Urgent Need for State Prosecution of Extortion

August, 2025

Washington — Resistance to what many institutions (universities, law firms, media organizations) consider Trump administration extortion has been centered around checks and balances associated with the Constitution's separation of powers;  that is, the checks and balances of the legislative and judicial branches against the executive branch. 

Unfortunately, much less attention has been given to the Constitution's division of powers;  that is, the sovereignty of the states within a system of dual sovereignty established by the Constitution and affirmed by the Tenth Amendment.  

Extortion is the province of state law and can be adjudicated in state courts.  One reason less attention has been given division of powers' checks on Trump administration extortion is the assumption that such litigation would not survive opposition based on other constitutional provisions centered around what is called supremacy clause immunity.  If a federal question is involved, the litigation becomes the province of, and can be removed to, the federal courts, where the issue returns to separation of powers considerations. 

However, there are limits to supremacy clause immunity and those limits need to be tested in litigation to determine if the Constitutional system of dual sovereignty has remaining supporters.  Surely the Federalist Society would have to weigh in on the subject that is the foundation of its very existence.  There is reason to doubt that the current Supreme Court would abandon dual sovereignty to side with the Trump administration's more egregious extortion practices. 

State court litigation could proceed quickly and likely find its way to the increasingly well-worn path to the Supreme Court's emergency docket. 

Some potential litigants will have to rise above their own long-held prejudices against thinking that anything to do with states' rights is somehow distasteful and that society's progress relies on an ever-more powerful federal government.  If there was ever a time to repent of such notions, it is now.     

Why should universities follow the above advice?  Because their lawsuits so far, based on administrative law, institutional autonomy, free speech, academic freedom, and due process have vanishing prospects for success.  And why follow advice from me?  Because I have a track record in these matters, having succeeded in litigation that (according to AI) has had significant impacts on two major constitutional issues under the First Amendment and the Eleventh Amendment.  Readers can look it up.  

Institutions need urgently to pursue their cases in state courts to take advantage of both legal and political strategies offered by the checks and balances of dual sovereignty.  I predict victory*, but even a defeat would offer drawing a line on currently bottomless extortion.  

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*There is abundant evidence that antisemitism is pretextual, which will negate supremacy clause immunity.       

The Strother Cousins

July, 2025

Washington — Looking again through the family tree to see who may be perching nearby, I've discovered two remarkable cousins of ours in my father's Strother branch.  Both were generals in the Civil War: one Confederate, Richard Strother Taylor; and one Union, Joseph Pannell Taylor.

This is not entirely a surprise, given earlier discoveries.  David Hunter Strother, already known to us as an important figure in the Civil War, is a second cousin, now four generations removed.  He was widely known as a writer and illustrator for Harper's magazine under his pen name, "Porte Crayon," before accepting brevet general rank for the Union.   I've been reading his entertaining books and Civil War diaries for several years.  And President Zachary Taylor, another Strother, is our first cousin, seven times removed.  Jefferson Davis's first wife was a Strother.  So we've known about this family line for some time.   

Newly discovered second cousin Richard Strother Taylor, overlooked in the tree until now, was the son of Zachary Taylor.  He was a prominent Confederate general who, after the war, wrote critically of both the South's efforts and the Reconstruction program imposed by the North.  His uncle, the president's brother Joseph Pannell Taylor, was a Union general and an advisor to President Lincoln.  An expert in logistics, he died in 1864 and is buried in Oak Hill cemetery in Washington's Georgetown neighborhood.  

All the Strothers trace back to William Strother (1630-1702), who emigrated from the Northumberland area of England to colonial Virginia and became a prominent planter.  Our direct Strother branch goes back to Anthony Dabney Strother and his wife Frances Eastham, from the Culpeper, Virginia, area, who freed their slaves sometime after 1782 — on moral grounds according to a son — when it became legal to do so.  A century later our Strother line moved to Nebraska. 

Several cousins in the more famous Strother branch were slaveowners, including Zachary Taylor and his son.  Many early presidents and their families were slaveowners, including another Strother, James Madison.  Porte Crayon apparently was not a slaveowner.  

It's unclear how well contemporaries Richard Strother Taylor (1826-79), born in Kentucky, and Porte Crayon (David Hunter Strother, 1816-88), born in Virginia, knew each other. They both lived in France in 1843, according to some sources.*  Neither attended West Point.  Taylor studied at Harvard and Yale.  Porte Crayon studied art and art history with Samuel F. B. Morse in New York City.    

The two may have faced each other on the battlefield in the Shenandoah Valley Campaign, when Richard Strother Taylor led Louisiana troops for Stonewall Jackson and Porte Crayon, as he was widely known, was staff to Union general Nathaniel P. Banks.  They shared many close associations with others, especially after the war, most notably with Ulysses S. Grant and George B. McClellan, admired by both.  Taylor interceded successfully with Grant and with President Andrew Johnson to release Jefferson Davis, his brother-in-law and former Confederate president, from prison. 

