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To Convene or Not to Convene, That is the Question

The New York State constitution of 1894 included a requirement that New York voters decide in 1936 whether a constitutional convention should be convened to consider revising or replacing the 1894 constitution. The required referendum was held, New Yorkers voted to hold a convention, and the convention ultimately recommended 57 amendments to the 1894 constitution. Those amendments were bundled into nine groups and put before the voters; six were approved and three were rejected.

One of the amendments that was approved provided for similar referendums to be held every 20 years thereafter, beginning in 1957. New Yorkers have voted “no” three times running: in 1957, 1977 and 1997. The next vicennial referendum is one month away.

I moved to New York in time for the 1978 election, but one year after the previous constitutional convention referendum. I voted “no” in the 1997 referendum, persuaded by the argument that a constitutional convention is a dangerous roll of the dice – that a convention could strip away important rights. But I’m considering a “yes” vote this time.

There isn’t any question that New York State government is dysfunctional and that fixing it requires much more than a little tinkering around the edges. Although the dysfunction centers in the legislature, the judiciary is grossly inefficient, due in large part to antiquated structure and organization. (The New York judiciary is officially known as the Unified Court System; former Chief Judge Judith Kaye calls the Unified Court System the “most un-unified, dis-unified, fragmented, cumbersome, complicated, antiquated trial court system in the United States.”) Nor is our executive branch a model of transparent participatory democracy.

A constitutional convention is not the only way to amend the state constitution. The current state constitution also allows the legislature to propose amendments, which are ratified if approved by a majority of voters. And in fact, the legislature proposes constitutional amendments relatively often, and voters approve most of the proposals. Most recently in 2014, for example – the last time that voters considered proposed constitutional amendments – voters approved both of the proposals that were on the ballot. One of the proposals uncontroversially but importantly allowed legislators to distribute bills electronically, superseding the outdated paper distribution requirement in the 1938 constitution. I’ll get to the other measure that voters approved in 2014 in a minute.

So the problem is not that it’s inordinately difficult to amend the New York constitution. The problem arises from the fact that for more than 80 years New Yorkers have left proposed constitutional revisions to its legislature, and the legislature – not at all surprisingly – doesn’t propose constitutional amendments that would reduce its own power or perquisites.

My own opinion is that the key to New York’s legislative dysfunction is gerrymandering. As in many states, the legislature draws its own districts. For most of recent history, Democrats have controlled the state Assembly and Republicans have controlled the state Senate. Each defers to the other in the drawing of districts, and therefore, in effect, Assembly Democrats draw the Assembly districts and Senate Republicans draw the Senate districts.

And we’re all shocked, shocked, to find out that incumbent New York legislators who run for re-election are almost always re-elected. A New York legislator is as likely to lose office by death or felony conviction as by electoral defeat.

But gerrymandering protects more than just individual incumbent legislators. Gerrymandering also protects Republican control of the state Senate. Although New York voters have become increasingly Democratic in recent years, the Senate stubbornly resists the trend. New York hasn’t voted for a Republican presidential candidate in more than 30 years; Hillary Clinton beat Donald Trump by more than 22 percent of the vote. No Republican has won a state-wide vote in New York State since 2002. Both of our U.S. senators have been Democrats since 1999; our House delegation divides 21 Democrats to six Republicans.

And yet Republicans maintain control of the New York Senate.

Under pressure from good government advocates, Democratic candidate Andrew Cuomo ran for governor on a promise to end partisan redistricting. Cuomo won, and got the New York legislature to take a shot at reform. What they came up with – and Cuomo went along with – was a proposed constitutional amendment to create not a non-partisan redistricting commission, but a bipartisan commission. Equal numbers of commission members would be appointed by Republican and Democratic legislative leaders, and day-to-day management would fall to Republican and Democratic co-executive directors. The new commission would begin work after the next census, in 2020.

The New York Times editorial board recommended voter rejection of the proposal, colorfully if quite accurately calling it a “counterfeit reform” that “would only make matters worse and make it harder to clean up the whole inbred process for years to come.”

But New York voters, perhaps out of desperation for reform in Albany – any reform! – approved the proposal anyway. The certain result is either that the bipartisan commission will continue to protect incumbents of both parties, and will either draw districts favoring the continued partisan split between the Assembly and the Senate or will simply stalemate.

There are many things that are wrong with Albany, and institutionalized gerrymandering is only one of those things. But ending gerrymandering will change the legislature, and there is at least some chance that a changed legislature will be more serious about dealing with the other things that are wrong with Albany. As I’ve said, even the gerrymandered legislature has proved repeatedly that amending the New York constitution is not unduly difficult. What’s difficult, to the point of impossibility, is getting that gerrymandered legislature to propose a constitutional amendment that would end gerrymandering.

