Voting - Health Insurance - Poverty


I recently wrote a blog about a man named Thomas B. Hofeller. Before his death, Hofeller and his political consulting firm were hired by Republicans in 46 states, including Texas, to concoct gerrymandered voting maps and political strategies that helped Republicans get elected and stay in power. There is ongoing litigation in North Carolina concerning public access to Hofeller’s computer files because his documents are important evidence in ongoing and future litigation having to do with voting rights. It now appears that at least some of Hofeller’s files have made their way to the New York Times and The New Yorker. Manipulation of the election process is bad enough, but the lies told to cover it up make it even worse. For more details, read about it in an article published in The New Yorker on September 6th and the article “GOP Gerrymanderer And His Broad Reach” in the New York Times of September 11th.


Dark secrets and lies often don’t die. Hofeller may be speaking from the grave for a long time to come.


Speaking of the manipulation of elections, one of the many ways to suppress voter turnout is to close polling places. According to an article in the Houston Chronicle of 9/11, hundreds of polling places in Texas have been “shuttered”. Texas leads the nation in this respect. Texas has closed 750 polling places since 2012. This tactic is aimed at keeping minority voters from casting ballots. According to the Leadership Conference Education Fund, “. . . these closures have a cascading effect, causing long lines at polling places, transportation hurdles, denials of language assistance and mass confusion about where eligible voters may case their ballots. For many people, these burdens make it harder and sometimes impossible to vote.”


Shouldn’t we be making it easier rather than harder to register to vote and to actually cast a ballot?


Texas has also achieved another first. Texas has the largest number of people in the U.S. with no health insurance of any kind. More than 5 million Texans have no health insurance coverage. Unfortunately, Texas has led the nation for years, but our rate of uninsureds had actually declined slightly in 2016. This favorable trend ended when Trump and Republicans made a concerted effort to undermine (“implode”) the Affordable Care Act. Those efforts include removing the penalty for not having coverage and reducing budgets for enrollment efforts. In other words, Trump and Republicans are trying to “implode” the Affordable Care Act by starving it of healthy people. No insurance plan can succeed if only sick people buy  the coverage.  Texas has a 17.7% rate of uninsureds. The next closest are Oklahoma and Georgia.  The number of uninsured children rose by 400,000 across the nation.  For more about this, see the Houston Chronicle article of 9/11/19 by Jenny Deam.


It is probably our tendency to think that people without health insurance are going without medical care. That is only partially true. The uninsured are receiving whatever care they do receive at the least affordable place: the hospital emergency room. The high cost of that uncompensated care is then passed on to all of us in the form of higher rates for health insurance and taxes. There is no free lunch. There must be a better way.


Finally, despite a huge tax break for corporations and the wealthy and despite what is traditionally considered to be “full employment”, the poverty rate has barely budged. The rate nationally fell from 12.3% to 11.8%. The Texas rate fell slightly to 13.7% (3.8 million people). Poverty is defined as a household income of less than $25,464.00).


Medical bills were the largest contributor to increasing the number of individuals in poverty. 8 million people in 2018 fell into poverty due to medical expenses. The poor and the almost poor have the double whammy of being too poor to afford health insurance and being one illness away from financial catastrophe.


Ray Perryman, the most often cited economist in Texas, said: “Health care access for low income individuals is beginning to decline again, and the social safety net is under attack. A growing economy helps, but the benefits are not evenly distributed.”


So much for “a rising tide floats all boats”.

Food Insecurity


The timing is jarring. Our Brazos Valley Food Bank is hosting its annual Feast of Caring fundraiser on August 7, 2019. The success of this event is crucial to the thousands of food-insecure people in our area. While the Food Bank works hard to make its fundraiser a success so it can fulfill its mission, the Trump administration announced that it is stripping 3 million people of federal food stamp benefits (Supplemental Nutrition Assistance Program). 36 million people receive food stamps. According to Trump administration officials, the change in policy will save $2.5 billion annually. I’m not saying $2.5 billion is chickenfeed, but the cost of Trump=s tax cuts for the wealthiest Americans is fast approaching a trillion dollars. And, as another point of reference, recall that Trump has guaranteed farmers hurt by his trade wars $28 billion in relief. Obviously, Trump’s action harms poor children and poor families. Nevertheless, taking away “welfare” from “welfare queens” is a cherished part of Republican ideology that just won’t go away, no matter what the actual facts may be.

The Brazos Valley Food Bank and food banks all over the country serve the vital purpose of feeding hungry families. Trump’s mean spirited action may help him politically with some, but it makes the job of the Brazos Valley Food Bank and all other food banks just that much bigger.

Please support the Brazos Valley Food Bank.

Do Politicians Care What You Think?

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The short answer to this question is an emphatic “No!” This was the finding of 2 professors, Joshua Kalla from Yale and Ethan Porter from George Washington University, who conducted a study to answer this question. They discuss their study in The New York Times article of 7/12/19, “Politicians Don’t Care What You Think.” 


If you are like me, you probably knew the answer intuitively, but it is still discouraging to know that it is true. The disconnect between politicians and voters accounts for most of the anger, frustration, disaffection, exasperation and apathy we are experiencing. If politicians don’t hear us, we just speak louder and louder until we are screaming at each other or give up. 


At some point in our lives we are led to believe that democracy is a political system whereby the majority rules. Only much much later do we finally begin to comprehend the very ugly features of modern politics:  hyper-partisan political parties; gerrymandering; party discipline; lobbying; special interest influence; unlimited campaign finance; fundraising that looks like looks like selling influence; voter suppression tactics; the electoral college, phony-baloney “think tanks” that dress up politics as academic research, etc.; and now, the very worst of them all, heavily orchestrated misinformation and disinformation campaigns and other forms of election meddling by foreign adversaries. It is no wonder that we are all fed up with politics and politicians.


If politicians don’t care what voters think, why don’t they? I feel certain the short answer is that they don’t have to care in order to get elected.


In this day and time politicians select their voters. Partisan gerrymandering of political districts is now refined to such a high degree that very few races are competitive. This produces a situation wherein a politician must fear a primary attack more than a general election. To win in the primary, the politician must convince only a relatively few highly motivated, very partisan voters because the turnout will be light. A politician is preaching to his own choir. Hence, politicians don’t have to care about what a majority of their constituents think. They just have to convince the choir rather than the congregation and they hand-picked the choir.


Can this be changed? Not likely. The Supreme Court has just ruled in a 5 to 4 Republican victory that federal courts have no power to stop gerrymandering based upon party preference. The Court ruled, in essence, that the party in power in the state legislatures has the right to create districts as it sees fit. With this ace in the hole, the ability to configure districts that assure the party in control will stay in control and even expand its power is limited by only the imagination of re-districting consultants and the partisanship of the politicians. To the victors go all the spoils. 


