The Insanity Defense

On October 7th, the Court will hear Kahler v. Kansas. Amy Howe describes it at Amy Howe, Argument preview: Justices to hear challenge to lack of insanity defense, SCOTUSblog (Sep. 30, 2019, 4:18 PM), https://www.scotusblog.com/2019/09/argument-preview-justices-to-hear-challenge-to-lack-of-insanity-defense/

What the Court does is interesting, but unless they want to use the case to abolish the death penalty entirely, it is hard to find a federal interest. The insanity defense is too narrow, because mental illness does not kill the knowledge of good and evil. Rather, it breaks down the normal inhibitions to bad acts that one knows is wrong. To acknowledge that, positive law is required, such as a plea of guilty by reason of insanity.

Such a plea would have to come with changes in how mental health is managed and funded. The practice of discharge upon basic functionality because the hospital needs a bed sets up bad outcomes. Refusing necessary treatment, non-compliance with medication or addiction relapse should trigger automatic hospitalization. If someone should have been hospitalized but was not and commits any crime, they should be able to plead guilty by reason of insanity. They must then be held for the minimum sentence, be well managed over a period of time (although sociopaths should not be released) and the interests of the victim's family must be considered.

Impeachment 101

I put my questions in yesterday, so they are on the bottom of the stack. It was a long tweet, so I will put it here and send it up again.

Are we in a compressed redux of 1974? We went from transcripts to tapes the same day. How long until motions to quash are lost and appeals denied? US v Richard Nixon is still valid. 

Will McConnell let testimony go on? Mike Murphy counts 30 GOP Senators who would convict secretly. During this work period, what will donors and voters say? When will Mitch McConnell and Mike Pence pull the plug and do a Goldwater to save the party?

When will Secret Service go from protection to detention? Walter Reed, Navy Yard Brig? DC jail?!! Will Pence pardon Trump now or Jan 19, 2021 or not at all?

Can Pence beat Warren? (Assume that a two-term promise nocks Bernie and  Biden out of the race - either now or in Iowa) Will the GOP circle wagons around Pence or will there be a nomination be free for all? I am certain this is already under discussion. All us in play. The more interesting question is why has the media not mentioned the 25th Amendment or Pence 2020?

June v Gee on Louisiana's Trap Laws in conference with cert decision announced Oct 7. Denial repeals Roe, Cert opens question, Per Curiam reversal ends debate with 8 or 9 pro Roe justices. Why has this not been reported? What is election like without Roe or will result be ignored? If not, will it and delay on invoking the 25th Amendment doom Pence?

This brings us back to question of what will GOP donors do? We live in interesting times.

If Pence implicated, will he invoke 25th Amendment as part of plea deal? Will Speaker Pelosi serve or make JoeBiden Speaker to have some time as President? Will she trust Pence to not time his resignation to make President ProTempore Chuck Grassley POTUS? Will Joe keep running or make Senator Warren VP, in what amounts to making her the as next POTUS?

Has Rachel Bitecofer polled Pence, Biden and Bernie options?

Title VII and June

NCR has the CNS  curtain raiser in the upcoming Supreme Court term: Religious liberty, discrimination and DACA highlight court's new term

In June v. Gee, the Center for Reproductive Rights is representing June Reproductive Health Services in applying for Certiorari to overturn the 5th Circuit in upholding the Louisiana Trap Laws.

The Court can hear the case (possibly reopening Roe), deny Certiorari (leaving Trap in place and maybe overturning Roe by opening the door for state government  power) or reverse the Circuit and repeal the state law.

There are 3 questions at play in June v. Gee. Can the 5th Circuit decision stand as is? Are there new arguments on the issue? Does the Court want to hear them?

2 new Justices is not the answer. If you think it is, you do not understand the Court or law in general.

A per Curiam ruling reversing the 5th Citcuit signals the Circuit to pass on hearing any appeal to the inevitable overturn of the Alabama Abortion Law. For all intents and purposes, this will end the pro-life movement as a Republican entity. We will know October 7th. The only way forward for the movement would be massive subsidies for all families with children as part of tax reform. That takes joining the Democrats to pass.

On October 8th, the Court hears 3 cases on Title VII of the Civil Rights Act relating to sex discrimination and whether it can be decided judicially. This is not a case about marriage equality per se. The question before the Court is whether the spate of findings that have recognized gays and lesbians as a protected class allow the meaning of sex in the CRA to be expanded to sexuality without having to pass ENDA? It is an argument about how the Court rules, not the result. This is not a First Amendment question.

