The Latest in Lawsuits: Secrecy and Hijacking

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A new suit requesting declaratory relief, injunctive relief, and mandamus relief has been filed by Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive (NSA). (Complaint)

CREW and NSA have brought a civil action against Trump under the Presidential Records Act (PRA), the Declaratory Judgment Act, and Article II, Section 3 of the Constitution (the President has a duty to “take care that the laws be faithfully executed”). The action challenges the actions of Trump, his staff, and the Executive Office of the President that “seek to evade transparency and government accountability.” This is the politest way ever of saying that Trump and his palarounds are liars who are frantically spinning “alternate facts” and trying to hide their actions and information from reporters and the public. More insidious is the notion that the Executive Office of the President is hijacking the roles of executive agencies and, in doing so, avoiding transparency and accountability.

CREW and NSA have two main challenges in their suit.

First, they are challenging the Defendants’ communications practices that allegedly “knowingly prevent the proper preservation of records” that the Defendants either generate or receive when they are carrying out constitutional, statutory, or other official duties of the President. So, basically, the Plaintiffs are arguing that the Trump ’n’ cabal are actively doing things that keeping official records from being properly kept as required by law.

Second, Plaintiffs are asserting the Defendants’ are overstepping the boundaries of their power by usurping agency duties and responsibilities through consolidating power in the White House – if proven, this is also illegal. The Plaintiffs argue that the Executive Orders coming out of the White House are cloaked in secrecy which is preventing federal agencies from being able to comply with their statutory duties under three statutes: the Federal Records Act (FRA), the Administrative Procedure Act (APA), and the Freedom of Information Act (FOIA).

Plaintiffs make the point that their lawsuit is coming at a time of suspect activity in the Executive Office. Some examples of potential misconduct and questionable decision-making that CREW and NSA point at are the pressuring of James Comey to terminate the FBI’s investigation of former National Security Advisor Michael Flynn, as well as Trump’s firing of Comey after Comey refused to terminate the investigation. Plaintiffs argue that the question of whether these actions were illegal may only be resolved through access to contemporaneous records that explain what Trump did and why. Therefore, there is a huge need for transparency right now, specifically.

Our government’s checks and balances include ones that are implemented through congressional and judicial oversight. In order for Congress and the judiciary to keep tabs on what’s going on within the Executive Branch, they need to have access to records of the President’s actions. Compliance with record-keeping responsibilities under the PRA and the FRA is incredibly important for the functioning of our government.

CREW and NSA suggest that Trump and his dudes are either ignoring or just full-on flouting their responsibilities under the two Acts. Plaintiffs allege (based on information they claim to have)that the White House is using certain email messaging applications that destroy messages as soon as they are read, regardless of whether those messages are presidential records. Some of Trump’s tweets, subject to federal record-keeping obligations, have been deleted. Additionally, Plaintiffs assert that Trump has implied that he’s been secretly recording conversations with Administration officials – and who the heck knows whether those recordings are being preserved. There are also allegations, sourced from at least one news report, that when ongoing congressional and FBI investigations were disclosed, White House officials purged their phones of potentially compromising information.

Interjection: YOU GUYS. If this stuff is true, it’s a big deal. If the White House is using software to erase the contents of messages upon their being read, if phones are being purged…this is BAD.

Plaintiffs extend their challenge to the alleged [unconstitutional] consolidation of power in the White House. They argue that the centralization of government decision-making within the White House ensures that decisions normally made or implemented by Executive Branch agencies are able to “evade disclosure under laws like the FOIA, preservation under laws like the FRA, and public review and comment under the APA.”

Essentially, this Trump-power-absorption is wreaking havoc on the order of operations of our government. Records that the public would ordinarily have a right to access under the law (because ordinarily, the records would be agency records subject to disclosure under FOIA) are now improperly cloaked as presidential records subject to the President’s exclusive control and beyond the reach of the public. Additionally, decisions that would ordinarily be subject to review under the APA (for example, when agencies make decisions about propagating or changing regulations, those regulations must go through a public notice and comment period, accessible to the public at large) are also shielded from review as “presidential decisions.”

This is insidious. It is also scary. In simple terms, if what the Plaintiffs are alleging is true, the White House is eradicating a paper trail. They’re enabling themselves to act with impunity because without a trail, it will be very, very, very difficult to demand any kind of accountability.

By acting as they have, Trump’s Troops have prevented federal agencies from complying with the statutory responsibilities. Their actions have also violated the constitutional requirement that the President take care that the law be faithfully executed.

Plaintiffs have a laundry list of facts that they have included in their Complaint.

Included in this list (which you can read yourself in its complete form, beginning on page 13 of the Complaint – along with links to related articles) are:

  • The Executive Office’s issuance of gag orders on federal agencies.
  • Trump requiring congressional staffers to sign non-disclosure agreements before allowing them to help him draft his first Muslim travel ban executive order.
  • Making the White House visitor logs private.
  • Trump’s various claims that he has continued his private sector practice of taping conversations.
  • Trump’s (and his staffers’) heavy use of electronic messaging tools and platforms to conduct presidential and federal business.
  • The Administration’s disregard for the NARA’s guidance on using electronic communication and the use by some staffers of Signal, an encrypted peer-to-peer messaging application, to communicate about presidential or federal business.
  • Signal has a disappearing message function that allows a user to set a timer to delete the message from all devices.
  • Some of Trump’s staffers may be using the chat app Confide, which erases messages as soon as they’re read.
  • There are no policies or procedures in place to record any of these conversations and communications, which are arguably Presidential records.
  • Congress has become concerned with these secret, likely erased, communications. Jason Chaffetz (yeah, that guy) wrote a letter requesting that Trump identify all policies and procedures related to non-official electronic messaging (email, texting, social media, etc.) and official electronic messaging, and policies and procedures related to properly securing and preserving communications and presidential records.
  • Prior to March 24, 2017, Trump’s staff purged their phones because they expected to be subpoenaed in connection to the various investigations in which Trump was embroiled.
  • Trump uses his personal Twitter account, not the President’s account.
  • The White House should be capturing all Tweets from both the personal and Presidential account. It is not, however.
  • Trump has issued at least 43 executive orders. Executive orders are meant to be issued by and signed by the President and the President alone. Government personnel outside of the President and his staff have had significant roles in preparing, reviewing, and commenting on draft executive orders, including executive agencies. (This is important because this suggests that agency rules are masquerading as executive orders in order to circumvent the mandated rulemaking process under the APA.)

The Plaintffs’ claims are as follows:

  1. For a Declaratory Judgment that the knowing use by defendants of messaging apps that prevent the preservation of presidential records violates the Presidential Records Act
  2. For a Declaratory Judgment that the failure of the President, his staff, and the EOP to issue guidelines concerning the use of messaging apps that prevent document preservation violates the Presidential Records Act
  3. For a Writ of Mandamus and Injunctive Relief compelling President Trump, his staff, and the EO to comply with their non-discretionary duties under the PRA
  4. For a Declaratory Judgment that Defendants’ use of the executive order process to remove records and rulemaking from the FRA and FOIA and the APA is contrary to law and violates the President’s constitutional obligation to take care to faithfully execute the law

They want the court to:

  1. Declare that the Defendants’ knowing use of messaging apps that prevent the preservation of presidential records violates the Presidential Records Act;
  2. Declare that the Defendants’ failure to issue guidelines concerning the use of messaging apps that prevent document preservation violates the Presidential Records Act;
  3. Order all Defendants, in the form of injunctive and mandamus relief, to refrain from using methods of communication that destroy records before any determination can be made as to whether they should be preserved as presidential records under the Presidential Records Act;
  4. Declare that the Defendants’ use of the executive order process to remove records from the Federal Records Act and public access under the Freedom of Information Act, and the rulemaking process of the Administrative Procedure Act, are contrary to law and the President’s constitutional obligation to take care that the law be faithfully executed; and
  5. Grant such other and further relief as the Court may deem just and proper.

Daayyum.

Keep an eye on this one, guys. It’s not headline news yet, but CREW’s and NSA’s assertions run deep and are weighty claims. If their allegations are true, then Trump is hijacking the government in a very, very serious way, and erasing the paper trail as he does it.

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Some “Brief” (because there’s no such thing as truly brief where laws are concerned) Background on the Laws at Issue

(I’ve also included citations to the laws, so anyone interested can sift through. Otherwise, just skip right over ‘em.)

Presidential Records Act

The PRA was enacted in 1978 in response to Watergate. It is meant to establish public ownership of presidential and vice presidential records, impose record-keeping requirements on the President and Vice President, and to the National Archives and Records Administration (NARA) to preserve presidential records and make them publicly available. The PRA states that “[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records[.]” 44 U.S.C. § 2202.

The Act directs the President to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records[.]” 44 U.S.C. § 2203(a). In other words – the President is to document everything. Period.

“Presidential records” is broadly defined to include documentary materials “created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President” in conducting activities related to the President’s constitutional, statutory, or ceremonial duties. 44 U.S.C. § 2201(2). In other words…all the President’s elbow-rubbers are included here. Excluded from presidential records are “personal records” which are defined as those “of a purely private or nonpublic character” unrelated to the President’s constitutional, statutory, or ceremonial duties. 44 U.S.C. § 2201(3). I imagine that if a President wanted to write Harry Potter fan fiction under a pseudonym, it would fall under “personal records.”

