Tag Archives: cato

Good news

Trigger warning: indefinite detention, electoral disenfranchisement, racism

The past few weeks have seemed like a bit of a parade of bad news – with Donald Trump’s ascendancy in the Republican primary among other worrisome events. Recently, however, there’s been a few small but significant changes that can give us hope.

Think of the children

After the number of unaccompanied children crossing into the US peaked in 2014, the public’s attention to the issue has steady declined. Even as fewer children have ended up in the overcrowded and dangerous detention facilities scattered across the southwest US, those already here have largely faced a toxic mixture of judicial neglect and increasingly unrealistic orders for them to leave the country.

A new report from Generation Progress touches on the issues that I and others noticed were looming problems just as the crisis began – that very few of these cases have assigned lawyers or even translators. Concerned Senators and Representatives have stepped in with new federal legislation requiring more extensive availability to those services as well as more thorough accountability for the agencies overseeing these detention facilities and court proceedings. Unfortunately, as long as the Senate and House are Republican-controlled, these reforms are unlikely to become law.

The day’s wages

In New York and California a similar tentative step forward, in this case on the minimum wage, has unfolded. In both progressive-leaning states with large labor pools, local activism was sufficient to push for incrementally raising the wage floor. In New York, the main determinant will be regional, with New York City proper seeing its wages move up the most quickly, followed by outlying parts of the urban center, and lastly other parts of the state. To a certain extent, that reflects cost of living, although across the state that will catapult minimum wage workers from $9 an hour into a more manageable economy. In California, the changes will be tailored more to the type of business, with smaller companies given slightly more time to adapt.

(Changes have so far been concentrated in states with minimum wages higher than the federal minimum wage, however. Image modified from here.)

Many commentators have viewed this as a reflection of the populist politics fueling Senator Sanders’ presidential run, but the piecemeal approach in both California and New York is more reflective of the gradual and contextual increases advocated by Secretary Clinton. Far from outside of these policy victories, Clinton took part in the celebratory rally put on by New York Governor Cuomo in her adoptive state.

Who counts the voters

Whether at the state level or federally, these different movements aimed at improving the quality of life have relied on elected leadership. In short, they have needed at least the possibility of voters caring about these issues to motivate political action. The capacity for that to happen as evenly as possible with the population of a district was upheld 8-0 by the Supreme Court on Monday in Evenwel v. Abbott.

This case was launched by the Project for Fair Representation, which previously played a role in an unsuccessful challenge to affirmative action and a fruitful dismantling of the electoral pre-clearance system. The racial dimensions of their work are deliberate and striking, and Evenwel was no exception. The Cato Institute (known for its own relationship with racist, colonialist, and antisemitic ideologies) published a rather flowery amicus curiae on behalf of the plaintiffs in Evenwel where they argued-

Once again this Court finds itself at the intersection of the VRA and the Fourteenth Amendment. The parties here are caught in the inevitable trap of (1) maintaining majority-minority districts under complex, overlapping standards and (2) administering electoral schemes that do little to advance racial equality while doing much to violate voter equality— the idea that each eligible voter’s vote should count equally. In the background of this conflict, there lurks a cacophony of precedent and oft-conflicting court administered standards that have arisen from Section 2 cases. Basic constitutional guarantees of equal protection inherent in the Fourteenth Amendment— such as OPOV—are getting lost in this thicket.

Avoiding racial discrimination under these circumstances is particularly difficult in jurisdictions where “total population” and “citizens of voting age population” (CVAP)—standard metrics for evaluating whether a district violates OPOV—diverge due to varied concentration of non-citizens. As with the tensions amicus Cato has described before, jurisdictions navigating between the VRA’s Scylla and the Constitution’s Charybdis are bound to wreck individual rights—here, voter equality—on judicial shoals.

The reality that redefining electoral districts across the country by either eligible or registered voters would cast aside representation for people ineligible to vote or unregistered (who are largely people of color) is only indirectly considered. It’s framed as an unfortunate cost needed to make each vote cast equally contested by candidates – a pipe dream as turnout can easily inflate a given voter’s power or swamp their decision in a sea of others’. These organizations, all too recently comfortable with the legal realities of Apartheid, were pushing for a milder version of the same multi-tiered political system, where there are people represented and people beneath consideration.

Perhaps most tellingly, the case here sought a structural response to the reality that millions of people are disenfranchised – while being incarcerated (and depending on the state, afterwards as well), for being undocumented or otherwise non-citizens, or from the inaccessibility of the voter registration system. Instead of asking why those people are beyond the pale of electoral participation and what could be changed about that, it treated their exclusion as an accepted given to be worked around.

Luckily the Supreme Court saw things differently, and as the NAACP’s Legal Defense Fund described it:

Upwards of 75 million children—13 million of whom are Black—not yet eligible to vote would have been counted out of the redistricting process had appellants prevailed. Indeed, appellants’ case threatened to take America’s redistricting process back to nefarious periods in our democracy similar to when Black people were counted as 3/5ths of a person for redistricting purposes and expressly excluded from the body politic.