It is true in 2017, as it was in 1997, that a constitutional convention is a roll of the dice. But something important has changed since 1997 – New York voters have become more progressive, and more concerned with dysfunction in Albany. If the constitutional convention referendum passes next month, voters will return to the polls in 2018 to elect delegates to the constitutional convention – three from each Senate district and 15 at large. Even with gerrymandered Senate districts, electing three delegates for each district makes it likely that at least one Democrat will win in almost every Republican district – and, in most New York City districts, Democrats would likely win all three delegate positions. Democrats hold a voter registration advantage in a majority of the Senate districts; Clinton beat Trump in 40 of 63, and Barack Obama won 55 of them.

So there is good reason to hope that a constitutional convention will not go out of control, at least not to the right. And the voters get another shot at whatever the convention recommends – if voters approve the convention, it would start work in April 2019. There is no deadline for the convention to complete its work, but a voter referendum on its proposals would be held “at the time and in the manner provided by such convention, at an election which shall be held not less than six weeks after the adjournment of such convention.” Any constitutional amendment approved by the voters would take effect the following January 1. With any luck, all of this could be done in time for a new, non-partisan redistricting commission to handle the next redistricting, which will come after the 2020 census and before the 2022 elections.

If there were any way other than a constitutional convention to force the legislature out of the redistricting business, I would be all for it, and I wouldn’t be considering rolling the dice with a “yes” vote on the constitutional convention referendum next month.



Race is Not Subtext, But Text

When Donald Trump called for National Football League team owners to fire players who don’t stand for the playing of the national anthem, and for pro football fans to boycott teams whose owners don’t comply, he was rallying his white voter base to rise up against African-Americans. It isn’t more complicated than that.

Colin Kaepernick is a pro quarterback – he’s a free agent now, but for six seasons through 2016 he played for the San Francisco 49ers. About 70 percent of active NFL players are African-Americans, but only about 20 percent of quarterbacks. No NFL team has, or has ever had, an African-American majority owner.

During the 2016 season, Kaepernick famously knelt during the pre-game playing of the national anthem. Actually, he began by sitting for the anthem during the last pre-season game of the year, then switched to kneeling because, he said, he thought it showed respect to American military veterans without compromising his protest.

What he was protesting was police shootings of African-American men with impunity:  Kaepernick said that cops who shoot African-American men are punished only with “paid leave.” Although Kaepernick is bi-racial and was adopted and raised by a white couple, he is universally seen as black – as are essentially all people of both African and European descent.

A few African-American pro football players took up Kaepernick’s symbolic protest against police killings of African-American men. To my knowledge, no white player ever did.

Kneeling, it must be said, is an unusually respectful form of protest. Walking out is a more pointed form of protest, as is turning your back. Speaking out is even more pointed. Kneeling is in most contexts an indicator of deference, even reverence. Muslims and many Christians kneel before God, and many Catholics kneel before the Virgin Mary. Some Hindus kneel before icons. Initiates to British knighthood kneel before Queen Elizabeth during the initiation. Traditionally, men knelt before their intended wives to propose marriage.

Kaepernick switched from sitting down during the national anthem to kneeling, as a deliberate gesture of respect for veterans. His protest was not against the country, the flag, the military, or anything else but the unpunished killings of African-American men by police officers.

But according to President Trump, kneeling during the national anthem shows disrespect for “our heritage.” The reader will surely recall that the other thing President Trump thinks shows disrespect for “our heritage” is the effort to remove statues of Confederate military and political leaders from public spaces of honor.

Trump used the occasion of his anti-kneeling tirade to offer his unsolicited opinion that the NFL is “ruining the game” by adopting rules intended to protect players against concussions. Professional football inflicts profound brain damage on large numbers of its players – a recent neuropathic study of dead football players’ brains found that 110 of 111 ex-NFL players suffered from chronic traumatic encephalopathy.

The symptoms of CTE – the price of playing professional football – include attention deficit hyperactivity disorder, disorientation, dizziness, headaches, memory loss, impulsive behavior, progressive dementia, movement disorders, speech impediments, sensory processing disorder, tremors, vertigo, deafness, depression and suicidality. So the concern for concussions is not capricious.

Did I mention that about 70 percent of NFL players, and therefore the large majority of the NFL’s CTE victims, are African-American?