“Documentary materials” is also broadly defined and includes “electronic or mechanical recordation’s.” 44 U.S.C. § 2201(1). The PRA’s legislative history explains that Congress intended the scope of “Presidential records” to be “very broad since a great number of what might ordinarily be construed as one’s private activities are, because of the nature of the presidency, considered to be of public nature, i.e., they effect the discharge of his official or ceremonial duties.” (So maybe that HP fanfic would be a Presidential record after all, depending on its contents.) The broad definition of “documentary materials” also helps ensure that the President and NARA preserve records that have or, maybe more importantly, are later found to have, great historical value. This way, documents default to “Presidential records” – save first, ask questions later.

There’s also a whole process under the PRA for the destruction of presidential records. The only way the Prez gets to destroy his or her non-personal records is after s/he has affirmatively determined that the records “no longer have administrative, historical, or evidentiary value[.] 44 U.S.C. § 2203(c). After a President has made this determination, s/he must then obtain the written views of the Archivist of the United States that the Archivist does not intend to take action to the contrary. 44 U.S.C. § 2203(c)(1)-(2). The Archivist must then state, in writing, that s/he has no intention of taking action with respect to the destruction of the specified presidential records.

We’re not done yet.

After al of this, then the President has to notify the appropriate congressional committee sixty days before the proposed disposal date of the President’s intention to dispose of the records. 44 U.S.C. § 2203(d). For anyone keeping count this is a four-step, and pretty lengthy, process. In writing the PRA, Congress wanted to guarantee that records were only destroyed after multiple entities deliberated and weighed-in.

(By the way, the Archivist is in charge of the records after the conclusion of the President’s term and must make those records publicly available as “rapidly and completely as possible consistent with provisions of this chapter.” 44 U.S.C. § 2203(g)(1).)

Anyway, as technology has advanced, obviously the PRA has had to evolve as well. In 2014, Congress amended the Act to expand the scope of means of communication. The 2014 amendment prohibits the President, his staff, and the EOP from using non-official electronic message accounts unless they: (1) copy one of the President’s official electronic messaging accounts, or that of his staff or EOP, or (2) forward a complete copy of the presidential record to an official electronic messaging account of the President, his staff, or EOP. 44 U.S.C. § 2209(a)(1)-(2). The President must comply with this requirement within twenty days after the presidential record in question is created or transmitted. An intentional violation means being subject to disciplinary action. 44 U.S.C. § 2209(b).

It should be a given, but “electronic messages” means “electronic mail and other electronic messaging systems that are used for the purposes of communicating between individuals.” 44 U.S.C. § 2209(c)(2).

That Presidential Twitter account, though.

One last thing worth noting is that although presidential records aren’t subject to the FOIA while the President is in office, most records become subject to FOIA requests five years after the President has left office.

The Federal Records Act

The FRA is like the PRA but for federal agencies. Congress enacted and amended the FRA to assure “[a]ccurate and complete documentation of the policies and transactions of the Federal Government,” and [j]udicious preservation and disposal of records.” 44 U.S.C. § 2902(1), (5). The head of each federal agency is charged with keeping track of and saving just about everything that relates to the agency’s actions. 44 U.S.C. § 3101. Further, the head must “establish safeguards against the removal or loss of records [the federal agency head] determines to be necessary and required by the regulations of the Archivist.” 44 U.S.C. § 3105.

Unlike the PRA, the public or other interested parties may request the disclosure of these records through FOIA.

The Administrative Procedure Act

Ah, the APA. Brings back stressful law school flashbacks. The APA governs the internal rule making procedures of federal agencies. 5 U.S.C. §§ 551-559. In short, a federal agency creates a rule that is subject to the APA when it seeks to “implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4).

As I briefly mentioned above, the APA requires agencies engaging in rule making to provide public notice of a proposed rule making in the Federal Register, to provide interested persons with a meaningful opportunity to comment on the proposed rule, and to engage in reasoned decision making, considering all public comments. One rules or made, they are subject to judicial review and must be consistent with the statutory text authorizing the agency to promulgate regulations.

Freedom of Information Act

FOIA was enacted in 1966 and established a statutory right of public access to information held by Executive Branch agencies upon request. Congress wanted to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The Act carries a “strong presumption in favor of disclosure,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991), and its “limited exceptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976).

In short, the government should be transparent and the public should have access to its decisions and various decision-making processes. This is important in order to keep corruption in check and to hold those in charge responsible for their actions.

Under FOIA, just about every single record created by a federal agency must be made publicly available. There are a few specific exemptions however. Included in the government entities that fall outside of the APA’s definition of “agency” is the Office of the President, which is not subject to FOIA.

The Constitution

At issue in CREW’s and NSA’s complaint is Article II, Section 3, which is the “Take Care Clause.” The Take Care Clause says that “[the President] shall take care that the laws be faithfully executed[.]” U.S. Const., art. II, § 3. The Supreme Court has interpreted the Take Care Clause as imposing a “duty” or “obligation” on the President to ensure that Executive Branch officials comply with Congress’ law. Kendall v. United States ex rel. Stokes, 37 U.S. 524, 613 (1838).

(So the President can’t just run amok, usurping agency responsibilities, ignoring Acts aimed at the Executive Office, etc. etc.)

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We have a media problem. And a politics problem.

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Last night, I read an article on vox.com about the dual narratives of the “right wing” vs. “liberal” medias, respectively, and it got me thinking about the news problem this country has. And not just a news problem, but an “us vs. them” perspective on telling stories about what’s going on. I intentionally chose the word “stories” because no matter which news source you’re looking at, chances are you’re getting a narrative that’s been focused through a particular lens. Certainly some sources do a better job than others of cutting out the editorializing BS and painting a more balanced picture, but none is perfect.

I say this as someone who considers herself liberal on the political spectrum, but who abhors the institutions of both the Democratic Party and the Republican Party.  (Just going to get that out of the way first thing – I’m pretty left. I actually hate that the state in which I live has closed primaries because I greatly dislike having to be registered as a member of a particular party in order to participate in all levels of democracy, but that’s another – but somewhat related – issue entirely.) I also say this as someone who has been trained as a lawyer and recognizes the intense power of narrative in convincing an audience (judge or jury) and who similarly recognizes the need to be deeply skeptical of taking almost anything at face value. I think we should probe any news story we read, and check and double-check its claims to the best of our ability. That’s time consuming, exhausting, and a pain in the rear, yes. But it is necessary.

After I posted the above-linked article on my Facebook page, I received a comment that resonated with me:

“A very graphic demonstration of how consensus, not words, creates meaning. Mainstream media and the putatively “liberal” Democratic party have been sailing along for a long time as though all their statements were true and all their elisions of fact were appropriate. Anybody not a member of those groups could see the bias toward self-justification in all they did. Now the shoe is on the other foot. Different information is deemed significant and different facts are elided. Maybe more important, the judgments about context are contradictory. On the one hand, Clinton’s email lapses with classified info are forgivable; on the other, Trump’s mentioning classified info to Russians is. If you believe Clinton is a “good guy,” you believe the former; if you believe Trump is a “good guy,” you believe the latter. The only way OUT is for each side to respond, directly and thoroughly, to the other side’s reports, to what is done, not to what is said. I have yet to see that happen.”

“The judgments about context are contradictory.” There’s so much hypocrisy in this country that we are drowning, but we only see it in the people with whom we disagree. And the voices of reason in the middle keep getting drowned out because their stance isn’t “sexy” enough, isn’t necessarily aggressive enough, and doesn’t spark the wild “us vs. them” fervor that is apparently as critical to us these days as staying hydrated. That middle stance is also uncomfortable because it is a stance that tends to make most people feel defensive about their views, and nobody especially enjoys that.

It is possible to be critical from a single rooted point and to avoid logical leaps and somersaults to justify contradictions. For example:

Objectively, I think Hillary Clinton was guilty of a very big lapse of judgment with respect to her emails, private server, etc. I don’t think there’s an excuse for someone of her intelligence, at her level, to do what she did. I hold her to a very high standard (no, not because she is a woman, but because she held a prominent, powerful position, with a lot of responsibility. Seriously, ask me about the standards to which I hold the men in Congress. Most are failing miserably). Regardless of whether anything important got out, the decision to flout protocol was a poor one. (And I don’t care if every other politician ever has done it. It doesn’t make it less bad – it just means more people have done a bad thing.)

Objectively, I think Donald Trump is guilty of releasing all kinds of classified information to the Russians (and maybe even guilty of treason, although no one really knows what to do with the treason law in this country because it’s been pulled out and dusted off so infrequently), and I think he’s an egotistical buffoon of enormous proportions. I think he’s doing illegal things every chance he gets. He’s a compulsive liar.

I don’t think I am the only person out there (in fact, I know I am not) who holds both of these views simultaneously. But the media is not publishing stories like this that contain, as their center, an objective guidepost. E.g., breaking protocol, leaking information, is bad. Both Clinton and Trump have done this. Ergo, both have done bad things. (I shouldn’t have to say this, but saying both have done bad things does not mean that both levels of bad are exactly the same.) The media is not universally critical.

