Checks and Balances in Dire Jeopardy

January, 2025

Washington — Many thanks are owed to the several plaintiffs who challenged the president's confusing and misguided budget-freeze order of January 27, 2025, and to the federal district judges who quickly stayed it, causing it to be withdrawn.  This renews confidence that our judicial branch can still be an effective check on the executive branch.  

My previous post expressed the hope that the Inspectors General fired by emails on January 25, 2025, would also seek judicial relief, because the firings are clearly illegal under legislation passed by Congress in 2022 to protect IGs.  So far, the IGs have not acted. 

One reason is offered by reporter Charlie Savage of the NYT, who in a front-page article suggests that the 2022 legislation is unconstitutional and that the president is eager to get the issue into a friendly court, increasing his executive power.  

Jack Goldsmith, writing in Lawfare, explores these constitutional issues cogently, concluding that part of the 2022 act dealing with the removal power may be unconstitutional, but that the other part dealing with whom the president may appoint, when an IG is removed, is not.  In a nutshell, the president may not appoint a lackey.  

What neither author addresses, however, is the possibility that the president will be happy not to appoint anyone, leaving the IG offices in the hands of acting officials whose terms are short and whose powers are much weaker than those of an office headed by a Senate-confirmed IG.    

In my experience, when confirmed IGs lead investigations and audits, their findings and recommendations have a good chance to stick, even in the face of hostility from cabinet secretaries who tolerate or even participate in fraud, waste, and abuse.  If the quality of an IG's work is compelling, and the IG persists over time, the IG can prevail.  

Take, for example, the Education IG's audit of excessive federal subsidies for a New Mexico student loan lender in 2005, which was overruled by Secretary Margaret Spellings.  We know from subsequent litigation and discovery involving other such entities why it was overruled: Congressman John Boehner's PAC was benefiting from huge contributions from the loan industry.  His former staff was even strategically placed in the Education department to tip off lenders before the IG arrived to audit them.*  

This cozy transactional arrangement was broken up by subsequent IG audits written by experienced staff, who also came down hard on the department's office of Federal Student Aid.  The audits cut off literally billions of dollars otherwise destined to be lost to fraud, waste, and abuse.  

This happy outcome could never have happened under an acting IG.  

Given such history, why would the ultimate transactionalist Donald Trump want to make any IG appointments when he can effectively sideline IG offices through firings and subsequent inaction, leaving the offices with weak and temporary leadership? Neither the legislative nor judicial branches can force him to make appointments.  I agree with Jack Goldsmith that our current legislators do not have the fortitude to protect IG offices, whatever the situation.  And they are hardly up to using the Take Care Clause against the executive, although the Constitution provides it.  

Which throws it back to the IGs to look to the judicial branch, where it is possible and even likely to find a judge who will stay their dismissals without trying to guess how the Supreme Court might rule on the constitutionality of the various parts of the 2022 IG act. Lacking clear direction from higher level courts, that's not the job of a federal district judge. 

For all we know, a stay might not result in the president's compliance with current law to give notice along with sufficiently substantive explanations for the IG firings — that's not his style.  And even if he were to go through the procedural steps of compliance, a judge might insist on following the letter of the law on substance.  

In the year or two a case might take to get to the Supreme Court, our jurisprudence might evolve ways to deal with an executive bent on destroying our nation's checks and balances.  It's a little too much to believe that courts would willingly write opinions sealing their own demise.  

But if the IGs do not bring a case, we'll never know.  

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* Dan E. Moldea, Money, Politics, and Corruption in U.S. Higher Education, 2020, p. 129.

"Fired" IGs Must Show Up for Work

January, 2025

Washington — With the President's January 24th attempt to fire many federal agencies' inspectors general — without notice as required by law — an early opportunity presents itself to determine whether we will remain a country governed by the rule of law.

I encourage the IGs to show up for work this week and, if necessary, seek court injunctions to require enforcement of the law, even if it precipitates a constitutional showdown among the executive, legislative, and judicial branches. Better sooner than later. 