So the president of the United States has called on NFL team owners, none of whom is African-American, to start firing NFL players, most of whom are African-American, who kneel in protest of unpunished killings of African-American men. And then he called on NFL fans to boycott teams of owners who don’t go along.

Law-and-order rhetoric is about controlling black people, mostly African-American men – not just instructing them, but controlling them. You never hear the phrase “law and order” in the context of securities fraud, or tax evasion, or perjury. The phrase refers to urban street crime, and it is and always has been coded language for controlling African-Americans. Richard Nixon used this code in his “southern strategy” presidential campaign in 1968; George H. W. Bush used the same code with his Willie Horton attack ad against Michael Dukakis in 1988.

In this line of thinking, the reason for the problems African-Americans encounter in life – the reason for their inequality with white Americans – is that African-Americans don’t know how to behave. People who don’t know how to behave, but can learn, like our children, must be instructed. People who don’t know how to behave and are beyond learning must be controlled.

Trump’s effort to crack down on African-American dissent is an effort to control African-American behavior. Trump’s call for his white base to boycott teams that tolerate such dissent is a call to arms, a call for enlistments in the crusade to control African-American behavior. After all, Trump’s white voter base makes up about 30 percent of the population; African-Americans are less than half that.

One of Trump’s continuing objections to Barack Obama’s presidency was that African-American crime hadn’t ended; Obama had failed, in other words, to control his fellow African-Americans’ behavior. By that objection, Trump made himself understood to voters he cared about – those voters understood that Trump was asking, what value is there in an African-American president if he can’t control African-Americans’ behavior?

It’s common in our politics to regard someone we disagree with strongly as stupid, and many Trump critics have fallen in to that trap of underestimating him. Trump is vastly  uninformed and stunningly inexperienced, but he is nowhere close to stupid. He recast Kaepernick’s protest as something it is not – disrespect for our country and for “our heritage” – so that he could rally people against that protest without saying out loud that police officers shouldn’t be punished for shooting African-Americans, because the problem lies in African-Americans’ behavior. The voters Trump cares about will recognize Trump’s appeal as a call, however implicit, for greater control of African-American behavior.

For Trump, this may be a “two birds, one stone” kind of situation. Long ago and far away, Trump took on the NFL and lost, big league. In 1983, Trump bought the New Jersey Generals, a team in the United States Football League. The USFL originally played a spring schedule, to avoid competing directly against the much older, larger, better established and more popular NFL. But Donald Trump convinced USFL owners to switch to a fall schedule starting in 1986, taking the NFL on head-to-head.

Trump’s strategy was to sue the NFL for antitrust violations – the theory being that the NFL contracted with all three of the major networks at that time, ABC, CBS and NBC, and by pressuring those networks prevented the USFL from gaining big contracts for TV broadcast rights. The USFL sued for $1.7 billion and invalidation of the NFL’s contracts with the networks. But the real point of the strategy was to force the NFL to merge with the NFL – specifically, to admit to the NFL the USFL teams with the biggest media markets, which of course would have included Trump’s New Jersey Generals. The point of the strategy, in other words, was to make Donald Trump a lot of money – not through the skillful management of a professional football franchise, mind you, but through what amounted to a legal extortion scheme.

The jury that heard the USFL’s case in 1986 found that the NFL had in fact gained monopoly status by predatory tactics, so the NFL was liable, but found that the NFL had not forced the USFL off of TV, so the USFL had suffered no damage from the NFL’s liability. (In fact, the jury found, the USFL had created its own problems.) The jury awarded the USFL three dollars in damages – which comes to $1,699,999,997 less than the USFL had sought.

The USFL was deep in debt, and it never played another game. The lawsuit went through an unsuccessful appeal, after which the NFL wrote a check for $3.67 – three dollars in liability and 67 cents in interest. The check was never cashed. The New Jersey Generals thus became the only one of 18 Trump-owned enterprises to fail or go into bankruptcy that didn’t have “Trump” in its name.

Trump bears grudges, and he seems to take special enjoyment from gaining the deference of people who previously snubbed him – thus the proliferation among his appointees of former executives of Goldman Sachs, a company that wouldn’t lend to Trump’s real estate business because Trump was too risky. So the second bird Trump tries to kill with his anti-kneeling stone is the NFL, whose owners snubbed his attempts to gain NFL membership for his New Jersey Generals and a big payoff for himself.

From Trump’s point of view, he has forced NFL team owners into a choice. They can protect the protesting players and become the bad guys in the Trump world narrative – siding with African-Americans in disrespect for flag and country. If they take that choice, Trump can flog them in his inimitable style, taking his revenge for their opposition to his USFL.