Instead, everything gets twisted through weird rationalizations that ultimately lead to spin that would make anyone quirk an eyebrow in disbelief. It is beyond frustrating to me. Frankly, I don’t really understand how or why we’ve gotten to this place. I suppose some of it is because it happened relatively slowly and we didn’t have an administration as completely batshit bonkers as this one to really rev up the engines and shine a light on our narrative problem. But now that it’s spotlit, I think we’ve got to come together and figure out how to fight it.

One thing that needs to be done – as pointed out in the comment – is for each side to fully address the assertions of the other. Just like in court. One should never, ever ignore an allegation at risk of having it be taken as truth. In this way, both the right and left media are in cahoots. Neither challenges the other. Instead, they each go off, parallel to one another, and anyone who doesn’t start trying to unpack the contents of each and has just chosen to be allied with a particular source, can very easily avoid ever hearing anything published by a source that he or she doesn’t read. And now it’s gotten so bad and there’s so much misinformation floating around that having those challenging discussions is going to be terribly difficult.

Right now, we – as the consumers of news – are forced into the position of addressing each assertion (which, as I pointed out above, is time consuming, exhausting, and a pain in the rear). And that should not be our job. That is *supposed* to be a journalist’s job. Instead, we have parrots. It makes me especially angry because I think it’s lazy and I think we are all being taken advantage of. It is a privilege to have the spare time to unravel a given news story and now our news sources are trying to (at best) cut corners or (at worst) manipulate us. And they know they won’t be held culpable because NO ONE HAS THE TIME TO DIG THROUGH EVERYTHING WITH A FINE TOOTH COMB.

I try to go through things with a fine tooth comb when I can and I still get things wrong. And I’m pretty privileged as far as finding the spare time to do this goes.

We should all be mad about the way media is failing us.

We should also all be horribly angry with both of our political parties. Not even because they are hypocrites of the highest order, but because they (1) don’t care about any of us, and (2) might even actually hate democracy (and prefer that all power be consolidated unto themselves).

Here’s an article that gets at what I’m talking about: The Gospel According to Mitch by Maximillian Alvarez. It’s about Mitch McConnell, but gets to the heart of our politics problem (but it’s also good reading if you love to hate Mitch).

These meatheads are playing a game and they are using us as their pawns to be manipulated. I think many of us recognize this, but…we actually need to absorb it. Because if we “know” it but don’t act any differently based on this information, then it doesn’t really matter that we know because we’re still complicit with our “elected” representatives – who we don’t even like.

Our elected officials are showing up for their own interests. Not ours. “There is power, and there are obstacles to attaining power. These, and nothing else, are the coordinates of politics.” That is the root of the matter. Humanity, morality, right vs. wrong, objectivity, these things don’t matter. All that matters is power and the things that stand in the way to achieving this. And guess what? A lot of what stands in the way of achieving power are the pesky almost 324 million of us citizens who are charged with electing those in power. So what does that mean? Our political parties have a vested interest in figuring out how to manipulate the heck out of us. BOTH parties have this interest. They employ different tactics, but I would argue the end game is the same: consolidation of power at least cost/highest gain to the top percenters of this country.

As Alvarez writes in the article: “We are educated by the fantasy that our politicians are true public servants. Whether by their own honest intention or the simple limits of their job, their power is held in check as a public trust. In this view, political leaders are employed to serve their constituents, but they may be corrupted by power along the way to achieving their goals. In reality, though, power is the only real goal remaining in our evermore nihilistic national politics.”

Our political system currently operates to preserve the pecking order, this consolidation of power, the wealth. It does not operate for us and it is not, at this point, even truly operated by us. Look at how we are forced into a two party system that leaves most of the population wholly disillusioned (and even refusing to vote). How often have we said or heard that our vote is not being cast “for” a candidate but rather, “against” the opposing candidate? How often have we joked about “holding our nose and voting.” Stop and think about that for a minute. That’s insane. That isn’t democracy. That’s being forced into something we don’t want and that’s exactly how our political system likes it.

Chris Hedges wrote a terrific piece on Trump being a symptom and not the problem in our current political state. In it, he points out the blowback that occurred following the “excessive democracy” of the 1960s. The high level of political involvement and general pushiness of the populace scared the heck out of our would-be rulers and they began working to dismantle the true functionality of our democracy. Hedges writes that these political elites “locked the citizens out of government. And by doing so they made sure that power shifted into the hands of the enemies of the open society.” He’s right. Our power, our true power as a voting public is sorely limited. It has just enough trappings of democracy clinging to it that we aren’t all out rioting in the streets. Instead, we merely grumble to one another and talk about holding our noses and voting.

THIS IS SUCH A PROBLEM.

And the media (the reason I started this post in the first place) is furthering this agenda, whether intentionally or not (although, I’d err on the side of intent, given the identity of the owners of our media sources). By refusing to engage with one another, refusing to challenge competing narratives, they effectively splinter the population and keep us in two encampments who, to some degree, lack the tools or ability to engage with one another. The media cherry picks facts to support its context (or twists facts to match a desired story, or just makes implications that lead the absorbing public to one conclusion or another). By running parallel to one another and never crossing, our media sources cement the existence of our political parties and increase the difficulty for the general public of examining them critically and taking note of their misplaced priorities and manipulations.

So, dear reader, help me think up a name for the new political party we need. The one that seeks to get the heart of the matter, that tries to cut through BS to find the fact, that avoids being defensive in favor of listening to the people. The party that brings back that “excessive democracy” of the 1960s that so terrified the political elite. The party that says “shut up, now you listen to US.” What do we call it?

In which the media oversimplifies for the sake of clicks

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On Wednesday, three Code Pink activists were found guilty by a jury of their peers for the alleged disruption of Jeff Session’s confirmation hearing. For this conviction, they face jail time (although it sounds as though they likely won’t ultimately be slapped with prison time at their sentencing hearing, which is in June). But here’s the thing, no one was convicted for laughing, i.e., laughter isn’t the chargeable offense. All three were charged with disorderly conduct and parading or demonstrating within Capitol buildings. This might sound like nitpicky semantics (especially because laughter set the ball in motion and, in my opinion, I think the decision to arrest these three activists at the confirmation hearing was an absurd waste of energy and resources and also indicative of this administration’s severely misplaced priorities), but these nitpicky distinctions really matter when it comes to understanding what’s happening in this country right now. (Because “charged with laughing” sounds like more easily overcome buffoonery, while “charged with existent laws that were arguably puffed up and maybe misapplied” is a little more insidious. I don’t know about you, but the latter is scarier to me.)

I disagree with the actions of the Capitol Police, the decision to prosecute, and the outcome, but I also take issue with the media’s presentation of the issue. Clickbait headlines really don’t help us pull out of our downward spiral into misinformation and half stories.

Desiree Fairooz is the infamous laugher, of course, who was hauled out of the confirmation hearing shortly after giggling/gasping at the assertion that Mr. Session’s record of “treating all Americans equally under the law is clear and well-documented.” Ms. Fairooz and her two compatriots were subsequently charged with (1) disorderly conduct and (2) parading or demonstrating on capitol grounds.

Now, I had to do a little digging (and I’m still not entirely convinced I’ve landed on the right laws) because news sources, for whatever reason, are not interested in linking to either law or court documents (which, as a lawyer, is something that has begun to frustrate me to no end when sifting through articles), but I believe that laws in play here are D.C. Code § 22-1321(b) and/or (c-1) – Disorderly Conduct, and D.C. Code § 10-503.16(b)(4) and/or (7) – Unlawful Conduct. And don’t quote me on this because I’m extrapolating based on the paltry amount of fundamental information provided by the media in its reporting. For example, I don’t actually know whether the activists were charged under D.C. Code or Federal law. (I did find the court records – https://www.dccourts.gov/cco/maincase.jsf – but, alas, parties’ filings are generally not freely available.)

ANYWAY, in relevant part, the Disorderly Conduct law reads:

(b) It is unlawful for a person to engage in loud, threatening, or abusive language, or disruptive conduct, with the intent and effect of impeding or disrupting the orderly conduct of a lawful public gathering, or of a congregation of people engaged in any religious service or in worship, a funeral, or similar proceeding.

(c-1) It is unlawful for a person to engage in loud, threatening, or abusive language, or disruptive conduct in a public building with the intent and effect of impeding or disrupting the orderly conduct of business in that public building.

Basically: A person can’t head into a public event or a public building with the intent to disrupt it by getting very loud, hurling abusive language, making threats, or acting in such a way as to be disruptive.

The relevant bit of the Unlawful Conduct law reads:

(b) It shall be unlawful for any person or group of persons willfully and knowingly:

(4) To utter loud, threatening, or abusive language, or to engage in any disorderly or disruptive conduct, at any place upon the United States Capitol Grounds or within any of the Capitol Buildings with intent to impede, disrupt, or disturb the orderly conduct of any session of the Congress or either House thereof, or the orderly conduct within any such building of any hearing before, or any deliberations of, any committee or subcommittee of the Congress or either House thereof;

(7) To parade, demonstrate, or picket within any of the Capitol Buildings.

Basically: A person can’t make loud threats or use loud, abusive language, or behave in a disorderly or disruptive way in order to throw the usual Congressional proceedings off the rails or into disarray. Nor can someone hold a protest within any of the Capitol buildings.