Both Taylor and Porte Crayon wrote vivid and consequential books on the Civil War, as they were battlefield instigators and participants.  In his book Destruction and Reconstruction, Taylor often cannot contain his sarcasm and contempt for how the South deluded itself into thinking it could win the war, which is remarkable as Taylor himself was among the largest cotton planters in Louisiana. Taylor writes of the Confederacy (p. 256): 

We set up a monarch, too, King Cotton, and hedged him with a divinity surpassing that of earthly potentates. To doubt his royalty and power was a confession of ignorance or cowardice. This potent spirit, at the nod of our Prosperos, the cotton-planters, would arrest every loom and spindle in New England, destroy her wealth, and reduce her population to beggary. The power of Old England, the growth of eight hundred years, was to wither as the prophet's gourd unless she obeyed its behests. And a right "tricksy spirit" it proved indeed. There was a complete mental derangement on this subject. The Government undertook to own all cotton that could be exported. Four millions of bales, belonging to many thousands of individuals, could be disposed of to better advantage by the Government than by the proprietors; and this was enforced by our authorities, whose ancestors for generations had been resisting the intrusion of governments into private business. All cotton, as well as naval stores, that was in danger of falling into the enemy's possession, was, by orders based on legislative enactment, to be burned; and this policy continued to the end. It was fully believed that this destruction would appall our enemies and convince the world of our earnestness. Possibly there was a lurking idea that it was necessary to convince ourselves.

[Pg 235]

Richard Strother Taylor was also a friend of Braxton Bragg (of Fort Bragg notoriety), but does not spare him in the book.  Were he alive today, Taylor would likely not take kindly to commemorating anything Confederate.  When as the last Confederate general east of the Mississippi to surrender his troops at the end of the war, he asked Union general Edward Canby's army band not to play "Dixie," as Canby offered, but "Hail Columbia." He had been against secession in 1860.  How Taylor convinced himself to put his military talents to work in Confederate service is his life's great contradiction.  He died in 1879 at the home of political ally Samuel L.M. Barlow in New York City and was first interred in Marble Cemetery before being reinterred two years later at Metairie Cemetery in New Orleans, in the family crypt.  

Our own Strother line became "Strawder" (a phonetic misspelling) with my grandmother's ancestor Nathaniel (1800-78), shortly before the migration to Nebraska.  For anyone looking for verification through current family DNA matches, search Strother, Strawder, Dabney, and Eastham, to find several.  

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*According to American History Central: The Encyclopedia of American History,  Taylor's years in Scotland and France are not noted, however, in Parrish's biography of him.

 

  

Cures for Democratic Disarray

July, 2025

Washington — The disarray plaguing Democrats can be overcome by uniting behind this mantra:

Ditch identitarianism;

Embrace humanitarianism;

Compete extra hard in rural areas;

Election wins will follow. 

This has been the plea of many of us for the past decade, because identity politics has been a clear loser at the ballot box.  Good causes must be supported on grounds of humanitarianism and universalism — once Democrats' strong suits — without identity group impediments.*  Moreover, it should now be clear that the divisiveness of group identity politics is counterproductive to achieving humanitarian goals, at home and abroad.  Ditch identitarianism, swiftly and decisively.**   

Rural areas are key.  Losing them in elections is not the problem; losing them so badly that the losses cannot be made up elsewhere is.  Democrats must compete in rural areas to make a respectable showing.  They must show up, listen, and have something to offer rural voters.  There has never been a better time than right now, given the torrent of anti-rural policies currently flowing from Republican office holders at every level.  

Is the Democratic National Committee paying attention?  Many of us are waiting to see.  So far, there is not a lot of evidence of it. 

______________________________

* As advanced by philosophers from Aristotle through Locke, Kant, Mill, and Adorno, among many others, as opposed to the identitarianism of philosophers like Nazi apologist Carl Schmitt. 

** Bring back the thought, "Ask not what your country can do for you, ask what you can do for your country."

Beyond Single-Axis Ideological Descriptors

July, 2025

Washington — If I were a reporter, pundit, podcaster, or writer of any kind offering political analyses these days, I would be careful to limit my use of terms such as right, left, liberal, conservative, red, blue, libertarian, socialist and the like.  

Such terms suggest a single continuum of political ideology.  Unfortunately, the more the terms are deployed, the more divided the population itself becomes.  That's bad enough, but these single-axis descriptors aren't accurate for most Americans, who view themselves as ideological mixtures and are likely to vote on the basis of other factors.

Social scientists often try to deal with these oversimplifications by adding a Y axis to the existing X axis  to allow for people who may be fiscally conservative on one axis, for example, but socially liberal on another, and vice-versa.  This places people in quadrants and gets closer to reflecting their actual viewpoints.  

But within each quadrant are other variables, some of which may be nominal rather than continuous and do not lend themselves to graphing.  Consider that some people may favor a strong central government for policy implementation, others want decisions made locally, and others are pragmatic.

Is there a way to describe people in four quadrants with three options within each; that is, 4 x 3 = 12? 