Or NFL owners can join Trump in his crusade against African-American ballplayers’ protests. Taking that choice means kneeling before Trump in deference to his greatness, like the many former Goldman Sachs executives who now work for Trump.


September 26, 2017 – Last night’s episode of The Daily Show included a segment by Trevor Noah called “When is the Right Time for Black People to Protest,” responding to the argument that the playing of the national anthem is the wrong time for protest, and the corollary of that argument, that kneeling during the national anthem is the wrong way to protest. With a sequence of video clips and quotations, Noah scathingly demonstrated that those who make this argument in this case make the same argument in every case of African-American protest – regardless of the time, place or manner of the protest; and therefore that the only conclusion to be drawn is that the people making this argument simply disapprove of African-Americans ever protesting anything.

Along the way, Noah made the point that protests by white Americans, including billionaires about America’s shortcomings are never similarly condemned. Wealthy white Americans have earned their positions by talent and hard work, and their beefs with American policy are to be taken seriously. Wealthy African-Americans, on the other hand, should be “grateful” for living in a country that “allowed” them to become wealthy – they are ungrateful, and their protests should not be taken seriously. I don’t ever recall hearing any suggestion that Donald Trump’s protests against President Obama’s policies were a sign of ingratitude toward the country that “allowed” him to become wealthy.


Florida Goes Socialist

Hurricane Irma’s raging winds took down power lines supplying electricity to millions of Florida’s utility customers. As luck would have it, power lines remained functional for one particular customer: the Rehabilitation Center at Hollywood Hills, a nursing home situated in the dense suburban sprawl between Miami and Fort Lauderdale. But a tree fell on the transformer that powered the Center’s air conditioning, and despite deployment of portable units, the oppressively muggy southern Florida heat quickly became dangerous.

What efforts were taken by whom to relieve the situation remains to be finally determined, as does allocation of blame. What is clear is that three days passed before effective action was taken.

Over several pre-dawn hours last Wednesday, three nursing home residents were rushed to Memorial Regional Hospital, which sits maybe 100 yards from the nursing home. After the third patient arrived, at 5 a.m., hospital staff went to the nursing home to see what was going on. They found what the New York Times called an “oven.”

Checking the nursing home room by room, hospital staff found three residents had already died. Forty more were taken to the hospital emergency room in critical condition. The nursing home was evacuated, but by the time it was over, eight residents had died.

Nursing homes in Florida are subject to a variety of state and federal regulations. A Florida nursing home must maintain a reasonable temperature in its facility, and it must maintain a back-up power source. But apparently existing rules do not require that back-up power must be capable of operating a nursing home’s air conditioning.

Yesterday Florida Governor Rick Scott announced the promulgation of new state rules, giving nursing homes 60 days to install back-up power generators to operate air conditioning systems for at least four days after an outage. The rules require state inspection of the new generators within 15 days after installation.

The Republican Party that runs Washington today is as hostile to federal regulation as any American government has been since the Hoover administration. Regulation strangles both liberty and economic growth, we are told. (There are exceptions, of course, regulation of abortion providers rights being perhaps the most prominent example of “good” regulation.)

If you believe that businesses will reliably forego an extra margin of profit in order to deliver superior goods and services to consumers, in order to mitigate damaging externalities like air and water pollution, in order to provide their workforces with decent workplaces, wages and benefits; and if you believe that free markets automatically correct their own excesses – if you believe all of those things, then the only logical conclusion of your beliefs is that government regulation of businesses and government intervention in markets is unnecessary and even harmful.

Everyone else is relegated to the school of thought that government regulation has a critical role to play in the successful function of a capitalist economy.

The Rehabilitation Center at Hollywood Hills was bought in 2015 by Larkin Community Hospital, a for-profit health care network. It’s nice to say, as Governor Scott’s press secretary did, that “It is our expectation that these facilities will do everything they can to protect lives.” Maybe most of “these facilities” will do that most of the time. But sometimes they won’t. Some nursing homes will only spend money on back-up power supplies to their air conditioning systems if they are legally required to do so. For those nursing homes – evidently including the Rehabilitation Center at Hollywood Hills – weak government regulation means that people die.

Despite its own pro-market rhetoric, the administration of Governor Scott was forced by public outrage to intervene in the free market of health care. By the reckoning of today’s prevailing conservative ideology, Governor Scott has crushed liberty in his state and has wrecked his state’s economic prospects. All just to save a few lives.


The Art of the Deal: How not to Negotiate

By the time he left office, the rap on Mayor Mike Bloomberg among liberals was that he was great on management but bad on policy. As someone who worked in four city agencies during his administration, I thought this critique was exactly backwards.

