic. To fix this issue the Senate voted, largely based on party allegiance, to allow for cloture with only a majority vote when it comes to non-Supreme Court nominees. This means that if a Democrat sought to filibuster President Trump’s department nominees the filibuster could be defeated easily.

The filibuster used to be a strong way to stop a nominee until the latest rule change. A filibuster may be a strong tactic against President Trump’s nomination of Neil Gorsuch for the Supreme Court but it will likely not hold against any of President Trump’s nominations for government departments.

How Does a Senate Boycott Work? How Successful is it?

A Senate boycott works largely in the same way as a normal boycott. By sitting out of the vote, the disagreeing Senators hope to sway the thoughts of other Senators in their support.

A Senate boycott also works through Senate procedure. A vote in the senate requires that over 50% of the Senators be present for the vote, this is called having a “quorum”. Votes in the Senate can, and do, go through without meeting this requirement. However, if this requirement is called to the Senate’s attention, called a “quorum call”, then the Senate may not vote until 50% or more of the Senators are present.

A Senate boycott may be successful in stopping President Trump’s nominees. First, it brings lots of publicity to the issue and may help persuade some Republicans to side with Democrats. Second, if the boycott is large enough then a quorum call could forbid a vote from being taken on the nominee.

Where Does That Leave Us?

President Trump’s nominees have certainly proven to be controversial. The Senate does have a few options available to fight them but it is unclear if there is the necessary power available to fight them. Due to rule changes, the traditional filibuster will likely not stop a government department nomination. A boycott is much weaker and needs very large support to actually stop a nominee. This leaves a small group of Democrats largely powerless to stop President Trump’s nominees unless they can bring in some Republicans to their side.

So How About that Wall?

President-elect Donald Trump made building a wall on the US-Mexico border a pillar of his campaign. Post-election interviews reveal he intends to keep and act upon this campaign promise. No matter one’s opinion on whether building such a wall is right course of action, there are many practical concerns to be addressed.

How Big and How Expensive will it be?

The US-Mexico border is 1,989 miles long and the President-elect has proposed 35-foot-tall walls. As far as cost, some good estimates can be made as US Customs and Border Protection already began building some fences in 2007 and the Government Accountability Office released a report on the costs and issues faced. The GAO reported that the amount of fence constructed already has cost up to $5 million per mile. Basic math then tells us that this could cost $10 billion just for a fence along the entirety of the border. However, the President-elect has promised a “wall”, this may prove to be even more expensive. Furthermore, the current work was done to tackle areas of public land first to avoid dealing with private land owners. Eventually, the government must either get permission to build across private land or take the land through a process called eminent domain.

How will the Government Get the Land?

Trump and the WallCan the government really take land from private land owners? Yes, it can, both state governments and the federal government may do so. The Constitution specifically allows the government to do so as long as they pay fair market value for the land. That is, if the government wishes to seize the land and the owner refuses to sell it willingly the government may seize it against the owner’s wishes as long as the government pays fair market value.

Another requirement is the seized land must be used for some public purpose. This mean that eminent domain cannot be used to seize land for purely private purposes. For example, a state governor could not use eminent domain to seize land for their friend to build a private home on the land. On the other side, clearly public uses are easily approved, such as seizing land for public utility purposes like electricity poles and telephone cables. Many projects fall in the middle of this spectrum so the legitimacy of eminent domain is questionable in these areas. However, Supreme Court cases on this issue though have found this to be almost a non-issue. In particular, the Supreme Court case of Kelo v. City of New London rendered this issue almost unimportant. In Kelo, the city of New London, Connecticut wished to seize Ms. Susette Kelo’s home so that the headquarters of a private company could be built on the land. While Ms. Kelo asserted that this was a private use, the Supreme Court disagreed. The ruling in Kelo has set precedent that questionable eminent domain takings will usually be upheld by US courts.

Overall, a border wall would likely not encounter any issues with eminent domain. It’s clearly for a public purpose, national security and immigration. With this hurdle passed, the only issue would be fair market value for the land. US Customs and Border Protection has already estimated this cost to be about $800,000 per mile.

Is This Already Happening?

Yes, it is already happening. When US Customs and Border Protection began building these border fences in 2007 they needed some private land that is on the US-Mexico border. Many land owners willingly sold their land, while others chose to fight the taking in court. Unfortunately for the land owners, courts consistently ruled for the federal government. This very thing happened when US Customs and Border Protection needed Dr. Eloisa G. Tamez’s ancestral land to build a border fence. Dr. Tamez took the federal government to court. In 2013 a US court ruled that US Customs and Border Protection could take Dr. Tamez’s land that had been inhabited by her family since 1767. Dr, Tamez’s case is not unusual and similar incidents are very likely to occur if the President-elect carries out his campaign promise.

