Monthly Archives: December 2016

Rebecca Ingber on Lawfare discusses the long term consequences of a Trump Administration in which the bureaucracy may or may not work as an emergency brake on a President careless of safeguards. Noting that, at best, it will be an imperfect mechanism, she next addresses the problems facing the President following Trump in the arena of power accruing to the the Presidency:

… there is a catch-22 for presidents rising to power on promises to rein in the overreach of a predecessor on both process and substance. Remediating process fouls may make it more difficult to effect quick substantive change. Continuing to skirt the process norms of the executive branch in order to impose one’s substantive views entrenches the process errors. And yet a post-Trump president may well need to tackle both. For future presidential administrations, there are potential avenues for dialing back prior claims to power while still employing an inclusive decision-making process. Dialing back substantive claims to power of a predecessor are most effectively done immediately, upon taking office. For matters that require determining and implementing new legal positions or policies, decision-making should be channeled into processes that can examine problems ex ante and in a fashion removed from the pressures of addressing the facts on the ground inherited from the last administration, even if those pressures exist and are ongoing (i.e. forward-looking task forces to address best practices or legal positions, versus defensive litigation geared toward protecting power to defend actions already taken).

More urgently, for presidential administrations hoping to entrench internal constraints on future presidents: lay out your legal theories for action as clearly as you can; rest them on a specific theory and not in-the-alternative options; have the authors sign their legal positions to ensure accountability; publish them to ensure transparency; and include written redlines so there can be no confusion about the existence of outer legal limits on the president’s authority. The Obama Administration’s speeches, released legal memoranda, briefs, and the commendable recently released “Report on the Legal and Policy Frameworks Guiding the U.S. Use of Military Force” have over time checked several of these boxes on key national security issues.

I think it’ll be incumbent on the media and electorate that one of the discussion topics of the next campaign must be identification of power accrual and a discussion of whether this is detrimental to the Republic or not. Note this is different from the question of whether it’s good for the Presidency; the two are fundamentally different, as the Republic exists to promote the welfare of the citizenry, while the Presidency, though having a valid role in the Republic’s goal, is in itself an anti-democratic institution; only in relation to the limits set by the other two branches of government is it a tolerable institution, Therefore, arguing that limiting its power limits its efficacy is irrelevant; only in the context of the Republic as a whole can such arguments be properly judged as to their legitimacy, in terms of the dangers as well as the advantages that more power in the Presidency will cause.

I wonder if substantial portions of the electorate are up for such a discussion.

And no doubt more than one ship has been lost to these. LiveScience reports:

Source: FindLatitudeAndLongitude.com

A monstrous swell in the North Atlantic that rose up as high as a six-story building is now the world‘s tallest wave measured by a buoy, according to the World Meteorological Organization (WMO).

The wave crashed down the morning of Feb. 4, 2013, in the watery expanse between Iceland and the United Kingdom, at approximately 59 degrees N, 11 degrees W. It occurred after a strong cold front passed through the area, producing winds of up to 50.4 mph (43.8 knots), the WMO reported. …

The WMO added that the new record isn’t from one wave, but rather an average of 10 to 15 wave heights, which “is a more reliable measure of wave height than that of a single wave,” said Randall Cerveny, a scientist at the WMO. “Of course, maximum waves have been recorded up to 29 meters [95.1 feet],” Cerveny told Live Science, but the WMO began using averages in 2007 so that their records would be more accurate, he said.

I suspect we don’t have enough data to see maximum wave sizes plotted against time and make any sensible conclusions in concert with climate change. But it’s an interesting thought.

A reader comments on automation in general:

Fascinating is not the word I’d have chosen. This is happening right now in America, and in other industrial OECD counties.

If “conservatives” believe we should reduce corporate income tax rates, but those same corporations replace 10,000 workers with 100 robots each (so to speak), and the 1,000 largest corporations avail themselves to this opportunity — then what? That’s conceivably 10 million fewer taxpayers at the same time those more profitable corporations are now paying less tax. Seems like federal government revenue will go down significantly over next decade, absent any changes from this effect. Reduce corporate income tax rates will likely reduce that revenue further.

Of course, this is just for the sake of argument and many of those 10 million now “out of work” people will find something else to do and have to pay taxes. We hope.

But does this maybe call from something like a VAT or a federal consumption tax?

Possibly. I remain interested in UBI, as that might reduce societal unrest as jobs disappear and retraining becomes necessary. Knowing that you aren’t going to starve while retraining might make the mind more receptive in many folks, although I grant there will be some who resent the entire situation. And I have little sympathy with whining about corporate taxes going up to cover UBI, as it’s a relatively small amount to pay to ensure the corporate HQ doesn’t get burned down in the middle of the night by those former employees.