If the merits of Catholic HR policy were before the Court (that would be a District Court matter to be separately litigated), the question would be of fact. Specifically, does the Church allow employees to enter into heterosexual civil marriage and not homosexual marriage.

No. Bigotry cannot be sanctified in that way, nor can sour grapes over its argument in Perry v. Brown against marriage equality being laughed out of court.

The profound issue is how many retirements will it take until the Church starts blessing gay unions? While the number of global South cardinals is an indication, I must note that they are already bishops.

Amoris Laetitia was pastoral. So is blessing legal civil marriage, especially with a Pope with a doctoral degree in the sciences. He actually can make sense of the argument of disordered or created. Disordered is a sophistry - a relativistic way to avoid scientific reality.

Being gay is biology, not rebellion, and to not believe gay men when they assert otherwise is not only bad behavior, but it asks them to accept our lived experience of faith when we reject their lives experience of their sexuality.

June v. Gee

The briefs are all in for June v. Gee. The Center for Reproductive Rights is applying for Certiorari to overturn the 5th Circuit in upholding the Louisiana Trap Laws. They may get it, but they are more likely to get a Per Curiam ruling from the October 1st Conference reversing the Fifth Circuit and overturning the law. If that happens, it will signal the Circuit to pass on hearing any appeal to the inevitable overturn of the Alabama Abortion Law. For all intents and purposes, this will end the pro-life movement as a Republican entity. We will know the first Monday in October.

The only way forward in that case would be a refundable negative income tax to make sure each child can afford to not only be born, but to also not live in poverty. If that is not pursued, then the movement will be unmasked as a Republican front group who uses the unborn as pawns to re-elect Donald Trump or elect Pence. Of course, if Pence fights for a living wage, he will have my support in doing so.

My response to the VCC

The language of the Constant Contact email is a blatant endorsement and probably an event designed to keep the House of Delegates in Republican hands.

How dare you! Ask us before you speak in our names political. You are prostituting the Church to the Republican Party.

The a portion rights bill referred to means nothing unless Roe is overturned, which it cannot be. Doing so would not only take down all federal supremacy in civil rights jurisprudence. 

While you may like how this would settle abortion, birth control, sodomy and gay marriage, it would also bring back the state government majority tyranny of Plessy v. Ferguson and would prevent overturning Blaine Amendments. These prevent the Catholic Church from receiving public educational funding.

If Roe stayed in place, the federal government could still create a federal right to life. This would make state law, such as the Virginia abortion bill proposed, moot. It would mandate that all states protect the unborn after whatever fetal age they set for legal status. 

This would also require that state power to protect the unborn through criminal law not be selectively enforce. This would (regardless of your intent) subject all D&C procedures to criminal enforcement. If they did mot, every voluntary abortion would be classified as a miscarriage.

The right of privacy prohibits these investigations. The right may also eventually be used to stop the investigation of suicide and it's assistance by doctors. Self-euthanasia will never be enacted legislatively in most places. Only the federal courts can put it under the privacy umbrella.

Most, if not all, competent judicial appointees know how federal supremacy and privacy work. They will never vote to repeal Roe, nor should they. There is no relationship between presidential appointment power and repeal. Chief Roberts and Associate Alito voted with Justice Kennedy on the Partial Birth Abortion Law based on the Commerce Clause. As you well know, the Act was a Trojan Horse to repeal Roe. It failed spectacularly to do so. Associate Scalia said as much in his concurrence.

Associates Gorsuch and Kavanaugh will both vote the same way. Box v. Planned Parenthood of IN & KY, which if heard coud have protected female and Down's fetuses from abortion, was not granted Certiorari and it's reversal on such protection by the 6th Circuit not heard under Rule 10. The rule could have been ignored if 4 justices wished to overturn Roe. The case was decided Per Curiam. June v. Gee will be decided the same way, overturning Louisiana's Trap Law and overturning the 5th Circuit. Game over.

This essentially means that the bishops in Wisconsin, Michigan, Iowa, Ohio and Pennsylvania gave us the most incompetent and corrupt president in our nation's history and got nothing for the unborn in return.

How could you?!! End the lie. The Republicans will never do what is essential to reduce abortions. It is what Pius XI directed in Casti Connubii #119-122. Provide a living wage for families. A refundable child tax credit of $1000 per child delivered with pay will do so. GOP members will through the unborn under the bus to resist socialist solutions. It is they who must be abandoned.

