A Tale Of Two Americas — States Turn To Courts To Curb Rampant Partisanship

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States like California and New York are mad as hell and they say they aren’t going to take it any more. What are they mad at? The federal government, which they feel is oppressing their citizens by failing to protect them from known health risks and by enacting tax laws that are discriminatory. As 2017 drew to a close, the attorneys general of California and New York filed suits in federal court that seek to block the new so-call tax reform act from taking effect and force the federal government to enforce methane capture rules put in place by the Obama administration. Those legal challenges could put the “separation of powers” provisions of the US Constitution to the test.

The Methane Follies

Methane, which is the primary component of natural gas, is a powerful greenhouse gas that traps heat in the earth’s atmosphere. Federal data shows that 462 billion cubic feet of natural gas escaped from wells in the United States between 2009 and 2016. That’s enough to meet the needs of 6.2 million households, according to the San Francisco Gate.

In July, a federal appeals court ruled Scott Pruitt and the EPA had no legal authority to delay the methane abatement rules put in place by the Obama administration. But now the federal government is attempting to do through the back door what it could not do through the front. The Bureau of Land Management, which has jurisdiction over wells on federal lands, has announced it wants to delay implementation of the Obama rules for a year while it “studies” the issue.

That’s illegal, says California Attorney General Xavier Becerra and New Mexico Attorney General Hector Balderas. In his announcement of the lawsuit, Becerra told the press that the BLM “is effectively threatening the health of our families and our environment. The California Department of Justice won’t stand by and subscribe to this blatant violation of our laws.”

The position of the administration pits people against profits. The natural gas industry says the Obama policy is an example of the burdensome, job-killing regulations Republicans constantly rail against. It claims it is doing all it can to limit methane emissions, even though it is spending millions to fight the new rules. The fallacy in their argument is that people are dying and the planet is warming due to its actions, but the current distortions in the capitalist model impose no financial penalty for such consequences. In essence, the industry wants to be free to maximize its profits while saddling society with the costs of any damage it does. It’s a classic case of “Heads we win, tails you lose.”

Targeted Vindictiveness As Tax Policy

The so-called tax reform act that was passed just prior to the end of 2017 appears to be little more than political payback designed to punish those considered “enemies” by Republicans. The new law will have an outsized impact on states with large urban populations like New York and California, and that may violate the equal protection provisions of the Constitution. Oddly enough, those states already contribute more in taxes to the federal government than they get back in benefits. If for any reason those payments were to cease, Republicans would find they have no money left to reward their supporters in red states.

Below is a chart compiled by WalletHub showing which states pay in the most and which take the most. What’s interesting is that the states where people identify most strongly with the policies of hatred and divisiveness espoused by Republicans are the same states that suck the hardest on the public tit. People in these so-called red states wail about “takers” in society who depend on Uncle Sugar for the sorts of programs considered emblematic of the hated “nanny state,” yet they are the biggest takers of all. 
The governors of New York and California have noticed the manifest unfairness of the new tax law and have threatened to sue the federal government to prevent the law from being implemented. Their biggest concern is the provision that caps the deduction for state and local taxes at $10,000.

“This tax provision hits the blue states by eliminating the state and local tax deductibility and uses that money to finance the tax cut in the red states,” says New York Governor Andrew Cuomo. He called it a form of “pillaging” and added, “You want to hurt New York? You want to hurt California? They’re the economic engines.” California Governor Jerry Brown and New Jersey Governor-Elect Phil Murphy have also indicated an intention to sue in order to protect the citizens of their own states.

This partisan tax bill pillages blue states to finance cuts for red states. This is partisan politics over any semblance of good government. https://t.co/MJ5GFTQUCV

— Archive: Governor Andrew Cuomo (@NYGovCuomo) December 28, 2017

The vindictiveness of the latest tax bill is illustrated by what it did to Puerto Rico. Unbeknownst to Trump and most Republicans, the island is a US territory and its people are US citizens. That didn’t prevent Congress from putting an additional tax burden on goods manufactured in Puerto Rico, no doubt as punishment for its governor daring to speak out about the horrendously poor response by the United States to the island’s infrastructure woes after Hurricane Maria. From now on, those goods will be taxed as if they were manufactured in a foreign country.

Fracturing America

The potential lawsuits illustrate the extent to which the Unites States has fractured into (at least) two nations — a divide that the Republicans gleefully embrace. Donald Trump is not the cause of the rupture, he is merely the beneficiary of it. The cause is a brand of toxic politics that has demolished the idea that government should work for all people, not just some privileged few. It deliberately targets segments of American society that are the most ardent supporters of conservative doctrine.

As writer Isaac Asimov said decades ago, “There is a cult of ignorance in the United States and there always has been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that ‘my ignorance is just as good as your knowledge.'”

That attitude was captured perfectly last February, when Mitch McConnell, majority leader of Senate, told a crowd of about 1,000 protesters in his home state of Kentucky, “But in this country when you win the election you get to make policy. I always remind people, winners make policy and losers go home.” Actually, Senator, that is a boorish and ignorant representation of the way government is supposed to work. Government is supposed to represent all the people, not just those who contributed the most to your election campaign.

McConnell personally orchestrated the opposition to the person President Obama nominated to fill the Supreme Court seat left vacant by the death of Antonin Scalia. He cynically used the Senate rules, which required 60 votes to confirm a Supreme Court nominee, to block the nomination. A few months later, he showed he has no scruples whatsoever when he unilaterally changed the Senate rules to require only a simple majority. Neil Gorsuch, a darling of the Federalist Society, was confirmed to the court in a matter of days, where he will stay for the next 40 years or more, faithfully executing the policies of those who paid to put him there.

The courts have historically declined to get drawn into what are considered “political questions” — although that didn’t stop the Supreme Court from seizing control of the Florida electoral process in 2000 — but the Republicans have been grooming a coterie of deeply conservative judges over the past decades. They are now using their control of the Senate to place as many of those Stepford judges on the federal bench as possible.

With chaos now standard operating procedure in the executive and legislative branches, the courts are all that separate the US from anarchy. Will the judiciary act like adults and rein in the unruly children who dominate the other two branches today, or will it join the insanity party that Congress and the President are having as they try to outdo each other in finding new and creative ways to hammer ordinary citizens with punitive political retribution?

The question is more than rhetorical. The lawsuit brought against the government and the fossil fuel industry last year by Our Children’s Trust is set to go to trial next month. No matter the result, appeals are certain. The case will almost certainly be decided by the US Supreme Court. The stakes couldn’t be higher for the United States and the world. Will the courts crack under the pressure? 2018 may be a vital test for the “separation of powers” structure baked into the US Constitution in 1787.

Trump and the Republicans want nothing more than to drive a wedge into American politics. By their calculation, that is how to hold on to their grip on power. But it’s a dangerous game. That dismal provocateur, Steve Bannon, is already warning the base that states like California and New York will be leading a movement to secede from the nation in 10 years or so. If Republicans continue to treat America as their own personal fiefdom to do with as they wish, the movement could begin a lot sooner than that.