Both laws require that an individual be acting with the purpose of causing the disruption. Someone whose actions or words have an unintentional disruptive effect are not in violation of the law (or should not be found to have been in violation of the law)

Honestly, in reading these laws, I’m a little surprised that the Ms. Fairooz’s attorney wasn’t able to keep the jury from reaching a guilty verdict with respect to disorderly conduct. This is especially the case given that at least one reporter who was present at the hearing said that the laugh was not loud, nor did it disrupt Senator Shelby’s speech. But then again, when asked, some of the jurors said that it wasn’t the laugh/gasp that led them to reach a guilty verdict, but Ms. Fairooz’s behavior after being confronted by the Capitol Police. She allegedly grew loud and wanted to know why she was being arrested (as most of us would want to know, I suspect – one could argue that the real disturbance came from the rookie, maybe-arrest-happy, Capitol Police officer who decided that the start of a hearing was a good time to make her very first ever arrest, rather than from Ms. Fairooz, but I digress).

Obviously, without witness testimony, I can’t tell what happened, and most of the news I’ve seen apparently also lacks that information. Personally? I think there’s an intent issue. The Disorderly Conduct law requires that the defendant have acted with the “intent and effect of impeding or disrupting” whatever is happening. I would have thought Ms. Fairooz’s attorney could have made mincemeat of the prosecuting attorney’s argument for intent (ok, maybe that’s a bit strongly put, but I think he could have made a good argument as to why the intent was not there). And without the requisite intent, as previously mentioned, there is not a violation of the law.

I will say, though, that from a legal standpoint, the three activists were probably violating the ban on demonstrating/picketing within any of the Capitol Buildings. The three defendants were dressed up and, more importantly, carried signs – they were fairly clearly demonstrating Mr. Session’s confirmation. Ms. Fairooz had a banner that she unfurled.

I’m not going to get into a long legal analysis at the moment because (1) I don’t have the time right now to dig into caselaw to figure out the legal environment (although, if I do it later and find something interesting, I’ll update) and (2) I primarily wanted to draw attention to the media’s mislabeling of what was actually going on. The case isn’t just a matter of “she laughed, she’s guilty, end of story.” That makes for great headlines, but it’s a gross oversimplification of the law. I also think it overlooks what’s actually (to me) the most disturbing part of this: the government’s steady push to crackdown on speech and its willingness to twist existent laws to its own ends. We’ve seen it with respect to Trump’s Executive Orders and now we’re seeing it with respect to civil disobedience. I am also left wondering (and concerned) about the impact of this twisting on jurors, who hold no legal training and who may be less attuned to shady maneuverings. The government didn’t go, “You laughed and offended us, therefore you’re going to jail.” Instead, the government said, “We won’t tolerate difference of opinion, here’s a couple of laws that are on the books, now we’ll twist them and their intent and misapply them to a context in order to paint a picture to non-legally trained citizens of a violation that probably didn’t exist.”

To be fair, the United States’ justice system has been botched for a very, very long time, but now we’re seeing those cracks running deeper into our Constitution, and it’s very unsettling. I just wish the media would let up on the clickbait and set their journalists to picking apart the real stories. Here, that’s the government’s arguable perversion of the law to shutdown dissent.

 

Spark Notes: Trump v. Judge Orrick (Or Trump’s Newest Loss in Federal Court)

sanctuary-cities-still-012517

Keep shutting it down, Federal Courts, keep shutting it down.

As I’m sure you all know by this point (because typing up summaries puts me at a severe time disadvantage, it seems – I clearly need to make friends with all the clerks), earlier today, Judge William H. Orrick “lolnoped” Trump’s executive order pertaining to sanctuary cities. And he did it in 49 pages, so it’s clear that Trump really got his goat with this kingly “I SHALL TAKE ALL THE MONIES FROM YOU, YOU PLEBES” mentality.

QUICK AND DIRTY (with more in-depth summary following)

(Also, here’s the full opinion: https://www.scribd.com/document/346375526/Sanctuary-City-Order and here’s the executive order in question: https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united)

Essentially, two California counties and a city challenged Executive Order 13768 (specifically Section 9), “Enhancing Public Safety in the Interior of the United States.” The Order outlines a number of immigration enforcement policies and also purports to yank funds to the extent that funds can be yanked (without otherwise violating other federal laws…) from sanctuary cities. Additionally, the Order establishes a procedure that makes sanctuary cities ineligible to receive federal grants.

Well, the counties of Santa Clara and San Francisco, and the city of San Francisco were stirred up and challenged Section 9 of the Executive Order as facially unconstitutional [i.e. no digging needs to be done to turn up the unconstitutional stuff] and have also brought motions for a preliminary injunction seeking to enjoin its enforcement [i.e., slam the big red “STOP” button].

The counties-plus-a-city had four main arguments as to why the EO shouldn’t be enforced and I’ll list them:

(1) It violates the separation of powers doctrine in the Constitution because Trump’s trying to improperly wield congressional spending powers (Executive can’t do the job of the legislature or judiciary and vice versa);

(2) It’s way, way, way overbroad and equally as coercive – to that point that even IF the President got to have spending powers, the Order would still exceed them and violate the Tenth Amendment’s prohibition against commandeering local jurisdictions (could fill a class on this, but basically, the federal government can’t come in and force local governments to enforce federal mandates. For example, a case about the Brady law that went to the Supreme Court resulted in the Supreme Court saying, “no, fed. gov’t, you can’t make local officials enforce your federal law – you need your own people to do it.” [Also, THIS IS A GROSS SIMPLIFICATION OF THE DOCTRINE. Look it up for a real summary!.]).

(3) Not only is it obscenely broad and coercive, it’s wildly vague and adrift without standards to the point that it violates the Due Process Clause of the 5th Amendment, and is void for its vagueness.

(4) It seeks to deprive local jurisdictions of congressionally allocated funds without any notice or opportunity to be heard, which means that it violates the procedural due process requirements of the 5th Amendment as well.

The Government, in true Government form (at least as of late), sidesteps the counties-plus-a-city’s arguments and instead makes ye olde tired standby argument of “THEY AREN’T ALLOWED TO SUE US” aka that the counties-plus-a-city lack standing. The Governments says that this is because the EO didn’t change any existing law and the counties-plus-a-city aren’t “sanctuary jurisdictions” pursuant to the Order (aka “they ain’t got skin in the game, can’t complain). In even truer Government form, they started going for the whacked out arguments next and claimed that the EO is actually just an exercise of the President’s “bully pulpit” and was meant to highlight a changed approach to immigration enforcement. (Which sounds a lot like the Government is trying to get out of having their shenanigans shut down by saying “we didn’t want this to do anything, anyway!”) The Government further emphasizes this position by essentially saying that the Order is just a repetition of already existent law and ran backwards from the possibility that the EO was unconstitutional by firmly asserting that the EO certainly couldn’t affect any of the billions of dollars in federal funds that the counties-plus-a-city receive every year beyond three federal grants in DOJ and DHS that have conditions requiring compliance with immigration law.

Judge Orrick is like, “Great work, guys, glad you remember Con Law 101 and that the Order can’t do anything more than enforce whatever law is already on the books” to whatever poor schmuck Government lawyers had to take this thing to oral argument.

Buuutttttt Judge Orrick also points out that the section of the EO in question was apparently written someone without that Con Law 101 understanding because its plain language “attempts to reach all federal grants, not merely the three mentioned at the hearing.” Plus, thanks to President Tweets-a-lot and Attorney General Missed-the-part-where-Hawaii-is-a-state, public comments have basically undermined and eroded any semblance of narrow scope. President Tweets-a-lot called it a “weapon” to used against jurisdictions that disagree with his preferred policies of immigration enforcement (and good ol’ Sean Spicer was quick to back him up). And Attorney General Missed-the-part-where-Hawaii-is-a-state got very self-important and warned that noncompliant jurisdiction would suffer “withholding grants, termination of grants, and disbarment or ineligibility for future grants” and the “claw back” (literally said claw back, that’s Sessions, not the Court) of any funds previously awarded. So thanks to the EO’s language and the loudmouths in government, the Court doesn’t think the section is “reasonably susceptible to the new, narrow interpretation offered at the hearing.” (Note: this “new, narrow interpretation” only surfaced for the first time AT the hearing, suggesting the poor Government lawyers knew they were doomed.)

Judge throws in a line about the implausibility of the Government’s “new interpretation” for good measure.

However, given this “new interpretation” the Government and the counties-plus-a-city appeared to be in rough agreement about the EO’s constitutional limitations. This wasn’t really helpful, however, because there are still potential Constitutional issues. Under the Constitution, Congress gets the spending power, not the President, so the EO can’t constitutionally place new conditions on federal funds. The Tenth Amendment mandates that any conditions on federal funds be TOTALLY CLEAR and also made in a timely fashion. They also have to have some relation to the funds at issue and the incentive can’t be coercive. I.e., federal funding that has zilch to do with immigration enforcement can’t get yanked just because El Jefe disapproves of a jurisdiction’s immigration strategy.

The Court found that the counties-plus-a-city succeeded in their motions. They demonstrated that they were likely to face immediate irreparable harm if they didn’t get their injunction, that the were likely succeed on the merits of the case (basically, that their four arguments held water like a rugged camelback), and that the balance of harms and public interest weighed in their favor. Therefore, the Court granted the preliminary injunction.