And the drop in federal revenue could be covered by taxing the automation hardware, although I suspect the devil will be in the details on that legislation.

While reading Steve Benen’s commentary on the nominee for Secretary of State, Rex Tillerson, it occurred to me that his remarks about motivations, namely,

Note, Trump has chosen ExxonMobil CEO Rex Tillerson, a close Putin ally, as his Secretary of State nominee – and Tillerson has publicly criticized U.S. sanctions on Russia for years.

… may actually be more serious than Steve himself realizes.

What is citizenship? The common response is a passive “member of a country”, I suggest, and this is actually a poor response. Citizenship, among other things, presupposes a shared motivation when it comes to national survival; that is, we all value national survival in roughly equal amounts. How to attain it may be a matter of controversy, but it’s a valid and valuable controversy.

But now let’s ask this about Mr. Tillerson. He is the CEO, and reportedly lifelong employee of ExxonMobil, a true multinational corporation. Where does his interests lie?

Does he really have the same view of the national survival of the United States as do the majority of the citizens?

Or are his motivations so tied up in his corporation that they now diverge from the common citizen’s concerns about our traditional enemy? His experience of Russia may be more extensive, but that doesn’t make it better, because the lens in front of his eye is tainted, as it were, with ExxonMobil, a company that can always move away from the USA if necessary, perhaps even to Russia. Nothing really stops it – insofar as the US becomes unattractive to ExxonMobil. And that’s where his self-interest lies – in all the stock, all the money he has tied up in ExxonMobil.

Something to gnaw on going forward.

Quinta Jurecic on Lawfare surveys Trump as an actor in the Carl Schmitt drama. Herr Schmitt was a German legal theorist of the early 1900s who formulated the theory of exception, the idea that the sovereign can choose to act outside the law in exceptional circumstances. After discussing the concept and its problems, Quinta brings it around to our President-elect.

Trump has given us genuine reason for concern that he may actually represent the Schmittian nightmare feared by many on the left and in the civil libertarian community after 9/11. His offhand campaign promise to House Republicans to uphold the Constitution’s nonexistent Article XII raised concern at the time over his lack of textual knowledge of the document, but even this isn’t the important thing. Not every President has had detailed textual knowledge of the Constitution, though most have been better at glossing over that fact than has Trump. What’s key is Trump’s apparent lack of understanding of the document’s significance and power as the bedrock of democracy and the rule of law—an understanding that normally commits the President to behaving in a constitutional fashion by heeding the good-faith advice of legal counsel.

Trump, on the other hand, has displayed precious little respect for these underlying constitutional principles: recall his hedging on whether he would accept the results of the election, and his eventual declaration that he would do so “if I win.” And to paraphrase an astute acquaintance I spoke to in the days after the election, while Trump might want to be a good President for the American people, he has shown no sign of wanting to be a good participant in the American system of governance. Her comments were echoed recently by Representative Justin Amash (R-MI), who criticized Trump for his “extra-constitutional” view of the presidency: “I think he just views the job [of the presidency as] … outside the Constitution,” Amash said. “I don’t think our framework [of law] in this country really comes into play when he’s thinking about how the job should operate.”

Amash’s formulation is apt: think of Trump’s statement to the New York Times that “the president can’t have a conflict of interest,” and therefore can’t be in violation of the Emoluments Clause. As many have noted, it’s hard not to hear the echoes of Nixon’s infamous declaration, “When the President does it, that means it is not illegal.”

“Extra-constitutional” is also a good way of describing Carl Schmitt’s sovereign power, which is not exactly above the law but, rather, outside it. The sovereign determines when law applies and to whom, and the sovereign’s decision is unreviewable by the courts or any other actor because it exists outside the structure of legal review entirely.

So let’s consider the case that Trump might be the real Schmittian. You can see hints of such an extra-constitutional self-understanding not only in Trump’s apparent lack of respect for the Emoluments Clause, but also in his contempt for the work of the courts.

She then goes on to examine the Judge Curiel and “lock up Clinton” controversies. There’s a lot of good stuff here, and it leads me to think the Trump Administration is going to be marked by a heckuva lot of litigation – and quite possibly some refusals to accept Presidential orders by the bureaucracy, and a subsequent figurative bloody nose for Trump.

