Scott Pruitt's EPA: Don't Forget Our Rights

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On Wednesday, Trump transition team officials announced that E. Scott Pruitt, Oklahoma Attorney General and longtime ringleader of corporate and state resistance to the Clean Power Plan, will be named Administrator of the Environmental Protection Agency. As an affected citizen troubled by this appointment, I decided to directly ask the nominee some of my lingering questions about his policies.


Dear Mr. Pruitt,


This letter is probably not going to have any impact on the policy of the Environmental Protection Agency for the next four years. It's not going to save any lives that thousands of pages of scientific studies and legal arguments couldn't protect. I know it's not going to change your mind. But it's all I can do.


I was a supporter of President-elect Trump during the campaign, and the events of the past weeks largely validated my faith in his promises, but the laissez-faire environmental policy you have long espoused has me concerned, quite frankly. Your past positions in the ongoing lawsuits over the Clean Power Plan show great solicitude for the pecuniary cost of the EPA's regulation of the energy sector; but the plenary constitutional powers of the United States government and the human cost of inaction, though harder to quantify, must not be forgotten in the quest to revitalize the economy.


What is the paramount vision the agency under your direction will promote? For decades now, we have compared ourselves to the Chinese, envied their GDP and their rapid rise while watching from our slow, nearly imperceptible decline. But is the image of prosperity really the photograph of throngs waiting for a streetlight to change, just their eyes visible, their countenances concealed by surgical masks? Is the symbol of economic rejuvenation truly the footage of a cargo ship puffing blindly ahead in the space between the ocean of tainted green below and the sea of miasmic gray above, struggling to find the vague red glow of a safety beacon? Will these images be of our sidewalks, our ports, our lives? That choice is entirely in your hands, now. How much do you estimate the gold disc of sun to be worth, and what benefit compensates the citizens of Beijing who can no longer see it in the sky overhead? How many cents is each act of respiration valued at, and how much would a man suddenly unable to breathe give to have the privilege restored for just an instant? How many dollars does each individual's stake in our common atmosphere - the right to suspire freely and to enjoy a clear sky, a prerogative Justice Brandeis once called "an easement of light and air" - represent? These are your decisions to make. This is the arithmetic of the air, just as much as any costs of implementation can be.


Those regulatory effectuation expenses incurred can be assailed as unreasonably burdensome, or they can more simply be acknowledged as the cost of living. The government of a free nation is bound to respect the rights of natural and juristic persons within its borders against adscititious, unjustifiable regulation. But it does not have to do so at the price of the health, safety and lives of its citizens. It does not have to do so by relinquishing its sovereign authority to regulate interstate commerce and the airspace over which it retains sole control.


The exclusive authority of Congress over commerce between the several states is unambiguously set forth in Article 1, Section 8. The issue of environmental protection may be a comparatively new incarnation of the same conflict among the levels of our government that the Constitution was written and ratified to resolve, but it cannot be exempted from the univocal wording meant to cover all interstate commerce. The establishment of federal control over navigable waterways resulted from the recognition of a river's inconstancy, the impossibility of imposing political borders on the formless flow of fluid. See Gibbons v. Ogden, 22 U.S. 1, Transportation Co. v. Chicago, 99 U.S. 635, Pennsylvania v. Wheeling Bridge Co., 18 How. 421, Yesler v. Washington Harbor Line Commissioners, 146 U.S. 646, and Gibson v. United States, 166 U.S. 269 ("Although the title to the shore and submerged soil is in the various states and individual owners under them, it is always subject to the servitude in respect of navigation created in favor of the federal government by the Constitution"). As was said further in Gilman v. Philadelphia, 3 Wall. 713:


"The power to regulate commerce comprehends the control... of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose, they are the public property of the nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstructions to their navigation, interposed by the states or otherwise; to remove such obstructions when they exist, and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders."


