"The Boy Who Cried Wolf" A Political Fable for Our Times

If every announcement of a "wolf" is followed by "not a wolf" what happens down the road when there really is a wolf?

There's a moral here. Generating faux crisis after faux crisis creates "crisis fatigue" . . . which plays into some truly bad actors hands.

Just saying,

President Seeks Control of the Supreme Court: The "Court-Packing" Plan

Perhaps better known as FDR's "Court-Packing" Plan:

After winning the 1936 presidential election in a landslide, Franklin D. Roosevelt proposed a bill to expand the membership of the Supreme Court. The law would have

added one justice to the Court for each justice over the age of 70, with a maximum of six additional justices. Roosevelt’s motive was clear – to shape the ideological balance of the Court so that it would cease striking down his New Deal legislation. As a result, the plan

was widely and vehemently criticized. The law was never enacted by Congress, and Roosevelt lost a great deal of political support for having proposed it. Shortly after the president made the plan public, however, the Court upheld several government regulations of the type it had formerly found unconstitutional. In National Labor Relations Board v. Jones & Laughlin Steel Corporation, for example, the Court upheld the right of the federal government to regulate labor-management relations pursuant to the National Labor Relations Act of 1935. Many have attributed this and similar decisions to a politically motivated change of heart on the part of Justice Owen Roberts, often referred to as “the switch in time that saved nine.” Some legal scholars have rejected this narrative, however, asserting that Roberts' 1937 decisions were not motivated by Roosevelt's proposal and can instead be reconciled with his prior jurisprudence.

Some of you might recall that Mr. Roosevelt was not a Republican.

More at  FDR's Losing Battle To Pack The Supreme Court,

"Some suggested that Congress ought to be able to overrule the Supreme Court," he explains. "By a two-thirds vote, Congress should be able to overturn any ruling of the Supreme Court, essentially making Congress the last word on the Constitution and not the Supreme Court."

"He didn't think it was practical," says Shesol. "It takes a very long time, usually, to amend the Constitution ... enough to change the reality in the country. But secondly, and this is really important in understanding why Roosevelt packed the court, [is that] he didn't see any kind of contradiction between the Constitution and the New Deal. He didn't think there was anything in the Constitution that prevented him from doing what he needed to do. The problem as he saw it was not the Constitution; it was the conservatives on that particular Supreme Court. So what could you possibly do about them? So that's how he came to the idea of packing it."
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"Age does not define ideology," he says. "Even though Roosevelt looked at what he called the 'nine old men of the Supreme Court' and suggested that the older justices were falling out of touch with reality, the oldest justice on that court in the 1930s was [Louis] Brandeis, the great liberal justice. And this was pointed out with glee with many of Roosevelt's opponents. ... So, you don't hear anything like that today. You hear concern on the part of progressives in this country that Justice Stevens and the other liberals are more likely to leave the court soon than any of the conservatives are, but I think we've come a long way since the 1930s, when that argument was made so forcefully by Franklin Roosevelt."

When the "progressive agenda" has been thwarted by the Supreme Court, some folks have suggested that court-packing might be a swell idea. Recently, for example, one Todd N. Tucker writes In Defense of Court-Packing with the delightful sub-title of "We shouldn't let a handful of reactionary judges get in the way of progressive change. It's time to pack the Supreme Court." -

With Tuesday’s Supreme Court ruling upholding Trump’s Muslim ban, Wednesday’s decision attacking public sector unions, and Justice Anthony Kennedy’s announcement that he’s retiring, it is time to push a once-marginal idea to the top of the agenda: pack the Supreme Court. The conservative majority’s support of Trumpism and opposition to progressive objectives means it will pose a barrier to the agenda of even the most left-leaning president and Congress. This barrier must be confronted head on.
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From the time the justices unilaterally asserted their power to strike down legislation in 1802, a democracy-eroding judicial supremacy has been an ever-present danger. One of the most significant confrontations came in 1937, when the Franklin D. Roosevelt administration decided to pick a fight with the Court.
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That’s not to say court-packing is easy. Historians have documented how FDR badly managed public and congressional opinion, and would have had difficulty actually getting a favorable vote on his bill. His ultimate triumph came from being able to wait out the Court by serving more than two terms — something not available to politicians today, despite having relatively young conservative justices like Neil Gorsuch that will be around for decades to come.