Yours in Christ

Michael Bindner

PS Telling the truth on this cannot be sinful. You should try it.

From the Virginia Catholic Conference

I received this e-mail today:

What's at stake for the Commonwealth and you! 2019 was a year of radical legislative proposals in Virginia, threatening life and liberty of conscience. The lives of the unborn, expectant mothers, the sick, the disabled and the dying are being threatened through attempts to pass extreme legislation. What is more, your conscience rights are also under attack! Catholic and other faith-based charitable organizations, private employers, employees and taxpayers could be forced to violate their beliefs on life, marriage and human sexuality. The continuation of vital services to Virginians on the periphery is in jeopardy!   Learn more about these and other legislative issues facing Virginians and what’s at stake in 2020. Join us to learn how to counter the radical proposals facing Virginia and safeguard not only your freedoms but also the most vulnerable Virginians.    Please attend:  Virginia in Jeopardy: What’s at Stake for the Commonwealth and You?   The event is free, but registration is required.   Saturday, September 28, 2019 Seton Hall St. Elizabeth Ann Seton Catholic Church 12807 Valleywood Drive Lake Ridge, VA 22192   Event begins at 9:45 (after the 9 a.m. Mass) Please share this event information! If you would like to host a similar event at your parish, please contact us at: office@vacatholic.org.   In prayer and in public, your voices are urgently needed to bring Gospel values to bear on vital decisions being made by those who represent you.    ~~~ The Virginia Catholic Conference is the public policy agency representing Virginia’s Catholic bishops and their two dioceses. Please click here to view this on the web.

Office of Communications (703) 841-2505 | communications@arlingtondiocese.org arlingtondiocese.org The following email comes from the Catholic Diocese of Arlington. If you do not wish to receive future emails from the Diocese, please unsubscribe below.

Domestic Emoluments, Fund Certifiers and Contracting Officers (and the Wall)

When the District of Columbia and Maryland Attorney s General sued over Emoluments in order to force the public release of the Trump tax returns, the DOJ submitted an opinion challenging the concept that profit was a foreign gift. They also cited the Foregn Gifts and Decorations Act. The DOJ requested immediate dismissal on standing. The Court did not agree on standing but eventually agreed with DOJ, whose job was to defend the current position of the government against novel challenges, not the President.

That opinion likely informed the decisions of departmental solicitors in all other agencies and allowed contracting officers and fund certifiers to approve using Trump facilities. These three officers are the speed bumps that are supposed to stop abuse.

Appointed leadership was likely pleased with the results of the DOJ brief. They are good at gaming the system. They like their perks and it takes a great deal of courage for fund certifiers and contracting officers to slow them down, but it is not unheard of. Usually Inspectors General find abuses, report them and officials resign.

Some of the things that get through, like private aircraft for secretarial travel, come in response to really dumb ideas, like banning Department Secretaries from flying business class. Penny wise and pound foolish.

If the cost analyses show that bringing staff is cheaper than airline tickets, the FAA private jet usually can be used.  I know. As a contract specialist, I put forward the interagency agreements for the DOE Secretary to use it. This was not a problem for official travel. That Trump Appointees thought that they could use the same justifications for vacation trips is where the line was crossed.

Bad things happen when abuse becomes flagrant. Pence staying in a Trump property near his great grandmother's home village is not a bad thing. Taking the entire delegation and commuting is one of those "what were they thinking?" moments. If Trump had any class, he would have comped Pence for a night and left the delegation in Dublin. Remember, Reagan visited his Irish roots and his ranch was made secure at public expense. It is not an unheard of thing to do.

Using government expense to have other officials go to Trump properties to prop them up is a bridge too far. The ethical rule of thumb is that if doing something looks bad if reported in The Washington Post, don't do it. Blame Fox News for Trump not understanding or respecting that advice. Is such sloppiness an impeachable offense? In a target rich environment, going there is more stunt than anything else.

The Civil Service needs to protect Trump from himself in such cases. At some point, department soliciters, fund certified and contract specialists need to say no and their senior executives need to back them. As a former program controller and contracting specialist, it saddens me when no one stands up to craziness in its raw form. Usually, appointees blink. White House staff should let them.