Archaeology Magazine’s Samir Patel investigates the status of the wreck of the USS Arizona in Pearl Harbor. I didn’t know this about its fuel tanks:

National Park Service/eTrac ROV via Archaeology.org

“What we learned is that, yes, Arizona is corroding. Yes, Arizona is rusting. And yes, Arizona is changing,” says Conlin, “but it’s changing very, very slowly, and the best science that we have tells us that Arizona will still have significant structural integrity for at least another 150 years.” The risk of a catastrophic spill is low, he adds. Battleships don’t hold oil in a single tank, but in hundreds of cells. A recent SRC study found that, of the several places where oil emerges from the wreck, only one appears to be closely connected to a fuel storage area. The rest of the leaking oil follows a circuitous path through interior spaces, which suggests that it is distributed around the ship. Furthermore, it is thought that the oil inside inhibits the degradation of the metal and provides a buoyant force for its structure. And there’s no way to remove the oil without deeply impacting or damaging a war grave. “We are getting smarter about how we can understand Arizona,” Conlin says, “and also how we can manage Arizona.”

USS Arizona Memorial. Source: National Park Service

I wonder if that applies to other types of ships sunk during World War II – and since then. However, wrecks may contain other potential disastrous materials, as noted here.

On this thread, the reader responds:

I’m not assuming a permanent political split, but I am assuming that in matters of POTUS, Roberts, Alito, Scalia are guaranteed for the GOP. Pretty risky to go after with an 8 member court.

I presume that the reader meant Thomas, not Scalia. The Court should be simply working on matters of law, and Lessig’s argument appears to depend on a proper appreciation of how the law has been interpreted in the past. Would the Court simply split along political lines? Are our Justices really that poor as a whole?

Also, I really think that if Lessig truly thinks this is a legit argument he should get ready to file it. Sooner rather than later.

I wonder if he would have standing. It’s not a subject I understand well.

A reader elucidates my point further regarding the Iraq War and the CIA:

I pointed this out elsewhere: the CIA was the least supportive of Bush/Cheney/Rumsfeld/et al’s claim there were WMD. Most of the claims came from the aforementioned along with a few other direct reports. Moreover, the strongest Intelligence Community support came from the DIA, directly under Rumsfeld’s chain of command being part of the DoD. The CIA was highly reluctant to support the assertion.

Which makes his reluctance to trust the CIA – regarding a report roughly 15 years old, no less – just that much more disturbing. Keeping in mind Trump was for the war, this makes the CIA more accurate than some minor businessman in New York City – which is certainly what one would hope. Or we can ask Donald why, in 2000, he had spies operating in deep cover in Iraq, and see if he chokes on it.

In case you’re not up to speed on the various unemployment measures, the WaPo has published an article on it:

There are actually six versions of the unemployment rate produced monthly by the department’s Bureau of Labor Statistics. The official unemployment rate is U-3, which reflects people who are actively seeking jobs but cannot find one. Here are the six rates, with the percent unemployed as of November.

• U-1: Persons unemployed 15 weeks or longer, as a percent of the civilian labor force (1.8 percent)
• U-2: Job losers and persons who completed temporary jobs, as a percent of the civilian labor force (2.2 percent)
• U-3: Total unemployed, as a percent of the civilian labor force (4.6 percent)
• U-4: Total unemployed plus discouraged workers, as a percent of the civilian labor force plus discouraged workers (5 percent)
• U-5: Total unemployed, plus discouraged workers, plus all other persons marginally attached to the labor force, as a percent of the civilian labor force plus all persons marginally attached to the labor force (5.8 percent)
• U-6: Total unemployed, plus all persons marginally attached to the labor force, plus total employed part time for economic reasons, as a percent of the civilian labor force plus all persons marginally attached to the labor force (9.3 percent)

So Donald’s claim that we actually have a 42% unemployment rate? Either you’re wrong (but such a smart person! Oyez!) or you lied through your teeth. You choose, Donald.

Please, don’t look at other students’ answers.

Steve Benen on MaddowBlog has been harping on Trump’s sharp disagreements with the CIA recently:

The news on Friday night was a bombshell: The CIA not only believes Russia interfered directly in America’s presidential election, the foreign adversary did so because Vladimir Putin’s government hoped to put Donald Trump in the White House.

Trump’s first instinct wasn’t to deny the accuracy of the reporting, but rather, to attack the CIA: “These are the same people that said Saddam Hussein had weapons of mass destruction.” It was the latest in a lengthy series of instances in which Trump has questioned the integrity and the professionalism of U.S. intelligence agencies – a pattern that began months before Election Day.