The federal government is vested with the same control over United States airspace for much the same reasons. The notion that each state can set and enforce its own emissions standards - without materially affecting the air quality of another state and the health and safety of its residents - is clearly as chimerical as any supposition that the states' riparian policies are not inevitably interlinked. As the Supreme Court noted per Justice Ginsburg in EPA v. EME Homer City Generation, 134 S.Ct. 1584 (2013):


"Some pollutants stay within upwind States' borders, the wind carries others to downwind States, and some subset of that group drifts to States without air quality problems. 'The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth.' The Holy Bible, John 3:8 (King James Version). In crafting a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind." See also Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461 (2004), 49 U.S.C. §40103.


The constitutional assignment to Congress of the regulation of interstate commerce thus ineluctably vests the United States government with undivided control over air and water. We cannot allow this fundamental framework to be subverted due to policy disagreements or concerns of economic expediency. The principal objections to the Clean Power Plan are the fiscal impact of its implementation, and the heightened impact felt by states with an economy centered on the production of oil and natural gas; but this cost of our constitutional system cannot be permitted to take precedence over the Constitution itself. As President Andrew Jackson famously proclaimed during the Nullification Crisis in South Carolina in 1832:


"If the unequal operation of a law makes it unconstitutional and if all laws of that description may be abrogated by any State for that cause, then, indeed, is the federal Constitution unworthy of the slightest effort for its preservation. We have hitherto relied on it as the perpetual bond of our Union. We have received it as the work of the assembled wisdom of the nation... We have looked to it with sacred awe as the palladium of our liberties, and with all the solemnities of religion have pledged to each other our lives and fortunes here, and our hopes of happiness hereafter, in its defense and support... Were we mistaken, my countrymen, in attaching this importance to the Constitution of our country?"


The contentious nature of the Clean Power Plan litigation has been replaced now by your delicate responsibility of ensuring our citizens' safety - the land and our lives are in the balance of every cost-benefit analysis the Agency will conduct under your leadership. I ask you Jackson's enduring question now in the hope that the overriding authority over our natural resources granted to the federal government by the Constitution will not be misused or eroded during your tenure.

Respectfully yours,
Kate Brisack

"Federal Fumbles" 2016: The Report Has Arrived

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It's officially a new political tradition. Yesterday, Senator James Lankford (R-OK) released an entirely new edition of his incisive, accessible report "Federal Fumbles," which spotlights instances of government waste at taxpayer's expense. The inaugural volume brought to light a profligate program in which Syrian rebels were trained at a cost of $4 million per rebel; a grant provided by the National Endowment for the Arts which subsidized silent performances of Shakespeare plays; a study on Russian tobacco use by the National Institutes of Health; several drug purchases in which different federal agencies were charged wildly disparate rates for the same medications; and 96 other examples of our nation's feckless and injurious financial practices. This year's report is equally informative and engaging, exposing $247 billion dollars' worth of unnecessary spending:

FumblesFinal.jpg

If we educate ourselves on the way our taxpayer dollars are being used and the ways in which further waste can be prevented, we can make a difference; and Senator Lankford, by highlighting even a few of the countless poor choices resulting in our $19 trillion-dollar debt, is taking an important step in the right direction.


Not In Our Names

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not my president.pngThose of us who respect human rights should refuse to "unite behind" fascism and fear. Those of us who believe in the sanctity of the environment should decline to accept a climate change denier as our leader. Those who uphold the rights of women should never support a rapist and misogynist as president. Those who believe in the brotherhood of mankind should disown someone whose power rests on racism and resentment.

That awful Wednesday morning, waking up to the realization that the system (not the people) had elected a dangerous demagogue as president, a few of us at Ole Miss decided to protest. Standing there, in the cold, holding signs reaffirming that "Black Lives Matter," that "Love Still Trumps Hate," and that we were "In Solidarity with the Muslim Community" (I added one reading, "Get Your Laws Off My Body -- Pro Woman, Pro Choice"), made us feel that the struggle continued. Through protest and principle, we shall overcome.

#NotMyPresident

Say No to TPP at the Polls

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UPDATE: It's nearly been a year since we first launched our "Say No to TPP" initiative on PlanetGreen, and voters have indeed made the security of American jobs a priority in this election. The people have spoken -- Donald Trump is now officially our next President-elect, and it's high time we all put aside the vitriolic rhetoric of the past months and rally around our nation's new opportunity for renewed international prominence and economic regenesis. Thank you all for reading our varied perspectives on the election.