IGs are duty-bound to identify and eliminate waste, fraud, and abuse in federal agencies.  If they cave in to illegal demands, they are violating their oaths.  

IGs can be effective even in the face of intense political and interest-group pressures.  At the U.S. Department of Education in 2005-2007, I witnessed courageous IG staff refuse to buckle under in the face of an outrageous false claims scheme to bilk taxpayers out of billions of dollars in the student loan program.  The IG held firm and eventually the Secretary and the White House had to back off.

This is not ancient history.  Details of how the scheme worked were released only three months ago, after a decision by the 4th Circuit Court of Appeals that the public has a right to see them.  Many who follow these issues suspect that other such schemes are now afoot to raid the department's $1.5 trillion student loan portfolio, awaiting a complaisant IG.

So, my plea to IGs is not to fold in the face of illegal acts.  Many of us are counting on you to abide by your oaths.

Urgent Focus Needed on German Elections

January, 2025

Berlin — Blasts and explosions rocked Berlin on New Years Eve, blowing out windows and doors.  It was not from war, but fireworks.  Many residents blamed city officials for not taking stronger legal measures against such fireworks, while wasting funds for the occasion on hundreds of additional but demonstrably helpless police. It is a sore point with residents who simultaneously see funds squeezed out of city budgets, cutting infrastructure needs, cultural affairs, and education.  

But the dissatisfaction won't topple Berlin's local red-black governing coalition, unlike the 2024 budget impasse that brought down the red-yellow-green coaliton at the national level, precipitating a call for German national elections on February 23rd.  

The way it is shaping up, the results of the new German election are likely to do more damage than shattering windows in Berlin.  The right-wing Alternative für Deutschland party is poised to make even stronger showings than it has in recent elections, due to the rapidly changing immigrant situation in Germany and the election-meddling of Elon Musk and Donald Trump in favor of the AfD.

The fall of Bashar al-Assad in Syria has emboldened the AfD to push for return of Syrians in Germany to their native country.  The appeal of this proposal across party and ideological lines — understandably some Syrians are eager to go — will attract voters to the AfD, making it appear more mainstream.

Musk and Trump, in endorsing the AfD, are seizing an opportunity to jump out in front of any strong AfD showing, to be able to claim that they are leading it and henceforth must be afforded a role in German national decisions through the AfD, such as the level of future support for Ukraine in its war against the aggressor Russia.  

The AfD is pro-Russia.  Its leader, Alice Weidel, is also close to Russia'a ally China, having lived several years in China and speaking Mandarin. 

Will German voters see through this audacious attempt by an American president-elect and his oligarch advisor to re-shape the world order through promotion of the AfD?  Or will the voters be distracted by local issues?  There is not much time before the national elections next month.  

And what about Americans?  Will my congressional delegation, which campaigns endlessly against the threat of China, and once supported Ukraine, take note?  Apparently not, so far.

   

BSW, AfD, Kellogg, Appeasement, and NATO

November, 2024

Berlin — What is the BSW (Bündnis Sahra Wagenknecht) and why is it important?  It is a splinter but growing group on the German left that could be a major force in the upcoming German elections.  The U.S. Senate should be asking questions about it as the Senate begins confirmation hearings on American foreign policy nominations.  

Despite the blessing given to it by influential German sociologist Wolfgang Streeck, BSW is a dangerous advocate of appeasing Russia.  Along with the far-right AfD (Alternativ für Deutschand) party, it could turn German public opinion against supporting Ukraine in Ukraine's war of survival against Russia.  

Additionally ominous is the selection in the U.S. of General Keith Kellogg as envoy to Ukraine and Russia, to try to end the war.  His approach would appease Russia by giving it land in Ukraine's east and keep Ukraine out of NATO.  German acquiescence to the Kellogg plan would seal Ukraine's fate and embolden Russia to invade other countries.  