I’ve commented on how progressive most of Bloomberg’s policies were, stop-and-frisk being the most glaring exception. With the ascendancy of Donald Trump, liberals might be feeling just a little nostalgic for Mike Bloomberg’s views on issues like climate change, immigration and gun control. But as the manager-in-chief of New York City’s sprawling government, Bloomberg was mediocre. Especially glaring to me were two failures to grasp the lessons of Management 101.

First, every executive needs to empower direct subordinates to tell him when they think he is wrong. For the first seven years of Bloomberg’s mayoralty, he relied – apparently exclusively – on Deputy Mayor Dan Doctoroff to set him right when he veered off course. After Doctoroff left the administration in 2008, there wasn’t anyone left who dared to question a Bloomberg idea.

Second, an executive must resist the temptation to hire subordinates who replicate his own strengths and weaknesses. A highly successful executive is tempted to attribute his success to his own skills and abilities, and therefore to hire subordinates who replicate them. But in fact, each of us is a bundle of strengths and weaknesses, and a good manager has both the humility to recognize his own weaknesses and the confidence to hire subordinates who are strong where the manager is weak.

After Doctoroff left City Hall, there was no one to fill the gaps in the Mayor’s expertise, and no one who dared speak up to point that out.

Deputy Mayor Caswell Holloway is my case in point. Bloomberg appointed Holloway deputy mayor in August 2011, and he served out the remaining 17 months of Bloomberg’s third and final term. Holloway had a remarkable mind – he was capable of taking in huge volumes of information very quickly, and, even more impressive, he could retain that information, subject to instant recall, long after he first heard it.

Like Bloomberg, Holloway was impatient and intemperate, well beyond what ordinary people would accept in their personal or social lives. Also like Bloomberg, Holloway didn’t take bad news well – “bad news” being anything other than the one precise thing he had decided in advance he wanted to hear. Holloway, like Bloomberg, could not bear any hint of a suggestion that he wasn’t right.

Although Holloway was very smart, he was also very young and very inexperienced. He clearly believed he was the smartest person in almost any room, that he was smart enough that he could make a snap decision in any field, regardless how little he knew about it. Holloway didn’t defer to experts, especially experts who came from the career civil service, for which Holloway bore unveiled contempt.

There came a time when my staff was negotiating a vendor contract that Deputy Mayor Holloway was interested in. He called me to a meeting and asked when contract negotiations would be finished. Since contract negotiations are a tango, which after all takes two, I told him that if the vendor was agreeable to our terms, the contract could be wrapped up in a few days; but if the vendor was difficult, negotiations might drag on for several weeks.

Holloway responded with ridicule, which was one of his favorite tactics. He bellowed out words in the form of a question, but not one for which he cared to hear an answer: “What’s wrong with you, don’t you know how to negotiate a contract?” I said nothing, but what I wanted to say was that if Holloway wanted a contract on terms favorable to the vendor, I could get that right away, but if he wanted contract terms favorable to the City, that would take a little longer.

A few days later, Holloway asked me the status of negotiations. I told him that we had come to agreement with the vendor on all of the contract terms except one: the vendor did not want to accept New York City’s network security and data confidentiality requirements. I told him that I had given the vendor our bottom line that morning (it was a Thursday), and that the vendor was to get back to me by the end of the following day (Friday). Holloway deployed another of his favorite tactics, the absurd deadline: he told me that if the vendor did not accept our terms by the end of the day on Thursday, I was to call them and ask them what terms they would accept.

I don’t claim to be the world’s greatest negotiator, but I know this: if you make the other side an offer, but then you tell them you’ll accept something less, you guarantee that you’ll get something less. This is negotiation by surrender.

Fortunately, I was able to persuade Holloway to extend his ultimatum by a day – he gave me until the end of the day Monday to send my surrender to the vendor. Even more fortunately, on Friday the vendor accepted our security terms. We had come to a contract, and we had done so without compromising the security and data confidentiality of the New York City government’s computer network.

*          *          *

It made big news this week when President Trump hosted a meeting of Democratic and Republican Congressional leaders. The meeting produced agreement on legislation to raise the debt ceiling, extend funding for the federal government, and allocate additional funds for emergency Hurricane Harvey relief. It made news because, in effect, Trump asked both Democrats and Republicans what they wanted to do, then did what Democrats wanted to do. He reportedly cut off his own Treasury Secretary mid-sentence to shoot down his own side.