The Solyndra DOE Loans show what can happen when the White House is not protected from itself. Going along to get along is also a dumb idea. The DOE head of the HQ contract activity was moved back to a policy position and the responsible Contracting Officer retired. Standing their ground would have been better for all concerned.

I offer this lesson for anyone on the fence on letting Trump do ham fisted things. Also, Pence needed to invoke the 25th Amendment long ago. Not doing so and McConnell resisting removal will end the GOP.

One last related thing about funding the Border Wall. On process grounds, the reprogramming from MILCON is not a constitutional violation. It is likely not even a violation of the Budget and Impoundment Control Act of 1974, which was enacted after Nixon used Impoundment to fund the Vietnam War and cut spending he disagreed with.

If Congress is consulted, reprogramming can quietly happen. It is why the Soil Conservation Service Budget funded the development of the B-2 Spirit. This was so secret that the OMB budget examiner directed to cut that budget did not know that Chairman Witten restoring the funds had nothing to do with the environment. Chairman Nadler and his Committee need to keep past practice in mind before putting the kitchen sink in the articles of impeachment.

Civility

Brexit

Split the EU Deal into sections and meet with Labor. Both will privately decide which provisions are accepted, which must be amended but can pass and which must be renegotiated, then vote on each. Consult with EuCom on amended provisions to see if amendments ares acceptable. Decide if Brexit can go forward before open items are finished or more time is required.

Trump

Remember that when official segregation was repealed, any Southern Whites were relieved. It is likely the same thing with the GOP and support for Trump and; MAGA. Pence can then invoke the 25th Amendment and McConnell can get Trump to resign (although if the primaries are short circuited, that would make Pence de facto nominee.

Pence 2020

Pence must repudiate the pro-life Standard Operating Procedure to breach the Blue Wall. The wall is at 278 because Trump is hated. The SOP links presidential voting to Roe repeal. It does not exist and if the Democrats inoculate Michigan, Wisconsin and Pennsylvania by stating so early, they win. If the Court wanted to repeal Roe, they would have ignored Rule 10 and heard the Indiana case protecting Down's children.  The option Pence could pursue instead is to enact larger Child Tax Credit aka Negative Income Tax for each child in families making under $500,000 and agree to $15 minimum wage with indexing, both of which are essential Right to Life measures if repeal is impossible. If he does not, the Democrats will trounce him. Unlike Ford in 1976, it won't be close. Think 1974 instead.

Tax Reform

Most people vote on taxes rather than abortion. A promise to repeal tax filing for all individuals making under $100K will get their attention. This should also be the individual Social Security cap (to lower benefits for the rich). An Invoice Value Added Tax of 19 % would replace both the employer payroll tax and income tax filing for most families. To help poorer retirees and the disabled, recompute payments to the bottom 90% of beneficiaries assuming that employer payroll taxes are equally credited.

A Subtraction VAT fund will fund the Child Credit as offset to the tax. Food Stamps and Welfare would be ended. Another offset would be personal retirement accounts holding employer voting stock (it will fail otherwise. It will include an insurance fund of 34% to go up as Employer FICA  and the I-VAT goes down. The tax should also support for education, including parochial schools, and all medical entitlements, which could be offset with direct funding of care or insurance for workers and retirees. 

An Asset VAT at 22.5% on dividend, gains and rental income with no tax for ESOP sales and zero credit at gift or inheritance. The death tax would be repealed and cash transfers would be free (because the Invoice VAT would be paid when they are spent.

For high income workers would pay a surtax 17% for salaries under 200K and 34% over that amount. The tax would pay down the debt, starting with the Social Security trust fund and fund net interest, military and sea deployments and the conquest of Mars.

The Swamp

This season, MSNBC ran a four part series entitled Drain the Swamp with Katy Tur and Jacob Soboroff. The reality is that, as Trump uses it, its Drain the Moat, with the Moat being what protects the nation from pollution and pillage. Let me make a few points in response.

Episode 1, For the People, Buy the People shows investigates campaign finance. The real problem is not speech at all. It's Capitalism. Restrain the rich owning the rest of us and the problem goes away. Even in the Democratic side, the elites fight for their interests, not ours. The biggest fight is to retain incumbency in each party. The threat of being primaried paralyzed the Republicans, although being in the minority should keep their fringe at bay.

Without a constitutional amendment, monies speech will be protected, so any change must be voluntary. I suggest linking congressional and presidential races. Instead of using the party faithful as delegates, have congressional nominees and members select the party standard bearer. To run for Congress in presidential years, candidates would commit to a presidential candidate. This gives the nominee a strong core of congressional support.

