A Bigger, Better Supreme Court: The Case for Reform

Thursday, June 28, 2012 by The Guardian/UK

A string of key decisions decided by 5-4 split effectively makes it a 'court of one'. It's time to debate a less dysfunctional future

by Jonathan Turley

 

This week, the country awaits the blockbuster ruling of the supreme court on the future of national healthcare in the United States. Citizens have waited anxiously every Monday morning for weeks for the next pronouncement – whether on immigration, free speech or, now, healthcare – to be handed down from the highest court. It has left many uneasy about the hold that such a small number of unelected jurists have on the nation.

Chief Justice John Roberts (centre, front row) poses with fellow justices,
(from left) Anthony Kennedy, John Paul Stevens, Antonin Scalia, Clarence Thomas;
(back row) Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.
(Photograph: Mandel Ngan/AFP/Getty Images)

Once again, many important decisions were the result of a court of one – 5-4 decisions, with "swing Justice" Anthony Kennedy deciding the issue for the nation. Healthcare is just one of a litany of cases that are reshaping the country in an image dictated often by just five members of the court. This has included sweeping changes in the political process from the Bush v Gore decision in 2000 (where the supreme court effectively chose the next president), to the Citizen's United case (where the court struck down campaign finance limits for corporations).

Also expected on Thursday is the decision in a free speech case, which many civil libertarians fear could deliver a huge blow to free speech in the United States. It is also expected to be a close vote.

While I support national healthcare, I have long opposed Obamacare on federalism grounds – denying states their constitutionally protected authority over such matters. Most experts are now predicting that the conservatives will likely carry the day in striking down critical parts of the law, or the law in its entirety. Despite being on the expected winning side of that particular case, I still believe that it is wrong for such a small group of jurists to make the decision for the country as a whole. In my view, the supreme court is demonstrably and dangerously too small.

Over ten years ago, I proposed a reform of the supreme court that would expand it to 19 members. A review of high courts around the world shows that most large nations have larger courts that avoid the concentration of power in the hands of so few jurists: Germany has 16, Japan 15, the United Kingdom 12, India 31, and Israel 15. Some use far greater numbers of justices who are divided among different divisions, like the 74 jurists in the Spanish high court or the 124 judges and deputy judges in France.

Again, while these systems have important structural differences, they do not have the concentration of power that characterizes the US supreme court. Canada does have a court that is the same size as the US supreme court, but the court has a mandatory retirement age of 75 that guarantees a higher turn over rate.

In drafting the US Constitution, the framers relied heavily on historical and contemporary models in other countries. So, today, a review of the function of larger courts around the world offers a better model for the modern court. The larger size of these courts does not produce administrative problems, while they allow greater diversity in experience and viewpoints.

The constitution itself does not specify the number of justices, and that number has actually fluctuated through the years. The nine-member court is a product not of some profound debate or study, but of pure happenstance. In fact, when the court first convened in 1790 in New York, at the Royal Exchange Building, it had six members. After that time, the size of the court expanded and shrank – largely with the number of federal circuits. Since justices once "rode circuit" and actually sat as judges in lower courts, Congress would add a justice when it added a circuit – or reduce the court with the elimination of a circuit. Thus, when a 10th circuit was added in 1863, a 10th justice was added at the same time. In 1869, the court happened to have nine members for the nine circuits. That is how we ended up with this size of a court.

Ever since the supreme court rested at nine members, we have repeatedly had problems of 5-4 splits, with one or two swing justices dictating the outcome of cases. With the increasing longevity of justices, such divisions have become stagnant and bitter. We often find ourselves captive to the idiosyncratic views of a couple of justices' views on privacy, or federalism, or free speech.

A national poll this month showed the public overwhelmingly opposed to how the court functions. Only 44% of citizens approved of how the court operates and 60% believe that "appointing supreme court justices for life is a bad thing because it gives them too much power."

The current controversy could not come at a more symbolic moment. This year is the 75th anniversary of the famous "court packing" effort of Franklin Delano Roosevelt. As today, the country in 1937 was in the midst of a profound economic crisis, and Roosevelt was saddled with four conservative justices – known as "the Four Horsemen" – who opposed his New Deal legislation. Roosevelt decided to introduce a bill to allow him to appoint up to six additional justices on the court. The crisis was averted when Roberts voted to support a critical New Deal case and "Horseman" Justice Willis Van Devanter retired – the famous "switch in time that saved nine" moment for the court. Roosevelt, though, may have had the right idea, for the wrong reason.

We can certainly debate the optimal number for the court, but we should finally have that debate after over 200 years. I believe a 19-member court would be ideal – roughly the average size of a circuit court. Appellate circuits are often divided between liberal and conservative judges. Yet, it is rare that one or two of those judges are consistently the swing votes on all issues when they sit "en banc" (or as a whole).

While appellate courts generally sit in three-judge panels, they sit as an en banc court in cases of great significance – the highest level of appeal short of the supreme court itself. In such cases, they function well as a whole and show greater diversity of opinion and experience. More importantly, the power of the judges themselves is diluted by the number. Experience has shown that a 19-member court is small enough to be manageable and would not present a significant burden in terms of confirmations.

Just because we settled on nine arbitrarily does not mean that any number is as good as any other. It is not enough to simply retort "why not 29 or 99?" One could just as easily ask "why not three or six?" The point is that we trying to decide on the best size for the court and should be able to look at other models objectively.