MORE IN-DEPTH SUMMARY

Trump issued Executive Order 13768 on January 25, 2017. It’s very puffed-up with self-righteous language “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United State.” (Anyone else picturing little green people?) It also states that the policy of the executive branch is to “ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” Then Section 9 gets into more detail (and also includes the establishment of that public “comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens” that we all heard so much about back in January. It’s so gross). More on point, Section 9 refers to Section 1373 of Chapter 8 of the US Code, which prohibits local governments from restricting government officials or entities from communicating immigration status information to ICE.

The Court gets into a lot of detail (ok some) with respect to this as well as with respect to civil detainer requests (which is what ICE civil detainers make when they want a local law enforcement agency to keep someone locked up for up to 48 hours after that person’s scheduled release – several courts have held this to be in violation of the 4th Amendment), but I’m not digging into all of this here, so feel free to read-up elsewhere.

The counties-plus-a-city all have policies and practices with respect to federal immigration enforcement and those policies and practices are at odds with the EO. Basically, they’re trying to create trust and respect between law enforcement and residents, foster cooperation, and ensure community security” and the EO…isn’t. The counties-plus-a-city also all receive federal funding. Santa Clara got about $1.7 billion in the 2015-16 fiscal year, which made up about 35% of its total revenues. Most of that money goes towards providing residents with essential services. In support of its motion, Santa Clara pointed out that losing any substantial amount of federal funding would result in substantial cutbacks to safety-net programs and would require the county to lay off thousands. San Francisco gets about $1.2 billion from the federal government (out of a $9.6 billion total yearly budget). If it lost a substantial amount of that federal money, residents would be waving good by to medical care, social services, meal programs, and infrastructure maintenance.

After addressing the State of Things, the Court gets into Justiciability (aka Can It Hear This Case?). Government is all “this is not justiciable because the counties-plus-a-city cannot establish an injury-in-fact, which they need to in order to establish standing, AND ALSO these claims aren’t ready to be listened to yet.” Court thinks about it and disagrees. Judge Orrick: “I conclude that the Counties have demonstrated Article III standing to challenge the Executive Order and that their claims are ripe for review.”

Standing (aka concrete and particularized injury that is actual or imminent which is traceable to the defendant and can be fixed by a favorable decision from the court):

The Government persists in insisting no standing because (1) the EO doesn’t change the law, just directs the AG and Secretary to enforce existing law; and (2) the counties-plus-a-city’s claims of injury are not sufficiently “concrete” or “imminent” because they aren’t designated as “sanctuary jurisdictions” and the Government has not withheld any federal funds.

Court: No.

Haha, actually though, Judge Orrick thinks the Government is full of it. To make its first argument, it essentially has to read out ALL THE MEANING from all the words used in the EO. Because the EO *does* change the law. The Court goes into a very detailed analysis of the language in the order and the rules of construction to demonstrate exactly why the Government is so wrong. The Court states, “the defunding provision is entirely inconsistent with law in its stated purpose and directives because it instructs the Attorney General and the Secretary to do something that only Congress as the authority to do – place new conditions on federal funds.” (Basically, the Court is like, “guys, you can’t defend a meaning that can only exist if it exists outside the entire context of the Order and the language of the section itself.) At the end of the day, “the Government’s construction is not reasonable. It requires a complete rewriting of the Order’s language and does not ‘save’ any part of Section 9(a)’s legal effect. There is no doubt that Section 9(a), as written, changes the law.”

The Counties-plus-a-city: We’re allowed and you’re dumb.

The counties-plus-a-city say they absolutely have standing because they have demonstrated a well-founded belief that the EO will be enforced against them.There is a line of cases that allows for “pre-enforcement standing” when a plaintiff can show that it has an intent to engage in course of conduct (arguably with constitutional interest) that is proscribed by statute, and that there is a credible threat of prosecution [of the plaintiff] under the statute. The Government [once again, as is its recent habit] mischaracterizes the law on this and tries to argue that this exception only applies in situations involving criminal penalties or First Amendment issues. Judge Orrick sets it straight though and gives the REST of the relevant case law which establishes that “where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat.”

And, yes, the counties-plus-a-city have pre-enforcement standing because their policies are proscribed by the language of the EO and they are likely to be designated “sanctuary jurisdictions” based on the meaning contained within the EO. Additionally, the Government has already indicated an intent to enforce the EO generally, and against the counties-plus-a-city more specifically. (Remember President Tweets-a-lot’s statements mentioned above?) This isn’t the first time, and likely won’t be the last time, that Trump’s mouth undermines whatever argument the Government is trying to make in court. Trump actually went so far as to threaten California specifically in February. Finally, the counties-plus-a-city’s claims implicate a constitutional interest: the rights of states and local governments to determine their own local policies and enforcement priorities pursuant to the Tenth Amendment. (NO COMMANDEERING ALLOWED.) The counties-plus-a-city all have policies that “reflect local determinations about the best way to promote public health and safety,” which stand in stark contrast to the EO’s assertion that sanctuary jurisdictions are a “public safety threat[].” The fact that they have policies in place and the EO [they argue] seeks to undermine their judgment and compel them to change their policies to enforce the Federal government’s immigration laws implicates a constitutional interest: violation of the Tenth Amendment.

That the counties-plus-a-city are threatened with the loss of federal grants presents an injury in the form of budgetary uncertainty. The Court reminds everyone that a “loss of funds promised under federal law [] satisfies Article III’s standing requirement.” [As a lawyer myself, I can’t imagine what sort of knots all the Federal lawyers are having to tie themselves into – they keep being forced into cases where they are so overtly on the wrong side of the law it leaves an onlooker incredulous.] The counties-plus-a-city need to be able to plan ahead and mitigate potential sudden loss of federal funds. They can’t make decisions without knowing what their monetary future holds. Do they need to cut certain services? Do they need to change local policies? Much of the federal money received is in the form of reimbursements for services already provided. If that money is suddenly cut off, the counties-plus-a-city will face significant debt. TL;DR the counties-plus-a-city adequately demonstrated that budgetary uncertainty of the type threatened by the EO can constitute an injury-in-fact for Article III standing.

Altogether? The counties-plus-a-city meet the requirements for pre-enforcement standing. BOOM. Pack up yo lunch, Government, cause you’re not welcome at this table.

Next, the Court turns to “ripeness” which is basically “is it time for us to listen to this grievance and make a decision?” In legalese: “A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.” The Government here is going “no, no, no, no” because according to it, lots of Section 9 is dependent on contingent future events, including clarification of terms. (Lol, because they’ve just realized that it’s a mess.) The Government cites a case, Judge Orrick promptly is unconvinced (you know the drill by now). This time, mostly because the Government is being redundantly dumb again and forgetting that “contingent future events” must always be at issue in a pre-enforcement case – before actual enforcement occurs, the enforcement agency must determine what the statute means and to whom it applies. The Court points out that under the Government’s line of reasoning, basically every single pre-enforcement case would be kept out of courts. As far as Judge Orrick is concerned, the counties-plus-a-city’s claims “do not require further factual development, are legal in nature, and are brought against a final Executive Order. They are fit for review.”

The Court concludes that the counties-plus-a-city established standing.

I think that table in that dark, back corner might be open?

Finally, the Court addresses whether the counties-plus-a-city’s are putting forward strong arguments that have a likelihood of success if the case were to go to hearing (because no court should grant an injunction on the basis of a water-in-a-fishnet argument). The Court says yes.

The EO’s attempt to place new conditions on federal funds is an improper attempt to wield Congress’s exclusive spending power and is a violation of the Constitution’s separation of powers principles. Further, the EO probably violates at least three of the restrictions on Congress’s spending power. (I mentioned them in the top part – no ambiguity and can’t be imposed after funds have been accepted; nexus between funds at issue and purpose of federal program; no coercion.) The Court then analyzes how and why the EO violates these three restrictions. As far as Judge Orrick is concerned, the EO is about as violative as it could be – weird shadow threats with a who-knows-when implementation timeframe, at risk are ALL THE FEDERAL FUNDS EVERRR; and um, ok, highly coercive (we’ll take away your money, make you cut fundamental services to your citizens, and publicly shame you on our list if you don’t do exactly what we say).

The EO is also probably violative of the Tenth Amendment because (1) it’s trying to compel states and local jurisdictions to enforce a federal regulatory program through coercion; and (2) it’s trying to compel states and local jurisdictions to comply with ICE civil detainers by directing the AG to “take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” The Court states, “[b]y seeking to compel states and local jurisdictions to honor civil detainer requests by threatening enforcement action, the Executive Order violates the Tenth Amendment’s provisions against conscription.” Basically, the Federal government can incentivize states as much as it wants to get them to voluntarily adopt federal programs, it can’t use methods that are so coercive as to compel, and the EO is attempting to use coercive methods to circumvent the Tenth Amendment’s direct prohibition against conscription.

The EO is way vague. Sort of like when you don’t want to hang out with someone, but you also don’t hate them, so you’re just sort of wishy-washy about the date and time and all the other information one might need to actually hang out. That kind of vague. Under the Fifth Amendment, a law is unconstitutionally vague and void if it fails to be [crystal] clear about what conduct is actually prohibited and exactly how it will be enforced. As far as Judge Orrick is concerned, the EO gets a big fat “x” in both of those boxes. It’s impossible to say exactly what conduct might subject a state or local jurisdiction to enforcement action, it doesn’t define “sanctuary jurisdictions” (ooo, fun fact: back in February, the DHS Secretary himself said that he “do[esn’t] have a clue” how to define “sanctuary city” despite the EO giving him unlimited discretion to make such designations), and who the heck knows what “appropriate enforcement action” means. The Court asks, “What does it mean to ‘hinder’ the enforcement of federal law? What federal law is at issue: immigration laws? All federal laws? The Order offers no clarification.” (Yes, the law is this pedantic and yes, it needs to be.)