Is This Really Going to Happen?

It looks like the President-elect’s plan is entirely possible and plausible. The federal government would likely be able to acquire any border land it needs for the wall through eminent domain. The only hurdle would be the cost, which would have to be set aside by Congress. However, this likely will not be an issue either as Congress has consistently approved funding for border fencing and border patrols. Overall, if the President-elect decides the act upon this campaign promise there will be very little to stop him.

Marijuana is Legal for Recreational Use in Four More States; Now What?

On November 8th, California, Maine, Massachusetts, and Nevada joined the current four states and DC in the legalization of marijuana for recreational use. Some herald this as success, others decry it as a tragedy. What is beyond question is that those who do choose to use marijuana should keep in mind the limitations of the legalization measures and the continuing risks.

Possession Limits

As a baseline, all the passed measures require that you be at least 21 years old to possess marijuana. Under the new measures, there are limits to how much an individual may possess and grow for personal use. Possessing or growing more than allowed is still illegal, even under state law. California allows a person over 21 to possess 28.5 grams of marijuana, Maine allows two and a half ounces, and Massachusetts and Nevada allow one ounce. All four states allow a person over 21 to grow up to 6 marijuana plants and to keep the harvested marijuana for their personal use.

Growing Restrictions

In addition to the possession limits, there are requirements upon how you must go about growing marijuana. First, the marijuana must be for your own personal use or given in limited quantities to Marijuana Lawothers over 21. You may not accept payment for marijuana grown for personal consumption and can only give away a limited amount. The four measures vary slightly on location requirements for growing. Overall, all four require any marijuana be grown in a place where it is kept safely out of the reach of children.

Sale and Giving Away

Both selling and giving away marijuana are addressed in the new measures. In all four states, under the new measures, you may give away, without any sort of payment, up to one ounce of marijuana. Sale is absolutely forbidden unless you follow new state licensing and regulatory procedures to become a marijuana business.

Where and When?

All four measures also limit where and when marijuana may be used. The measures all prohibit marijuana use in public, including public establishments like bars. They also prohibit marijuana use in or near premises frequented by children such as community centers and schools. None of the measures change DUI laws so driving under the influence of marijuana is still a criminal act in these 4 states.

Effective Date

Each of these measures has their own effective dates. That is, the day that the measures become law. California’s measure was quickest, it was effective the day after the election, November 9, 2016. Massachusetts’ measure will take effect on December 15, 2016. Nevada’s measure will take effect on January 1, 2017. Maine has yet to establish a clear effective date due to a battle currently raging in Augusta.

The Maine Problem

The marijuana legalization measure in Maine prescribed that it would take effect 30 days after Governor LePage signs it. However, LePage has been a vocal opponent of the measure ever since it was allowed onto the ballot. Currently, LePage is making statements that the measure violates federal law and will require legislative tinkering to even be viable. The opponents of the measure are currently demanding a recount, as the measure passed on a margin of 4,000 votes. Needless to say, with the recount demands and his personal opposition, LePage is currently refusing to sign the measure. This leaves Maine law on the subject in limbo.

Still Illegal

Even with these measures passed, marijuana is still illegal across the US. Federal law still designates marijuana as a schedule one drug. This means, even if you follow all the rules set forth in the new measures, federal law enforcement such as the Drug Enforcement Agency, Bureau of Alcohol, Tobacco, and Firearms, Federal Bureau of Investigation, and Federal Marshalls may still arrest and prosecute you for possession, growing, or giving away marijuana. This comes from the fact that the United State’s federal system gives federal law supremacy over state law as explained here. To summarize, the new measures communicate to state, county, and city level police that they cannot arrest or prosecute anyone following the rules outlined in the measures but do not hold any sway over federal law enforcement.

Federal law enforcement trends on prosecuting marijuana possession have not been consistent. In this area, the President holds a lot of sway. Under the administrations of Presidents George W. Bush and Barack Obama, federal investigators and prosecutors have prosecuted those using or growing marijuana even in states that have legalized medical or recreational use. President-elect Donald Trump has not been clear in his views on marijuana. Years ago, he asserted that all drugs should be legalized. However, on the campaign trail, he proclaimed that he is ok with medicinal marijuana but not with recreational use. It is difficult to predict how a Trump administration will handle marijuana prosecution.

Overall, marijuana laws are changing. Marijuana is still not legal in the US, even for medicinal use. State laws, like the recreational marijuana measures, only protect marijuana users from state law enforcement. If you do choose to use marijuana under a state recreational marijuana measure, keep in mind the limits placed by the measure and the risks of federal prosecution.