The election is rapidly approaching, and the race is still closer than anyone expected. In these final days both candidates are stating their concluding reasons why they are better suited for the presidency than their adversaries: Hillary Clinton stresses her foreign policy shrewdness and her opponent's volatility, while Donald Trump returns to his core messages of bringing back our jobs and strengthening our national economy.

The vital issue of trade has proved to be a priority for voters this election cycle, and for good reason. Past deals such as NAFTA continue to fuel both the exodus of American manufacturing and the influx of immigrants from Mexico, and these disastrous effects do impact our daily lives - by hindering true economic recovery, by diminishing our international status, and by flooding our store shelves with imported products posing risks to our health and safety.

These threats to our persons and our collective prosperity are real, but not only has the Obama administration has refused to acknowledge the failure of NAFTA, it has proposed an even larger-scale repetition of that mistake, commonly known as the Trans-Pacific Partnership. This would allow unlimited free trade with Australia, Brunei, Chile, Japan, Malaysia, New Zealand, Peru, Singapore, and Vietnam, and leave open the possibility that China or Russia could potentially join the agreement in future years. An incomplete sampling of the TPP's unconscionable provisions:

→ A mandatory arbitration system would be instituted, in which foreign companies could challenge U.S. laws without ever setting foot in United States courts. The adjudicatory panel, known as the Investor-State Dispute Settlement system, would be composed of corporate lawyers who would rotate between the roles of practitioner and judge. However, even though alien businesses could remotely strike down our statutes, the government would have to resort to a foreign judiciary to enforce the few regulatory safeguards in the agreement.
→ Pharmaceutical companies holding United States patents would be given longer terms of monopoly than provided for anywhere in our patent law. This would artificially raise the prices of many lifesaving medications and obstruct free competition by prohibiting the production of generic alternatives.
→ The United States would lose its sovereignty, supplanted by the foreign rule of the ISDS, and citizens would lose many rights guaranteed them by our national legislation: the Wagner Act, fracking regulations, food safety measures, the Mercury and Air Toxics Standards, and even the Sherman and Clayton Acts are in danger. Adding insult to injury, taxpayers could be forced to compensate extrinsic businesses for profit "losses" engendered by these essential measures.
→ Private Internet service providers would not only be allowed to monitor users' activities, they would be granted the authority to remove consumers' content and cut off web access without any semblance of due process.

Even though Hillary Clinton was forced by Bernie Sanders' supporters to rescind her support for these measures, she initially backed the TPP, and her running mate Tim Kaine has since stated that both are "flexible" on trade issues; and Virginia governor Terry McAuliffe has corroborated that she will not abide by her promise if elected. Donald Trump, however, has consistently opposed both TPP and NAFTA and pledged to restore fair international trade standards if elected. The election will decide this crucial controversy, and with it the future of our declining cities; the safety of the food on our tables; our right to national sovereignty; the personal security promised us by the Fourth Amendment; and the economic liberties of the free market.

That's why it's imperative that we can't support a candidate that may have halfheartedly promised fair trade, but has repeatedly wavered on that vow and whose record distinctly demonstrates the duplicity of her assurance. In two days, we will decide our fiscal future for decades ahead - and we must have the courage to reject the deleterious provisions of the TPP and stand up for national self-determination.

That's why I, for one, am not ashamed to say that I'm putting my eggs in the "basket of deplorables" this year.

How Are We Even Having this Conversation?

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And how many more times will I be asking myself this question over the next days?

Tomorrow's presidential election presents a host of conundrums. Voting for a third-party candidate that represents one's moral principles, like Green Party candidate Jill Stein, is an attractive option... and one that those of us in deep-red states like Mississippi have the advantage of taking. However, especially in the swing states, there are reasons to consider voting for a candidate who, however flawed she may be, does not have a history of sexual assault... who has paid taxes within the past decade... who has not based her entire campaign on racist and xenophobic rhetoric, demonizing entire races, religions and ethnicities... who does not threaten to "rough up" those who peacefully protest her policies... who has not threatened to deny the right of women to control their own bodies... who at least makes a pretense, however specious, of encouraging unity rather than fostering hate.