Finally, the EO is premised on yanking money willy-nilly with no kind of procedural due process (as required under the Fifth Amendment) whatsoever for that yankage. State and local governments have a legitimate claim of entitlement to congressionally appropriated funds. Those funds are very much like those owed on a contract. The counties-plus-a-city have a legitimate property interest in the federal funds that Congress has already appropriated and that the counties-plus-a-city have accepted. Meanwhile, the EO apparently strives to make the counties-plus-a-city ineligible for their funds through some vague (see above), discretionary and undefined process. The EO has no instructions! No guidance! No process! The Court thinks that the counties-plus-a-city would likely succeed on this claim.

At the end of all of this, the Court also determines that the counties-plus-a-city will suffer both an irreparable harm from budgetary uncertainty and constitutional injury. The Government tried to stick it out with a weird argument about the counties-plus-a-city failing to allege a “deprivation” but rather alleging a violation of constitutional structure. The Court is quick to reject this. First, the Ninth Circuit, which is where this case is unfolding, doesn’t recognize a distinction between personal and structural constitutional rights (seriously, why doesn’t the Government DO ITS HOMEWORK). Second, even if the Court did recognize that distinction, the counties-plus-a-city have alleged a deprivation of their personal constitutional rights – hellooooo Tenth Amendment argument; what is UP Fifth Amendment Due Proces argument.

As the final cherry topper – the counties-plus-a-city hit a full preliminary injunction jackpot when the Court also decides that the balance of harms and public interest weighs in favor of an injunction – because the harms to be suffered by counties-plus-a-city might also be suffered nationwide.

IT IS SO ORDERED.

(Reminder)

States are cracking down on free speech. I wrote a post about this back in February and included a rundown of free speech (and right to assembly) under the U.S. Constitution. Two months later, WaPo has decided to write an article after the UN issued a statement saying that Americans’ right to protest was at risk under Trump. It’s worth being familiar with your rights. It’s double-worth keeping a close eye on the states. Don’t let them take advantage of the chaotic events unfolding at the federal level.

 

Sunday Funday: Trump just can’t extricate himself from all these lawsuits

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Donald Trump just has horrible luck with the court system. Maybe because he’s wholly ignorant of the law, maybe because he just doesn’t care, or maybe due to a mixture of the two. Whatever the case, he (and a few of his supporters) are still stuck in a lawsuit thanks to misunderstanding the First Amendment of the Constitution and blatant misreadings of relevant statutes.  The US District Court for the Western District of Kentucky just issued an Opinion on Friday refusing to dismiss the lawsuit.

A year ago, the plaintiffs in the case were protesters at a Trump rally at which Trump allegedly directed his supporters to “Get ‘em out of here.” After this directive, several of his supporters apparently followed his orders and physically attacked the plaintiffs. One of the protesters is black and was shoved and then struck, one was seventeen and a high school student at the time and was punched in the stomach. Once the ruckus started, Trump apparently tried to backpedal, allegedly saying, “Don’t hurt ‘em. If I say ‘go get ‘em,’ I get in trouble with the press.” Ultimately, the attack [understandably] forced the protesters out of the rally and they later filed suit.

The lawsuit alleges assault and battery by the Defendant Trump Supporters in addition to incitement to riot, vicarious liability, and negligence on the part of Trump and his campaign. (That is, Trump encouraged the disorder and is responsible for the actions of his supporters.) The Trump Defendants filed a motion to dismiss, the defendant supporters filed similar motions and the Court decided to grant in part and deny in part. (I.e., some claims passed muster, others did not, and the Court found that most of the plaintiff’s claims were sufficient to carry the case to hearing.) I’ve only summarized Trump’s crew’s arguments, not those of the Defendant Trump Supporters, but you can read those starting on page 17 of the Court’s opinion.

In order of the Court’s discussion:

Trump Defendants (Trump and his campaign) sought to dismiss incitement of riot, vicarious liability, and negligence, gross negligence, and recklessness.

I. Incitement to Riot

The Trump Defendants argued that it isn’t plausible to say that Trump was addressing the audience members or that he intended for violence to ensue when he directed his supporters to remove the protesters (he was clearly just talking to even security). Then they claimed that because the plaintiffs never alleged that a riot actually occurred, the claim is deficient. Finally, they asserted that regardless, Trump’s statement was protected by the First Amendment.

Court:

Mmmm….nope. None of these contentions warrant dismissal at this point in the case.

Plausibility: The Court said that just because there is an alternative plausible explanation for why a defendant did something does not mean that the plaintiffs’ explanation is therefore implausible and subject to dismissal. Precedent establishes that pleadings in a case do not have to be “probable,” just “plausible.” And the plaintiffs allege numerous facts that support the notion that Trump’s words were directed to his audience. They cite numerous occasions where Trump made comments that endorsed or encouraged violence against protesters. They point to the fact that one of the Defendant Protesters interpreted Trump’s words as an instruction and took action. Presumably, if Trump had intended for security to handle the protesters, he would have directed his supporters to stop what they were doing, not offer guidance as to how to go about it (“Don’t hurt’em.”). Therefore, the Plaintiffs’ allegation is plausible and the Trump Defendant’s failed to identify an “obvious alternative explanation” for Trump’s statement that would warrant dismissal of the incitement claim.

Occurrence of a Riot: The Court had a pretty easy time with this one because the statute on which Plaintiff’s rely does not actually require the occurrence of an actual riot. Instead, it just provides that “[a] person is guilty of inciting to riot when he incites or urges five (5) or more persons to create of engage in a riot.” Further, the Trump Defendants were unable to find any case that established such a requirement. They tried to argue that the complaint doesn’t actually allege that five or more persons were involved in the Plaintiffs’ mistreatment or that there was “tumultuous and violent conduct” but again, this isn’t an argument relevant to the statute at issue. The only relevant action to the statute is that someone provoked, urged, or stirred up someone(s) else to commit a crime. There were more than five people at Trump’s rally, Trump was allegedly speaking to all of them, some of them acted. Further, Plaintiffs and one of the defendants described a “chaotic and violent scene in which a crowd of people turned on three individuals and those individuals were injured as a result.” That is enough. Five or more didn’t have to act. There didn’t need to be a riot. All that was required was incitement, and the Plaintiffs alleged sufficient facts as to prevent this claim from being dismissed.

First Amendment (my favorite because they attempt to get this case thrown out on the basis of the First Amendment is so laughable to anyone who has ever taken Constitutional Law – which the lawyers here presumably did): There is caselaw literally everywhere that holds that incitement of violence is not protected by the First Amendment. You cannot go around stirring up people to commit crimes and then claim that you were allowed to do it “because, First Amendment.” Sorry Charlies, that’s a no fly zone. The Court cited a whole long list of cases to back this up. Most to the point? Bible Believers v. Wayne Cty., “[W]hen a speaker incites a crowd to violence, his incitement does not receive constitutional protection.” Speech is considered “incitement to riot” if (1) it explicitly or implicitly encourages the use of violence or lawless action; (2) the speaker intends for his speech to result in violence or lawless action; and (3) the imminent use of violence or lawless action is the likely result of the speech. If someone is encouraging action, it might be incitement. The Court determined that the Plaintiffs adequately alleged that Trump’s statement meets the criteria.

I almost feel bad for Trump’s lawyers. They’re making such terrible legal arguments that one has to wonder whether they’re going to find a sharp decline in the number of clients interested in hiring them for their services. Frankly, the conspiracy theorist in me thinks maybe they know it’s absurd, but they want to get these arguments on the record to pave the way to use them in the future, perhaps with greater success, and dismantle our Constitution.

II. Vicarious Liability

The Plaintiffs made the argument that the two named Supporter Defendants were acting as Trump’s agents when the incident occurred. Trump Defendants argued that they cannot be held vicariously liable for the protesters actions. Yeah, the Plaintiffs were stretching here and the Court agreed with the Trump Defendants.

Court: “Agency” requires a fiduciary relation between people – there has to be the manifestation of consent by one of the people to the other person that s/he will act on his behalf and subject to his control. While employment isn’t necessary to form this relationship, there must be a “right to control” the agent’s conduct and Plaintiffs failed to demonstrate that Trump had this right over his supporters.

The principal (in this case, Trump) has to have control over the manner in which the agent acts. Merely telling someone to take an action is not sufficient to establish agency. More precisely, “An individual is the agent of another if the principal has the power or responsibility to control the method, manner, and details of the agent’s work.” The Court determined that Plaintiffs failed to include appropriate supporting factual allegations for their allegation that Trump’s supporters were his agents and therefore Trump Defendants are vicariously liable. Because of this, the Court dismissed this complaint.