An Appeal to Skeptics of the Recreational Marijuana Initiatives

Voters in Arizona, California, Maine, Massachusetts, and Nevada have already begun voting on whether to join Alaska, Colorado, the District of Columbia, Oregon, and Washington in legalizing marijuana for recreational use. These initiatives have combined the opposition in a group of odd bedfellows. Conservatives and Libertarians are rallying against these propositions and questions for vastly different reasons. Conservatives uphold the dangerousness of drugs and the crime they accompany. Libertarians say the initiatives do not go far enough and instead create more oppressive government while asserting to expand individual freedom. I make an appeal to these two groups to support the initiatives.

To Conservatives

Since at least the 1950s, drug prohibition has been a hallmark of conservative politics. This was only strengthened in the 1980s when President Reagan declared drugs a matter of national security. The prohibition on drugs has not worked. This is not surprising as the US has tested prohibition before and it didn’t go well then either. In fact, the current drug prohibition has the same destructive problems alcohol prohibition had in the 1920s and 1930s. The free market is another hallmark of conservative politics and it tells an important lesson about prohibitions. Finally, if conservatives are concerned about safety and the use of marijuana, wouldn’t it be better for it to be regulated rather than done on the black market?

Alcohol Prohibition: Scofflaws, Gangsters, and Death

National prohibition of alcohol was supposed to protect the American people from the purported scourge of alcohol. Instead, it created a nation of people who either openly, or behind closed doors, flouted the law. At the time, they were called “scofflaws.” Not only did it make every-day people into law breakers, but it made gangsters into billionaires almost overnight. Legitimate liquor stores were forcibly closed by government agents. Instead of stopping the flow of alcohol, as intended, the supply simply moved to the black market. 

Further, it prevented any sort of purity and health regulation upon alcohol. Whole new diseases in the US emerged overnight from Americans drinking adulterated bootleg alcohol. This bootleg alcohol was frequently made with dangerous chemicals including wood alcohol, that we now use as hand sanitizer. In 1933, the US finally reversed this course after realizing prohibition did not stop alcohol, it created scofflaws, enriched gangsters, and made Americans sicker.

These same issues are present in modern drug prohibition. According to the National Institute of Health, 22.2 Million every-day Americans use marijuana. In the current state of US law, every single one of these Americans are law breakers. Even in states that currently allow marijuana use, federal law still reigns supreme and confers this status upon these Americans. Just as Prohibition in the twenties made gangsters like Al Capone and Lucky Luciano into multimillionaires, the current drug prohibition has made drug cartels and street gangs into billionaires.

Drug prohibition has not made America safer either. Many innocent Americans are killed by street gangs defending drug territory and by law enforcement tackling drug trafficking. Drug users are not safer either as adulteration of street drugs, including marijuana, is common. The substance that is available to a marijuana user cannot be certified for purity or safety and is left completely up to the black market. Modern prohibition has failed just as it did back in the twenties.

The Free Market

Conservatives have long advocated for free markets. A basic tenant of free market economics is that demand drives the market. Demand is what shapes the market. With 22.2 million Americans consuming marijuana, there is clearly demand. Another tenant of free market economics is that supply will always rise to meet demand. This was proven in the twenties with prohibition and continues to be true with drug prohibition. If one accepts these tenants, one accepts that government, no matter the intensity of coercion applied, cannot stop drugs from entering the market. If this is accepted as true, perhaps it is wise to allow drugs but instead tax and regulate them to ensure their purity and to ensure that consumers have recourse against merchants who rip them off.

To Libertarians

Libertarians have long maintained drug legalization as an important policy pursuant to an individual’s freedom to choose what they consume. One would then think these new initiatives would be a boon for libertarians. However, the libertarian party is actually opposed to some of these initiatives. This comes from the fact that, while the initiatives legalize marijuana for recreational use at the state level, many of them also introduce harsh regulatory and tax regimes around them. I would appeal that libertarians not allow the perfect to be the enemy of the good in this situation.

There seems to be little appetite for a complete legalization and deregulation of marijuana in American society as of now. Even substances viewed as an unshakable part of American culture, such as alcohol, remain widely regulated despite being legal to possess and consume. A regulated and taxed legalization program, such as these initiatives, would move towards normalization of marijuana and away from the Reefer Madness viewpoint that currently pervades the thinking of some groups.

In Conclusion

As Americans fill in their ballots whether by mail or in the polling booth, I appeal to conservatives and libertarians to consider supporting these initiatives. To conservatives, consider this an opportunity to protect Americans from the issues caused by prohibition and to allow government and legitimate businesses to profit rather than gangsters. To libertarians, don’t let the perfect be the enemy of the good; consider these initiatives as a step towards a goal rather than a roadblock to perfection.