Both the recent polls and proposed reforms reflect a common concern that nine people should not wield such concentrated and sclerotic power. Even if we were to accept an elite court of just nine, these would not be the nine justices that most legal experts would choose. While clearly intelligent people, most justices are selected for their confirmability – a process that tends to favor formula nominees with a narrow range of experience and a short paper trail. The irony is that, because there are so few positions, confirmation fights have become increasingly bitter, so presidents have become increasingly risk-adverse. The result is that nominees are selected because they have never said or written anything remotely provocative – or even interesting. The chances that we could have again a Louis Brandeis or Joseph Story on the supreme court in the current system would be, at best, accidental.

If Congress ordered the proposed expansion, we'd get to a bench of 19 gradually, with no president allowed to appoint more than two new justices in a term. Once fully staffed, the court would have a more regular turnover. This would allow a broader range of diversity and more consistent opportunity for each president to add members to the court.

The expansion of the court might also allow Congress to force justices to return to the worthwhile practice of sitting on lower courts for periods of time. One of the greatest complaints heard from lawyers and judges alike is that justices are out-of-touch with the reality of legal practice and judging. A 19-member court would allow two members to sit on an appellate court each year by designation – and so actually be forced to apply the rulings that the court sends down to lower courts. Every five years, justices would be expected to sit as trial or appellate judges. The remaining 17 justices would sit each year to rule on cases.

Our experience with larger courts, both domestically and internationally, suggests that there is a better model for our highest court. Our respect for the court as an institution should not blind us to its flaws. It is time to reform – and expand – the US supreme court.

Obama Broke Pledge to Force Banks to Help Homeowners, Dems say

Friday, February 4, 2011 by Pro Publica
by Paul Kiel and Olga Pierce

Before he took office, President Obama repeatedly promised voters and Democrats in Congress that he'd fight for changes to bankruptcy laws to help homeowners-a tough approach that would force banks to modify mortgages.

Candidate Obama had portrayed homeowners in a sympathetic light. But the president struck a cautious note when he unveiled the plan in February 2009. While the government had been relatively undiscriminating in its bank bailout, it would carefully vet homeowners seeking help. HAMP was written to exclude homeowners seen as undeserving, limiting the program’s reach to between 3 million and 4 million homes.

"I will change our bankruptcy laws to make it easier for families to stay in their homes," Obama told supporters at a Colorado rally on September 16, 2008, the same day as the bailout of AIG.

Bankruptcy judges have long been barred from lowering mortgage payments on primary residences, though they could do it with nearly all other types of debt, even mortgages on vacation homes. Obama promised to change that, describing it as exactly "the kind of out-of-touch Washington loophole that makes no sense."

But when it came time to fight for the measure, he didn't show up. Some Democrats now say his administration actually undermined it behind the scenes.

"Their behavior did not well serve the country," said Rep. Zoe Lofgren (D-CA), who led House negotiations to enact the change, known as "cramdown." It was "extremely disappointing."

Instead, the administration has relied on a voluntary program with few sticks, that simply offers banks incentives to modify mortgages. Known as Home Affordable Modification Program, or HAMP, the program was modeled after an industry plan. The administration also wrote it carefully to exclude millions of homeowners seen as undeserving.

The administration launched the program with a promise that it would help 3 million to 4 million homeowners avoid foreclosure, but it's likely to fall far short of that goal. The Congressional Oversight Panel now estimates [1] fewer than 800,000 homeowners will ultimately get lasting mortgage modifications.

Over the past year, ProPublica has been exploring why the program has helped so few homeowners. Last week, we reported how the Treasury Department has allowed banks to break the program's rules with few ramifications [2]. The series is based on newly released data, lobbying disclosures, and dozens of interviews with insiders, members of Congress and others.

As the foreclosure crisis grew through 2008, the large banks that handle most mortgages were slow to offer modifications to struggling homeowners. Homeowners were left to navigate an onerous process that usually did not actually lower their mortgage payment. More than half of modifications kept the homeowner's payment the same or actually increased it.

Many in Congress and elsewhere thought that mortgage servicers, the largest of which are the four largest banks, would make modifications only if they were pressured to do so.

Servicers work as intermediaries, handling homeowners' mortgage payments on behalf of investors who own the loans. Since servicers don't own the vast majority of the loans they service, they don't take the loss if a home goes to foreclosure, making them reluctant to make the investments necessary to fulfill their obligations to help homeowners.

To force those servicers to modify mortgages, advocates pushed for a change to bankruptcy law giving judges the power not just to change interest rates but to reduce the overall amount owed on the loan, something servicers are loath to do [3].

Congressional Democrats had long been pushing a bill to enact cramdown and were encouraged by the fact that Obama had supported it, both in the Senate and on the campaign trail.

They thought cramdowns would serve as a stick, pushing banks to make modifications on their own.

"That was always the thought," said Rep. Brad Miller (D-NC), "that judicial modifications would make voluntary modifications work. There would be the consequence that if the lenders didn't [modify the loan], it might be done to them."

When Obama unveiled his proposal to stem foreclosures a month after taking office, cramdown was a part of the package [4]. But proponents say he'd already damaged cramdown's chances of becoming law.