But Steve never mentions that this, too, could be construed to be yet another Trump lie. As I recall, one of the tremendous Bush scandals was that the Iraq invasion’s pretext of WMDs possessed by Hussein turned out to be false – and that our intelligence agencies knew that. So I did some research, and it turns out that the CIA tried to satisfy the Administration’s desire to pin WMDs on Hussein – but couldn’t quite get there. From Jason Leopold on Vice News:

An example of that: According to the newly declassified NIE, the intelligence community concluded that Iraq “probably has renovated a [vaccine] production plant” to manufacture biological weapons “but we are unable to determine whether [biological weapons] agent research has resumed.” The NIE also said Hussein did not have “sufficient material” to manufacture any nuclear weapons and “the information we have on Iraqi nuclear personnel does not appear consistent with a coherent effort to reconstitute a nuclear weapons program.”

But in an October 7, 2002 speech in Cincinnati, Ohio, then-President George W. Bush simply said Iraq, “possesses and produces chemical and biological weapons” and “the evidence indicates that Iraq is reconstituting its nuclear weapons program.”

One of the most significant parts of the NIE revealed for the first time is the section pertaining to Iraq’s alleged links to al Qaeda. In September 2002, then-Secretary of Defense Donald Rumsfeld claimed the US had “bulletproof” evidence linking Hussein’s regime to the terrorist group.

“We do have solid evidence of the presence in Iraq of al Qaeda members, including some that have been in Baghdad,” Rumsfeld said. “We have what we consider to be very reliable reporting of senior-level contacts going back a decade, and of possible chemical- and biological-agent training.”

But the NIE said its information about a working relationship between al Qaeda and Iraq was based on “sources of varying reliability” — like Iraqi defectors — and it was not at all clear that Hussein had even been aware of a relationship, if in fact there were one.

By the time Bush & Co discussed the report with the public, all the qualifiers are gone and everything is definite.

So, does Trump ring the bell yet again? In my book, keeping in mind that I’m an engineer who is forced to be precise, yes, I think so. I think Trump is hearing information from the intelligence agencies he doesn’t like, so he’s searching for an excuse to ignore them – and thinks he found it.

UNFORTUNATELY for him, this just makes him into Donald J. Trump Bush, Jr. Yep, that’s right, we’ve got ourselves a Bush & Cheney again, not grounded in reality, but rather in the fantasies going on in their heads.

And the American people are the ones likely to pay for it.

Regarding the new legal strategy against the Electoral College, the reader responds:

You need Garland seated to have a 5-4 split of the court, because both postponing the EC vote and Lessig’s argument go to SCOTUS.

Which presumes SCOTUS is permanently politically polarized. Is this a viable assumption? Justice Kennedy is the well known swing vote, which no one can predict, but Chief Justice Roberts remains a question mark, a cipher. While he may be one of the godfathers of the dreadful arbitration decisions, he also salvaged the ACA when Kennedy voted against it. Roberts’ sense of legacy is interesting, and he may look at a chance to rupture the Electoral College as a prime opportunity to stamp The  Roberts Court on American history – or even to save the country, if he’s an alarmist.

And, of course, this assumes the usual liberals would vote to circumvent the Electoral College – again, a political assumption.

The next confrontation over a pipeline may take place in Florida: the Sabal Trail Pipeline. Take Today I received a change.org petition concerning the matter. Newsweek via Fusion already has coverage:

The Bells are just one of many families in Alabama, Georgia, and Florida who are being impacted by the Sabal Trail Transmission, a $3 billion project with the goal of beginning service by May 1, 2017. The 515-mile pipeline would help power Florida’s growing energy demand—more than 60 percent of the Sunshine State’s utilities are reliant on gas.

Behind the project are Spectra Energy Corp, NextEra Energy, Inc., and Duke Energy; the natural gas will be provided to Florida Power and Light, owned by NextEra and Duke. …

In a letter written to the Federal Environmental Regulation Commission by four Georgia Democratic congressmen last October, the officials expressed concerns over “serious environmental justice issues” with Sabal Trail, as well as possible health problems that residents in its vicinity could encounter:

Sabal Trail’s proposed pipeline and compressor station will further burden an already overburdened and disadvantaged African-American community in this area. Sabal Trail’s proposed route will go through Albany and Dougherty County and will run through low-income African-American neighborhoods. The proposed industrial compressor station facility would sit right in the middle of an African-American residential neighborhood comprised of two large subdivisions, a mobile home park, schools, recreational facilities, and the 5,000-plus member Mount Zion Baptist Church, a predominantly African-American congregation.