Based upon this ruling, things will get much, much worse when redistricting occurs in 2021 and that’s hard to imagine. For an excellent analysis of this ruling and its effects, read the op-ed by John Arnold, “Gerrymandering threatens our democracy,” in the Houston Chronicle of July 15, 2019.


This case was a golden opportunity for the court to force politicians to be accountable to all the voters. The Court willfully dropped the ball and gave the states the right to disenfranchise voters. If you ever wonder if the game is rigged, you got your answer. Not only is the game rigged, the game is to rig the game.

Just When You Think it Can't Get Worse

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My wife and I recently returned from Minnesota where we attended a wedding. We took the opportunity to travel through Northern Minnesota from Duluth, along the shore of Lake Superior to Thunder Bay Canada, up to Ely, the gateway to the Boundary Waters Canoe Area, and over to Hebbing, the epicenter of iron mining and home to one of the largest, if not the largest, open-pit iron mines in the world.

Minnesota is a beautiful state, full of history dating back to the fur trade of the 1700's, and home to the pristine Boundary Waters, which is comprised of more than a million protected wilderness acres of lakes and forests lying along our border with Canada. It is an amazing wonder and a national treasure.

On June 26, 2019, The New York Times reported that the Trump administration has reversed the Obama administration policy and made a decision to grant a mining lease in the Boundary Waters to a massively wealthy Chilean mining company. The company, Antofagasta, is doing business in the U.S. as Twin Metals. These companies are owned by the Luksic family, one of the richest families in the world. The patriarch of the family, Andronico Luksic, made a curious decision around the time that Trump was elected. He decided to invest in Washington D.C. real estate. He bought a $5.5 million home there just as Trump was taking office. Within a week of completing the purchase, Luksic rented the house to Ivanka Trump and Jared Kushner. Less than two (2) weeks after the inauguration, the Interior Department began taking action toward leasing the Boundary Waters to Twin Metals for a copper mine. Needless to say, everyone involved assures us there is no connection, just a set of unrelated circumstances and coincidences, and much ado about nothing. Twin Metals (Antofagasta) also reassures us that their mining will be environmentally safe, even though the company has a history of toxic spills in Chile.

In 2016, Thomas Tidwell, then Chief of the United State Forest Service, warned of risks to the Boundary Waters, including leaching of toxic metals. His conclusion was that mining risked “serious harm to this unique and irreplaceable wilderness”. No one who knows the ecology of the Boundary Waters and who understands the open-pit mining process could conclude otherwise.

Theodore Roosevelt and that entire generation of dedicated conservationists, environmentalists and visionaries must be rolling over in their graves.

Make no mistake about it, all of the natural resources of the U.S. are for sale on some sort of terms. If you can mine copper in the Boundary Waters, can there be any doubt that the proposed Pebble Mine in the Bristol Bay of Alaska will go forward?

Can anyone identify a single thing that Trump has done to help the environment?

For a very good read about the Great Lakes and the history of the devastating ecological mistakes we have made there, try “The Death and Life of The Great Lakes.”  Reading it will make you realize that promises about ecologically safe mining are laughable. 

FAA Balloon Pilot Update

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I recently wrote about the FAA’s failure to implement a law requiring commercial balloon pilots to obtain medical certificates verifying their fitness to fly passengers. Despite prodding from Representative Lloyd Doggett of Austin, the FAA has still not acted.


Reprinted here is an update from Representative Doggett regarding his continuing efforts to force the FAA to act.


House Approves Doggett Amendment Urging FAA Action on Balloon Safety

 Washington, D.C. The U.S. House of Representatives just approved an amendment sponsored by U.S. Representative Lloyd Doggett (D-TX) using the appropriations process to respond to the failure of the Federal Aviation Administration to fulfill its statutory duty in assuring greater safety on commercial balloon flights. Doggett’s amendment transferred $7.5 million from the Federal Aviation Authority’s (FAA) finance management account to the aviation safety account. This comes as the FAA continues to refuse to comply with and implement Section 318 of the FAA Reauthorization, which was signed into law on October 2, 2018. This law results from a prior Doggett amendment requiring medical certificates for commercial balloon pilots. 82 days have passed since the deadline for the FAA to act. Doggett’s safety effort was prompted by the July 30, 2016 commercial balloon crash near Lockhart, Texas, which tragically killed 16 passengers, becoming the largest balloon crash in our history and the Nation’s worst aviation disaster since 2009.


“Every day of inexplicable FAA inaction risks another devastating crash,” Rep. Doggett said. “We cannot bring these precious lives back, but swift action could prevent future losses. I authored this amendment in another effort to get the FAA to take the safety of American families—and our law—seriously.   Only this past weekend, a noncommercial hot air balloon crash at a Missouri festival demonstrated related dangers and the need for medically-fit pilots. Long past time for the FAA to just do its job!”


After the Lockhart tragedy, it became clear how preventable this crash was. After years trying to get the FAA to act, and repeated efforts to get his hot air balloon safety amendment attached to a must pass bill that never seemed to move, finally —over two years after the accident—the legislation requested by the survivors became law in the fall of 2018. However, to date, the FAA has refused to comply with the law’s requirement. Rep. Doggett also wrote the agency in May 2019 seeking answers for delay.   


The FAA’s negligence or outright disobedience is inexcusable.

Mixed Signals


On June 7, 2019, the Houston Chronicle reported several stories about energy that left me wondering which way we are heading environmentally. 


The front page story was about carbon dioxide removal technology (giant vacuum cleaners) which would be deployed around the world to filter out carbon dioxide.  The technology is hypothetical, unproven and, if it works, incredibly expensive, but politicians seem to like it.  The reason is obvious:  it is much easier to talk about technology saving the day rather than how we must change our energy habits. 


The lead story in the business section was about energy companies (BP, Royal Dutch Shell, Occidental Petroleum and others) urging the City of Houston to embrace stricter environmental policies, emission-reduction technologies and other measures intended to reduce greenhouse gases.  This is not exactly what you expect to hear from oil companies, but it is becoming more common and is consistent with their business strategy of diversification.  


Also in the business section was an article announcing that oil companies in the the Permian Basin were setting records for oil and gas production and another article discussing the efforts being made by Mexico to increase its oil production and refining capacity.