In the fall of 2008, Democrats saw a good opportunity to pass cramdown. The $700 billion TARP legislation was being considered, and lawmakers thought that with banks getting bailed out, the bill would be an ideal vehicle for also helping homeowners. But Obama, weeks away from his coming election, opposed that approach and instead pushed for a delay. He promised congressional Democrats that down the line he would "push hard to get cramdown into the law," recalled Rep. Miller.

Four months later, the stimulus bill presented another potential vehicle for cramdown. But lawmakers say the White House again asked them to hold off, promising to push it later.

An attempt to include cramdown in a continuing resolution got the same response from the president.

"We would propose that this stuff be included and they kept punting," said former Rep. Jim Marshall, a moderate Democrat from Georgia who had worked to sway other members of the moderate Blue Dog caucus [5] on the issue.

"We got the impression this was an issue [the White House] would not go to the mat for as they did with health care reform," said Bill Hampel, chief economist for the Credit Union National Association, which opposed cramdown and participated in Senate negotiations on the issue.

Privately, administration officials were ambivalent about the idea. At a Democratic caucus meeting weeks before the House voted on a bill that included cramdown, Treasury Secretary Tim Geithner "was really dismissive as to the utility of it," said Rep. Lofgren.

Larry Summers, then the president's chief economic adviser, also expressed doubts in private meetings, she said. "He was not supportive of this."

The White House and Summers did not respond to requests for comment.

Treasury staffers began conversations with congressional aides by saying the administration supported cramdown and would then "follow up with a whole bunch of reasons" why it wasn't a good idea, said an aide to a senior Democratic senator.

Homeowners, Treasury staffers argued, would take advantage of bankruptcy to get help they didn't need. Treasury also stressed the effects of cramdown on the nation's biggest banks, which were still fragile. The banks' books could take a beating if too many consumers lured into bankruptcy by cramdown also had their home equity loans and credit card debt written down.

While the Obama administration was silent, the banking industry had long been mobilizing massive opposition to the measure.

"Every now and again an issue comes along that we believe would so fundamentally undermine the nature of the financial system that we have to take major efforts to oppose, and this is one of them," Floyd Stoner, the head lobbyist for the American Bankers Association, told an industry magazine.

With big banks hugely unpopular, the key opponents of cramdown were the nation's community bankers, who argued that the law would force them to raise mortgage rates to cover the potential losses. Democratic leaders offered to exempt the politically popular smaller banks from the cramdown law, but no deal was reached.

"When you're dealing with something like the bankruptcy issue, where all lenders stand pretty much in the same shoes, it shouldn't be a surprise when the smaller and larger banks find common cause," said Steve Verdier, a lobbyist for the Independent Community Bankers Association.

The lobbying by the community banks and credit unions proved fatal to the measure, lawmakers say. "The community banks went bonkers on this issue," said former Sen. Chris Dodd (D-CT). With their opposition, he said, "you don't win much."

"It was a pitched battle to get it out of the House," said Rep. Miller, with "all the effort coming from the Democratic leadership, not the Obama administration."

The measure faced stark conservative opposition. It was opposed by Republicans in Congress and earlier by the Bush administration, who argued that government interference to change mortgage contracts would reduce the security of all kinds of future contracts.

"It undermines the foundation of the capitalist economy," said Phillip Swagel, a Bush Treasury official. "What separates us from [Russian Prime Minister Vladimir] Putin is not retroactively changing contracts."

After narrowly passing the House, cramdown was defeated when 12 Democrats joined Republicans [6] to vote against it.

Many Democrats in Congress said they saw this as the death knell for the modification program, which would now have to rely on the cooperation of banks and other mortgage servicers to help homeowners.

"I never thought that it would work on a voluntary basis," said Rep. Lofgren.

At the time that the new administration was frustrating proponents of cramdown, the administration was putting its energies into creating a voluntary program, turning to a plan already endorsed by the banking industry. Crafted in late 2008, the industry plan gave banks almost complete freedom in deciding which mortgages to modify and how.

The proposal was drafted by the Hope Now Alliance, a group billed as a broad coalition of the players affected by the mortgage crisis, including consumer groups, housing counselors, and banks. In fact, the Hope Now Alliance was headquartered in the offices of the Financial Services Roundtable, a powerful banking industry trade group. Hope Now's lobbying disclosures were filed jointly with the Roundtable, and they show efforts to defeat cramdown and other mortgage bills supported by consumer groups.

The Hope Now plan aimed to boost the number of modifications by streamlining the process for calculating the new homeowner payments. In practice, because it was voluntary, it permitted servicers to continue offering few or unaffordable modifications.

The plan was replaced by the administration's program after just a few months, but it proved influential. "The groundwork was already laid," said Christine Eldarrat, an executive adviser at the Federal Housing Finance Agency, which regulates Fannie Mae and Freddie Mac. "Servicers were onboard, and we knew their feelings about certain guidelines."

As an official Treasury Department account of its housing programs later put it, "The Obama Administration recognized the momentum in the private sector reflected in Hope Now's efforts and sought to build upon it." It makes no mention of cramdown as being needed to compel compliance.

Ultimately, HAMP kept the streamlined evaluation process of the Hope Now plan but made changes that would, in theory, push servicers to make more affordable modifications. If servicers chose to participate, they would receive incentive payments, up to $4,000, for each modification, and the private investors and lenders who owned the loans would also receive subsidies. In exchange, servicers would agree to follow rules for handling homeowner applications and make deeper cuts in mortgage payments. Servicers who chose not to participate could handle delinquent homeowners however they chose.