Police Shootings: A Tough Job and Misconduct

It can scarcely be questioned that police officers have a very difficult job that exposes them to far more danger than most any other job. At the same time, there are many everyday Americans who feel unsafe around police officers. It is doubtless that police misconduct does occur, but there are many incidents where it is not so clear whether misconduct has taken place. In the past few months, many such events have taken place, stoking tempers in both law enforcement and civil rights groups. Is the outrage warranted? Has there been police misconduct? Let’s look at two recent incidents.

“It Looks Like a Firearm That Could Kill You”

One such incident took place in Columbus, Ohio. The situation was as follows per current reports; an investigation is ongoing.

On September 14, 2016, the Columbus Police Department responded to a report of an armed robbery. A short time after speaking with the victim of the robbery, officers identified three individuals who matched the description given by the victim. Two of those individuals decided to run when ordered to halt by the officers; one of them was Tyre King. During the pursuit, King pulled what looked like a gun from his person. Police 2

At a snap decision, King was shot and killed by Officer Bryan Mason of the Columbus Police Department. Investigation at the scene later found King did have a gun, but it was only a BB gun. However, the BB gun was a very close replica to a common pistol. Police commented at a press release after the incident “it looks like a firearm that could kill you.”King’s companion, Demetrius Braxton, told police that he and King had performed the robbery that was reported. Officer Mason is currently performing desk duties while an official investigation takes place.

The outcome of the incident is, without a doubt, tragic. However, it is another question as to whether Office Mason ought to be disciplined. Under the current reports of the facts, King was reaching for a realistic looking firearm at the time he was shot by Officer Mason. If this was to happen to any person in the US, one might consider it self-defense. One wouldn’t expect that person to accept being shot at. In short, one might accept a person defending themselves in kind. However, one might also assert that Officer Mason could have tased or restrained King instead of shooting him.

Currently, insufficient facts are available as to whether either of these options would have been possible. On balance, under the current reports of the situation, it would be reasonable to not discipline Officer Mason as his actions appear to be legitimate self-defense.

“That Looks Like a Bad Dude”

Another such incident took place in Tulsa, Oklahoma. The situation was as follows per current reports; a lawsuit is ongoing.

On September 16, 2016, Tulsa police received two reports of an abandoned vehicle in the middle of a road blocking traffic. Upon arrival at the scene, Officer Betty Shelby found Terence Crutcher with the vehicle. Upon engaging Crutcher, Officer Shelby noted many indicators that Crutcher was under the influence of drugs or alcohol. Officer Shelby ordered Crutcher to put his hands up and Crutcher complied. Crutcher began to wander back and forth between the abandoned vehicle and Officer Shelby’s police cruiser.

Officer Shelby claims that Crutcher refused to comply with commands given at the scene. At this point, additional officers arrived as did a police helicopter. Crutcher, hands still in the air, walked towards the abandoned vehicle and faced the vehicle. At this point, one of the officers in the police helicopter commented “That looks like a bad dude,” referring to Crutcher. There is a sudden flurry of movement from Officer Shelby and three backup officers. First, one of the backup officers tased Crutcher then a female voice over police radio yells “shots fired!” Officer Shelby had shot Crutcher who fell to the ground and died. Officer Shelby was later placed on administrative leave then charged with manslaughter.

Again, this was doubtlessly a tragic event, but did Officer Shelby deserve the manslaughter charges brought against her? Unfortunately for Officer Shelby, there’s no evidence to support a claim of self-defense. No weapons were found at the scene, nor were any found in Crutcher’s car. Current reports of the events do indicate Crutcher was acting strangely throughout the encounter. However, the mere fact that someone acts strangely should not be sufficient to use deadly force. In fact, according to the video evidence, Crutcher had his hands up through most of the encounter.

Officer Shelby also asserts that Crutcher did not comply with her orders. Even if this were true, which is uncertain at this point, this doesn’t seem sufficient to justify deadly force. Indeed, when backup arrived, the backup officer elected to use a taser to restrain Crutcher. Overall, it seems clear that deadly force was not justified in this situation and therefore it seems fair to charge Officer Shelby.

The Bigger Picture

These incidents were tragic. However, in the bigger picture, we must keep perspective. Law enforcement officers have a difficult job. A dangerous job that puts officers at risk of their life every day. To keep perspective though we must also accept that the authority we grant to law enforcement demands oversight and reasonability. Misconduct must be investigated and, when justified, officers must be disciplined.