Finally, in the business section there was an article reporting that the 17 largest car makers in the world have joined together to tell Trump in a letter that his rollback of pollution and mileage standards threatens to hurt their profitability and produce “untenable” instability.  They want Trump to rethink his proposed regulatory rollback and return to negotiations with California and the 13 other states which have adopted California’s standards.  The article goes on to say that the automakers privately say that they fear retaliation from Trump for taking this public stand. It is also worth remembering that the car companies never said they couldn’t meet the higher standards.  It’s like Trump presented them a gift they want to return. 


On the one hand, energy companies here and abroad are producing more oil and gas than ever and intend to continue to do so, and on the other hand, energy companies and automakers are urging government to adopt cleaner energy technology and higher pollution standards.  These mixed signals tend to sow confusion. Is it our goal to produce more and more oil, gas and coal, or should we be doing everything possible to conserve energy and reduce greenhouse gas emissions?


The one thing that is consistent is Trump’s message:  global warming is a hoax.  The Trump administration did have Rick Perry address an energy conference in Salt Lake City about two weeks ago to say that the Trump administration is committed to making fossil fuels cleaner rather than imposing “draconian regulations” on oil, gas and coal.  He also said it has been proven that technology can make traditional energy sources cleaner. Perry said, “Instead of punishing fuels that produce emissions through regulation, we’re seeking to reduce those emissions by innovation.”  Perry ignores the fact that scientists agree there is no such thing as “clean coal”.  Someone should also remind him that he was personally responsible for the fast track permitting of several coal-fired power plants in Texas so that they could avoid new EPA emissions standards and that his boss has rolled back the Obama-era EPA emissions standards on coal-fired power plants so that they don’t have to retrofit to continue to operate. 


It is impossible to harmonize Perry’s remarks about cleaner traditional energy with the Trump administration’s regulatory policies.   


I’m sure that we all hope and pray that Trump is right and that climate scientists the world over are wrong, but can we afford to simply take Trump’s word on this?


For an excellent history of the science of global warming and an understanding of how we got to this point, may I suggest “Losing Earth – A Recent History” by Nathaniel Rich.  I think you will be surprised, as I was, about just how long scientists have seen this train coming down the tracks. 


Rich traces the genesis of the theory that carbon dioxide could cause climate change to John Tyndall, an Irish physicist, in 1859.  By the time of the Lyndon Johnson administration, the science was so settled and the predictions so dire that Johnson delivered a special message to Congress two weeks after his inauguration stating that the burning of fossil fuels had already “altered the composition of the atmosphere on a global scale”.  Rich also reveals that energy companies have known about this problem from their own research for decades. 


Considering how long ago the problem and its causes and effects were identified, thoroughly studied and understood, it is remarkable that we are only now feebly and tentatively coming to grips with it. This is no accident.  Rich documents the ignoble history of how a strategy of deception, misdirection and delay was conceived and deployed by those with a financial interest in continuing the status quo, lobbyists, politicians and special interest groups.  The only similar disinformation campaign I can think of is the tobacco industry.


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I posted a blog a few months ago about the tragic balloon crash in Caldwell County that killed 15 people, including two who had deep roots in Brazos County.  A bill proposed by U. S. Representative Lloyd Doggett of Texas requiring commercial balloon pilots to have medical certificates passed with bipartisan support and became effective on October 5, 2018.  The bill required the FAA to implement the law within 180 days.  Amazingly, the FAA has done nothing to implement this important, common sense safety law in more than 180 days.  This is inexcusable. 


Representative Doggett has not ignored the FAA’s negligence and dereliction of duty. Represent Doggett’s letter to the FAA demanding action is available at 


Systemic problems within the FAA have also been revealed by the Boeing 737 Max crashes where we learned that Boeing itself is largely responsible for certifying the safety of its aircraft.


It has become quite popular to extol the virtues of deregulation, voluntary compliance, self-regulation, replacing mandatory rules with guidelines and, in the case of Boeing and probably others, allowing regulated companies to actually perform the work required of the regulatory authority. Voluntary compliance with safety and environmental rules and regulations sounds good, but usually doesn’t work for many reasons: greed; cost saving; poor training; lax supervision; lack of expertise; undue haste; lack of concern for worker and public safety; bad corporate leadership; high employee turnover; lack of a meaningful penalty for non-compliance, ordinary negligence and recklessness; bad safety culture; etc. The list of reasons could go on and on.


Trump is very proud of his record of deregulation and lax regulatory enforcement. As an example, according to recent news reports OSHA has just 875 safety inspectors and investigators covering the entire nation. This is a 14% decline since 2010 and the lowest number in the history of the agency.  What kind of message does that send to businesses and workers about the importance of work place safety and following the rules?


There is a sweet spot between too much and not enough regulation. Surely it is not too much to demand that commercial balloon pilots have a current medical certificate verifying their fitness to fly.

Speaking from the Grave

Image is property of C-SPAN

Image is property of C-SPAN

On June 7, 2019, The New York Times reported on an unusual voting rights case.


The background facts are that a leading Republican voting strategist, Thomas Hofeller, died last August.  Hofeller was considered a mastermind of gerrymandering and other machinations that ensure that Republicans stay in control.  Hofeller was hired by Republicans in North Carolina to craft a redistricting plan.  North Carolina was then sued in federal court over its redistricting.  The gerrymandered map was ruled unconstitutional, but when the case was heard, North Carolina Republicans told the federal court that there was insufficient time to draw new maps.  Based upon this premise, the federal court allowed the gerrymandered map to stand another year.  As expected, Republicans stayed in control with veto-proof majorities in the House and Senate.  According to the New York Times, “Republicans used that extra time to, among other things, try to tilt the state judiciary rightward, remap elected judge’s districts in the state’s largest county, and tweak election rules for the state Supreme Court.  They restructured the State Board of Elections to dilute the influence of Roy Cooper, the state’s Democratic governor.  And they tacked six proposed constitutional amendments on last November’s ballot…”


Hofeller had an estranged daughter. After his death, Hofeller’s daughter discovered that her father’s computer held more than 75,000 files, including files which prove Republicans lied to the federal court about their preparedness and ability to create new election maps in time for the next election and refuted the Republican assertion that race had played no part in constructing their gerrymandered maps.  In fact, every proposed map on Hofeller’s computer was scored for race.


Also stored on Hofeller’s computer are files which reveal his collaboration with the Trump administration on adding a citizenship question to the 2020 census, a move which experts say will definitely cause an undercount in the census because undocumented residents won’t respond. 


Needless to say, North Carolina Republicans denied the accusations, put on their best righteous indignation faces, and promptly contended that the documents were “highly confidential” and could not legally be made public.  As is almost always the sure “tell” that someone has been caught red-handed, Republicans accused Democrats of “stooping to a new low” by using “electronic files from a dead man’s computer.”


