Category Archives: Commentary

All written commentary.

You tried it though.

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Over the years, many a high school principal or administrator has tried — with varying degrees of success — to suppress something their high school’s student newspaper would like to print. Generally, the content in these cases is inflammatory or inappropriate in some way and occasionally even potentially dangerous. Sometimes, the school officials are actually trying to cover something up.

In many cases, the courts have smacked down these administrators for unconstitutional infringements of students’ rights to free expression and free press (such as it is). Whereas other forms of expression can sometimes be limited for being overly disruptive to the learning environment, the courts seem to feel that broadly speaking, student newspaper content is pretty harmless, however important it might seem in the heat of the moment to students and staff inside a little bubble.

Most administrations would probably be better off ignoring anything that’s not outright criminal or endangering someone’s safety, because the suppression — much like the proverbial coverup — is nearly always worse than the “crime” and blows something tiny into a national story.

And that brings us to this week’s openly mockable student newspaper suppression attempt by a misguided high school principal. The reasonably successful high school football team of Neshaminy High School in Langhorne, PA is called the “Redskins,” like the Washington NFL team and the teams of many other backward schools nationwide. In an effort to protest the highly offensive nature of the team’s name, the staff of the student newspaper vowed not to print the school’s team name — following the lead of a number of major real newspapers for the real football team.

Principal Rob McGee responded initially, in November during state playoffs, by informing the student paper that they “[didn’t] have the right to not use the word Redskins.”

A truly laughable attempt. In what way did the principal think he was going to keep a school paper from not printing the name of the school’s football team? There’s no way that order passes constitutional muster. There’s clearly no public harm or student harm in not printing something in a school paper.

I’m fairly certain that any case where the courts have ever ruled against a student newspaper has been to tell them they did not have a right to print some controversial thing. I doubt there’s ever been a ruling saying they had to print something — short of perhaps some discrimination/equal opportunity case.

Unsurprisingly, the students running the paper now have legal representation and plan to reinstate their policy of refusing to use the term. Good luck stopping them, Principal McGee. You tried it though.

GOP vs. Health insurance lobby? Good luck.

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Health-and-Human-ServicesSo now that 2 million Americans are about to be getting private health insurance under the auspices of the Affordable Care Act private plan exchange of next week — with another couple million already getting covered through their parents’ plans — anti-ACA Republicans in Congress are hitting up against the very hard, cold reality that the “repeal” of the law (which wouldn’t be possible for at least another three years) would suddenly take away a lot of people’s insurance coverage. And that would make people super mad at Republicans.

While some Republicans still won’t go quietly into the night, whether due to dogmatic delusion or excessive pandering, the result of this realization is largely another round of trying to say that there’s still a way to repeal-and-replace the legislation, leaving the “good” parts (and the now-immovable exchange) while abandoning the “bad” parts.

These “good” parts are the extremely popular sections of the “Patient Protection” side of the law, which do things like compel insurance companies to cover people with pre-existing conditions and not drop chronically ill patients or cap their coverage, etc. etc. The “bad” parts seem to have been reduced down to the individual purchase mandate (and I guess probably some lesser things like the popular but more controversial contraception coverage requirements).

The one good thing about the crushing strength of the American private health insurance industry’s Washington lobby is that they will never allow through these idiotic Republican proposals to replace the Affordable Care Act. That lobby understands two key truths:
1. this law benefits their industry as currently written by providing lots of healthy new customers and,
2. the replacement proposals keep the most popular but most expensive parts in place, while stripping out the money-making purchase mandate that makes it financially feasible to keep the costly parts going.

The law is — and always has been — a big giveaway to the private health insurance companies. The Republican proposals to “fix” it would take that part away and make it financially unsustainable for the insurance firms (edit: as has already been demonstrated in U.S. overseas territories that lack the mandate).

Those firms benefiting from this law donate a lot of political money. If you’re a Republican in Congress right now, you don’t want to get into a political gunfight with the health insurance lobby, unless you’re a self-funding candidate.

Even the tea party wing is still dependent upon big business. They can’t afford to cross private health insurers at the moment. Plus, what kind of terrible, socialistic legislation would that be, to force private companies to provide many expensive services without subsidies, while taking away their revenue? No good tea partier in Congress worth his or her salt could vote for that.