For the environmental justice community, the location of heavy industry near low-income and minority neighborhoods isnothing new.

In March, the Georgia House of Representatives voted 128-34 against a bill that would have given the pipeline project power to seize property.

“This does not serve our citizens,” Republican Rep. Regina Quick told the Georgia Report, a news outlet covering Georgia politics. “I will not be complicit in this scheme for the federal government or anyone else.”

To add to the controversy, Florida Gov. Rick Scott owned $53,000 in Spectra Energy stock in 2013, the same year he signed into law two bills designed to speed up permitting for the Sabal Trail Transmission, according to The Miami Herald. While the stock was part of a blind trust, Florida’s ethics laws historically prohibit public officials from owning stock in businesses subject to their regulation.

There must be some irony that the “Sunshine State” isn’t powered by sunshine, but by natural gas. I’d be tempted to propose giving the state a new nickname, except it’ll eventually become The Drowned State, sadly enough. There have already been arrests in the matter, as WCJB reports:

30 days ago 14 protesters at the Sabal Trail Pipeline were arrested in Gilchrist County. Saturday, two more arrests were made.

An arrest at the Sabal Trail Pipeline in Gilchrist Co. Saturday had protesters stirred up.

“This past Saturday I hosted an event, an educational caravan tour to try to educate people about the Sabal Trail,” said long-time protester and tour organizer Karrie Ford.

A video shows what happened when a Gilchrist County Deputy pulled over Katherine Cavanaugh, one of the tour guides.

“KC is just in her vehicle, and she’s asked by the police officer to step out of the vehicle and she asks why am I being arrested and he wouldn’t really tell her anything,” said Ford.

This comes just 30 days after more than a dozen protesters were arrested. Ford was one of those protesters, who said in reference to her arrest last month, “The arrests were unexpected. A lot of us were out there carrying signs and just, not even yelling or chanting or anything.”

No doubt the local cops are trying to nip this in the bud.

Bloomberg Politics reports on a recent SCOTUS decision not to hear a taxation case:

The U.S. Supreme Court let stand a Colorado law that imposes reporting requirements on internet retailers in an effort to get customers to pay the sales taxes they owe.

The justices Monday turned away an appeal by a retail-industry trade group that challenged the measure as violating the U.S. Constitution.

The case raised questions about a 1992 Supreme Court ruling that bars states from requiring merchants to collect taxes unless they have a physical presence in the state. States lose $23 billion every year in uncollected sales taxes from web and catalog purchases, according to a 2012 estimate by the National Conference of State Legislatures, the most recent figures available.

Although consumers are supposed to pay the taxes themselves, few do unless the seller collects the money.

The Colorado law requires internet retailers to turn over customers’ names, addresses and purchase amounts to tax authorities. Merchants also must notify consumers of their obligation to pay taxes and provide a purchase summary to people who spend more than $500 in a year.

This is the fundamental disconnect between what began as a federation of nations and an economic engine that completely disregards the political structure. Can the political system enforce its inchoate will on the economic engine, perhaps through some centralized technological engine of their own, that automatically assesses the proper state sales tax based on the location of the consumer? Or will the economic engine actually force the State structure to its own will, perhaps by simply obviating sales taxes, or, more radically, causing States to merge into multi-States with more power to enforce taxation? Or, even, the final retirement of the States’ right to tax commerce?

I previously noted the discovery of the wreck of the HMS Erebus, part of a two ship fleet heading for the Arctic that were never heard from again. The other ship, HMS Terror, has now been found, as noted by Daniel Weiss in Archaeology Magazine:

Terror was located in September 2016 by an Arctic Research Foundation vessel that detoured to the wreck’s location based on a report from an Inuit crewmember who recalled seeing a piece of wood that looked like a mast sticking out of the ice covering Terror Bay six years earlier. Divers found the ship 80 feet underwater and in extremely good shape. Two weeks later, Parks Canada confirmed the identification, opening a new chapter in the story.

cschaffner on Promoting Urban Sustainability in the Arctic notes this wasn’t purely a research expedition:

HMS Terror, by George Back.
Source: Wikipedia/National Archives of Canada

While the rediscovery presents the opportunity for polar historians to learn what really happened to the Franklin expedition, the motives for finding these historical ships has far more to do with politics and national identity. As the Arctic warms and seasonal ice dwindles, the Northwest Passage may become a viable shipping option through the Arctic, and Canada is anxious to proclaim its sovereignty over the passage. Canada inherited Great Britain’s historical claims to Arctic waters, and a 1997 agreement between Canada and Britain secure Canadian ownership of the ships, with separate provisions for the artefacts and gold that might be found on them. The rediscovery of the HMS Terror and HMS Erebus demonstrate those historical claims to Arctic waters, and focus the country’s attention on a region that is of increasing importance for both the economy and national security.