Voting for a misogynistic, racist, Islamophobic, anti-immigrant, violent, regressive-minded "billionaire" should not even be on the table.

Yet, these near-incredible conversations are taking place.

In public policy class last week, my fellow students debated the logistics of breaking apart families with the soon-to-be-created "deportation force" (suggesting sticking "anchor babies" in foster care or orphanages while deporting their criminal parents). Discussions with Trump supporters are no less mindblowing: allegations that Clinton favors "open borders" and is thrilled by late-term abortions (which, by the way, have been outlawed except in the case of the mothers' life sine Roe v. Wade) abound.

Don't get me wrong: Hillary does have many deeply troubling positions on a number of issues, from Palestine to the minimum wage to free health care to the Trans-Pacific Partnership.

But the solution is not to vote for Trump (or his TPP-touting, funerals-for-fetuses running mate, Mike Pence).

The Republican Party, in the words of its nominee, is "not sending their best" to run for president. "They're not sending you. They're sending people that have lots of problems, and they're bringing those problems with us. They're bringing drugs." (Viz. Trump's defense of noted trafficker Joseph Weichselbaum.) "They're bringing crime." (Viz. the only candidate with two court dates -- for fraud and child rape -- set for after the election.) "They're rapists."

But let us forbear from putting everyone in the basket of deplorables just yet: "And some" of Trump's supporters, "I assume, are good people."

Why I'm a Textualist (Loosely Speaking)

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"We must always remember that it is a Constitution we are expounding."

So spoke Chief Justice John Marshall in 1819, delineating for almost the first time the plenary powers of the federal government. Our country was then in its infancy. The boundary between state and national authority was still unclear; the promise of "liberty" in the Bill of Rights was still a new, ambiguous, unexplained provision; our union was composed of only twenty-one states; and the crucial document in question only had twelve amendments. For over one hundred and ninety-seven years, we have read that ubiquitous decision and cited those ringing words; but somewhere along the way, we appear to have clean forgotten.

The Supreme Court was the first issue brought up in the last Presidential debate, and both candidates were asked how they interpreted our nation's founding charter. Hillary Clinton answered that she saw its articles as flexible, adaptable guidelines changing with the times; Donald Trump indicated that he thought the forefathers' intent should govern their phrases, and it should be construed "as it was meant to be." These views of the Constitution may typify the standpoints of the presidential hopefuls' respective political parties, but both involve a significant amount of reading between its every carefully written line. In light of the ongoing national polemic over the future of our country and the Court, I have re-examined my own perspective on these vital issues - and, once again, have concluded that the Constitution simply means what it says.

The trouble with the Democratic vision of an ever-changing, living document is that simple words are routinely lifted out of their ordinary, relatively constant meanings and given entirely new definitions to further a particular social aim. For example, the case of Goldberg v. Kelly determined that welfare benefits were the rightful property of recipients and therefore cannot be terminated without a full adjudicatory hearing. The motive for this decision was doubtlessly the worthy desire to strengthen the legislative and judicial framework of social reform measures, but the result entirely ignored the nature of the "property" in question - benefits, designed to help an individual get back on his feet without entitling him to an interminable supply of free money. And not only did the holding corrupt our understanding of the word "property" in the Due Process Clause, it continues to cost both the government and its citizens: every time gratuitous payments are made to persons no longer requiring assistance, or the unnecessary expense of holding these hearings is incurred, taxpayer "property" funds the furtherance of this misreading.

That's not to say the Republican conception of a Constitution exactly as the forefathers meant it is perfect either. To think that the authors of any statute, much less the supreme law of the land, wrote down and ratified conclusive, binding words simply because they sounded good; or to think that our fundamental law is to be interpreted like modern poetry, and meaning is to be extrapolated from unspoken undertones and the climate of the time it was written, drastically underestimates the foresight of the Framers. Surely they didn't intend for their broad ringing guarantees of liberty to be straitjacketed by the very institutions they created, just as certainly as they must have realized they were enumerating the central tenets of an enduring nation and therefore must communicate their purposes very clearly. (And if they couldn't figure out that much, then it probably doesn't matter what their master plan for our country was. But personally, I give them more credit than that). Compounding this problem is another dilemma: exactly which Founding Father gets to determine the meaning of the Constitution for all time, anyway? Are we going with Thomas Jefferson's original intent, John Marshall's, Alexander Hamilton's, Benjamin Franklin's, or Gunning Bedford Jr.'s? Because Gunning Bedford Jr. doubtlessly had his own opinion on the matter, and has just as much right to decide on the significance of the sentences he signed as do any of those other estimable persons.

That's where we're left in the dark. The debate on constitutional interpretation is as old as the Constitution itself - it was to the Framers what each of them believed it to be. In 1787 there were as many varied perspectives on these vital issues as there are today, and it ignores the very idea of pluralism our country was founded to foster to suppose that there is one true, correct "originalism." Perhaps to James Iredell, the First Amendment only prohibited prior restraint, just as to James Madison it protected citizens' freedom of expression under nearly all circumstances. Any cursory examination of contemporary essays and speeches reveals these differences and the fallacy of supposing there was any solitary, conclusive opinion on the division of rights between state and federal government and the individual.

They gave us only one place to look to find their final compromises, the one clear statement of their unified purpose: the unambiguous wording of the Constitution itself. Whatever they each understood the phrases to mean, they eventually agreed that those were the phrases that should govern our nation for coming decades and centuries, and we ought to live by that. Each clause shouldn't be constricted or stretched to accommodate a particular political climate, but should be read in its natural and everyday context, meaning no more and no less than it plainly says.

For starters, let's dispense with the misbegotten notion of a Dormant Commerce Clause. All the Constitution itself says on the matter is that Congress retains the right "To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." That's it. It says nowhere that states have to accept hazardous waste originating in other states. Or that lower tax rates for local small businesses are unconstitutional, while "incentive packages" for massive out-of-state factories are perfectly fine. Or that a state doesn't have the freedom to contract to sell its own property, adding the simple condition that raw timber currently on its own land be processed in the state before being exported. (Better believe it. Philadelphia v. New Jersey, 437 U.S. 617 (1978), South-Central Timber Development v. Wunnicke, 467 U.S. 82 (1984)). "Dormant Commerce Clause" aside, all of those measures are lawful uses of the States' police power to protect citizens and further their economic development (and far better ways to do so than the Goldberg v. Kelly approach, if you ask me). The Constitution's plain language does not admit of the subtle inferences that have allowed large corporations to nullify the most basic rights reserved to the states.

While we're at it: the Ninth Amendment, true to its wording, does not mean any one thing in particular. That's the beauty of it. Rather, it recognizes that the Constitution doesn't mention everything and provides the needed elasticity for an enduring document designed to be interpreted literally. A charter riddled with such seldom-invoked protections as the right not to have soldiers quartered in your home (haven't yet found a use for that one myself), while missing vital liberties like freedom of choice or freedom of travel, would not last very long without the Ninth Amendment. But it, like all other constitutional provisions, shouldn't be interpreted either strictly or broadly: it should simply be construed to say exactly what it does. Which boils down to one fundamental tenet on which our national conception of freedom is based:

You have the right to do whatever it is that you want to do, as long as you're not hurting anyone or making anybody pay for it.

Simple enough?

At least it's got to be simpler than the chaos resulting from tailoring straightforward language to promote even the best of political agendas, and/or trying to decide which Founding Father's personal understanding of his government ought to be the law of the land. As Hugo Black once said, "The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice. I have no fear of constitutional amendments properly adopted, but I do fear the rewriting of the Constitution by judges under the guise of interpretation." Our country would do well to remember that now.

Waist Deep in the Big Sandy

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Thumbnail image for pete seeger.jpgFourteen years ago, at the age of five, I sent my first-ever protest letter to George Dubya. The war in Iraq was just beginning to escalate, and I had written that the conflict was bad "because people die." (Two years later I received a reply -- "Thanks for your support.")

In a continuation of this disastrous policy, the Obama administration announced today that it's sending 600 more soldiers into the quagmire created by Bush's quest for oil and Halliburton contracts.

Hillary Clinton's historical support for the Iraq War and current push for regime regime change in Syria is justly alarming. But voters who think Donald Trump would solve the problem are mistaken: he has suggested sending thirty thousand troops to fight ISIS.

Which of these Big Fools should be leading the country? That is the question the two major parties are asking voters.

Should a Big Fool be leading the country at all? That's the question we should be asking ourselves -- and that's why a so-called "protest vote" becomes a moral imperative.

Hillary Clinton, Criminal Justice Reformist? - Not So Fast

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In tonight's spirited, unpredictable presidential debate, criminal justice reform became a hotly contested issue due to Donald Trump's recent espousal of "stop-and-frisk" policies designed to reduce crime in high-risk inner cities. Clinton, with the help of debate moderator Lester Holt, assailed this proposal as discriminatory, citing the New York federal court decision Floyd v. City of New York (959 F. Supp. 2d 540 (2013)). She then went on to call for the abolition of mandatory minimum penalties for nonviolent offenses and the removal of the profit motivation from the penal system, an attempt to win over dubious former Sanders supporters. However, her efforts to paint herself as a reformist gloss over the legal and political reality of this controversy.

Trump in League with Earl Warren, Thurgood Marshall

Hillary's reliance on Floyd - a case which is actually still in negotiations after a dropped appeal - may appear to be concern for the Fourth Amendment rights of minorities and the underprivileged, but she failed to mention the Supreme Court's contrary holding in the landmark 1968 case Terry v. Ohio, 392 U.S. 1. That case involved a stop based on reasonable suspicion, but not probable cause to make an arrest. Petitioners Chilton and Terry were standing on a street corner when Detective McFadden noticed them walking repeatedly up and down the same stretch of sidewalk, pausing each time to look into the same store window at length. After one of them did this, he would return to the street corner to confer with the other, who would then repeat the process. This happened a total of two dozen times before McFadden, suspicious that the two could be planning a robbery, approached the two men and asked their names. Terry was unresponsive, and the detective quickly patted down the outside of his clothing, found a pistol in the left pocket, removed the coat and confiscated the gun. Terry was later convicted on weapons charges, and his case made its way to the Supreme Court.

In an authoritative 8-1 decision, the Court held that the search of Terry was constitutional. Earl Warren, writing for the majority, set forth that "When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." See also Preston v. United States, 376 U.S. 364 (1964), Adams v. Williams, 407 U.S. 143 (1973). This principle, not the inconclusive decision in Floyd, is still the law of the land.

Mandatory Minimums - Why They're Here to Begin With

On its official website, the Clinton campaign avows its opposition to mandatory minimum sentencing, stating that the practice "keep[s] nonviolent drug offenders in prison for too long -- and have increased racial inequality in our criminal justice system." However, her current stance belies her past support for the Antiterrorism and Effective Death Penalty Act of 1996, the law which rendered the courts powerless to correct the excesses of state sentencing policy.

AEDPA was passed in 1996 with the full support of Bill and Hillary Clinton, and one of its most controversial provisions effectively cut off federal habeas corpus review of state convictions. Many of the challenges barred by AEDPA involved the Eighth Amendment and double-jeopardy questions raised by so-called "three strikes" laws. The damage done by this denial of due process was real. In 1995, human trafficking survivor Sara Kruzan was sentenced to life without parole after killing her abuser in self-defense. In 2003, Army veteran Leandro Andrade shoplifted nine children's videotapes worth about $150 and was sentenced to fifty years to life. Kruzan was freed in 2013, after spending eighteen years behind bars; Andrade is still incarcerated, and will become eligible for parole in 2046.

These injustices still occur regularly and these laws still stand because of Bill and Hillary Clinton's tough-on-crime stance, which apparently can be reversed far more quickly than the injury it caused.