The program had to be voluntary, Treasury officials say, because the bailout bill did not contain the authority to compel banks to modify loans or follow any rules. A mandatory program requires congressional approval. The prospects for that were, and remain, dim, said Dodd. "Not even close."

"The ideal would have been both [cramdown and HAMP]," said Rep. Barney Frank (D-MA), then the chairman of the House Financial Services Committee. But given the political constraints, HAMP on its own was "better than nothing."

"We designed elegant programs that seemed to get all the incentives right to solve the problem," said Karen Dynan, a former senior economist at the Federal Reserve. "What we learned is that the world is a really complicated place."

The program was further limited by the administration's concerns about using taxpayer dollars to help the wrong homeowners. The now-famous "rant" by a CNBC reporter [7], which fueled the creation of the Tea Party movement, was prompted by the idea that homeowners who had borrowed too much money might get help.

Candidate Obama had portrayed homeowners in a sympathetic light. But the president struck a cautious note when he unveiled the plan in February 2009 [8]. The program will "not rescue the unscrupulous or irresponsible by throwing good taxpayer money after bad loans," said Obama. "It will not reward folks who bought homes they knew from the beginning they would never be able to afford."

While the government had been relatively undiscriminating in its bank bailout [9], it would carefully vet homeowners seeking help. HAMP was written to exclude homeowners seen as undeserving, limiting the program's reach to between 3 million and 4 million homes.

In order to prove their income was neither too high nor too low for the program, homeowners were asked to send in more documents than servicers had required previously, further taxing servicers' limited capacity. As a result, some servicers say eligible homeowners have been kept out. According to one industry estimate [10], as many as 30 percent more homeowners would have received modifications without the additional demands for documentation.

A lot of the program is focused on "weeding out bad apples," said Steven Horne, former Director of Servicing Risk Strategy at Fannie Mae. "Ninety percent is not focused on keeping more borrowers in their homes."

‘Politics of pot’ endangering state medical marijuana laws

By Stephen Janis
Wednesday, June 16th, 2010

Mark Zeitlin manages Harmony House, a medical marijuana dispensary in North Hollywood, California.

His product is popular and his services — providing medicinal marijuana — are in demand. But Mark has a problem. L.A. County prosecutors want to put him out of business. “I have AIDS patients, cancer patients, people with all sorts of illness to treat, but the government is trying to shut me down,” he told Raw Story.

439 facilities ordered to be shuttered last week by the L.A. County prosecutors as part of a crackdown on medical marijuana, Zeitlin said the booming business of medicinal healing through cannabis is under siege.

“Unofficially I think there are over 1,200 dispensaries in L.A. County, now I think they're saying they want it down to like 150,” he said.“It’s politics," he averred. "I think someone is trying to get elected, but there are people that need us and we’re being threatened with a $2500-a-day fine and imprisonment. It’s not constitutional.”

Zeitlin's constitutional argument may be uncertain, but he may be right about the politics of pot.

Current L.A. County Prosecutor Steve Cooley is the Republican nominee for the statewide office of attorney general. The crackdown by his office on medicinal marijuana dispensaries came shortly after he won the Republican primary for the state’s attorney general job.

On the eve of a potentially tough election race in a Democratic state, the highly publicized get-tough stance on dispensaries garnered the veteran prosecutor local, state and even national headlines.

But just as California led the way in the battle to loosen restrictions on the use of medicinal marijuana in 1996, workers in the medicinal marijuana business like Zeitlin are worried that the backlash in Los Angeles could be trend in a politically motivated government crackdown against the medical use of the natural herb.

“Do I think it’s a trend? Yeah,” he said.

A comprehensive review by Raw Story of recent steps taken by state and local governments to stall, limit or ban medical marijuana shows a pattern of tightening restrictions across the country in many of the states that have passed medical marijuana laws, a shift that comes after the Obama administration pledged the Justice Department would no longer pursue medical marijuana growers.

And in some case, like Los Angeles and New Jersey, the crackdown either precedes or comes after a tight election in a politically divided state.

- In Los Angeles, prosecutors released a list last week of 439 medical marijuana dispensaries that must either shut down or face fines of up to $2500 day and criminal charges, part of a citywide effort to crack down on the proliferation of medical marijuana facilities. Prosecutors estimate more than 2500 that have sprung up across the city since medical marijuana was legalized and said a loophole in city law that allowed over the counter purchases was being abused.

- Colorado Governor Bill Ritter signed into law an ordinance that allows local communities to shutter or ban medical marijuana dispensaries altogether. The ban allows municipalities to opt out of the state medical marijuana law by either referendum or statute. Ritter, a Democrat, has exited the governor’s race, but his party faces a stiff battle in the fall, with a recent Rassmussen poll showing Republican Scott McInnis continuing to hold a slight lead over Democratic candidate John Hickenlooper.

- The election of Chris Christie, Republican governor in New Jersey has stalled the state’s recently-passed medical marijuana bill. The newly elected Governor persuaded the legislature this month to push back the effective date of the new law nearly a year. The governor says he needs more time to implement regulations for the bill signed by Democratic Governor Jim Corzine who was defeated last November by Christie in a tight race. Critics said the newly-elected governor is simply stalling until he builds support for the repeal of the state’s medical marijuana law.