By agreeing to short-term fixes for government funding and the debt ceiling, Trump kicked away an awful lot of leverage that Republican leaders could have used to wring legislative concessions out of Democrats. Current federal government funding was fixed by Barack Obama’s last budget; extending current funding extends Democratic policy priorities much more than had Trump allowed his own party to drive a hard bargain. It was negotiation by surrender. Basically, Trump called up the other side and asked them what terms they would like, and then he agreed to them.

Trump seems to think that he bought himself some good will among Democrats. I would file that idea under “wishful thinking,” right next to Trump’s notion that Democrats would be ecstatic when he fired FBI Director James Comey. Senate Minority Leader Chuck Schumer and House Minority Leader Nancy Pelosi are way too sophisticated to be distracted by shiny objects. By all accounts they were amazed and thrilled that Trump gave away so much; that hardly means that they’ll respond by giving anything away in the next negotiation. If anything, Schumer and Pelosi, having seen how big a concession they can win from Trump, they may ask for even more the next time around.

Millions for Tribute; Not One Penny for Defense

Many of the hurricanes that hit the Atlantic and Gulf coasts of the United States start out as thunderstorms in the eastern Sahara Desert, over the Ethiopian highlands. About one in ten of these storms becomes an Atlantic hurricane. It moves west until it leaves land, and, drawing energy from the warm tropical water, continues to move west until it becomes a hurricane.

The National Hurricane Center first noted the tropical wave that became Hurricane Irma on Saturday, August 26, when it was still over West Africa. The next day, the storm moved out over water and began to intensify rapidly: a tropical depression on August 29, a tropical storm on August 30, a category 3 hurricane on August 31.

Moving west toward the Leeward Islands, Irma grew to a category 4 hurricane on Monday, and a category 5 hurricane yesterday. Category 5 is the highest designation for a hurricane, used for storms with sustained winds measuring at least 155 miles per hour. Irma’s wind speed was 175 miles per hour yesterday, and this morning Irma was sustaining wind speeds of 185 miles per hour.

Hurricane Irma made landfall today on the islands of Barbuda, St. Martin, and Tortola. The National Hurricane Center predicts that Irma will pass just north of Puerto Rico later today and just north of the Dominican Republic tomorrow, and will hit the Turks and Caicos Islands by Friday. Irma’s projected path could take it ashore in southern Florida on Sunday.

Oceanic temperatures have risen in recent decades, and the temperature increase in the Atlantic Ocean is greater than the global average. To a layman, warmer water means more frequent and more intense hurricanes. But warm water itself is not actually the energy source for hurricanes. Hurricanes derive their power from the difference in temperatures between the water and the upper atmosphere above the water. Larger temperature differences drive greater air circulation speeds, as warm air rises into the cooler atmosphere and colder air rushes into the low pressure left behind by the rising air.

Greenhouse gases have certainly warmed the waters, but they have also presumably warmed the upper atmosphere. It turns out not to be scientifically self-evident that hurricane frequency or strength grows with global warming. Reading over some of the internet-published scientific literature on the subject, it seems to me that the uncertainty may arise, perhaps somewhat ironically, less from what we don’t know about global warming and more from what we don’t know about hurricanes.

In any event, the affect of climate change on hurricanes remains the subject of scientific debate. On the one hand, there is so far no “compelling evidence” that global warming has increased the number or frequency of Atlantic hurricanes. On the other hand, it is clear that Atlantic hurricanes have grown in intensity – since the 1970s, the number of Atlantic hurricanes achieving category 4 or 5 power has doubled. Scientists believe that increased hurricane intensity is probably due at least partly to global warming; the National Oceanic and Atmospheric Administration’s Geophysical Fluid Dynamics Laboratory concludes that climate change will likely cause substantial increases in Atlantic hurricanes’ wind speed and rainfall.

Two other things are clear. First, as the oceans warm, the water expands and sea levels rise. Even if hurricane frequency and intensity were utterly unaffected by global warming, rising sea levels means increasing storm surges and flood damage from hurricanes. And second, as the atmosphere warms, its capacity to hold evaporated water increases, and therefore the rainfall capacity of hurricanes increases.

My question to climate deniers – one I have never seen any answer to – is, how much are you willing to bet on being right? If climate deniers are right, then inaction on climate change will be proved to have no cost.

But what if climate deniers are wrong? What if carbon emissions are warming the world and we are approaching the point at which warming becomes irreversible? What if glaciers disappear and the icecaps melt, sea levels rise several feet, hurricanes become more intense and more damaging; what if most of the 100 million Americans living in coastal counties must move or drown? What if the flooding that now occurs with nearly every high tide in Miami Beach is not just a fluke, but a harbinger?