Nonetheless, this shouldn’t dissuade us. Political scientist David Faris makes a compelling case that court-packing — along with statehood for D.C. and Puerto Rico and other reforms — amounts to a prerequisite for lasting progressive change. In his new book, It’s Time to Fight Dirty, Faris proposes to expand the roster of the Court to eleven or thirteen immediately, and then pass a law allowing presidents to appoint a new justice every two years. Meanwhile, the most senior justices would be shuffled into a type of emeritus position with lesser responsibilities. The nine most junior cases would do most of the judging, with more senior justices momentarily pulled into duty in the case of a justice’s death.
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A thoughtful court-packing proposal would ensure that the Court more carefully reflects the mores of the time, rather than shackling democracy to the weight of the past. With inequality and human rights abuses spiraling upward and justices making it all worse, the time to begin mainstreaming an enlarged Court is now.

I wonder if Mr. Tucker has considered that a conservative president might accept his argument for court-packing but in a manner Mr. Tucker would most definitely not approve? Wouldn't this scheme just lead to an endless shuffling of justices by succeeding administrations that differ in political viewpoints?

And, hey, what about the fact that the "most senior justices" might be the ones "progressives" would like to keep (Justices Stevens and Ginsberg, e.g.), while this idea would allow Mr. Trump to keep rolling in "conservatives." Indeed, that was one of flaws of Mr. Roosevelt's original court-packing plan - his successors could invoke the same concept to achieve their agendas - which may have differed greatly or completely reversed his.

Further, I wonder how Mr. Tucker views the Supreme Court decisions which he might like - say on abortion - are they examples of "democracy-eroding judicial supremacy?"

But, of course, the general rule in cards and politics is "winners always crack jokes, and losers say "deal." or, as Willie Nelson, that great legal scholar put it:

The winners tell jokes and the losers say deal
Lady Luck rides a stallion tonight
And she smiles at the winners and she laughs at the losers
And the losers say now that just ain't right

So, first, Mr. Tucker and Mr. Faris, you need to win . . . which didn't happen.

UPDATE: Idiocy runs amok with an opinion piece in the NYT on court packing Stacking the Court. Really, do these folks think that somehow the other side won't do exactly what they are suggesting except by loading the court with conservative justices?

Post Election Song for the Winners

The Post-Election Song for the Losers

An Update on Political Correctness Run Amok

Toward the end of my post Political Correctness Run Amok, I wrote:

... does not Gov. Cuomo open up his own state to similar acts by other states on the basis of NY laws with which they disagree? Suppose NY has laws which Texas feels violate the Second Amendment - will Texas now forbid government funding of travel to New York until NY changes its laws to meet Texas standards?

An answer of sorts to that question comes in a set of complaints, referred to in New York Gov. Cuomo accused of violating Hatch Act after state ads run in North Carolina:

A former North Carolina Supreme Court judge has filed complaints with the U.S. Office of Special Counsel and a New York state ethics panel alleging that taxpayer-funded ads Gov. Andrew Cuomo’s administration has run in North Carolina violated the Hatch Act by interfering with the gubernatorial and legislative races in that state.

The commercials, which reference the state’s so-called transgender bathroom law, among policies by other states, “mention North Carolina and its leadership in a transparent attempt to criticize, interfere and affect the impending North Carolina elections,” according to the federal complaint filed by the retired judge, Robert F. Orr.
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The federal complaint criticizes the ads as going “beyond appropriate economic-development recruitment,” saying: “By using public funds to promote New York as supporting certain policies and implicitly criticizing contrary political decisions made in North Carolina, an ethical imitation has been breached.”

The complaint specifically identifies Mr. Cuomo as having violated the Hatch Act, along with several employees of Empire State Development, New York’s economic-development agency.

According to this:

The Hatch Act restricts the political activity of individuals principally employed by state, District of Columbia, or local executive agencies and who work in connection with programs financed in whole or in part by federal loans or grants

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Political Activities and Examples of Prohibited Activities
Covered state, District of Columbia and local employees may not:
*
use official authority or influence to interfere with or affect the results of an election or nomination ...