– The New Jersey medical marijuana law and similar ordinance approved in Washington D.C are the first to preclude licensed patients from growing their own marijuana. The provision leaves patients with few options if government officials close down or limit the number of legal dispensaries.

- Residents of New Mexico who approved a state constitutional amendment to allow medical use in 2007 say state officials are dragging their feet in approving the vendors where medical marijuana can be purchased. Since 2007 only 5 dispensaries have been authorized to serve patients. Also, it's taken up to seven months for a single application to be approved, leaving many people who are eligible to use medical marijuana unable to obtain it.

- On the local level the Aurora, Colorado city council has approved a November ballot measure that would place a moratorium on medical marijuana dispensaries within city limits. Aurora is one of the first Colorado cities to take advantage of the more restrictive recently enacted state law.

Marijuana advocates who have been at the forefront of the battle to legalize it concede that opportunism can still drive the politics of pot, even when it goes against voter-approved laws. But they stop short of saying the tightening of laws is a trend.

“In some cases you have someone like Cooley who thinks it is politically expedient to crackdown on dispensaries, I don’t know why,” said Ethan Nadelmann, the Executive Director of the Drug Policy Institute, in an interview with Raw Story.

A major player in drafting medical marijuana legislation in states like California and Colorado, Nadelmann thinks some of the backlash against medical pot is simply a reaction to poor planning.

“When you have responsible laws like in Northern California, you don’t have a problem,” he said.

“It’s part of a cultural struggle too. Some people think, if you bring it above ground you give it legitimacy, but the truth is if you push it underground you force the people who have legal access to use the black market.”

Aurora councilman says most registered pot use is recreational
But in states like Colorado, there is also suspicion the medicinal value of pot may not be driving demand.

“I think 80 percent of the people who have registered for it want it for recreational use and 20 percent for legitimate purposes,” Aurora City Councilman Robert Broom explained in an interview with Raw Story.

In Colorado, nearly 65,000 people signed up for medical marijuana cards in the past several years as the state began to grant more licenses for marijuana dispensaries. The onslaught of applicants prompted the Colorado Department of Public Health to stop offering assistance to new applicants.

“Due to high volume of applications, the office of vital records will no longer review applications,” the health department’s website says.

Broom has been a supporter of Aurora’s moratorium on dispensaries that will be up for a voter referendum this fall.

“I understand that marijuana does have health benefits. But these dispensaries can be a magnet for crime, they have both money and drugs which makes them attractive targets for criminals,” he said.

“There’s also the issue can the town allow something that on a Federal level is illegal?”

Efforts to push back against the growing widespread use of medical marijuana doesn’t shock addiction specialist Dr. Michael Hayes, who has spent his entire career in the middle of this country’s love-hate relationship with psychotropic substances.

“I’m not surprised," Hayes said. "I’m actually more surprised at how much progress has been made towards decriminalization.”

For over four decades, Hayes has been at the forefront of dealing with a myriad of addictions as director of the Center for Addiction Treatment at Maryland General Hospital in Baltimore, Maryland.

With a front-row seat on what he says is the destructive and often misguided emphasis on criminalizing drugs, Hayes has been a lifelong advocate of decriminalization for a variety of substances.

“It just delays the process of people starting treatment if they need it,” he says.

And that is why he is worried about the current trends.

“It’s the politics that messes everything up,” he said. “The easiest way to get elected is to criminalize a drug or crack down on people’s use of a drug.”

“All the studies on the decriminalization show that the crime, higher uses, all the so-called bad things that were predicted to happen, just did not happen.”

In his own practice treating people with opiate addictions, marijuana has been a useful, albeit unofficial tool. But Hayes said the politics have made it difficult for him too look the other way.

“We have people at my methadone clinic whose only problem is they smoke a little weed, and we ignored it because they were doing well,” he said.

“But a few years ago the state required us to test for it, and it breaks my heart that I can’t give people the freedom from the clinic they deserve.

“It’s really a shame,” he said.

Part of the problem, Hayes and advocates say, is the slippery slope of criminalization that opens the door for more government intervention, which usually means putting addicts in jail.

“A great deal of the times it’s the Feds that drive this,” he said. "And it doesn't help to imprison people for using drugs."

Growing, selling, and even smoking marijuana was legal in the U.S. until 1937 when Congress passed the Marijuana Tax Act. The law placed strict regulations on personal use and growing of pot and hemp, guidelines that eventually became the basis for a national prohibition that prompted 750,000 arrests in 2008 for simple possession alone.
Since then, only fourteen states and the District of Columbia have mustered support to pass laws relaxing criminal penalties associated with the use of marijuana, all under the guise of medical use.

“It’s the lesser of many evils; if I had a choice between alcohol and marijuana, I’d take marijuana,” Hayes said.

That’s why Zeitlin says Harmony House is fighting back.

Bolstered by a legal theory that the shuttering of his business is unconstitutional because some dispensaries are being allowed to stay open, Zeitlin says a LA circuit court judge has granted his business a temporary stay of closure while the owner appeals the order to shut down.

“We have people to take care of,” he said. “We’re going to fight.”