SCOTUS has refused to hear an appeal concerning the settlement of the concussion issue in the NFL, as reported by Reuters:

The U.S. Supreme Court on Monday cleared the way for the National Football League’s estimated $1 billion settlement of concussion-related lawsuits with thousands of retired players to take effect, rejecting a challenge brought by a small group of dissenters.

The eight justices refused to hear an appeal of a lower court ruling in April upholding the settlement, which resolved litigation brought by players who accused the NFL of covering up information that tied head trauma like that suffered playing football to permanent brain damage.

The settlement enables the NFL, the most popular U.S. sports league with billions of dollars in annual revenue, to avoid litigation that could have led to huge sums in damages and provided embarrassing details about how it has dealt with the dangers posed by head trauma in the violent sport.

Perhaps unfortunate for future NFLers, but maybe necessary for past NFLers who need help immediately. Although I would hope a beginning sum could have been negotiated while the issue received the airing-out it really requires.

If I had a child, I would not encourage them to play football.

Regarding a lawsuit based on the injustice of Winner Take All rules in most States for the Presidential election, a reader writes:

I’m thinking to make the argument, a couple things have to happen. (1) Stop the electors from meeting on Dec 19. That date is not mandated, it could be changed. It just has to happen before the inauguration. Get an injunction till the investigation(s) are complete. (2) The Jan 3 mad dash to get Garland seated. You’ve read that one, right? Jan 3 all the Senators who won election have to go get sworn in. At that moment, there would be 30 R and 34 D Senators, plus Biden. Biden calls the Senate back into session, the 34 Dems vote Yea on Garland, Biden puts it back in recess. That would take chutzpah and coordination (the Dems are not good at either). Plus the red state Dems (like my own Sen Tester) who are up for election in 2018 have to really do the right thing. So yeah. No chance.

Re (2), I mentioned it earlier on this thread here. I’m not quite sure what item #2 has to do with making the WTA argument, though. I suspect all SCOTUS has to do is declare WTA is not Constitutional and then the calculations have to be redone, on the basis of what’s considered to be the cutoff – if any. An addendum to Professor Lessig’s article points out that without a cutoff, the risk of throwing the election to the House of Representatives increases, at least in the current example, and that would be equivalent to depriving the citizenry of the right to select their President – a perhaps perilous assertion, since the voters had their chance:

It would seem that the most reasonable practical answer would be a proportional allocation of electors with a cutoff at a de minimis percentage of the total vote. The percentage should represent a reasonable balancing of the right of every voter to participate in the election in a meaningful way and the risk of taking the election entirely away from the voters by sending it to the House of Representatives. A reasonable cutoff would probably be in the range of 10 to 15 percent of the total vote; but any cutoff percentage should be based on a detailed probability analysis which, for obvious reasons, has yet to be conducted.

I had to look up de minimis:

… is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor (“The praetor does not concern himself with trifles”) or de minimis non curat lex (“The law does not concern itself with trifles”) a legal doctrine by which a court refuses to consider trifling matters.

In context? Maybe he wants to show he knows Latin. Since he then defines what the percentage should be, it’s hardly trifling. No doubt I am not subtle enough to understand. But it does seem to me that picking the proper percentage will become a political football, or perhaps gold mine, although I have to think most of Congress will not possess the sort of mind that could comprehend picking a proper number to advantage their side – but the GOP is good at following orders blindly, so just one smart person is enough.

toxodon:

Source: Wikimedia

Toxodon was a large herbivorous mammal that was similar in proportion to a rhinoceros,‭ ‬but also possessed other features that were similar to hippopotamuses and possibly even elephants.‭ ‬The post cranial skeleton has a very robust construction which suggests that in life Toxodon was a very heavy animal.‭ ‬The feet were plantigrade which means that Toxodon walked with the flat of its foot so that it could better support its body weight.‭ ‬The body was wide which suggests that Toxodon had an extensive digestive system for processing plant matter.‭ ‬The hind legs were much longer than the fore legs which meant that the main body sloped down towards the front.‭ ‬This also meant that the head was carried closer to the ground where Toxodon could feed upon low growing vegetation.‭ ‬The neural spines of the anterior dorsal vertebrae were enlarged,‭ ‬either providing anchor points for neck muscles that supported the heavy skull,‭ ‬or supported the formation of‭ ‬a‭ ‬fatty hump that served as storage for leaner times. [PrehistoricWildlife.com]