 In the age of computers, the Internet and the Cloud, it may be harder than we think to take a secret to the grave.


Medical Malpractice “REFORM” Failed Patients

Medical malpractice law in Texas has endured many major changes through the years.  These changes have made holding healthcare providers responsible for harm much more difficult and extremely expensive.  The first attempt at so-called “reform” occurred in 1977 and the latest version of reform took effect in 2003.  In every instance, the Legislature said it was responding to a “crisis” of “frivolous lawsuits” and claimed that changes in the law would result in preventing doctors from fleeing the state to avoid malpractice suits; ensure that doctors would be available in rural areas; reduce the cost of medical care to patients and insurance companies; and prevent unnecessary testing and the practice of defensive medicine.  The price of all of these promised benefits was the loss of the legal rights of injured patients in the form of a “cap” (limitation) on the amount of recoverable damages and a special set of protective laws which apply only to malpractice cases. 


After more than 15 years of “reform”, the final verdict is in.  Changes in the law drastically reduced the overall number of malpractice suits (which was actually the Legislature’s sole intent), but not a single other promise has been fulfilled. 

Medical care in the United States is the most expensive in the world by far and climbing rapidly, even though our outcomes are no better and often not as good as other industrialized, first-world nations which pay much less for care.

Health insurance is still very costly and access to medical care is beyond the reach of many except through the emergency room. 

The number of doctors coming to or leaving Texas has not changed.

Rural areas are still underserved because doctors want to practice in cities to make more money and have access to better facilities.

Doctors order just as many tests as they ever did, maybe more, and the “fee for service” economic model encourages over treatment.

The frequency of medical negligence has not been reduced.

Meanwhile, countless patients harmed by medical negligence have been unable to find representation at all or have been short-changed by the legal system.

In short, medical malpractice reform has emphatically failed the public.

Having practiced in the medical malpractice field for many years, I have probably interviewed hundreds of people who believed they had been harmed by medical negligence.  There is one thing all of these people have in common: each and every one of them said at some point in the initial client interview that they hoped bringing a lawsuit would prevent some other patient from being harmed.  It is remarkable for a lawyer to be able to say that every client in a particular type of case said the same thing, but it is true.  All of them believe that if they don’t do something, someone else will be hurt. They believe that the doctor, nurse or hospital will change their behavior because of their suit and it may also imply that they believe a court, a governmental agency, a professional licensing board or even a group of professional peers will take action to discipline or correct the health care provider. Is this belief justified?  A new study has been done which provides a partial answer. 

The researchers relied on data available through the National Practitioner’s Data Bank and other databases. 

         Here are some of the findings:

  • About 2% of doctors account for 39% of all claims in the United States.

  • More than 90% of doctors who had 5 or more paid claims kept practicing.  These doctors more often than average moved to solo practices and small groups where there is even less oversight.

  • Lawsuits seem to peak when doctors are around 40.

  • Only 0.2% of doctors account for 12% of claims. 

  • Physicians with more claims tended to shift their type of practice.  Physicians with 5 or more claims were more than twice as likely to shift into a different practice area.


The biggest disappointment is that the malpractice litigation system seems to have a very limited effect on the quality of care. That is to say, bad doctors practice bad medicine regardless of lawsuits. 

Knowing that medical malpractice reform accomplished nothing and cost patients their right to full compensation, and knowing that at least some health care providers do not seem to be motivated to improve the quality of care based on lawsuits, what should be done?

The Legislature should allow injured patients to recover their full measure of damages.  Since 2003, injured patients cannot recover more than $250,000 for their non-economic damages regardless of the severity of their injuries. So that you might understand this completely, imagine that you are hit by a truck and that your non-economic damages are $1,000,000.  If you suffer the same injuries due to medical malpractice, you can recover only $250,000 and this amount has not been increased since 2003.  Because of the $250,000 cap and the extraordinarily high cost of malpractice litigation, many malpractice cases are not economically viable to pursue.  Of course, this is exactly what the Legislature intended, i.e., they intended to make it financially impractical to sue health care providers.  Consequently, many justified malpractice cases are never filed.

The bad bargain made by the Legislature didn’t work for anyone other than health care providers and their liability insurance companies.  There is no good reason not to restore the full legal rights of injured patients. In fact, one has to wonder if limiting damages has had the perverse consequence of making a malpractice claim nothing to worry about.  Second, the State Board of Medical Examiners should begin to aggressively police the medical profession. That is its job and the evidence shows that they are not doing it.  At present, it is extremely rare for the Board to take action against a doctor for committing a medical error, i.e., for violating the standard of care.  This should not be the case. When bad doctors, so-called “frequent fliers,” are self-identified by multiple claims, the Board should take action to rectify dangerous behavior.  If health care providers don’t fear lawsuits, they should at least be held accountable by their own Board.

If You Don't Like the Answer, Change the Question


On May 28, 2019, the New York Times reported on the latest efforts of the Trump Administration to discredit climate science and climate scientists. The article, “In Climate Fight, Trump Will Put Science On Trial,” by Coral Davenport and Mark Landler, is well worth reading.

The article details how Trump and his political advisors intend to move well beyond their strategy of dismissive skepticism, sowing doubt, obfuscation and preying on ignorance, to a strategy of actively creating pseudo climate science. This will be done by creating a new climate review panel. William Happer, a 79 year old controversial, discredited  physicist with no training or experience in climate science, is in charge of forming the panel. The panel will issue reports utilizing faulty methodology, unrealistic assumptions and computer modeling limiting projections to 2050 which will, of course, produce results more to Trump’s liking. In other words, they have decided upon the answer they want and will justify that answer by pointing to a faux “scientific panel” as the source of their data. I suppose one could say Trump is creating plausible deniability. Trump doesn’t want to stand on a debate stage and have to say climate change is a hoax without having something or somebody to back him up.  it is unfortunate for the country that Trump backed himself into this corner, but he thought he had to take an extreme position to win, and now he is doubling down.  In his mind, he has no choice. 

          Trump has already done everything within his power to undo regulations aimed at reducing carbon dioxide emissions. Trump and his appointees have already scrubbed mention of climate change from government websites and ordered that reference to global warming be removed from speeches and formal statements. This is not surprising if you consider the views of Trump administration officials. Mike Pompeo, Secretary of State, said the rapidly thawing Arctic was a land of “opportunity and abundance” because of its untapped reserves of oil, gas, uranium, gold, fish, rare-earth minerals and that melting sea ice was opening up new shipping routes. William Happer, Trump’s designated scientist, has defended the virtues of carbon dioxide and went so far as to say that carbon dioxide has been demonized “just like the poor Jews under Hitler.”