Toledo, China

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The New York Times today has an interesting article on how the Rust Belt city of Toledo, Ohio — population 280,000 — became a magnet for Chinese industrial, land, and business investments in less than a decade. Hundreds of trade reps and businesspeople have traveled back and forth in both directions, along with political officials. Many millions of dollars worth of investments in Toledo have resulted from these exchanges, as have deeper cultural ties.

In part it was lucky geography and its old manufacturing base:

“They looked on a map, figured out where we were sitting and saw the benefit,” said Mayor Bell, a gregarious former University of Toledo defensive lineman, referring to Toledo’s location near a number of large cities in the United States and Canada. “They could see that this town needed to be helped a little bit and that it could be on the upswing — that there was potential, that they could do something, that it could be incredible and it would not probably take a whole lot to do.”

[…] The city is a major transit hub, crossed by railways and highways, and has the busiest general cargo port in the Great Lakes region. Housing is affordable, and the abandoned factories, including those where windows, bottles and windshields were once made and shipped around the world, mean there is plenty of space.

 
But the city has also hauled in extensive investments with trade missions to China that are out-performing much bigger cities and even state governments. That may be somewhat cultural and because of, not despite, Toledo’s relatively small size:

The city’s informal “handshake culture” has also helped, Chinese and American business officials said, as deals that might unravel amid the bureaucratic machinations of a bigger city can be completed in Toledo in a matter of weeks.

 
It seems that in a globalized world, direct local diplomacy and local trade isn’t just for the cities and communities in the heartlands of the developing world. It’s possible to form such links here at home.

Marriage equality comes to Utah (for now)

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It’s been a good week for marriage equality. On Thursday, New Mexico’s state supreme court delivered a unanimous opinion in favor of marriage equality statewide — not a big surprise given that half the population was already living in counties issuing same-sex licenses due to the lack of a law one way or the other. Then, on Friday, neighboring Utah got a big surprise when a Federal district judge ruled that their 2004 State Constitutional Amendment against same-sex relationship recognition was unconstitutional.

This is the first Federal decision at any level on the issue since the Proposition 8 and DOMA rulings were handed down this year. You should read this excellent analysis of the judge’s very thorough case opinion. (It’s really too bad it’s a lower court opinion that can’t be applied anywhere else directly because it would be great material for a precedent decision higher up. Maybe it will get cited higher up.)

Over a hundred same-sex couples immediately rushed to get licenses on the first day (photos here), with more following in the days after. The state government sought emergency stays from the 10th circuit appeals court, which initially rejected it on the grounds that the initial ruling judge at the district level had to consider a stay first. So same-sex marriages continued in Utah throughout the weekend until he formally rejected the request for a stay.

In the absence of a compelling public interest against allowing marriages to proceed — unsurprising given that they are already in progress in nearby California, New Mexico, Washington and over a dozen other states — the Tenth Circuit followed the district’s lead and by Tuesday had denied a stay three times since Friday. For the state government, that means they’re running out of road fast on blocking this from going into effect during the lengthy appeals process.

The de facto result is that same-sex marriages will continue in Utah until either stayed by the U.S. Supreme Court or until the circuit court actually hears the appeal and then overturns the district court ruling, if that is how it rules.

So what are the chances of either of those happening? The former is pretty unlikely. Liberal Obama-appointee Justice Sotomayor has control over emergency stay requests coming from the 10th circuit. She might choose to refer it to the other justices to prevent a re-application to a different justice, which would inevitably follow a unilateral denial. But even if she does, a majority of the court would have to be persuaded that halting same-sex marriage during the appeals process is an emergency (which is probably unlikely, given that 5 justices didn’t find a reason to block it in the Prop 8 cases or DOMA cases earlier this year, even if they weren’t directly ruling on this broader issue).

As for the possibility of the 10th circuit reversing the lower court ruling after denying a stay, that’s harder to predict. I’m certainly not a court expert, but my guess is that the circuit court level ruling could go either way. I’m not sure of the 10th circuit‘s ideological composition, but I believe it leans conservative, even though half of the active seats were filled by Democratic Presidents due to institutional reasons that favor conservative nominees for Federal seats in states with conservative senators.