How much, in other words, are climate deniers willing to bet on being right?

Whole vast areas of human endeavor are concerned with things that are not certain to happen. I have home insurance that would cover me in the event of a fire, or a burglary, or even an earthquake – none of which will certainly happen. I have health insurance to pay for any number of things that probably won’t happen to me, like brain cancer surgery or a kidney transplant. Our government spends vast sums preparing for all variety of contingencies – natural disasters, wars, crimes, terrorist attacks. How certain do you have to be that climate change is fake, to justify a policy of indifference to climate change?

Hurricane Harvey set American rainfall records after it came ashore on August 25 at Rockport, Texas. At landfall, Harvey was a category 4 storm with maximum sustained winds of 130 miles per hour. Early estimates are that Harvey will exceed Hurricane Katrina as the most costly storm in American history. Just two weeks later, Irma has the potential to break Harvey’s record.

Our government is moving quickly to do what it must: fund a vigorous federal response to the Hurricane Harvey disaster. We will do the same after Hurricane Irma, if it comes to American shores. We will do the same after every hurricane, even as hurricanes increase in intensity and rainfall, even as they become more damaging.

At the same time, our government is busily undoing nearly every federal measure directed to climate change – international or domestic. Even as we are willing to pay the ever-increasing costs of damage caused by climate change, we are unwilling to pay any cost to prevent the damage in the first place.

Federal policy regarding climate change is this: millions for tribute, but not one penny for defense.


September 8, 2017 – Environmental Protection Agency Administrator Scott Pruitt, a prominent climate denier, told CNN today that discussion of climate change “at this point is very, very insensitive to this people in Florida.” Our focus, opined Administrator Pruitt, should be on “helping people” rather than “to have any kind of focus on the cause and effect of the storm.”

The End of DACA

Donald Trump is scheduled to give us his decision tomorrow on the fate of Barack Obama’s Deferred Action for Childhood Arrivals program. I’m not exactly holding my breath – between Trump’s antipathy toward illegal immigrants and his antipathy toward all things Obama, I’m reasonably sure Trump will end the program.

To my mind, DACA poses the hardest challenge for the “what part of illegal don’t you understand” crowd. By definition, DACA benefits people who were brought to this country as minors, typically by their parents – not people who planned and executed their own illegal immigration.

For the most part, illegal immigrants are subjected to civil punishment – specifically, deportation. But oddly enough, the immigrants who benefit from the DACA program would probably be better off if they were subjected to criminal prosecution.

The act of entering the United States without authorization is both a criminal and a civil offense under section 1325 of title 8 of the United States Code. Illegal entry is not a serious crime – it is a misdemeanor, punishable by a fine, up to six months in jail, or both.

Deportation is a civil remedy, not a criminal penalty. It is not imposed on a person as a penalty for the crime of illegal entry, but as a remedy for illegal presence in the country. This distinction often gets lost in the discussion, but it’s important.

A person can enter the country legally and subsequently become an illegal alien – for instance, a tourist who comes to the United States on a 90-day tourist visa and stays here longer than 90 days. That person is subject to the civil penalty of deportation, but has not committed the crime of illegal entry. Conversely, a person can enter the country illegally and subsequently become legal – for instance, an illegal immigrant who later obtains a visa, a green card, asylum, or other legal status. That person is not subject to deportation, but is at least theoretically subject to criminal prosecution for illegal entry.

I think it’s useful to think of illegal entry to the United States as an act that occurs once and is completed, and illegal presence in the United States as a status that continues indefinitely. And by the way, illegal presence in the United States is not a crime – overstaying a visa, for instance, subjects a person to deportation, but not to criminal prosecution.

In general, criminal punishment is subject to greater protections for the individual than civil punishment is, and that is certainly true in the case of immigration law.

For starters, criminal punishment usually requires proof, beyond a reasonable doubt, of some form of intent. An ordinary car crash isn’t a crime, but intentionally ramming another car is a crime. A person who is kidnapped and brought across the American border is presumably not guilty of the crime of illegal entry. Presumably an infant who is brought here by his parents is also not guilty of the crime of illegal entry.

Most crimes are subject to statutes of limitations – after the prescribed time passes, a crime can no longer be prosecuted. Misdemeanors, being less serious crimes, are subject to relatively short statutes of limitations – most federal misdemeanors must be prosecuted within five years.

And criminal punishments are generally subject to sentencing discretion. Illegal entry, for instance, can be punished by a fine, or by a jail sentence up to six months, or by both. There is neither a minimum imprisonment term nor a minimum fine, and the sentencing judge is obligated to consider mitigating circumstances.