          Needless to say, the reaction of the scientific community has been quick and brutal. Phillip B. Duffy, the President of the Woods Hole Research Center and a panel member of the National Academy of Sciences, said, “What we have here is a pretty blatant attempt to politicize the science - to push the science in a direction that is consistent with their politics. It reminds me of the Soviet Union.”  You can’t say it better than that.

          Global warming caused by man is the elephant in the room. According to recent reports, in 2018 mankind released the greatest amount of carbon dioxide into the atmosphere, ever. The science is not new, novel or even controversial.  We know now and we have known for decades that carbon dioxide emissions from burning fossil fuels cause global warming.  It is long past due that we face the problem rather than manipulate science until we find a reassuring answer.

It's the Law - Until it Isn't

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The U. S. Supreme Court has just overturned its own precedent in the case of Tax Board of California v Hyatt. The question presented in that case had to do with governmental immunity. The legal issue will not affect your life, but the way the Supreme Court arrived at its result could make an enormous difference in future cases that are of great importance to society.

The narrow legal issue before the Court had previously been decided 40 years ago by the Supreme Court. In other words, it was settled law.

Our legal system depends upon the principle of stare decisis (“to stand by things decided”). This means that once an issue is decided by the highest court with competent jurisdiction, the decision has the full force and effect of law and all subsequent courts faced with the same issue are obligated to rule in accordance with the decision. Stare decisis is the bedrock of our legal system.

Justice Clarence Thomas wrote the decision in the new case. He was joined by the other four conservative justices. Thomas spent all of 3 paragraphs in explaining why the principle of stare decisis should not stand in the way of overturning the Court’s own precedent even though litigants were justifiably relying upon it.  In a nutshell, Thomas’ explanation was to the effect of “we don’t like the prior decision” and “because we can”.

Justice Breyer, in dissent, said it was "dangerous to overrule a decision only because five members of a later court come to agree with earlier dissenters on a difficult legal question".

According to Breyer, “The people of this nation rely upon stability in the law. Legal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives. To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the court will overrule and which cases are here to stay.”

At this point you should be asking about how long Roe v Wade and other cases will be the law of the land and how honest Gorsuch and Kavanaugh were during their confirmation hearings when they testified that they believed in stare decisis.

A Dangerous Road


Some Democrats are saying that the disputes between Congress and Trump have caused a constitutional crisis. Republicans respond to the effect that if there is a crisis, it is caused by the Democrats who are overreaching for political gain. Regardless of your political persuasion and setting aside the question of motive, there is a looming crisis for so long as Congress insists upon what it strongly believes is its right and obligation to gather evidence, investigate and exercise oversight, and Trump responds by saying “No” to everything.


I think it would be helpful if we looked at this legal problem by disregarding its present context. If we do that, the legal question then becomes one of defining the boundaries of power of the co-equal branches of government.


I suspect the general public believes all of these legal issues must have been decided at some time in the past and that the answers are black and white. This is actually not the case.


In point of fact, many issues regarding the potential limits of Presidential power, the extent of the rights and powers of Congress to investigate and exercise oversight and, in general, the exact boundaries of our checks and balances system of constitutional government have not all been decided. This is not an accident. Courts have prudently avoided as many of these issues as possible and Presidents and Congress have generally to avoid asking the courts to decide these complex issues. Why? Because definitive answers could have devastating consequences to our democracy and the accepted balance of powers.  As a practical matter, it is usually not a good idea to ask a question unless you can live with a negative answer.


The power of  Congress to investigate is not specifically enumerated in the Constitution. It is an implied power which is supplementary to its legislative responsibilities and to its power of impeachment. The first  congressional investigation took place in 1792. The first Supreme Court case involving the power to investigate came in 1881. The Courts have historically been deferential to Congress in determining the latitude of its investigations. The question of whether Congress is exceeding its implied authority to investigate ordinarily comes before the Supreme Court when a witness refuses to testify or refuses to comply with a subpoena.


As the current situation is now postured, if Trump continues to insist that witnesses not testify and that all documents be withheld, Congress will have to go through the process of taking action to hold witnesses in contempt. That action will set the stage for a legal proceeding that the courts can adjudicate. By the time Congress acts to enforce its right to investigate and the courts adjudicate the legal issues, a substantial amount of time will pass.


It is unclear what Trump’s motives are. Does he just want to buy time? Is he trying to, in fact, create a crisis whereby he hopes the judicial system (his Supreme Court) declares that a sitting President doesn’t have to answer to Congress?  Is this part of his election strategy? Is he trying to protect his family?  Is he trying to provoke Congress into beginning impeachment proceedings? Does he have a strategy at all beyond survival?


There are those, and Attorney General Barr is one of them, who believe a President has very expansive powers. In other words, they don’t believe that the branches of government are co-equal.  They would probably like to set the stage for a U.S. Supreme Court decision which would, in essence, place the President above the law and beyond the oversight of Congress. This would destroy the constitutional system of checks and balances and create the “imperial presidency” that the Founders so feared.


There are a lot of cards to be played, but it is not too early and not too dramatic to say that there is an existential threat to the Constitution if we continue to travel down this dangerous road.


It is in the best interest of both parties and of democracy itself to find a different path.

IMMIGRATION: Fact or Fiction

statue of liberty.jpg

The overheated political rhetoric about immigration policy has exposed a fundamental fact: the general public and the vast majority of lawyers are ignorant of the law. This makes us vulnerable to all sorts of spurious claims made by politicians who willfully and knowingly use our ignorance and misunderstanding of the law against us.

          The Texas Bar Journal is the official publication of the State Bar of Texas. It publishes legal articles of general interest to Texas lawyers on a monthly basis. The May, 2019 issue published an article on immigration entitled “Fact or Fiction?” The article was eyeopener for me and I think it will be for you, too. The article was written by immigration attorneys Alma J. Reyes and Teresa Messer. The article will help all of us identify false and misleading political arguments.

A Sleight of Hand

The Trump Administration (Office of Management & Budget) is proposing regulations which will change how inflation is calculated. You might say “so what,” but this change could profoundly affect the eligibility of millions of poor people for government programs such as Medicaid, food assistance, housing assistance and other social safety net programs.  This is because the method of calculating the rate of inflation is integral to determining the federal poverty level and eligibility for federal assistance programs is determined by whether an applicant’s earnings falls below the federal poverty level.


Of course, the Trump administration has a benign, innocent explanation for the change, but the notice published in the Federal Register (the place where proposed regulatory changes must be posted) acknowledged that the changes “may affect eligibility for programs that uses the poverty guidelines.” Used in this context, the word “may” is about as misleading and untruthful as it gets. This proposal will, in fact, harm millions of the most vulnerable people in the country.