As for money, funnel it all through the parties. Before the primary season, each congressional district holds a caucus. Any candidate with 15% of the attendees gets funded equally. The same rule would apply in the midterms as well. Money is collected anonymously. As for dark money, the donors make no secret of who they are. If they wish to cloud the airways, we will simply ignore them. The most effective means of campaign communication is still good old fashioned mails. TV ads benefit the networks more than the candidates.

Episode 2, POTUS, Inc. hints at how hidden Trump's business dealings are. This is not because he is bought but because he is awful. It is hard to be the Patron Saint of the Evangelical and Capitalist Prosperity Gospel when one is essentially broke. When he is finally forced to resign, and he will be once the investigations prove too damaging to his party, his empire will fall apart, both from leverage and civil asset forfeiture. As for Emoluments, Congress has authorized accepting gifts, with any gift over $300 to be given to the treasury. See 5 U.S.C. § 4372, the Foreign Gifts and Decorations Act. It requires that each agency, including the White House and Congress, report foreign gifts by January 15th for the prior year. It takes about a year for the State Department's Office of Protocol to publish the report in the Federal Register. There are no criminal violations, save for making false statements. Hotel profits should be included, but Congress would likely have to clarify the law to ensure it.

Episode 3, Voting Rights and Wrongs, as well as last Friday's All In with Chris Hayes , deals with problems in our system of representation, including the Senate and the Electoral College, as well as voter suppression. The recent Supreme Court ruling gutting the Voting Rights Act overturned Section 3, Preclearance, because the list was old. The recent election cycles have provided us a new list for Section 3.

The problem of non-voting comes from the nature of single member representation. In multi-party elections, everyone votes because everyone who gets votes gets a seat in the legislature. Such systems can be destabilizing, however. If you think the Tea Party blocked action, wait until you give them their own ballot line. This would give the Tea Party/MAGA its own outlet. This would make things worse.

As for as the Senate and the Electoral College, the problem Toth the College is the lack of its own power base because the founders did not want a parliamentary system. Add governors to the mix and include Congress and that concern is satisfied. The ending of the Senate and the EC begs the question of why not make the Speaker a Prime Minister, with a stronger civil service and ministers appointing or acting as the Cabinet? The budget would be passed on time and elections would lead to the tyranny of the majority party. Think of Paul Ryan as Prime Minister. We may as well join the British Commonwealth.  I would rather not habe either.

We could go the other way and divide into regions of equal electoral vote strength with regional vice presidents and a member from each regional House and Senate sending a member to a national caucus. It could be done as a matter of electoral vote compact to elect regional VPs and a confessional rules change to elect the caucus. No constitutional amendment necessary and no Senate problem either. Regional caucuses would need two houses to keep New York, California and Texas from dominating their regions. Smaller committees also stop gridlock.

Episode 4, Bill to Nowhere,on infrastructure funding could be solved by bringing back earmarks. States would work with their delegations to prioritize projects rather than having the Department of Transportation do so and increase gasoline taxes to make sure it all gets done. Even the Libertarians would go along. They hate bureaucrats more than earmarks. Deficit finance would handle the backlog. This could also help us cope with global warming, from rebuilding to flood management.

Call me for Season 2.

In Solidarity

Today is Labor Day. We celebrate the solidarity of workers. We must ask ourselves, who are our fellows?

Capital has set management over us, creating a divide amongst us so that to meet our basic needs we must put advancement before solidarity.

We must seek cheap goods. We are even made to chose between survival and killing our children In the womb. Capital takes the lion's share as it enslaves our sisters and brothers, both home and abroad. They have set us against our fellow workers so as to profit from our mutual pain. We must stand together in mutual ownership.

Even the professional class, which is set apart by their education, are exploited by Capital. They give their best efforts for a higher wage and a pittance when their efforts bring fruit. Setting them apart maintains division so that all are exploited. In seeking their credentials, they are made to into debtors to Capital, where solidarity would allow all to actualize our God- given talents. May we serve others rather then the few.

Today, we honor the brotherhood of all. When we are kept separate, all are exploited. We shall stand together against this division, sharing our talents equally while providing each the means to to meet their full potential.

None must be excluded from our mutual brotherhood so our differences do not divide us. We take back our very selves from those who would own us. For this, we must act as one.