Deportation requires no proof of intentional wrongdoing – it can be imposed on any person who has the status of an illegal alien, regardless of the legality or circumstances of the person’s entry into the United States. Deportation is not subject to a statute of limitations, because it is not imposed as punishment for an act, but as a remedy to a continuing status. And deportation is subject to no judicial discretion. If a person is adjudicated to be subject to deportation, the person is deported. There is no alternative penalty, and there is no consideration of mitigating circumstances.

DACA sharpens the contrast between civil and criminal enforcement of immigration law. DACA’s beneficiaries include those brought here as two-year olds, literally as babies, without any capacity for intentional wrongdoing. Because they remain in the status of illegal aliens, they remain subject to the civil penalty of deportation. But I really don’t think there can be any doubt that they are not guilty of any crime – they lacked the requisite criminal intent, and for many of them the statute of limitations has long since passed.

Because DACA beneficiaries have been illegal aliens since their arrival, very few of them have ever been out of the country. The United States is the only country they know; they have never seen their countries of birth. Deporting them would be unaccountably cruel.

Long before Trump first proposed his Mexican border wall, I argued that it is in Republicans’ interests to agree to ease immigration enforcement against those already here, and in exchange Democrats should agree to “tougher border protection – build that fence from the Gulf to the Pacific, add border patrols, whatever.” There is some movement in Congress to do something along those lines, but, if Trump ends DACA tomorrow, that movement will have proved to be too little, too late.


Our Gift to You, With Apologies

New York State has been the home state of seven presidents, more than any other state. In fairness, three of New York’s presidents were elected vice president on tickets topped by presidents with shorter life expectancies than presidential terms: Millard Fillmore became president upon Zachary Taylor’s death from a digestive illness caused by eating bad fruit at a fundraising event for the Washington Monument; Chester Arthur and Theodore Roosevelt succeeded to the presidency upon the assassinations of James Garfield and William McKinley.

In further fairness, two presidents who called New York home were born elsewhere: Arthur was born in Vermont and Grover Cleveland was born in New Jersey. By state of birth, Virginia tops the list, with eight presidents to Ohio’s seven; New York comes in third at five.

But we’re going by home state, pre-presidency, and New York leads that list, ahead of Ohio with six and Virginia with five. By comparison to Virginia’s presidents, who are bunched up at the nation’s beginning, New York’s are more evenly scattered through American history. The Republic managed through 48 years before its first New York president, Martin Van Buren. It was the longest stretch of New York-less presidencies the country endured until Franklin Roosevelt died in 1945 – after which we suffered a 72-year drought that ended with the unexpected election of Donald Trump.

New York presidents have a mixed record. Van Buren, Fillmore and Arthur usually appear toward the bottom of  “best president” lists, and it seems likely that Trump will join these basement-dwellers. Cleveland generally appears in the middle of these lists, just barely in the top half. Both Roosevelts reliably rank among the best presidents.

What Trump’s base celebrates as free-thinking defiance of convention, historians will likely regard as recklessness and inexperience. Trump’s striking confession that he was surprised to find that being president is hard work will loom large in historical narrations of his presidency.

We judge the past from the point of view of the present; future historians will assess Trump’s presidency from their point of view. We can’t fully know what the future will look like, but there are some things we do know about our future, and we know how Trump is dealing with them. So, for instance, Trump will be remembered as the president who capitulated to climate change, bequeathing its devastating consequences to the future that will judge him.

Within three or four decades, Americans of European descent will number less than half of the American population, and future history will judge Trump by the standards of the new majority. Therefore Trump will be remembered as the last stand of white supremacy, the man who shoveled sand against the multi-cultural tide.

Given the range of disasters he is courting – from climate change to North Korean nuclear attack – Trump has the potential to be remembered as the worst of all of our presidents – worse than Andrew Johnson, worse than James Buchanan, worse than Franklin Pierce, worse than Warren Harding.

So we New Yorkers apologize for Donald Trump. Still, you can’t entirely blame New York. We offered you another New Yorker, Hillary Clinton – not a native New Yorker, to be sure, but an adoptive New Yorker. But you chose Trump – not by a popular plurality, much less a majority, but by an Electoral College majority nonetheless. We New Yorkers opted for Clinton by more than 23 percent of our votes. Trump thus became only the second New York president to win without his home state. (Grover Cleveland took New York in his first election, in 1884, but lost New York both in his 1888 loss and in his 1892 comeback win.)

Of course, everyone knows that Trump would have won New York if it wasn’t for all those illegal immigrants we let into our voting booths.


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