The juxtaposition of giving enormous tax cuts to corporations and the wealthiest individuals on the one hand and unabashedly trying to deprive poor people of essentials on the other hand is jarring.

Driving Nails in the Coffin of Your Rights

Photo by Free-Photos on Pixabay

Photo by Free-Photos on Pixabay

On 4/24/19, the U. S. Supreme Court probably drove the last possible nail in the coffin of cases wherein an employer or, for that matter, any company enforces a contractual provision which states that disputes must be resolved by arbitration (rather than in a court of law) and prohibits participating in a class action case.

To understand the case it is helpful to know the background. Contractual provisions requiring arbitration have been proliferating for years. These provisions first began to appear in the fine print of consumer contracts of all kinds. They, in fact, have become so prevalent that it is now highly unusual to see a contract without them. If you closely read your contract with your bank, your cellphone provider, your credit card provider, your cable company or internet provider, etc. you will almost certainly find such a provision. As disputes arose, cases were filed by consumers in the judicial system. At that point, the companies that had been sued began to defend the claims by asserting that their contracts prohibited claims from being litigated in court and demanded that the courts decline jurisdiction and refer the cases to arbitration. Over time, these cases made their way to the U.S. Supreme Court. The Supreme Court ruled that mandatory arbitration provisions were enforceable. Emboldened by these decisions, corporations began to expand these provisions to include language that said the consumer was also prohibited from being a part of a class action claim. This type of provision was also upheld by the Supreme Court. The effect was to make each claimant pursue his or her claim individually through arbitration, which in many cases was prohibitively expensive. The upshot of this legal situation is that corporations are enabled by judicial decisions to cheat a large number of people in relatively small amounts because those claims must be pursued individually rather than in a class action. The cumulative benefit to a corporation of allowing it to get away with this can be staggering. For example, just imagine the massive amount of money involved if AT&T is allowed to overcharge all of it’s customers $5.00 each. It didn’t take long before big employers began to take notice of the trend and they began to include mandatory arbitration provisions in their employment contracts .

With all of that background in mind, we’ll go back to the most recent case. The facts are that Lamps Plus, a sizable employer, employed a person named Varela. Varela’s employment contract contained a mandatory arbitration clause. Lamps Plus had a security breach which compromised the personal data of it’s entire workforce. As a result, a hacker used Varela’s personal data to file a fraudulent tax return in Varela’s name. Varela sued Lamps Plus in court in a class action for the benefit of all Lamps Plus employees who had been harmed. Lamps Plus responded that Varela was contractually prohibited from suing them in court in a class action. Here is the catch: the employment contract did not say Varela could not pursue his claim in a class action. It merely said his claim had to go to arbitration. Nevertheless, in a 5-4 decision, the Supreme Court ruled that Varela could not maintain his claim in a court of law as part of a class action.

Justice Ruth Bader Ginsburg, in a dissenting opinion, said the decision was the court’s latest effort “to deny employees and consumers effective relief against powerful economic entities.” She couldn’t be more right about that.

There is no practical, effective way to preserve and protect your legal right to go to court because all of the consumer contracts you must sign to obtain consumer goods and services contain the same provisions. It is not a level playing field

There was a slight hope for consumer relief when the Consumer Financial Bureau was created, but that hope vanished when Mick Mulvaney, who hates the Bureau, was appointed by Trump to head the Bureau. Now, the last hope is Congressional action, but with Republicans in control of the Senate, that won’t happen. Democrats have shown keen interest in this issue, but it remains to be seen whether they can win veto-proof majorities in both Houses of Congress.

The Census Citizenship Question Hurts Texas

Photo by Geralt on Pixabay

Photo by Geralt on Pixabay

On April 23, 2019, the U.S. Supreme Court heard oral arguments in the case of U.S. Department of Commerce v New York. The Supreme Court will have to decide whether the Trump Administration will be allowed to include a question concerning citizenship in the 2020 Census.

The evidence before the Court proves conclusively that inclusion of the citizenship question will cause about 6.5 million people to not be counted due to fear and uncertainty about answering the question. This is vitally important because the Constitution requires an “actual enumeration” of people (regardless of citizenship) and the U.S. House of Representatives is then apportioned based on “the whole number of persons in each state.” It is also true that federal dollars are apportioned based upon the population of states as established by the census.

It is no secret that Texas is home to a large number of non-citizens. Consequently, Texas will be deprived of it’s rightful share of representation in Congress and of the money it needs and is entitled to receive from the federal government. If that is so, and it is, why then do Trump and Republicans insist on inclusion of this question?

The answer, as always, is gaining and holding on to political power at any cost. Most undocumented residents live in urban areas where Democrats tend to out perform Republicans. By under counting the population in urban areas, which results in those areas being under represented in Congress, federal political power is skewed away from urban areas and toward rural areas where Republicans typically predominate.

There is also the ever present goal of gerrymandering. As said by The New York Times, “Knowing the number and location of non-citizens would allow states to exclude them from the population totals that are used after every census to redraw the Nation’s political maps”. Gerrymandering political districts ensures that the party in power will stay in power. It is also primarily responsible for the political gridlock we are now experiencing.

This issue is of critical importance to Texas because 1 in 10 Texans is a non-citizen, but in Houston (and, probably in other metropolitan areas such as San Antonio) the number is closer to 1 in 6, which means 1.1 million of 6.8 million residents, a half million of which are undocumented. Nationwide, the United States has about 22 million non-citizens, and about half are undocumented.

The evidence is overwhelming that inclusion of this question will result in a massive under-count. That being true, the Trump Administration had to come up with a justification for doing it. Wilbur Ross, the Secretary of Commerce, shopped around various federal agencies for reasons. After being told there was no need for the question, Ross ultimately seized upon a specious claim to the effect that data about citizenship would help “enforce” the Voting Rights Act of 1965. In considering the validity of this justification, it is helpful to keep in mind all the legal efforts made by Republicans in southern states in the recent past to end oversight of elections by the federal government under the Voting Rights Act of 1965. The flimsiness and hypocrisy of the Trump Administration’s official explanation and justification was surely evident to all the Justices but, according to those who witnessed the oral arguments, it appeared that all 5 Republican Justices were willing to go along with it and allow the question to be asked. The days of judicial hyper-partisanship are upon us and here to stay.

Texas will pay a huge price for this political gamesmanship.

For more detailed discussion of this issue that uses Texas and Houston as examples, see the article, “Case Has the Potential to Alter Voting Maps, and American Politics,” in The New York Times of April 24, 2019.