Plus, I think the way it works is that it’s a pool of potential judges and there’s no way to know whether the same people who denied a stay get pulled to hear the actual case. Thus, it’s entirely possible that the circuit court will find in favor of the state down the road — although existing marriages would likely remain valid. But that decision is probably a year or two away.

So from here, it gets pretty murky. Remember that it took over four and a half years to get a final decision from the Supreme Court on the legal standing of the Proposition 8 proponents, let alone its constitutionality (which they never actually ruled on). There are also other Federal court challenges pending in other states against their constitutional amendments and related laws. Already, on Monday, another Federal case resulted in a ruling that Ohio must accept valid same-sex marriages performed in other states. Nevertheless, this Utah decision is an important milestone, and there are probably a lot of very happy families right now getting the recognition they deserve. That now state of affairs seems likely to continue during the appeals process.

Another win for the Credit CARD Act of 2009

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In May 2009, President Obama signed into law the Credit Card Accountability Responsibility and Disclosure (CARD) Act, a reform package to protect American consumers from abusive practices, misleading advertising and marketing, and more.

Some elements are enforced by the Federal Trade Commission, an independent regulatory agency dating to the Wilson Administration in the early 20th century Progressive Era. The rest is now enforced primarily by the Consumer Financial Protection Bureau created by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The Bureau, perhaps best known for being a major agenda item by Elizabeth Warren before she ran for Senate, is under the aegis of the Federal Reserve, another Progressive Era institution.

The Credit CARD Act, which passed with bipartisan support not long after the height of the credit crunch and the credit carpet being pulled from under average American consumers, sought to curb a wide range of problematic behaviors by the card companies.

  • Bans Unfair Rate Increases
  • Prevents Unfair Fee Traps
  • Plain Sight /Plain Language Disclosures
  • Accountability
  • Protections for Students and Young People

It also outlined some core principles for regulatory enforcement of the law:

  • First, there have to be strong and reliable protections for consumers.
  • Second, all the forms and statements that credit card companies send out have to have plain language that is in plain sight.
  • Third, we have to make sure that people can shop for a credit card that meets their needs without fear of being taken advantage of.
  • Finally, we need more accountability in the system, so that we can hold those responsible who do engage in deceptive practices that hurt families and consumers.


Since the Credit CARD Act took effect, there have been a number of rulings and enforcement orders by Federal regulators against some of the credit card companies for failure to comply with consumer protections. These include failure to limit consumer fees and charges as required or to change policies on issuance of credit cards to minors and students, as well as violations of restrictions on fees and other terms of gift certificates, store gift cards, and general-use prepaid cards. Companies have also had to ensure their advertisements for private credit reports disclose that free credit reports are already available under Federal law.

Capital One, a particularly egregious employer of abusive practices and a well-known (even notorious) marketer of all kinds of cards and credit services, has been one example of a company forced to settle. The venerable American Express has also been forced to make big payouts for attempting to manipulate settlements and for other violations.

The latter got hit with another order today from the Consumer Financial Protection Bureau — which is good news for the consumers they have misled:

The Consumer Financial Protection Bureau has ordered American Express to pay more than $75 million to settle claims that it charged improper fees and misled its credit card customers over so-called add-on products like identity fraud protection.

American Express will have to refund $59.5 million to more than 335,000 consumers over what the bureau called “illegal credit card practices.” American Express will also have to pay a $9.6 million cash penalty to the bureau, according to a statement issued on Tuesday.

The Dealbook/NYT article above details which practices were cited in the enforcement order from the CFPB. Last year’s settlement by American Express was even bigger, at $85 million.

While it’s unfortunate that AmEx is still trying to mislead its customers and potential customers, in violation of repeated actions by the Bureau and other regulators, the system seems to be working better than before the Credit CARD Act was passed in 2009. Moreover, according to Warren, within the first year or so, most companies began complying with — or even going beyond — the law’s requirements. On balance, consumers are being better protected. And that’s great news for everyone.

Democratic competition in South Africa at last?