Good luck, Justice Orr, in getting this matter heard in today's PC climate.

Sanders: Taxes in Fantasyland

From the Daily News interview with Sen Bernie Sanders:

Daily News: I understand that. I wanted to draw a distinction, though. Because in your speech you mention the financial industry and you focused on corporate America, the greed of Wall Street and corporate America. So I wanted to get a sense of corporate America, as the agent of American destruction.

Sanders: General Electric, good example. General Electric was created in this country by American workers and American consumers. What we have seen over the many years is shutting down of many major plants in this country. Sending jobs to low-wage countries. And General Electric, doing a very good job avoiding the taxes. In fact, in a given year, they pay nothing in taxes. That's greed.

That is greed and that’s selfishness. That is lack of respect for the people of this country.

Let's see - Sen. Sanders is from Vermont.

The State of Vermont has invested its citizens tax money in various funds such as the Vermont Higher Education Trust Fund (VHETF). The VHETF includes an investment of some $6.2 million in the Vanguard Institutional Index Fund (VINIF). This VINI Fund is an investor in General Electric, as it holds about $3.6 billion in GE shares. If VINIF returns 5% on investments, the VHETF earns about $310,000.

So, if GE were to pay income taxes as Mr. Sander asserts rightly* they mostly are not, where would this "tax money" come from? Why from the profits, of course. Profits that now get paid to workers and to shareholders, the real owners of General Electric. In addition to Ma and Pa Mainstreet who might own a few shares (or even many shares), one of the owners (investors) of GE is Vanguard Institutional Index Fund, of which the State of Vermont Higher Education Trust Fund owns shares. So when GE sends profit money to VIIF, VIIF spreads that money around to its owners, including the VHETF.

As you might gather, any lessening of profits impacts VHETF by reducing the payout it receives from the VINIF. Who suffers then? Why the citizens of Vermont, that's who.

So, if Mr. Sanders is suggesting that GE should put jobs in high wage areas (say California or New York) and not avoid taxes (which is not a crime, by the way, unlike tax evasion) but increase the cost of doing business, then he is in favor of hurting the people of Vermont by decreasing the revenue of their trust funds.

The State of Vermont has other holdings for things like pension funds. According to my reading of this, these include investments in a number of non-US companies, which it is clear are unlikely pay much in the way of U.S. taxes. Indeed, the Acadian International Equity Fund apparently really doesn't invest in the U.S.:

The fund objective is to provide long-term capital appreciation through a portfolio of non-North American Stocks that is sufficiently diversified to minimize investment risk. This will include stocks in both large and small-cap issuers as well as opportunistic exposure to issuers in the emerging markets.

Golly, Mr. Sanders, your very own home state is not supporting American workers by investing in American companies? Why aren't you all over that?

*Who pays corporate taxes?:

In the case of the corporate income tax, as the Harvard Business School’s Mihir Desai put it in an interview I recently did with him and his HBS colleague Bill George, “that tax is going to be borne by shareholders, workers, or customers.”
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If a country allows free capital flows and free trade and has a corporate tax rate much higher than that of its neighbors, investors can choose to buy shares in companies elsewhere that face a lower tax, and corporate management can choose to move operations abroad. Consumers, meanwhile, can buy from foreign suppliers. By comparison, workers are pretty immobile. It’s hard for them to switch employers, let alone countries. So the tax lands on them, in the form of lower wages and/or skimpier benefits.

Mr. Sanders really ought to be arguing that U.S. corporate taxes be lowered to meet or be less than of other countries so that companies have no incentive to locate overseas and that the corporate tax burden doesn't fall so heavily on workers. You want to "disincentivize" corporate tax games? Lower taxes so that companies have no reason to play them.

Of course he is not arguing that. He wants high taxes to pay for his socialist vision of utopia, or, as I prefer to call it, "fantasyland."

You can attempt to decipher Mr. Sander's tax plan here. Before he drives all current U.S. companies overseas,

Senator Sanders would use the revenue gained by closing these loopholes to put at least 13 million Americans to work rebuilding our crumbling roads, bridges, railways, airports, public transit systems, ports, dams, wastewater plants, and other infrastructure needs.