III. Negligence

The Court’s agreement with the Trump Defendants stopped at vicarious liability. Negligence requires a showing of duty, causation, breach of that duty, and subsequent damages caused by that breach (yay! Torts 101). The Trump Defendants argued that they could not be liable for negligence because they had no duty to Plaintiffs, the security at the event was adequate, there is no alleged causal connection between Trump’s words and Plaintiffs’ injuries (lol, really?), and Plaintiffs assumed the risk of the injury (oh brother, one never makes this argument. Absent injuries in something like contact sports, it’s difficult to argue that someone consented to being harmed without some sort of explicit agreement. Further, most states hold that you can’t consent to be on the receiving end of an illegal act). Finally, the Trump Defendants tried to argue that the Plaintiffs created a new negligence theory that, if accepted by the Court, would violate the First Amendment.

The Court dismissed all of these arguments out of hand. It tackled the so-called “new negligence claim” first and determined that the Trump Defendants’ assertions regarding it were baseless. The Trump Defendants asserted that the Plaintiffs failed to allege “any knowledge on the part of the Defendants” that Trump’s audience might be predisposed to violence. The Plaintiffs specifically alleged that “the directive to eject a Black woman, when several members of a group that Trump knew or should have known was a recognized hate group were present in the audience, was entirely reckless, or at least negligent/grossly negligent.” So, that prompts the question: did the Defendants just fail to read the complaint?

The Court also wasn’t convinced by the argument that allowing the Plaintiffs’ negligence claim to go forward would be in violation of the First Amendment. The cases cited by the Trump Defendants involved defamation or other false statements, which do not apply here. The one exception was a 1975 case that addressed a defendant who made threats against the president and Justice Marshall on the Supreme Court stated that the Court “should be particularly wary of adopting [a negligence] standard for a statute that regulates pure speech.” First, the Court here pointed out that this is not a categorical rule, and second, there’s still the fact that incitement is not entitled to First Amendment protection. Thus, the 1975 case is also inapplicable to the facts alleged in this matter.

The Plaintiffs also sufficiently alleged that the Trump Defendants had a duty to them. Although “a proprietor is not the insurer of the safety of its guests,” the rule in Kentucky is that “every person owes a duty to every other person to exercise ordinary care in his activity to prevent foreseeable injury.” Soooo stirring up a potentially volatile situation is probably going to be a violation of that duty.

Foreseeability isn’t a high bar to meet. In Kentucky in the proprietor-patron context, a plaintiff must show that (1) the proprietor had knowledge that one of his patrons was about to injure the plaintiff and he failed to exercise ordinary care to prevent such injury; or (2) the conduct of some of the persons present was such as would lead a reasonably prudent person to believe that they might injure other guests. Basically, if you’re holding an event and you see that somebody there is about to attack someone else there and you DON’T take some sort of ordinary preventative action, there’s foreseeability that harm is about to occur. OR, if you are watching people at your event get riled up in such a way as to cause violence and it would be apparent to Joe Blow off the street that yeah, maybe they’re going to hurt someone, there’s foreseeability.

Further, an act or omission might be negligent if the person acting either realizes or should realize that what they’re doing involves an unreasonable risk of harm to another person through someone else’s conduct, which is intended to cause harm, even if that conduct is criminal. So Trump Defendants aren’t absolved of liability just because someone did something criminal if that criminal act was a reasonably foreseeably consequence of Trump’s negligent act. The Court also pointed out that the Trump Defendants cited more inapplicable cases, none of which involved a defendant who had allegedly triggered the criminal act of a third party.

Bolstering the Plaintiffs’ argument for the foreseeability prong of the negligence test is the Plaintiffs’ allegation that Trump supporters were wearing t-shirts that identified them as supporters of the Traditionalist Worker Party; that Trump therefore knew or should have known that his audience included members of “a recognized hate group;” and that order the removal of an African-American woman was thus particularly reckless. The Plaintiffs further alleged that protestors had been attacked at earlier rallies. Therefore, the Court found that the Plaintiffs adequately alleged that their harm was foreseeable and that the Trump Defendants had a duty to prevent it.

The Trump Defendants also tried to claim that the Plaintiffs failed to plausibly allege proximate cause. I don’t know how they argued this with a straight face, I really don’t. It seems so absurd. Like, you hollered a directive and then people did stuff and somehow you’re trying to say that there wasn’t cause and effect? What? The Court was on the same page and found that the Plaintiffs plausibly alleged that Trump intended for the audience to act on his words. He said to “get ‘em out” and then people in the crowd began pushing and shoving the protestors. The Trump Defendants’ argument that Trump’s statement could not have been the proximate cause of any violence because it was likely not directed at the crown was laughable (or, as the Court put it “without merit”). Come on, dudes. You’re giving all of us lawyers a terrible name (and it’s not like we’re not already struggling in the public perception department).

The Court was likewise unimpressed with the concern that the complaint failed to allege the type or cost of security present or needed at the rally. The Plaintiffs argued that the Trump Defendants were negligent in relying on audience members to remove protestors rather than relying on professional security handle the task. Their argument had nothing to do with whether there were sufficient numbers of security officers present.

Finally (and maybe my other favorite) the Court smacks down the “assumed the risk” argument with one sentence: “The doctrine of assumption of the risk was abolished in Kentucky decades ago.”

Seriously. These lawyers are horrible. Did they not read any caselaw? Were there so few arguments to be made in defense of Trump that they just had to make really, really bad ones?

See ya in court, Trump. When you break the law, it chases you. And you’ve managed to tick off our entire judiciary and your lawyers are seemingly not good at their jobs, so good luck out there. You’ll need it.

Stop punching down.

food-stamps-gi-top

When the fast food workers wanted the minimum wage raised to $15 an hour, the urge was to punch down. Backlash was swift. It was mean. It was dismissive. When discussion turns to welfare benefits, the urge is to punch down. People on welfare are seen as gaming the system. They’re cheaters. They’re lazy. They’re taking handouts that the rest of us are working to pay for. And they do not deserve what they get. We’re always punching down at the people who have so little and ignoring those who perpetuate our currently stratified socioeconomic reality.

Why is this?

I’m not a psychologist, so I won’t attempt to unpack the nuances of the human mind, but I’m observant and I interact with a lot of people, so I will venture some [unscientific] guesses. If I had to guess, I’d guess several reasons are in play. First, the idea that just about anyone could slide to the bottom of the socioeconomic totem pole through bad luck or well-intentioned mistakes is terrifying. None of us wants to believe that we’re a job loss, a health scare, a natural disaster away from poverty or homelessness. If we accept that most of those who are asking for a higher minimum wage and most of those who depend on welfare are not in their positions through any direct fault of their own, we have to accept that we could be in those positions too. And we don’t want to do that. Because it’s terrifying. Second (and it’s related), we like to feel like we have control. Control over ourselves and our lives, yes, but also control over those around us. People we perceive as lesser, we also perceive as having significantly less power. It’s a bully mentality. We feel like we can push them around. We don’t want these weaklings taking our resources. If we hit out at them due to our frustration at the system, they can’t hit us back. Third, we’re obsessed with “fairness” and consumed with a general fear that someone is going to take our stuff away from us. My sense is that this narrative is perpetuated by those at the top who like to encourage this sort of social divide because they benefit from it, but whatever the case, our general knee-jerk outrage reaction to the idea that what’s ours is at risk of becoming someone else’s motivates us to punch down like crazy, with impunity, and without critical thought.

Now, more than ever, it is imperative that we stop proverbially shitting on everyone we perceive as being beneath us. It has no effect but to breed resentment and allow the totem pole’s higher-ups to get away with treating us all horribly.

It’s helpful to look at data regarding poor people. It’s also helpful to recognize the impact of something as small as where you were born and to whom you were born. We like to think that we’re all self-made and that if we managed to sweat and tear our way to relative success, anyone can. On the one hand, I could say “Look at me, I came out of undergrad, worked for three years, and decided I wanted to go to law school. I did the leg-work of researching schools, I found time to study for the LSAT, and I took it. I applied to schools, compared acceptances, and picked a school that gave me a full scholarship. Then I worked hard, got reasonable grades, took and passed the bar, and landed a job I really, really wanted. All through my own power!”

I could say that.

But that’s only a small part of the picture. I was born into a family that had the resources and the mission to make sure I would succeed. I was never hungry. I was always clothed. My parents sacrificed for my success. They shouldered the financial burden of my undergrad and let me remain on their health insurance until I turned 26. When I went to law school, I got a full tuition scholarship, yes, but I also had to cover cost of living. I took out a few relatively small loans, but then my parents also “loaned” me money every year to help defray costs (I say “loaned” because after my three years, they forgave those loans). After I graduated, my now husband wiped out my ~$20,000 of debt. I was debt free. This allowed me to choose a job that doesn’t pay a huge amount, but that will also (hopefully) open the door to incredibly opportunities down the line.

The takeaway? Yes, I worked hard. Yes, I pulled my weight. Yes, I was motivated. No, I did not do it singlehandedly. And that’s the truth for the vast majority of us. To my eye, there seems to be a correlation between the level of privilege and the degree to which we are willing to admit we had a huge leg-up; i.e., the more privileged we are, the more we want to be able to say “WE DID IT OURSELVES. Now you do it.”

Not only is that wrong, but it perpetuates a myth and props-up a system designed to keep those without resources down at the bottom.