The Court’s decision today vindicates the “one person, one vote” standard, which rightly takes into account Census-derived total population counts when apportioning voting districts. This standard has been applied universally for over 50 years by all 50 states and the thousands of localities within them. Moreover, this clear understanding of “one person, one vote” is already regarded as America’s “de facto national policy” in legislative redistricting, enjoying overwhelming, bipartisan support among state and local governments. Today’s decision reaffirms the guiding logic of this inclusive standard, which fosters access to electoral representation and constituent services for all people, regardless of race, sex, citizenship, economic status, or other characteristics, or whether a person chooses to or is able to vote.

That vision of participatory democracy is the engine that’s helping to drive these modest steps towards a fairer political and economic system. This newly post-Scalia Supreme Court has made clear that they favor that understanding of how this country could organize itself.

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We’re taking the Cato Institute seriously on this?

TW: torture, indefinite detention, surveillance of civilians, violations of civil liberties

One of the more intriguing and yet overlooked things to have happened in the past couple of weeks while I haven’t been blogging at full speed happened on the Rachel Maddow show, a few days after Christmas while Ezra Klein was filling in for her. He decided to address the fact that bipartisan support for effectively warrantless wiretapping of US citizens is still the norm, which made particular sense in the wake of the Senate’s then recent extension of the government’s right to warrantlessly wiretap.

That said, a major part of how he covered those issues was to invite on Julian Sanchez, a research fellow at the Cato Institute, who then proceeded to label President Obama and the Democratic-controlled Senate as the fundamental barrier to rescinding the vestiges of Bush era surveillance. The fact that this had to pass through the Republican-controlled House of Representatives disappeared from the discussion, which made clear that Sanchez and by proxy the Cato Institute are holding Democrats responsible but letting Republicans off the hook.

Unsurprising though this may be, coming from the Cato Institute, this speaks to several broader political problems we need to understand and respond to. The Cato Institute and many other libertarians in recent years have largely reinvented themselves as not only a libertarian think tank, but the group leading a call to arms on issues pertaining civil liberties. As already quite clearly Republican-friendly, much of that narrative has focused on how Democrats are the wannabe despots, in spite of much of the ideological groundwork for this being put together during the Bush years. But that strategy has started to bear fruit, with President Obama being implicitly asked why he doesn’t support “internet freedom” when the Republicans do and with this sort of an appearance being treated seriously on the supposedly den of social democracy at MSNBC.

Of course, whether this narrative actually makes sense with the facts on the ground is another question entirely. There is a point to be made that the leadership of both parties are unwilling to take on this issue, but the real question to be asked when faced with that fact is which party is most salvageable. And the answer is quite clear: the Democrats even if their current status on this particular issue is not much better than the Republicans.

The vote tallies tell this story quite frankly. The bill passed the House with the support of 227 Republicans, which alone would have been sufficient for that body’s approval. Admittedly, 74 Democrats went along with them, and obviously they should be held accountable for their support. But look at where the groundswell of opposition to this sort of a governmental powers is coming from – 7 Republicans voted against, compared with 111 Democrats. It’s quite clear that if the Cato Institute took civil liberties quite seriously, they’d be considering how best to ally with the Democrats who support their position, rather than alienating them.

Even if we accept the framing that Klein and Sanchez put in place, in the much more surveillance-supportive Senate, we can’t help but come to a slightly weaker version of the same conclusion. Yes, a majority of Democrats and Republicans supported the bill, but of the 23 who opposed it, 19 were Democrats, compared to only 3 who were Republicans. If the Democratic Party isn’t salvageable with those numbers, then the Republicans are long past saving. After all, the sole independent in congress, Senator Bernie Sanders, voted against the bill.

Beyond the broader partisan issues of how this subject has frequently been framed, there’s also the question of why we should even honor the Cato Institute’s work on this issue. This is an institute with staff that treated the extension of Miranda rights to an alleged terrorist as something to complain about or an opportunity to state that the Miranda decision “smacks of judicial lawmaking” (which is nothing more than an intelligent way of saying “judicial activism”). This is an institute which could only publicly defend the Obama Administration’s proposal to criminally try Guantánamo detainees by refusing to credit it as being his administration’s proposal. Of course, that was only the viewpoint publicly provided by the Cato Institute when it wasn’t ambivalently worrying that a trial might provide “a forum for propagandizing on behalf of al Qaeda” or bemoaned the legal use of “alleged” in media coverage pertaining to those trials. Because why would you expect a civil liberties-oriented think tank to concern itself with freedom of speech or presumption of innocence?

(At the time, the Cato Institute’s response to this was more or less “meh”. Image originally from here.)

But beyond questioning garden variety rights of the accused, Cato has hardly much of a record when it comes to the peculiar legal standards of the Bush Administration, namely when it comes to torture. Among other discussions on the subject, they saw fit to publish in May 2011 an article titled “Did Waterboarding Work?” which contains astounding statements like “We’ll probably never know the real value of coercive techniques. Surely some accurate information came from their use.” Actually, the fact that torture was not only dehumanizing and degrading but counter-productive had been an established scientific fact for years at that point, but that didn’t seem to trouble anyone over at Cato. And yet somehow, the institute that saw fit to publish this and has continued hosting it since then is the voice we should look to for advice on civil liberties?

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