The Deepwater Event Horizon

Dig this about Deepwater Horizon and the conditions that led to the rupture and explosion. This has the potential to kill millions of people in Alabama, Florida, and other coastal regions. MILLIONS. I knew some of what is contained in the following, but not much:

###

The Deepwater Event Horizon

The event horizon metaphor is being widely used among the more dystopic commentators, and it looks appropriate. This is the kind of disaster we can expect to see more often, and worse every time, as Peak Oil drives us to greater extremities to extract ever lessening oil reserves, requiring ever more complex technology and logistics, these being provided in an ever more shoddy way by ever more corrupt corporations. But we can expect the whole mess to be treated and bailed out as Too Big to Fail.

Although it’s tough to penetrate the fog of corporate/government/MSM misinformation, the basic facts seem to be that Transocean, contractor for BP, was drilling into 30,000 feet of rock beneath 5000 feet of sea, seeking an oil reservoir variously projected to be 20-50 million, 100 million, or 1 billion barrels. BP’s own estimate is 100 million, which is probably around the minimum necessary to render the project economically viable in the first place even with taxpayer assistance. The cement casing was installed by Halliburton. The equipment was rated to handle 20,000 PSI but hit an unexpected high pressure zone of  from 60,000 to 75,000 PSI. This ruptured the Blow Out Prevention device, allowing natural gas to separate from the oil, concentrate, and explode. This destroyed the rig, killing 11 workers and sending the wreckage to the bottom a mile down. The rig lacked a simple $500K backup ”acoustic switch” which is standard safety equipment around the world and could have prevented the explosion and subsequent leakage. The Bush administration decreed that backup safety measures didn’t need to be required, that “the market” would voluntarily do whatever was necessary. Obama  endorsed this deregulated status quo.

Since the blowout, oil has been leaking into the Gulf. At first BP, the NOAA, and the Coast Guard closed ranks to claim the flow was 5000 barrels per day, 210K gallons. BP called that a “guesstimate.” The MSM was still repeating this figure as late as yesterday. Meanwhile the official estimates now concede it’s been around 25000-60,000 barrels per day ( & over 1 million gallons). This is the equivalent of an Exxon Valdez every 3 days. 

According to BP’s own prospectus, if the pipe system eroded completely, the leakage could escalate to 163,000 barrels per day, a cataclysmic figure.

They’ve been trying without success to stanch the flow with remote control submarine robots. Burning the oil on the surface doesn’t work well, and spraying chemical dispersal agents also looks insufficient to the magnitude of the problem.

They’ve built three large containment boxes without success, which they hoped to place over the flow, channeling it up through a funnel where it could be controlled. They deployed those by with no success. Since that doesn’t work, the next idea is to drill a relief well (image on the left) to the busted one, using the new conduit to pump in heavy fluid to plug it up. That would take at least three months. (Some, but so far as I can see no one in “authority”, have also discussed or advocated using nukes. The idea would be to seal up the hole by exploding an atom bomb near it. What could go wrong, right?)

Other rigs are being shut down as the slick reaches them. Just weeks after flip-flopping on offshore drilling, Obama has flipped again and now wants the old moratorium back. BP says it will pay all “necessary and appropriate clean-up costs.” (Um, that would be all of them.) Meanwhile the fishermen whose livelihoods have just been destroyed, perhaps permanently, have rushed to join the clean-up effort. BP tried to force them to sign waivers relinquishing in perpetuity all right to sue in exchange for the $5000 payout they were offering. They’ve since retreated on that one, but it seems that legally they don’t have much to fear.

Apparently federal law itself restricts BP’s liability for damages to the absurd figure of $75 million.

Now we see why BP doesn’t have insurance. Why bother – the law itself winks at you and says, Go ahead. Obviously we have another moral hazard situation here. Obviously BP calculated that if anything ever goes wrong the government will socialize the losses and bail them out. (It looks like a foregone conclusion that it’ll be impossible to get effective insurance in the future. But we can expect governments to formally guarantee the costs, I guess.)

This example of corrupt, renegade law is extreme even by the standards of this criminal government.

The effects of this are hard to predict. At best the destruction is likely to be very bad. The Gulf shrimp fishery has already been all but written off. All other fisheries are likely to be severely affected if not completely wiped out. Tourism is probably already being harmed, and will be destroyed to whatever extent the oil fouls the beaches of Florida and elsewhere. By mid-June, the economic damages all around the Gulf are likely to be in the tens of billions of dollars, while the physical mess will take years to clean up.

Whenever oil is drilled, oil is not the only harmful by-product. Several extremely dangerous compounds are also released, like: hydrogen sulfide, benzene, methylene chloride, toluene, and xylene. These compounds are rated to be safe only up to 61 parts per billion (PPB), but are registering at much higher levels. According to the EPA:

Hydrogen Sulfide: its safe amount is 5-10 PPB, but in the Gulf, it has reached levels of 1200 PPB.

Benzene: its safe amount is 0-4 PPB, but in the Gulf has reached levels of 3000 PPB.

Methylene chloride: its safe amount is 61 PPB, but in the Gulf has reached levels of 3000-3400 PPB.

The effects on ecosystems and endangered species like sea turtles would be incalculable. Wherever the wind and sea carry the toxic fumes and residues, bringing poisons like hydrogen sulfide, methylene chloride, benzene, toluene, and xylene, they will bring illnesses ranging from headaches and nausea, to cancer and other severe organic diseases. Since the containers failed, and the new well has to be drilled, taking three months or more, and if that works, by then the damages might be in the hundreds of billions, with the entire Gulf economically devastated for years to come. By itself, this could be the slow death of humanity.