Mentioned in Archaeology Magazine:

ARGENTINA: Evidence continues to build that humans occupied the Americas well before the Clovis culture emerged around 13,000 years ago. At the site of Arroyo Seco 2, archaeologists have uncovered bits of stone tools and animal bones with telltale butchery marks dating to as long as 14,000 years ago. On the menu was a variety of extinct megafauna, including giant ground sloths, car-sized glyptodonts, and toxodons, rhino-like hooved animals with prominent incisors. —Samir S. Patel

Another last gasp approach to salvaging the election is proposed by Harvard Law Professor Lawrence Lessig on Moyers & Company:

Most people, even Dems, can’t seem to allow themselves to even think about a constitutional challenge to the Electoral College — because they’re convinced our current Electoral College system is embedded in the Constitution. So when someone says, “What about one person, one vote?” they respond, “It’s the Constitution that creates this inequality — just as with the Senate — and the court is not going to overrule the Constitution.”

Yet that response misses a critical point.

Yes, the Constitution creates an inequality because of the way it allocates Electoral College votes. A state like Wyoming, for example, gets three electoral votes with a population of less than 600,000, while California gets 55 electoral votes with a population of more than 37 million. Thus, while California has a population that is 66 times Wyoming, but only gets 18 times the electoral college votes.

But the real inequality of the Electoral College is created by the “winner-take-all” (WTA) rule for allocating electoral votes. WTA says that the person who wins the popular votes gets all the Electoral College votes for that state. Every state (except Maine and Nebraska) allocates its electors based on WTA. But that system for allocating electoral votes is not mandated by the Constitution. It is created by the states. And so that raises what should be an obvious and much more fiercely contested question: Why isn’t WTA being challenged by the Democrats in this election?

Professor Lessig proceeds to assemble a legal argument from various sources and people. I learned a lot: the Constitution’s Articles themselves are not absolute, for example, if one would violate another through an absolute interpretation. It’s an interesting approach, much less like the butchery proposed in earlier posts on this thread; it makes a strong argument that leans heavily on the concept of justice, rather than using technical timing issues. It certainly has an attractive quality.

But in order to be heard someone’s going to have to file for it. I have no idea if Roberts would be sympathetic, or Kennedy for that matter; I figure Thomas and Alito are probably a lost cause when it comes to something like this.

But it’s worth spreading the word. Here’s that link again.

(h/t Sydney Sweitzer)

Oh, what fun! Mary Anne Case (a clear example of nominative determinism, I’m sure) posts a paper to SSRN stuffing the rhetorical methodology of the late Justice Scalia into the myths of Procrustes and Cassandra. Here’s the summarizing paragraph:

The essay will go on to use another Greek myth, that of Procrustes, to shed light on a tendency in Scalia’s majority opinions. Just as Procrustes forced his guests to fit snugly into an iron bed, stretching out their bodies or chopping off their limbs as necessary, so Scalia frequently forced all prior doctrine in a given area of law into the shape he needed for the new rule he announces in a majority opinion. As with Procrustes’s unfortunate guests, so with Scalia’s procrustean majority opinions, the result, I shall argue, is often that the operation is a success, but the patient dies: subsequent decisions, whether by courts or legislatures, tend to back away from the implications of the categorical rule Scalia had gone through such pains to fashion. The paradoxical result is that Scalia as Cassandra dissenting has sometimes been more effective in illuminating the path to results he deplores than Scalia as Procrustes has been in bringing about results he favors. This is so notwithstanding that Scalia in procrustean mode does his rhetorical best to minimize the innovative or controversial character of his holding for the majority, whereas Scalia in dissent seeks rhetorically to maximize the unprecedented and revolutionary character of the majority position to which he objects.

Sadly, SSRN won’t give me access to the rest of the paper – claims I’m unusual. Maybe so. But it’s an interesting assertion on Ms Case’s part, suggesting that either Justice Scalia permitted his biases to run away with him, or the source of law – the legislatures – is basically irrational. I’d go with the latter, myself, as it’s an obviously true conclusion.

A reader expresses skepticism towards the GOP ever checking out a Trump scandal:

The GOP is not going to do a single thing to get in Trump’s way. Ever. Only a massive public outcry, with massed demonstrations in the streets, etc. like those over the Viet Nam war (but larger) are going to change anything.