The Effective Assistance of Counsel?

Photo by  verkeorg  on  /  CC BY-SA

On April 9, 2019, the Houston Chronicle ran two interesting stories regarding the appeals of two Texas death penalty cases.


In the first case, U.S. District Judge Lynn Hughes of Houston ruled that it was permissible for one of the defendant’s two lawyers to sleep during the defendant’s trial. According to the story, Judge Hughes ruled that while the attorney’s dozing was “appalling” and “regrettable”, it didn’t matter because at least one of the defendant’s attorneys was awake at all times, so the accused was never entirely without counsel. However, the counsel that was awake had never before tried a death penalty case and the sleeping attorney only cursorily prepared for the case, barely consulted with his co-counsel, put on no evidence, dozed through key parts of a 4 day trial, and had not tried a capital murder case in more than 20 years.


In the second case, the Texas Court of Criminal Appeals stayed the execution of a condemned man because his lawyer agreed that all black jurors could be struck from the jury panel based upon his personal belief that black jurors would be less sympathetic to a white defendant. According to the story, in a 1997 hearing the attorney said he would be “more than happy to violate anybody else’s rights” in an effort to defend his client. Also, according to the story, the defense lawyer and the prosecutors agreed to “indulge each other” in their “prejudices”. I interpret this to mean that the prosecutors wanted to strike all the black jurors and so did the defense lawyer, so all black jurors were struck either by agreement of counsel or by virtue of the defense lawyer’s failure to object to the prosecutor striking all of the black jurors.


With news stories like these it is hard to know where to begin. As folks say nowadays, “this is wrong on so many levels.”


It is NEVER O.K. for a lawyer charged with protecting a man’s life to sleep and doze through a trial, even if another defense lawyer is awake. It is hard to imagine how it is possible for a lawyer to sleep through a criminal trial of any kind, much less a death penalty case, but it is never acceptable and the trial judge should have acted immediately to stop it.  In this case the only evidence linking the accused to the crime was the tentative identification of a single eyewitness and the description she initially gave police did not match that of the accused. Another interesting fact is that the trial lasted only 4 days. This is unheard of in death penalty cases. The speed of the trial implies lack of trial preparation, lack of experience, lack of skill and lack of effort.


The Constitution guarantees criminal defendants the right to the effective assistance of counsel.  The conduct of the sleeping lawyer is reprehensible and Judge Hughes’s decision is, in my opinion, wrong.  As for the lawyer who was awake for the trial, one can only imagine how unnerved, overwhelmed and helpless he must have felt trying his fist death penalty case while his slightly more experienced co-counsel slept and, by sleeping, conveyed to the jury the impression that he didn’t believe in his client’s innocence enough to stay awake.


The case involving the striking or agreed dismissal of all black jurors is more difficult to analyze. In the case of Batson v. Kentucky, the US Supreme Court decided that it was impermissible to dismiss jurors solely on the basis of race. However, that principle is typically raised by those of the same race as the race of those jurors who were dismissed.


The issue here will be whether it was error to excuse jurors based solely upon race if it is the trial strategy of the defendant’s attorney (however foolish, misguided and just plain wrong it may be) to do so. This question involves not only the rights of the defendant, but also the civil rights of the dismissed jurors to participate as citizens in public life as jurors and the right of the public to the open, transparent, fair and even-handed administration of justice.


The Chronicle’s story does not state whether the defendant agreed with his lawyer’s strategy to dismiss black jurors, acquiesced in it or even knew about it while the trial was in progress. Should this make any difference? What if a defendant is a white supremacist, doesn’t trust black jurors to determine his fate, and instructs his lawyer to strike all the black jurors based on their race? As I said, this case may be more complex than deciding whether jurors were dismissed based upon race.


I once served as a prosecutor in the court of District Judge Tom Thorpe in Dallas. Most of us prosecutors were very young and relatively inexperienced. Judge Thorpe’s court, like all courts in Dallas at the time, were often crowded with prosecutors, defense lawyers, defendants, the families of defendants, court personnel, victims, witnesses, police officers and just plain spectators. Things could get loud and seem a little out of control to those who weren’t accustomed to the frenetic pace, particularly on Fridays which was the day set aside for pleas of guilty, sentencing and last minute haggling over plea bargains. On one such day, Judge Thorpe asked for quiet. For a short time he got it. When the noise got loud again, he called a recess and told the prosecutors to join him in his office. Judge Thorpe read us the riot act and told us to think about how it looked to all those in the courtroom who had never been in a courtroom before and might never be again. For them, that chaotic courtroom scene was what justice looked like. A cattle auction might have made a better impression. I had to confess I had never thought of that before and I had to admit he was right.  Judge Thorpe explained, with as much patience as he could muster at the time, that what he called “the appearance of justice and fairness” was of critical importance to public confidence in the judicial system and to the administration of justice. If jurors and the public as a whole don’t witness proper behavior in the courtrooms, they won’t believe in the judicial system. If public confidence is lost, our judicial system will suffer. I thank Judge Thorpe for that lesson.


If we apply Judge Thorpe’s  test to these two (2) cases, what grade would they get?

The Perils of Fame & Greed

Image property of

Image property of

It has been recently reported that Michael Avenatti, the lawyer who has become famous for representing Stormy Daniels, has been arrested and charged in New York with trying to extort millions of dollars from Nike, the giant shoe and apparel company.

The facts related to the charges involving Nike seem to be that Avenatti claimed to have a client, who was not a Nike employee, who had evidence that Nike employees were engaged in the illegal recruitment of college basket ballplayers. This would be similar to the scandalous allegations made against Adidas last year. Avenatti threatened Nike that he would make this evidence public unless Nike paid 22.5 million for his client’s silence and hired him to “investigate” wrongdoing at Nike. Nike would be paying to silence Avenatti’s client and Avenatti himself would be hired and paid by Nike for his legal services which, because of the attorney/client privilege, would ensure that Avenatti would stay quiet about these allegations as well as all allegations he might uncover in his so-called “investigation”. And, because he would become employed by Nike as an attorney to a limited degree, he would not be able to represent other clients who have claims against Nike.

These allegations, if true, paint a very ugly picture. However, Avenatti will probably raise a defense to the effect that this sort of deal happens all the time out of the public’s eye and outside the notice of the media. As we now know from continuous media reports over the last few years, people and businesses frequently buy silence. This is particularly true in sex-based claims, but it is not limited to that type of case. Indeed, there seems to be a veritable underground marketplace for nondisclosure or confidentiality agreements.