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anc-logoSouth Africa’s biggest union has announced it will not be endorsing the ANC in upcoming elections for the first time in the post-apartheid era. It plans to remain neutral.

This is actually really important and (hopefully) positive news for South Africa. Their biggest obstacle to achieving full democracy in the post-apartheid period has been that the ANC party has always held complete control, through a permanent election coalition with the trade-unions and the Communist Party.

This is not because they are autocratic, but rather because they have just mathematically absorbed everyone who might otherwise be running against them. In the first several elections, a unity government coalition led by the ANC even included many of the whites from the apartheid-era ruling party and its successor party.

Today, South Africa’s largest opposition party (Democratic Alliance, mostly former anti-apartheid White activists) is a distant and uncompetitive second, with about 16% of the seats at the national level, compared to the ANC’s nearly two-thirds control. So there’s never really been much pressure outside the ANC to be responsive and accountable.

Introducing genuine competition in South African elections — by ending de facto single-party rule through the splitting of coalitions and perhaps the ANC itself — would be a big step forward toward cleaning up corruption and making South Africa a fully functioning democracy.

Single-party rule, even if popularly elected repeatedly in free elections, is never healthy in the long term for any country.

South Sudan: The world should be watching

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south-sudan-flagSouth Sudan is Africa’s newest country and is a significant oil-producer (mostly selling to China) and fledgling democracy. At the beginning of the week we got scattered reports that there had been an attempted coup d’état by the former Vice President of South Sudan and troops loyal to him.

He is of a different ethnic group than the President, a U.S. ally. While the takeover failed in the capital, it seems the rebelling units quickly moved outside the city. The ex-VP now says his troops have control of the oil fields.

The United Nations mission on the ground — continuing to oversee the transition process from 2005 to independence in 2011 and then to present — soon reported 500 deaths in the clashes between loyalists and renegade troops in the capital. These figures have been rising quickly as casualties mount in the countryside and other towns.

Within a couple days, 20,000 civilians had crowded onto UN peacekeeping bases, seeking refuge from the fighting within the Army. That number is now up to 35,000 according to the UN. There are fewer than 7,000 UN peacekeeping troops in the country, and two soldiers from India have already been reported dead as approximately 2,000 child soldiers aligned with the renegades overran one of the bases and began massacring civilians of a the President’s (majority) ethnic group.

Troops from neighboring Uganda and Kenya have already arrived to “intervene” in the crisis as “stabilize” the government. It is fairly standard practice for the African Union — both countries are key members in AU military operations — to officially back the incumbent governments during leadership struggles and rebellions, mostly out of self-interest but also to promote legitimacy/sovereignty of existing governments. But it’s also common for East African nations to interfere military in each other’s conflicts, sometimes on the side of rebels.

The United States has hundreds of staff in the country, most of which have been evacuated from non-rebel-held areas. But BBC Africa and the New York Times reported earlier today that a U.S. emergency evacuation military mission of three planes to South Sudan was fired upon while en route from Uganda.

It turned back without completing an evacuation and landed safely in Uganda, but there were injuries on board to four U.S. service personnel. They are all in stable condition now. The Ugandan Army (a U.S. military ally in the region) said that, based on the location of the attack, that renegade troops siding with the attempted coup initiated it. The U.S. military has officially backed this hypothesis. It’s unclear when the U.S. will be able to rescue its people on the ground in the rebel zone.

President Obama announced that he has already put 45 troops on the ground — potentially from existing Ugandan or Kenyan deployments or the offshore anti-piracy patrol deployments — to protect U.S. civilians stationed in the country as part of the transition to democracy. He also announced that he would end U.S. and Western support for South Sudan for the first time, if the government falls to the rebels through force.

So to summarize: We’ve got U.S. troops on the ground now in a significant oil producing nation with close ties to China (I argued earlier this week that they should step up and intervene), the oil seems to have fallen to rebel control, UN peacekeepers have already been killed trying to protect some of the 35,000 civilian refugees hiding on their bases, and we’ve now had U.S. casualties. Oh and it’s a democracy the U.S. carefully guided into existence in just the last decade. This is about to be a way bigger global concern — unfortunately — than the nearby Central African Republic chaos.