The war needs to end on terms other than inviting a proof of Halford John Mackinder's heartland geopolitical theory, that whoever controls Russia and eastern Europe controls the world island, and whoever controls the world island controls the world.  Alfred Thayer Mahan's theory of sea power suggests a more acceptable way to end the war, to make Ukraine's suffering and sacrifice less in vain.  If in a peace settlement Russia acquires hegemony over certain lands in the Donbas, Ukraine should be rewarded with the strategic Crimean port of Sevastopol for its remarkable naval successes in the Black Sea.  As to NATO, Ukraine's control of Sevastopol would be guaranteed by NATO members bordering the Black Sea, which would be backed up as necessary by other NATO members, whose interests include freedom of those seas.  

To bring Russia to the peace table, sea power projected to defend Ukrainian sovereignty over Crimean territories would be better leverage than Kellogg's dubious plan to threaten long range attacks into sovereign Russia, an escalation of the war.  

BSW should signal opposition to the Kellogg plan immediately, and announce a search for alternatives that do not appease Russia, which already has its eyes on restoring the Soviet empire, including Moldova, Rumania, Slovakia, Poland, and the Baltic states  The matter should be a top Senate concern in confirmation hearings for Marco Rubio as Secretary of State.   

 

 

Defending the Constitution While Helping Student Loan Borrowers

November, 2024

Washington — Yet another court has struck a blow on behalf of student loan borrower victims of shoddy loan servicing.  In the case Jeffrey Good v. MOHELA (2024), the U.S. Tenth Circuit Court of Appeals determined that MOHELA did not have sovereign immunity under the Constitution's Eleventh Amendment and would have to comply with the federal Fair Credit Reporting Act. 

I was doubly pleased that in so doing, the court cited Oberg v. PHEAA et al. (2015) seventeen times as precedent.  It is a testament to the great work of my attorneys Bert Rein, Michael Sturm, Christopher Mills, Stephen Obermeier, and others.  

The Tenth Circuit ruling came the same month as previously sealed documents in Oberg v. Nelnet et al. (2024) were unsealed per a decision of the U.S. Fourth Circuit that the public had a right to see them under the Constitution's First Amendment.  Much credit goes to attorney Nandan Joshi at Public Citizen, who argued the case on behalf of New York based filmmaker Michael Camoin.  Although the case is listed under my name, I had nothing to do with the effort and never met counsel Joshi until this past week, when I congratulated him both on this victory and on the MOHELA case, which he also argued. 

When I filed complaints against several student loan lenders under the False Claims Act in 2007, drafting them together with counsel Jason Zuckerman, I never realized that our case would lead to two significant constitutional law developments.  In fact, I thought we might face insurmountable obstacles within weeks.  But despite a few setbacks here and there along the way, the case is still thriving after almost two decades. 

A past outcome in the case could even be the basis for a third successful shot at yet another constitutional issue: my First Amendment rights to make charitable contributions without having to assess the hypothetical uses of the funds that might adversely affect certain undefined interests.  How would a donor know those interests, or know how the charity might use the funds?  It is a suppression of free speech to put such conditions on donors.  I'd rather not be back in court over the matter, as my interests are hardly adverse to what I might guess are other parties' interests — relatively good servicing should be acknowledged and all servicing improved — but the constitutional issue is out there, so the case may be back in court once again.  

May Good v. MOHELA lead to better student loan servicing, and may the Constitution continue to be defended.  

 

 

Worthless Ideological Positioning

November, 2024

Washington — Ich bin Politikwissenshaftler.  For decades, I've been following political theory: right, left, progressive, conservative, socialist, libertarian, authoritarian, and everything in between.  I've also been following voting behavior studies for decades, and participated in more than my share of campaigns.  

Conclusion:  although pundits, reporters, and consultants are preoccupied with ideologies, the great majority of voters are not, and if not oblivious to political theory, many are so confused by it that they often vote contrary to what they think is their placement on an ideological spectrum.  

The problem here is not so much with the voters, but with the rickety frameworks of the ideologies themselves, which can collapse in a heap when confronted by realities facing voters.  If a voter is concerned, for example, about the very real problem of too much of the federal budget going to interest on the debt, that could appear anywhere on the ideological spectrum.  Is it a transfer of wealth to the lender class, and thus a concern of the left, or a plea for a balanced budget, often a talking point of the right? 