The income gap in the US is widening. As of December 2016, the top 1% earn an average of $1.3 million a year, which is more than three times as much as in the 1980s, where the average was $428,000. But those at the bottom aren’t making any more money than in the 1980s. The bottom 50% of the American population earned an average of $16,000 in pre-tax income. This has not changed in over three decades.

And those of us who are “millenials?” We only have a 50% shot of making more than our parents. This is radically different and in stark contrast to the economic realities of the 1940s. Children born in 1940 had a 92% chance of making more money than their parents. In 50 years, this percentage has fallen to 50%. Not particularly reassuring for any of us.

The top percent of earners area also consistently taking a bigger overall percentage of all of U.S. income. In the 1970s, the top 1% of Americans earned just over 10% of all income. Today, they take home more than 20%. And obviously the distribution affects the bottom half: in the 1970s, the bottom 50% captured over 20% of national income; today they earn barely 12%. And wages are staying static for the bottom 50%.

The tax system is also hurting the bottom earners. In 2014, the bottom 50% had an average post-tax income of $25,000 per person. In 1980? That figure was $20,000 per person (adjusted for inflation). Meanwhile, the top 1% has gone from making $344,000 a person, on average, in 1980 to $1,000,000 a person on average in 2014. In other terms, in 1980, the top earners averaged 27 times more than the bottom earners. In 2014, they averaged 81 times more. It’s kind of gross.

As Chris Rock said, “If poor people knew how rich rich people are, there would be riots in the street.” I think this is probably true – everyone believes that they are more well-off than they are. Their “real” position isn’t often contemplated. Instead, everyone believes that they are “middle class.” More facts, because this is so depressing fun.

The average American believes that the richest fifth of the country own 59% of the wealth and that the bottom 40% own 9%. This is wildly incorrect. In fact, the top 20% of American households own more than 84% of the wealth. The bottom 40%? Hold onto your hats. The bottom 40% combine for 0.3%. You know the Walton family? They’re the ones who own Walmart (and treat their employees horribly). The have more wealth than 42% of American families combined. And here’s the thing, EVERYONE wants a more equal distribution of the wealth than actually exists.

The richest members of society have successfully conned us all into thinking things are better than they are. The average American thinks that the CEO-to-worker pay-ratio is 30-1 (but ideally, that it would be 7-to-1). Actually, it’s 354-to-1. Fifty years ago it was 20-1. Pretty not great. I could go on with more of these inequality facts, but I sense I may begin to lose you, so I’ll stop there. The point is simply that the state of economic inequality is seriously awful but we typically tend to think it’s significantly less bad than it is.

Part of the punching down mentality is fueled by an erroneous belief that there’s still a great deal of upward mobility. We blame those with less for laziness because we think that they actually could move up, en masse, if they just worked a little harder. We’re dead wrong. Those born at the top and bottom of the income ladder are likely to stay there. The rich stay very, very rich and the poor stay very, very poor. The Pew Research Center found that while most of us believe that the wealthy are unfairly favored by the economy, 60% of us believe that most people can make it if they’re willing to work hard. We’re wrong.

The United States is the most unequal of all Western nations and it’s not because we somehow have all the lazy people. We have significantly less social mobility than either Canada or Europe. For example, 42% of American men who were raised in the bottom fifth of incomes stay there in adulthood. In Denmark, that figure is 25% and in Britain (which is famous for its class constraints), that figure is 30%. In the United States, 8% of men born in the bottom rose to the top 5th. In Britain, that number is 12% and in Denmark it’s 14%. We’re not doing very well at living out the American Dream, despite still really enjoying talking it up.

We’re so busy believing that success is due purely to individual talent and effort that we’re ignoring important determinants like family inheritance, social connections, and structural discrimination. And the more we ignore these really important factors, the more we enable the discrepancies to increase and the gulf between the haves and have-nots to widen. George Carlin (miss him) joked “the reason they call it the American Dream is because you have to be asleep to believe it.” He wasn’t wrong.

So poor people are usually stuck in place based on factors out of their control, in place from their births. They’re also not lazy, as many conservative thinkers would have us believe. (Looking at you, Representative Chaffetz and your tasteless iPhone crack.) The narrative generally goes something like this: if you just worked harder, stayed in school, didn’t slack off, stopped having babies you can’t afford, went to college, spent and saved money wisely, you wouldn’t be poor. And also, stop being a leech. (Just recently, a representative quoted the bible as a reason why we shouldn’t help poor people. What a nasty human.) This is so unbelievably wrong and reveals a shocking ignorance about the realities of poverty.

Research has demonstrated again and again that such myths about poverty are lies. Wages are too low, there aren’t enough jobs, our education system is in the toilet, our criminal justice system is racialized and our labor market is discriminatory. The list goes on. It’s also WILDLY expensive to be poor. There are things that many of us don’t even think about because we have enough money not to notice. For example: banking is expensive. Most banks require a minimum balance in an account or they start charging you monthly fees. This means that many poor people have to do without banks, but this is costly too. Cashing a paycheck at a credit union typically costs 2-5% of the check’s value. Research shows that these types of fees can accumulate to over $40,000 over the career of a full-time worker. $40,000. Poor people are also likely to use pre-paid debit cards (because they can’t use bank cards and don’t have the credit for a credit card), which also come with fees.

Then, there’s the fact that many states issue pre-paid cards to dispense welfare payments. But this is a problem for anyone who lives far from a bank because they either lose out to ATM withdrawal charges or from having to travel to make a withdrawal (because gas and public transportation aren’t free and these people also can’t really afford to take time off work). Checking your card’s balance also often comes with a fee.

I mentioned credit above. It’s really expensive for poor people to access credit. They typically have to rely on high-cost payday lenders. In 2013, for example, the median loan was about $350. It lasted two weeks and cost $15 per $100. That’s an interest rate of 322% compared to the average credit card’s rate of 15%. This is obscene. It’s impossible to look at these numbers and not realize that our system is taking advantage of poor people to a disgusting degree.

Sadly, the Pew Research Center found that most wealthy Americans believe that “poor people today have it easy because they can get government benefits without doing anything in return.” As already mentioned, poor people can’t move out of their income bracket. In 2015, the poorest fifth of Americans paid an average of 10.9% of their income in state and local taxes. Compare this to the top 1%, which averaged about 5.4% of their income. (So please don’t tell me that rich people are suffering when it comes to paying taxes. I don’t want to hear it. It’s wrong. And greedy.)

Education is expensive and even the poor people who manage to attend college are faced with costly loans that their wealthier peers do not contend with. Students who receive Pell Grants had an average debt of $31,200 per borrower in 2012. That figure was $26,450 per borrower who never received a Pell Grant.

Transportation is expensive – low and moderate income households spend around 42% of their annual income on transportation. Middle-income households spend around 22% of their annual income on transportation.

Then there’s the simple fact that poor people pay more for just about everything. Here’s why. It’s cheaper per unit to buy in bulk. For example, the cost per roll of toilet paper in a 12-pack is way lower than the cost of a single roll of toilet paper. But here’s the catch, that 12-pack of toilet paper costs a lot more than a single roll. So poor people are forced to buy single rolls of toilet paper, multiple times, because they simply cannot afford the lump sum required to buy a multi-pack. On average, poor people are paying about 5.9% more per sheet of toilet paper (on off-brand toilet paper). Shoppers have to pay more up front to reap the rewards of savings. Poor people can’t because they can’t afford to just wait around until the next sale comes around. It’s a vicious cycle. (And this doesn’t even address the fact that poor people may not have access to larger grocery stores with wider varieties of items and sales or access to a car, which they would need in order to transport 30 rolls of toilet paper, or even the closet space at home needed to store the toilet paper.)

The list goes on and on and on, you guys. This country is terrible to its poor. And it’s up to us to face the unpleasant truth that there’s more to success than hard work and perseverance. When the top 20% owns 84% of the overall wealth of the country, there’s a problem. And we’re misdirecting our discomfort and rage when we deride those who are looking for a fair wage or who are barely making ends meet with their welfare checks. Frankly, it’s stupid to get wound-up about the poor person who is “gaming the system” with their food stamps when you have CEOs sending money to offshore accounts in order to avoid paying taxes or when you have the government giving obscene tax breaks to corporations (our taxes are covering their breaks, people. We’re subsidizing those corporate interests).

Anyway, this was all just very a long-winded way to encourage you to stop punching down and start punching up. Stop faulting the little guy who has nothing and start turning your ire onto the CEO who is making 354 times what his employees make. That’s the real problem. Yeah, it’s scary to think that you could also be poor with a single misstep, but chances are, you’re already probably in the majority of the country that’s getting economically screwed. It’s time to team-up, not divide-up, and that starts with facing reality.

 

Sources [other than the many embedded links]:

http://www.newyorker.com/news/john-cassidy/social-mobility-hasnt-fallen-what-it-means-and-doesnt-mean

http://www.nytimes.com/2012/01/05/us/harder-for-americans-to-rise-from-lower-rungs.html?pagewanted=all

http://money.cnn.com/2016/12/22/news/economy/us-inequality-worse/

https://www.nytimes.com/2015/01/19/opinion/charles-blow-how-expensive-it-is-to-be-poor.html

https://www.scientificamerican.com/article/economic-inequality-it-s-far-worse-than-you-think/

https://www.washingtonpost.com/news/wonk/wp/2016/03/08/why-the-poor-pay-more-for-toilet-paper-and-just-about-everything-else/