It looks like the Russian interference may awaken the GOP from its sloth. Consider this CNN report, headlined “McConnell, senators unite behind investigation into Russian hacking“:

An educator in North Carolina writes in response to ITT Tech going away, concerning their duties:

We are being encouraged to consider our ‘customer service.’ A lot of this seems to apply to higher education, but who knows what the next four years will bring.

Yes, the subservient position vis a vis the “customer” is hardly a good educational pose, and given that educators are usually also “inferior” to the school’s administration (soon to be called the business leaders, if all goes ill). Not that students shouldn’t have rights, such as a right not to be abused – but an educational position bears little resemblance to a “customer representative”, and attempting to make educators into such will simply degrade the educational experience – and the Republic.

It must be a high point in Greg Hayes’ career. Who’s Greg Hayes? He’s the CEO of United Technologies, who owns Carrier, the HVAC company that was going to move all those jobs to Mexico, until President-elect Trump swooped in to persuade them to keep those jobs in the United States. But did he really succeed? Margaret Hartmann of New York Magazine has some news on that:

In exchange for $7 million in tax breaks from the state of Indiana over the next decade, Carrier agreed to invest $16 million in its in-state facilities. (Carrier is still moving 600 jobs from the Indianapolis plant — and all 700 jobs from its Huntington, Indiana, facility — to Mexico.)

United Technologies CEO Greg Hayes admitted in an interview with CNBC earlier this week that the money will mostly go toward automation, telling Jim Cramer:

We’re going to make a $16 million investment in that factory in Indianapolis to automate to drive the cost down so that we can continue to be competitive. Now is it as cheap as moving to Mexico with lower cost of labor? No. But we will make that plant competitive just because we’ll make the capital investments there. But what that ultimately means is there will be fewer jobs.

“Automation means less people,” [United Steelworkers Local 1999 president Chuck] Jones underscored Thursday on CNN. “I think we’ll have a reduction of workforce at some point in time once they get all the automation in and up and running.”

So the subsidies promised to Carrier will be used to … automate those jobs away anyways. Sweet deal for Hayes. Trump looks like an idiot. The Art of the Deal, indeed.

But what will the union do? At one time, the IWW (the “Wobblies”, one of the better nicknames of all time) was the best hope to raise labor compensation throughout the world, but they seem to have fallen on hard times. This results in an imbalance in pay across nations, and thus the migration of jobs from well-paying nations to the more needy nations (parsimonious is not the proper term here). The immediate goal is to stop the movement of jobs, first to other nations, and then into the domain of machines. The former is often handled through treaties, but while automation is hardly new, the pace of automation seems to be accelerating as the computers controlling the machines become smarter. When does a machine become taxable?

Will it ever make sense for Congress to attempt to place a special tax on automation? We already tax, as a general concept, the income from jobs (lots of exceptions, but not important here). If a company buys a machine that automates the creation of something, it may pay a tax on the acquisition, but after that the only taxes may come from maintenance; this revenue stream almost certainly doesn’t match that of the worker(s) replaced by the machine. So the government faces a shortfall in estimated revenue for each job lost to automation.

Imagine a manufacturing company which is controlled by a few managers, has maybe a human sales & marketing manager, and everything else is produced by automation. They pay taxes on their profits; the taxes “paid” by employees will, by and large, disappear.

Now, the libertarian response is that the former employees will find new jobs, even creating entire new industries which will produce taxes, and it’s a lovely thought – freeing up human creativity from the drudgery of the factory line. But such creation takes capital, time, intelligence – and its rare for all three to come together for someone fresh off the assembly line.

How this all plays out in general should be fascinating.

(h/t Georgia Logothetis @ The Daily Kos)


Katherine Martinko on Treehugger.com spreads the word about textile recycling:

Look at any article on smart, sustainable shopping habits and you are guaranteed to see “recycle your old clothes” written somewhere. Ignore it. That’s a load of hogwash. The idea that most old textiles get recycled when you stuff them into a special clothing recycling bin is ridiculous. It just doesn’t happen because the technology does not exist— at least, not for mainstream, large-scale use.

And yet, many clothing companies (H&M, are you listening?) love to make it sound as if it’s common industry practice, despite the fact that they continue to churn out disgusting amounts of cheap clothes made almost exclusively from virgin materials. Of course, the fast fashion giants want you to feel good about recycling because then you’ll feel less guilty about buying more of their new (crappy) clothes.

Turns out most “recycled” clothes are shipped out of the country, as there doesn’t appear to be an actual recycling methodology that works.

With the advent of the snow season, the backyard changes its oeuvre. Here’s a couple of examples, starting with our Dusty Miller from above: