Friday, July 21, 2017

Cruising the Web

Gosh, did the media really need to spend a day focused on O.J. Simpson's parole hearing? Haven't we devoted enough space in our brains with him?

With all the issues and problems facing the Trump administration, the President thought it would be a good idea to give an interview to the NYT criticizing Jeff Sessions' decision to recuse himself from the Russia investigation. Trump can't stop himself from his stream-of-consciousness airing of his grievances no matter what the impact. Does he think that trashing Sessions will help Trump get done any of the things that he wants to get done? Jim Geraghty expresses how crazy all this is.
It goes without saying that not a single adviser to President Trump would urge him to publicly criticize his own attorney general like this, and they would probably tell him that there’s no benefit to expressing this kind of frustration publicly. Sessions can’t undo the recusal decision, there’s no indication that Sessions thinks he made a mistake in that decision, and this can only lead to two things: more whispers that Sessions’ days are numbered as attorney general because the president doesn’t have faith in his judgment — as longtime Trump associate Roger Stone is telling reporters now — or Sessions deciding he’s had enough of it and resigning.

Sessions’ departure would set up another headache for an administration that’s already full of them, and just add to the narrative that the Trump White House simply cannot govern. It’s worth thinking back to all of the political capital expended to get Sessions confirmed back in February. Replacing Sessions could prove more difficult than the White House expects; if Trump is going to publicly rip his attorney general over every decision he doesn’t like, who in their right mind would want the job?

Oh, and if the “failing” New York Times is always full of “fake news,” why is President Trump giving them an exclusive interview that lasts 50 minutes?

If he is going to criticize Sessions for anything it should be for Sessions' support for civil asset-forfeiture by which police can confiscate a person's property after that person is charged with a crime and not even convicted.
The process is called “civil asset forfeiture,” and here’s how it works. To borrow from real-life fact patterns from other cases, imagine that you’re driving through an unfamiliar town in my borrowed truck. You’ve got out-of-state license plates, you’re a little bit lost and confused, and you’re carrying an unusual amount of cash. You’re driving to pick up a couch you’ve purchased on Craigslist, but you think you put the wrong address in your phone.

The neighborhood is a little seedy, you’re driving slowly, and soon you see the blue lights behind you. According to the sheriff’s deputy, you’ve been driving “suspiciously” in a “known open-air drug market.” The deputy conducts a search and finds your cash. He’s unimpressed with your explanation, and within a few minutes, a police dog “alerts” that there are trace amounts of cocaine on your money. You’re incredulous. You’ve never even seen cocaine much less snorted it or paid for it. You have no idea that large amounts of currency in common circulation contain traces of coke.

The officer next informs you that he’s got “probable cause” to believe that both the cash and the truck were being used for the purchase and transportation of drugs, and he’s seizing both. Come to think of it, he realizes that you probably used your cell phone to set up the alleged transaction, so he’s going to take that also. He lets you make a call to get a cab, and he gives you a few extra minutes to call me, to tell me that his cash and my beautiful full-size pickup are now in the hands of first the Smith County Sheriff’s office and then the federal Drug Enforcement Agency.

No problem, right? This is just an inconvenience, right? Neither of us did anything wrong, we committed no crimes, and there is no way that the prosecutor can possibly prove criminality beyond a reasonable doubt. In fact, neither my friend nor I is ever charged.

What happens next, however, is beyond strange. The government sues my truck, and in the case of United States vs. Cool, Slate-Gray Toyota Tundra, it only has to prove by a “preponderance of the evidence” that it was used in the commission of a criminal act. Oh, and did I mention that if the government can “prove” that my truck was used unlawfully, then the sheriff’s department (or whatever agency took the vehicle) can sell it and use the proceeds to pad their department’s budget?

That is civil asset forfeiture. It’s a gigantic law-enforcement scam (in 2014 the government took more money from citizens than burglars stole from crime victims), and it’s a constitutional atrocity. It’s a constitutional atrocity that Donald Trump’s Department of Justice just expanded.
This is a mind-boggling situation and it's hard to believe that this has been found constitutional by the Supreme Court. And Sessions just allowed a program allowing states to seize property and then transfer it to the federal government which shares the value of the objects with the state agency. Talk about perverted incentives for the government to infringe on citizens' rights. David French examines the constitutional history of civil-asset forfeiture which the Supreme Court has based on colonial law. He concludes,
A Department of Justice inspector general report found that “almost half of the Drug Enforcement Agency’s seizures in a random sample weren’t tied to any broader law-enforcement purpose.” That’s unacceptable, it’s unconstitutional, and it’s crying out for meaningful legal reform.

When I'm covering the American Revolution with my classes, I give them excerpts from the 1764 Sugar Act and we cover how the law allowed for an accused smuggler's ship to be seized and then brought to a vice admiralty court such as the one in Halifax where the accused had to pay for any witnesses brought up for his defense. The vice admiralty courts were military courts and so there was no jury trial. If the verdict went against the claimant, the value of the goods would be split by thirds with the royal governor, the commander of the vessel who seized the ship or property, and the person who laid information leiding the seizure. And, even if the accused won the trial, if there were probable cause to bring the accusations, the claimant would not be reimbursed for the costs of fighting his claim up in Halifax or the costs incurred while his shep was being held, or for the costs of any damages. I give my students excerpts of these provisions and have them count up all the due process violations that we're used to now which are being denied in this law so they can understand why, in addition to the principle of taxation, why this law so angered the colonists.

Now think of how civil forfeiture works today. We should be working to outlaw such behavior by the police and federal officials instead of expanding it. But of course, this is not what Donald Trump cares about. Instead, he's more focused on whether or not Sessions didn't do enough to stave off the independent prosecutor investigation of all the allegations concerning Russia. Because all Trump cares about is himself.

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In contrast to Jeff Sessions, Betsy DeVos in interested in protecting the civil rights of the accused as she seeks to ensure that those university students accused of sexual assault or rape still receive due-process rights. Obama's administration had basically pressured colleges and universities to limit those rights by threatening to deny them federal funds under a new definition of TItle IX.
Up to now, the OCR mandate that has attracted the most attention is the one letting colleges use the lowest standard of proof (preponderance of the evidence) in campus sexual-assault cases, even as the schools remain free to use a higher standard (beyond a reasonable doubt) for students accused of trivial offenses, such as petty vandalism. But other OCR stipulations, such as its 2014 assertion that allowing cross-examination of accusers “may perpetuate a hostile environment”—thereby violating Title IX protections—have had an even stronger negative effect. Fearful of negative media or OCR investigations, colleges have scrambled to create disciplinary systems in which students accused of sexual assault are presumed guilty and denied the tools to prove their innocence. As a California appellate judge remarked during oral argument in a due-process lawsuit: “When I . . . finished reading all the briefs in this case, my comment was, ‘Where’s the kangaroo?’”
George Mason University law professor David Bernstein recently noted that, despite the Obama administration’s reading of the statute, “Title IX itself doesn’t actually speak to specific procedural protections.” More broadly, according to Bernstein, it requires an “aggressive interpretation of Title IX to think it speaks to student-on-student sexual assault at all.” (The interpretation, which made sexual assaults the only felonies that colleges are legally required to adjudicate, dates from a Clinton-era OCR regulation.) But it has become an article of faith among accusers’-rights organizations—joined by Democratic and even some Republican legislators—that any shift in the Obama policies would suggest tolerance of campus rape.
OF course, there are those on left who are furious that DeVos wants to protect the due process rights of the accused.
In higher ed these days, it’s taboo to admit that current Title IX tribunals are tipped in favor of the accuser. A recent article in the Yale Journal of Law and the Humanities even argued that demanding due process for accused students is a form of rape-culture propaganda that “exclude[s] victims and their advocates from having a voice in the discussion.”

Sexual assault charges deserve to be investigated, but liberal academia is using Title IX to silence ideological opponents, often complaining that peaceful dissent constitutes actionable harassment on the basis of gender or sexual orientation. Mrs. DeVos is right to revisit the Obama-era guidance that has turned the law into an ideological weapon, and part of that is learning from its victims.
Why are college students accused of sexual assault the only accused who should be denied the rights of due process? WHy is this the only crime that university officials can investigate and prosecute instead of the police and district attorneys who investigate all other crimes? WHy don't liberals care about these young men's rights when they will rise in outrage for the rights of a suspected terrorist?

Ashe Schow writes
about how some on the left are trying to argue that anyone who cares about the due-process rights of the accused is actually in favor of rape or sexual assault. This is how bizarre things have become.
A good way to tell if the Left currently believes one of their beloved policies will disappear is how viciously they write about the potential change. In this case, they’re trying to smear people who believe those accused of heinous crimes should be able to defend themselves as somehow supporting the heinous crime. That is where we are in society.

On college campuses, students (mostly male, but sometimes female) can be accused of sexual assault and receive no effective due process, no promise of a fair trial in which they are allowed to defend themselves and present evidence to exonerate themselves. This is a basic tenet of a just society. Yet activists who support these policies insist America’s college campuses are more dangerous than war-torn countries in Africa regarding rape and sexual assault. They say this issue is so pervasive, we need to cut down on constitutional protections for those accused of these terrible crimes when the accusation happens on a college campus, because they’re most definitely guilty.

It’s an affront to our justice system, and bad for assault victims, who deserve their day in court and to not have the justice process politicized. Yet anyone who disagrees with campus activists and believes we should give the accused a chance to defend themselves rather than instantly labeling them a rapist for life get accused of being pro-rape.
Really? Does that argument mean that advocates who argued that Gitmo detainees should get due process rights are themselves in favor of terrorism?

Joy Pullman explains why the definition of rape counts and why it is so wrong for those on the left to expand the definition of sexual assault to any unwantewd sexual advance.

At the very least, university administrators should be concerned about the numbers of lawsuits that they've lost when students who were denied their rights sue for damages.
Let’s be very clear. Rape is a heinous crime. I would countenance the death penalty for convicted rapists, as well as castration. But forcible penetration is simply not the same thing as, say, “He kissed me and I didn’t want him to,” or “I thought I wanted to have sex at the time, but I was drunk then and after I was sober knew that had been a terrible decision.” Primarily, that’s because neither of these scenarios includes forced sex, which is the definition of rape. Secondarily, there are further reasons.

.... Every sane person realizes that an unwanted kiss, while unpleasant and objectionable, is simply not the same as a man holding you down while forcing himself inside you.

When both parties are drunk, it’s also unfair to blame either one for a sexual encounter that later one or both decide was a poor decision. At the time, they agreed, or thought they both agreed, and you simply can’t erase history. It’s not fair to consent to an interaction then, once that interaction is completed, attempt to change its terms. What’s done is done. The person who attempts to change the terms after the fact is attempting to cheat the other. “Please note that this makes anyone who’s ever had sex a potential rapist,” Kipnis also notes.

Definitions matter because a rapist deserves to face serious and lifelong consequences for his or her crime. But it is horribly unjust to give these same serious, lifelong consequences to someone who has not committed this crime. Expanding the definition necessarily dilutes the punishments applied to those who fit in this category, because it is obviously unjust (to all but moral knuckle-draggers) to apply the same punishment to a groper and to a rapist. The more people are called and judged as rapists whose offenses do not fit that term, the less rape victims will be able to secure justice.

This is precisely what we see in campus tribunals. The worst a college can do to an offending student is expel him with a black mark on his record. Is that really a just punishment for a rapist? Hell, no! What kind of misogynist thinks such a degrading, trivializing thing about a woman’s virtue? A rapist deserves far worse than having to now get through community college to move on with his life. Campus courts simply cannot provide justice for victims, and it’s utterly insulting to say that getting one’s attacker expelled is a fitting consequence for a crime of this magnitude.

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Mayor de Blasio continues his despicable governance of New York City. Roger Clegg reports on de Blasio's urging that museums have a quota in hiring minorities. Somehow, de Blasio doesn't know that numerical quotas are unconstitutional.
New York City mayor Bill de Blasio wants to coerce museums and arts groups that receive city money into using hiring quotas based on race and ethnicity, according to the New York Times. But it would be illegal for employers to give into this pressure, because Title VII of the 1964 Civil Rights Act forbids such discrimination.

Federal statute aside, it is unconstitutional for the city to engage in such pressuring. Any use of racial and ethnic classifications is “presumptively invalid” and triggers “strict scrutiny,” which can be met only if, for starters, there is a “compelling” government interest. The courts have recognized no such interest in the context here.

And no such interest is cited in the news story, just a claim by an official that hiring by skin color and national origin will lead to a “cultural sector” that “is fairer, more equitable and looks like the city it serves.” That, Justice Powell wrote many years ago, is just “discrimination for its own sake. This the Constitution forbids.”

The WSJ explains
how California's Medicaid's program, Medi-Cal, shows us what dangers the federal government risks in expanding Medicaid. Despite expanding the numbers of of able-bodied adults of working age, the state's program hasn't achieved its goals.
If ObamaCare’s expansion of Medicaid were measured merely by growth in enrollment and spending, California’s Medi-Cal program would rank as a huge success. Since 2012, Medi-Cal has added six million beneficiaries, primarily able-bodied adults of working age. Covering them last year brought California nearly $20 billion in additional federal funds. If Medi-Cal were a state, its population of 14 million would make it the fifth-largest in the U.S. The program’s $103 billion budget is about three times the size of Illinois’s general fund.

But despite the surge in enrollment and spending—or perhaps because of it—Medi-Cal has failed to fulfill its stated goal of improving health-care access for the indigent and disabled. A recent report from the Santa Clara County Civil Grand Jury highlighted the conundrum many of the state’s Medicaid enrollees face: “You’ve Got Medi-Cal, but Can You Get Medical Care?”

By extending Medi-Cal to younger, healthier people—many of whom could be better served by the kind of bare-bones private insurance that ObamaCare outlawed—California has made it harder for those who most need low-cost care to get it.

Medicaid operates as an open-ended entitlement, meaning the federal government covers a predetermined share of state spending, regardless of the total cost. Traditionally, the feds have matched California’s outlays dollar for dollar. States where the per capita income is lower receive a more generous match. Nevada, for example, receives about two federal dollars for each one it spends.

ObamaCare encouraged states to expand Medicaid so that it covers people with incomes up to 138% of the federal poverty line—in other words, up to $16,400 for an individual. After the Supreme Court struck down ObamaCare’s mandated expansion, the federal government induced states to sign up by initially assuming 100% of the cost for these people. That will slip to 90% in 2020, though it’s still a bargain for most states.

Imagine if Amazon gave you money back whenever you bought things on its site—and you got more money back the more you spent: You’d buy things you don’t need, and things that might be purchased for less elsewhere. That’s what has happened, in effect, with Medi-Cal, which covers everything from acupuncture to chiropractic care to vision.

But good luck getting a doctor’s appointment. Last week a group of Medi-Cal beneficiaries sued the state for creating “a separate and unequal system of healthcare, one for the insurance program with the largest proportion of Latinos (Medi-Cal), and one for the other principal insurance plans, whose recipients are disproportionately white.” One plaintiff had her gallbladder removed in Mexico after she spent more than a year trying to find a surgeon who would treat her. The doctor in Mexico had warned she was at risk of death if she put off the surgery, so her family paid for it out of pocket.

The problem is that Medi-Cal reimburses providers at between a third to half of the rate that private insurers pay. Doctors complain they lose money on each Medi-Cal patient they see. That’s why only 55% of primary-care physicians accept new Medi-Cal patients, according to a recent study from the California Health Care Foundation. When physicians were asked why they cap the number of Medi-Cal patients they see, 78% cited the program’s low payments.

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