Bayer-Monsanto Buyout: Dangerous Waste of $66B

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finalsign.jpgPost the premerger notice and let the bells ring. German pharmaceutical and pesticide titan Bayer and controversial seed giant Monsanto have finally tied the knot for $66 billion, in a deal complete with a $2 billion breakup fee owed to Monsanto if the deal is disallowed by the authorities. Not only is this deal a blatant attempt to monopolize the agricultural industry; upon closer scrutiny, Bayer may have dramatically overestimated the value of their newest purchase.

This buyout will be highly advantageous for Monsanto, which has routinely defrauded the growers of its genetically modified seeds for decades by vastly overstating its protections under U.S. patent law. The corporation speciously claims that patents on its asexually created plants forbid farmers from saving and replanting second-generation seed produced by a GMO plant, an assertion that clearly contradicts the unequivocal text of 35 U.S.C., Chapter 15. By using this deception to force farmers to repurchase seed every year, Monsanto has collected millions of dollars in unlawful profits - but, however lucrative that practice may prove at present, there remains the distinct possibility that regulators could at some point curtail such cozenage. By walking away with a cushion of some $66 billion dollars and handing Bayer the responsibility for this precarious operation, Monsanto's executives have ensured that they are never held accountable for their illegal restraint of trade.

Because of those legal uncertainties, this acquisition could prove to be a mixed bag for Bayer. The recently passed "Dark Act" overruled more comprehensive state-by-state GMO labeling laws that required notices to be placed physically on grocery packages, instead allowing manufacturers to obscure this information by posting it on websites or providing phone numbers consumers must call to learn the truth about their foods. This poorly veiled boost to the agribusiness industry is expected to increase the prevalence of GMO crops by making avoidance nearly impossible, and therefore would render Monsanto a desirable purchase. However, Monsanto's duplicity regarding its patents could prove to be more of a burden than a boon to Bayer if its claims are ever disputed. In addition, in an entirely separate controversy, an ongoing Justice Department suit against both Monsanto and John Deere over a partial merger of their machinery divisions (orchestrated prior to this buyout) could result in substantial penalties. Taking all these things into consideration, it is unlikely that Monsanto's products are worth the massive investment Bayer has just made in the company.

No matter what the outcome for the entities involved, one thing is clear: this merger will have a decidedly negative effect on American farmers and consumers. The two largest GMO seed companies are now both foreign-based: the Monsanto brand will now be German-held, and primary competitor Syngenta was recently purchased by ChemChina, a state-owned Chinese chemical developer. This could complicate an eventual challenge to Monsanto's interpretation of the patent laws by embrangling regulators or a class of growers in a drawn-out fight over the legitimacy of US jurisdiction; see World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), Asahi Metal Industry, Co., Ltd. v. Superior Court of California, 480 U.S. 102 (1987). In addition, the merger gives the new conglomerate unprecedented market power over the price of seed and the herbicides most GMO plants have been specifically engineered to withstand, costs that will further repress small farmers and will be passed on to the consumer through increases in the prices of basic necessities.

The premerger notification will soon be available for public comment, and it is imperative that anyone ever having grown staple crops, eaten corn, soy or sugar, or worn cotton clothing unite to stand up against this plainly wrongful attempt to restrain the free market. So speak now or forever hold your peace.

Update: Monsanto Agrees to Disagree, Basically

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Monsanto has finally responded to the argument I shared with you a few weeks ago, which posits that their scheme of licensing agreements for their GMO seeds egregiously overstates the protections they enjoy under U.S. patent law and is therefore a fraudulent attempt to unlawfully restrain trade. Their cursory one-paragraph letter duly recognizes that their corporate policy differs from our plain reading of the relevant statutes, but seemingly does not bother to counter the contentions I set forth:

Final 1.jpg
Their continuing reliance on Bowman and J.E.M. to vindicate their practices, even though both are materially irrelevant to the current controversy, may imply that they believe this dispute too trivial to require their further attention -- or it may signal that those two inapplicable precedents are the only legal foundation for their shaky scheme. Either way, it appears that Monsanto and "Conscious Commitment" have reached an impasse.

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