So when political consultants and the pundit class advise "move left" or "move right" to win elections, what does that mean?  It means they make money off their superficial erudition, but not much else. 

What does this portend if Democrats want to compete for votes in rural America, which they desperately need to win elections up and down the ticket?  It means they should ask rural voters what problems they want candidates to address, and act accordingly, ideological perceptions be damned. 

Voters in rural areas suffer disproportionately from lack of good medical care and alarming numbers of deaths of despair.  A solution?  Rejuvenating the Cooperative Extension Service to use its agent system to provide nutrition help and disease prevention would likely be a much-welcomed Democratic initiative, if only it were offered.  

Why hasn't it been?  It does not fit neatly into ideological fairy-castles.  Only the voters care.

The Democratic Party is doing much soul-searching after this month's election losses.  May it find its soul in solutions to real problems, not in worthless exercises in ideological positioning.  

"Analysis" in the NYT

November, 2024

Washington —  The following analysis of why Kamala Harris lost battleground states Pennsylvania and Wisconsin appeared today in the New York Times.  Typical of such second-guessing, it fails to attribute the losses to the obvious:  Democrats' over-reliance of turning out votes in urban Democratic strongholds rather than competing for votes in non-metro areas.  See previous blog "A Call to Revamp the Democratic Party."

A better analysis would be to explore why Democrats don't have the acumen or fortitude to compete in culturally rural areas where cutting their losses would result in overall election victories.  You won't find it here, which should give us all pause:  

Swamped in the Battlegrounds

In Pennsylvania, the biggest electoral prize on the battleground map, Mr. Trump’s victory received an outsize boost from an unlikely place — the five counties with the highest percentage of registered Democrats: Allegheny, Delaware, Lackawanna, Montgomery and Philadelphia.

Ms. Harris won these counties, but not by the margins needed to overcome Republican-heavy areas of the state. Total turnout was down from 2020 in all five Democratic strongholds, which could partly explain how Ms. Harris received 78,000 fewer votes than Mr. Biden. Mr. Trump added 24,000 votes to his total in these same counties.

This gap left Ms. Harris with little chance of winning Pennsylvania. Mr. Trump’s victory margin in the state, as of Sunday, was about 145,000 votes.

In Wisconsin, the voter participation rate overall was among the highest of any state. But voters in Democratic-heavy counties simply could not keep pace with gains from their Republican counterparts.

Why could Democrats not "keep pace"?  They did not have a rural strategy to give them a chance. 

A Call to Revamp the Democratic Party

November, 2024

Washington — The first caller I talked to on November 6th, the morning after the election, asked an unexpected question:  "Do you feel vindicated now?"  

No, I replied, my feelings were simply deep apprehension about the future.  The caller persisted:  Democrats obviously lost because they performed so badly in rural areas, as I had been predicting and warning about for several years.  I was among the few who predicted Hillary Clinton would lose in 2016 because of Democrats' neglect of rural America, and I felt largely the same about Kamala Harris's campaign, although she made a few commendable attempts to make inroads.   

It's not that Democrats don't potentially have policies and messages that would resonate in non-metro areas that are dominated by the culturally rural.  But how often do we see Democrats going purposefully into these areas to seek out voters' concerns, with empathy and answers for rural America's very real woes?  The Democratic National Committee would be aghast at such a strategy.  Instead, it pushes axe-grinding identity politics, a sure and proven loser.  

Are there, however, plausible answers for rural America's failing health care systems, inadequate infrastructures, loss of family farms to corporate monopolies, market and supply-chain failures, top-soil loss, poor nutrition, youth out-migration, and disproportionate deaths of despair?  Yes, there are answers! Many of these issues are addressed in Congress's periodic Farm Bill, which is up for reauthorization this very year.  But when was the last time you heard Democrats making it a priority, let alone even mentioning it as a strategy to win rural votes?*  

Instead, too many Democrats view rural denizens —especially those of the working class — as cardboard cutouts, clinging to their guns and religion, to the exclusion of seeing their actual problems and their humanity.  To these Democrats, it has never occurred to them that guns and religion are symbols of rural resistance to their dehumanization, and that the most destructive aspects of these symbols would lose their power were Democrats to address rural issues with real solutions.  