All this is leaving out of account the hurricane wild card.

So far Gulf shipping is being diverted around the spill, but if the affected area got big enough it could choke off Gulf seaborne trade completely.

The dispersant Corexite (which BP is rumored to still be using) is only safe to 2.1 Parts Per Million (PPM). It has the property of being able to phase transition upon reaching supersaturation--meaning that when the Corexite mixes with the warm waters of the Gulf, it will evaporate and condense into clouds, and then rain this toxic shit wherever the rain falls. This will be disastrous.

At the Offshore Technology Conference, where the attitude is Party On!, and everyone’s psyched about potential disaster capitalist opportunities, the NYT reports this in the blandest of tones. This is reminiscent of a pro-nuke NYT piece some years back which argued that because Three Mile Island wasn’t as bad as Chernobyl, we should take that not as a caution and an example of receiving good luck and a second chance, but rather as the green light to plunge ahead. So the NYT is propagating the same party line today regarding offshore drilling: We should take this disaster as an encouraging sign, not a discouraging one. It’s as if you drove home one night badly drunk, miraculously didn’t kill anyone or wreck your car, and your conclusion is not to be appalled and vow never to do that again, but to say, “I did it once and got away with it, so let’s keep doing it.”

Just for the record, even the Bush administration conceded that offshore drilling would never have more than a miniscule effect on imports or gas prices. The fact is that anyone who was sincerely concerned about America's foreign oil dependence would oppose "Drill Baby Drill" because he'd want to save that oil for a day when we might lose access to foreign markets.

The push to drill every domestic drop is intended to accomplish nothing but the liquidation of American public property for the private profit of the oil rackets.

So there’s where we are today, and there’s the more likely, “less bad” effects we can look forward to. But the disaster can become far more severe. If both the containers and the relief well fail, some other “solution” would have to be found. No one can say what could be done, how long it would take, how much it would cost. The Gulf’s environmental and economic devastation would be complete. It would be an economic dead zone for a generation or more. If the winds and currents coincide with the right malevolence, the oil could leak out into the Gulf Stream, which could carry it up the Atlantic seaboard, strewing coastal destruction all the way. In principle, if enough oil leaked it could affect all the world’s oceans.

Beyond the direct evisceration of the Gulf economy, the knock-on effects could be extraordinary. It could constitute the tipping point to bring down the whole Debt Tower.

On the level of the real economy, the devastation of Gulf businesses could reverberate. There could be a domino effect through all their bank loans as they’re forced to default. The already wounded CRE market could take another hit. At the same time the federal government is spending tens or hundreds of billions to deal with the crisis, tax revenues from the region would plummet as a regional Depression sets in. This probably would be the end of any Fed plans to further raise interest rates. Insurance claims would be astronomical. Unemployment would spike even further. The disruption of oil production and imports could lead to spot shortages, with commensurate effects on gas prices. I already mentioned the questionable future of Gulf shipping. All the alleged ”green shoots” would be stomped out once and for all.

This is a replay of the way the banksters crashed the economy. Just like with the finance sector, today’s vast expenditure and risk for the sake of drilling to extract a few measly drops of oil serves no social function, but only extracts looted profits for a few gangsters. All the cost and risk is socialized. It’s the same greed, the same recklessness, the same ideology of deregulation and moral hazard. It’s the same game of profiting during the run-up, and then being bailed out during the crash, while hunting for disaster capitalist opportunities. The costs of this will be very high even in the best-case scenario, and BP has no way to pay the costs, nor does it intend to. Just like all the oil rackets, it was always planning to socialize the costs of the inevitable disaster. The only question is whether it’ll also get a bailout. As I said, there’s already a bailout law absolving it of responsibility for the damages it inflicts. Presumably that’s only the beginning.

Obama is trying to talk tough, saying “we’ll keep the boot on BP’s neck”. (They say that’s not his line, but gotten from from Interior Secretary Salazar.) That rhetoric, coming from him, is even more pathetic than his squeaking about ”fat cats” in December. When Obama talks that way, I take it as evidence that he’s psychologically preparing himself for another looting expedition. he wants to assure himself, through pseudo-tough talk, that he really did intend to fight for the people this time, but that some mysterious circumstance beyond his control prevented him. Of course in the same breath as his pipsqueaking tough-guy talk he continues with his pro-corporate backpedaling, saying we shouldn’t blame BP for the whole disaster.

That’s not only morally absurd but a direct logical self-contradiction. If they’re really not such bad guys, why the boot on the neck? Wouldn’t the situation call for a collegial exchange of views toward a mutually beneficial solution? We know by now that’s always what this corporatist really thinks, no matter what the level of crime. (I’d be more likely to think Obama was getting serious if he dropped the tough guy talk, which doesn’t become him, but instead maintained his professorial demeanor while purging his talk of all pro-corporate amicability, instead calmly declaring his resolve to impose justice. That would be a completely new message, while delivered in the real Obama tone. I don’t expect to ever hear it.)

He sure picked the right time to throw in his lot with “Drill Baby Drill”. He said the issue of oil spills was a “tired debate”. Heckuva job. My opinion of his vaunted intelligence and political skill just keeps soaring… 

I won’t bother hoping people will learn a lesson. Since I became a Peak Oiler I’ve believed mankind will liquidate all fossil fuel reserves, for as long as it’s physically and economically possible. I gave up on the idea that political resistance will ever stop it.