I am not and don’t pretend to be an expert in federal criminal law. Nevertheless, in all federal and state prosecutions it is necessary to prove that a defendant acted with criminal intent. That means the government will have to prove that Avenati intentionally or knowingly engaged in conduct that is defined by a federal statute as a crime. In this regard, it will be legally significant that Avenatti’s client was not a Nike employee and, according to media reports, does not seem to have a valid legal claim against Nike. In other words, the confidentiality (silence) would not be part of the settlement of a legitimate claim by a client, but would be a straightforward cash for silence deal which was being leveraged by Avenatti with threats of harm.

Avenatti will probably say that, as a lawyer, he had a duty to zealously represent his client by pointing out to Nike and its lawyers that there was certain to be a lot of negative publicity and financial harm for Nike if another scandal became public. Nevertheless, zealous representation has its limits and this case will test those limits.

Over and above Avenatti’s potential criminal liability, you can expect to see the bar associations wherever he is licensed try to disbar him for violations of their rules of professional ethics. If the media reports are true, it is probable Avenatti committed ethical violations, but not all violations of ethical rules are crimes. On the other hand, if Avenatti is convicted of the crimes with which he is charged, he is certain to lose his license.

It is highly likely that there will be evidence of secretly recorded conversations between Avenatti and officials at Nike or Nike’s lawyers. Knowing Avenatti’s attacking style, those could be explosive and embarrassing for Avenatti and the legal profession.

The Price of False Promises and Angry Threats

My father used a lot of old sayings in an attempt to teach me at opportune moments. Those moments were almost always just before or just after I made a big mistake he knew I would regret.

One of the sayings my father was fond of was: “Son, don’t let the wind of anger blow out the lamp of wisdom.”

In just the last week or so we have heard the President of the United States say, in anger and with a great deal of bravado, that he had ordered his Justice Department to support a lawsuit filed by Republican attorneys general attacking the constitutionality of the Affordable Care Act (Obamacare), but that we needn’t worry because the Republicans had a much better plan and that they (Republicans) would “own” health care. The only problem with that is that he knew Republicans don’t have a plan, have never had a plan, and don’t intend to have a plan.

On April 3, 2019, it was reported that Senate Majority Leader Mitch McConnell had a private meeting with Trump to get their signals straight on healthcare. McConnell then said: “I made it clear to him that we were not going to be doing that in the Senate.” According to McConnell, he and Trump agreed Republicans “would be developing a plan that they would take to the American people during the 2020 campaign.” Translation: Yes, I know the President said that, but he didn’t mean it, so quit asking about our plan.

In the meantime, the health insurance coverage of over 20 million Americans has been further jeopardized and cast into doubt with no Republican “plan” in sight. Texas already has the highest number of uninsured people and the highest number of uninsured children in the nation. Losing the ACA would make the situation much worse in Texas.

Then, in another fit of anger, Trump threatened to close the southern border with Mexico this week if Mexico didn’t stop the flow of migrants. Furthermore, he threatened to cut foreign aid to Central America. The immediate repercussions of these threats was to raise an enormous howl of protest from business interests that  depend on cross-border trade. According to experts, the cost of closing the border would be 1.7 billion every singly day, not to mention the fact that small businesses along the border would probably be fatally injured and the lives of legal crossers, including our own citizens, would be totally disrupted. Indeed, the direct and indirect consequences of closing the border are so far reaching that they are hard to comprehend. Trump didn’t close the border, but he did shift border personnel to other duties, which is now causing huge delays for trucks and people legally crossing the border. It didn’t take long before Trump’s advisers and spokesmen and Mitch McConnell started walking back Trump’s threat, but Trump seemed to double-down by saying, “security is more important than trade.” Then, Trump backtracked and said he wouldn’t close the border now, but would instead impose 25% tariffs on automobiles coming into the U.S. from Mexico. Trump either doesn’t know or doesn’t care or perhaps thinks we don’t realize that it is Americans who pay his tariffs, not Mexico or China. Threatening Mexico with a 25% tariff on cars is like threatening that you will shoot yourself in the foot if someone doesn’t do what you want. Yes, a tariff will eventually hurt Mexico, but it will first and foremost harm American consumers, American car companies and all the businesses that depend upon American car companies.

In the meantime, businesses and people are thrown into sheer panic and trying to devise contingency plans to cope with Trump’s threats.

A coarse old saying I learned much later from my friends is: “Be careful not to let your mouth overload your a_ _.” This also applies here. If he closes the border for any appreciable length of time, or imposes 25% tariffs, the economies of the U.S. and Mexico will be thrown into chaos and recession. Just as in the recent government shutdown, which Trump said he was happy to “own”, he will also have to own this.

Words mean something and words have consequences, particularly when the words are spoken by the President of the United States. The problem, so far, is that the price is being paid by everyone but the speaker.

More Chaos in Health Insurance

Image by  Quinn Kampschroer  from  Pixabay  

Image by Quinn Kampschroer from Pixabay 

President Trump has announced that he intends to order the Justice Department to support a Texas lawsuit filed by several Republican attorneys general to invalidate the entire Affordable Care Act (Obamacare). The federal district judge in Ft. Worth that presided over the case recently ruled that the entire law is unconstitutional. That ruling will be appealed to the 5th Circuit Court of Appeals in New Orleans and then to the U.S. Supreme Court.


The consensus of opinion seems to be that the 5th Circuit Court of Appeals will uphold the ruling of the trial court. This prediction is based primarily upon the reputation of the 5th Court as being conservative, i.e., Republican. But, regardless of what happens there, an appeal to the Supreme Court is inevitable. The time line for the full appellate process to be completed is uncertain. In the meantime, there will be nothing but uncertainty and anguish for all those who depend on the ACA for health coverage, the insurance industry and the healthcare industry.


The decision by Trump seems to have been heavily influenced by Trump’s Chief of Staff, Mick Mulvaney, a former South Carolina congressman who has always vehemently opposed the law. Trump’s decision is opposed by many leaders in his own party who are aware that Republicans have no alternative plan and certainly no plan which will guarantee insurance coverage for pre-existing conditions or that will reduce costs for the same coverage. Because health insurance was a big issue in the recent mid-term elections and Republicans promised to protect pre-existing conditions, some Republicans are now feeling vulnerable and caught off guard.


As usual, Trump boasted: “If the Supreme Court rules that Obamacare is out, we’ll have a plan that is far better than Obamacare.” “Let me just tell you exactly what my message is: The Republican Party will soon be known as the party of health care. You watch.”


We will watch, but since we’ve waited 9 years for the “plan”, I’m not holding  my breath.


Texas has more uninsured individuals and more uninsured children than any other state.   It is estimated that abolishing the ACA will cause another 20 million Americans to lose coverage.