I don't care about vindication, but please add my voice to the many who are calling for a complete revamping of the Democratic Party, to address the number one cause (by far) of its election defeats: a failure to compete effectively in rural America.  No, Democrats are not necessarily going to win in non-metro areas with a sensible rural strategy, but cutting the current huge losses is the obvious answer to winning more elections overall.   

   

________________________

*Also, when was the last time you heard Democrats rightfully point our that many of rural America's problems were created by Republican policies under Nixon (get-big-or-get-out), Reagan (huge numbers of farm bankruptcies), and Trump (market-killing tariffs)?  And when was the last time you heard Democrats say that an aggressive rural strategy is particularly important because it is linked to overcoming the party's electoral college disadvantage?  Ever?  

 

Climate Urgency

November, 2024

Lincoln — On the eve of our national elections, one issue outweighs all others. Margaret Renkl describes it well in her guest essay today in the New York Times.  Her analysis is nothing short of alarming.  

Despite the urgency needed to deal with the climate crisis, our nation's efforts are lagging badly, as described in two other reports, excerpted here below, describing the lack of progress in administering the climate provisions of both the Infrastructure Act and the Inflation Reduction Act:

President Joe Biden approved the largest-ever investment to protect the nation against hurricanes, droughts, wildfires and other disasters being intensified by climate change.

Nearly three years later, the majority of that $33.6 billion remains unspent, POLITICO found in an analysis of federal data — a lag that imperils Biden’s hopes of building the nation’s resilience to the maladies of a warming world.

The money, provided by the president’s bipartisan 2021 infrastructure law, is meant for projects to harden the electrical grid, prevent wildfires, flood-proof communities and stabilize dwindling water supplies, among other efforts. The needs for this kind of spending are likely to be bottomless given the galloping pace of climate change, as seen by the devastation that Hurricanes Helene and Milton inflicted in just the past month.

But the progress of launching this work has been slow: Through the end of September, 80 federal programs that received $24.4 billion of the climate resilience money had awarded just $10.3 billion of it, according to POLITICO’s review of spending data provided by agencies.  

Tens of Billions Yet to be Awarded

From the Inflation Reduction Act, $61 billion in climate funding has been awarded for more than 6,100 projects (excluding loans, direct government spending, and tax credits) through September 5, 2024. We estimate that the IRA has just over $33 billion (or 35 percent) in remaining funding.... 

With our property in Nebraska, we have been trying our best as private individuals to participate in these efforts, with the expert assistance and cooperation of the Lower Platte South Natural Resources District.  See photo below.  We estimate that the carbon sequestration from this 71 acre conservation easement amounts to at least 100 metric tons of CO2e annually.  Unfortunately, this seems to be a rare project.  We are trying to encourage others, including state and local governments eligible to be partners with these funds, to do more carbon sequestration through conservation.  

Election 2024 Choices

October, 2024

Lincoln —  Back in 2020, my preferred presidential candidates were Steve Bullock, Jay Inslee, Michael Bennet, Amy Klobuchar, Kamala Harris, and Mitch Landrieu, more or less in that order.  All were relatively young, with much practical political experience and a minimum of ideological baggage.  

So now comes the opportunity in 2024 to pick one of them, Kamala Harris.  She, with Tim Walz, who also fits that profile (and has rural Nebraska roots), make a good ticket.

My thoughts on the other choice, the Trump and Vance ticket, are well expressed by Sam Meade Cordes, formerly an agricultural economist at the University of Nebraska.   He asks, "Where is the rural America that raised me?"  It is a profoundly disturbing question.  I ask it as well:  

https://dailyyonder.com/commentary-where-is-the-rural-america-that-raised-me/2024/10/09/

There's a lot of work to be done whatever the outcome and I welcome the opportunity to pitch in on a wide variety of problems, foreign and domestic.  Now more than ever.