At most, maybe there can be an indirect political effect. While I can believe that Obama will flip-flop again after his first flip-flop, that would only be a temporary respite. If this disaster really could kill offshore drilling (and I’m not saying I think it can), it would only be because everyone perceives the economics including their political aspect, namely the government’s political ability to extend an implicit or explicit Too Big To Fail guarantee to these drilling projects, to be impossible.

What will this do to oil prices? In theory the effect so far shouldn’t be severe, since relative to the global production this well is a drop in the barrel. But if the spill’s advance shuts down other rigs, and if it interferes with imports from Mexico and Venezuela, and if the industry looks ahead to the possibly chilling effects on deepwater drilling in general (always being touted as one of the industry’s great hopes), who knows how it might rattle the futures market, with who knows what reverberations through all the markets. If speculators decide oil is going up, that’s always a self-fulfilling prophecy (and of course civilization learns nothing each time, and these criminals continue to be allowed to prey upon us). And if in turn they decide that means trouble for the rest of the economy, we might already think we hear the sucking sound of investment rushing out of Obama and Wall Street’s pride and joy, the stock bubble. Stocks must also tremble in general at the jitters over how bad the damage will be and who’s going to pay for the cleanup.


Look for $6-7 per gallon gas at the pumps by the end of the summer...

Fed Admits To Breaking The Law

The Fed Admits To Breaking The Law

Published on 04-02-2010

Now how long will it be before something is done about it?

April 1 (Bloomberg) -- After months of litigation and political scrutiny, the Federal Reserve yesterday ended a policy of secrecy over its Bear Stearns Cos. bailout.

In a 4:30 p.m. announcement in a week of congressional recess and religious holidays, the central bank released details of securities bought to aid Bear Stearns’s takeover by JPMorgan Chase & Co. Bloomberg News sued the Fed for that information.

The problem is this: The Fed is not authorized to BUY anything other than those securities that have the full faith and credit of The United States.

In addition Ben Bernanke has repeatedly claimed that these deals would not cost anyone money.  But the current value looks differently:

Assets in Maiden Lane II totaled $34.8 billion, according to the Fed, which set their current market value in its weekly balance sheet at $15.3 billion. That means Maiden Lane II assets are worth 44 cents on the dollar, or 44 percent of their face value, according to the Fed.
Maiden Lane III, which has $56 billion of assets at face value, is worth $22.1 billion, or 39 cents on the dollar, according to the Fed’s weekly balance sheet. A similar calculation for the Bear Stearns portfolio couldn’t be made because of outstanding derivatives trades.

In other words, they have lost more than half of their value.

This was and remains a blatantly unlawful activity.

The Fed has effectively usurped Article 1 Section 7 of The Constituion which reads in part:

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

The Fed effectively appropriated taxpayer funds without authorization of Congress.  At the time these facilities were put in place neither TARP or any other Congressional authorization existed for them to do so, and to date no bill has been put through Congress authorizing the expenditure of taxpayer funds, either through putting them at risk or via outright expense, for this purpose.

Nor does it stop with a "mere" Constitutional violation - The Federal Reserve Act's Sections 13 and 14 do not permit Fed asset purchases except, once again, for items carrying "full faith and credit" guarantees.  Credit-default swaps and trash mortgages most certainly do not meet these qualifications.

I know I've harped on this for more than two years, but here we have a raw admission of exactly what was done - and there is simply no way to construe any of it in a light that conforms with either The Constitution or black-letter statutory law.

What's worse is that Tim Geithner, head of the NY Fed at the time, was very much involved in this - that is, he in effect personally, along with Ben Bernanke, usurped the power of the United States House.

The Fed has spent two years trying to hide this from the public and Congress.  It has fought off both Congressional demands for disclosure and multiple FOIA lawsuits, the latter of which has resulted in a series of adverse rulings (and, it appears, was ultimately going to force disclosure anyway.)

These actions are unacceptable but promising "never to do that again" is insufficient.  In a Representative Republic where the rule of law is supposed to be paramount - that is, where we do not crown Kings and relegate everyone else to the status of knaves,unlawful actions such as this demand that strong and unmistakable sanction also be applied to all wrongdoers in addition to protection against future abuse.

In this case this means that both Geithner and Bernanke must go - for starters.

Amending The Federal Reserve Act of 1913 (as Chris Dodd has proposed to prevent future lending bailouts) is not sufficient in that The Fed did not lend in this case, it purchased, and by buying what we now know were trash loans it violated the black letter of existing law.

There is only one effective remedy for an institution that has proved that it will not abide the law: it must be stripped of all authority that has been in the past and can be in the future abused.

This means that The Fed, if we are to keep it at all, must be relegated to a body thatonly practices and provides monetary policy - nothing more or less - and that all monetary operations must be performed openly, transparently, and within those constraints.

We cannot have a republic where an unelected body is left free to violate The Constitution with wild abandon and those acts are then allowed to stand.

One final thought: If the individuals responsible for this blatant black-letter violation of the law do not face meaningful sanction for these acts, and neither does The Fed as an institution, can you fine folks over at The Executive, Judiciary and Legislative branches of our government please explain to us ordinary Americans why we should obey any of the laws of this land when you will not enforce the laws that already exist?