One way would be to use the colors of the chromatic scale in a color wheel.  The musician Alexander Scriabin, who heard notes as colors, identified twelve such colors.  So rather than using red and blue to divide people, a twelve-color wheel would get closer to reflecting viewpoint reality.  It might show that many of us are yellow, green, or steel gray.  This would also identify more opportunities to work together because commonalities as well as differences are revealed in such a display.  Listening for Scribin's colors as notes, as he did, might reveal harmonies through which disparate people could make music together, so to speak. 

Another way to depart from the divisiveness of single-axis descriptors would be to consider political viewpoints as particles in quantum physics.  Observers can't be sure where they are, let alone whether they are particles or waves at any moment.  And they may change their behavior when an attempt is made to observe them.  Despite the uncertainties, great breakthroughs are based on those understandings alone.  

So the next time you hear terms like left and right applied (or shouted as epithets), think how Max Planck and Werner Heisenberg might consider their positioning, or how various viewpoints might sound as notes to a musician like Scriabin.  

Listen for political leaders who know how to play notes together harmoniously.  Such leaders are currently in short supply.  Their pitches are likely to be other than those on a single, overused, and divisive axis. 

 

"Ward Circle Faction"

June, 2025

Washington — When the annual Group 93 exhibition goes up at the Katzen Arts Center rotunda this August, it will note the end of one era and the beginning of another.  The show recaps the group's origins and recognizes a multitude of artists in its mix. 

Group founders Luciano Penay, Joan Birnbaum, and Myrtle Katzen have recently passed away after decades of dedication to their visions of artistic creation and interpretation.  They actively advanced a distinct approach both to creating visual art and to presenting it, joined by other artists located in the greater Washington DC area (especially former faculty and graduates of American University).  

Under the guidance of Chilean-born Professor Penay, the group met regularly for many years in rigorous, collaborative critique of new works.  Annual exhibition hangs were customarily two and three day efforts of artists to install up to two hundred works, assisted by faculty colleagues Michael Graham and Marjorie Hirano, along with Claudia Vess, Lucy Blankstein, and other Washington-area founders and regulars of the critique sessions.  

The next era continues the legacy created by the original founders.  "What is our manifesto?" Luciano Penay once asked Claudia Vess, whom he entrusted with Lucy Blankstein to select and hang group shows in recent years and going forward.  "Every work must speak for itself, and every work must be hung to bring out the best in those around it." 

The 2023 show included ekphrastic poetry that accompanied the visual works, including poems by DC based poets and poet laureates of the United States (Ted Kooser), Maryland (Grace Cavalieri) and Takoma Park (Anne Becker).  The 2024 show, "Jamming," featured QR music links paired with the art and performances by an AU music ensemble. 

The 2025 show will transition the eras under the title "Ward Circle Faction," to capture the sense of place and spirit of past critiques and exhibitions, first at the Watkins and later at the Katzen classrooms and spaces, both located off Ward Circle. The term faction distinguishes the group from other art movements that center on artist identities or temporal artistic fashions.  

Featured in the 2025 show will be works by Luciano Penay (1921-2023), Joan Birnbaum (1927-2024), and Myrtle Katzen (1927-2025) along with representative works by artists who participated through the group's thirty-five years of meetings.  They include Penay works on paper never previously exhibited, Birnbaum's ambitious Evergreen, Katzen's audacious Red Still Life, and works by Claudia Vess and Lucy Blankstein, independent curators of The Cabinet and previously of the Washington Women's Arts Center, Gallery 10, and Wonder Graphics.

Appropriately, the show will again be hung in the Katzen rotunda, in the Arts Center named for Myrtle Katzen and her husband Cy.  Myrtle Katzen began her career as an illustrator, but developed into a noteworthy artist in her own right.  Her creations rival those of more famous artists in her own private collection.  

The 2025 Group 93 show "Ward Circle Faction" will run August 20 to September 26. 

End Two Wars with One Negotiation

June, 2025

Washington — End both the Iran-Israel and Israel-Gaza wars with one negotiation in which the Iranian clerics turn over power to a non-nuclear secular government and, in exchange, Israel halts the Gaza war and commits to new elections itself.  

Lives would be saved all around — Palestinian, Israeli, and Iranian.  Hamas, Iran's proxy, collapses. Israel gets what it wants, a non-nuclear Iran, and an off-ramp to its Gaza war.  

The Iran clerics avoid a bloody popular uprising and a likely civil war.  They are increasingly desperate for a way out, despite their bluster.     

The USA and EU have the leverage over the parties to bring such a negotiation about, along with every incentive to avoid using military force only to see it fail in the long run, a real possibility and a likely outcome.   

Update:

The above was written before the USA struck Iran militarily on 21 June.  The strike came on the day the EU (France in particular) was engaging with Iran about a diplomatic solution.  If Iran's likely counterattacks now drain American resources away from defending Ukraine, Russia will benefit. If the strike hardens Iran's resolve, at a time when the regime was about to topple, the strike could turn out to be a major strategic mistake.  

Second Update:

To no one's surprise, the USA has now advised Ukraine that more defensive missiles are needed in the Middle East, so fewer are available to help Ukraine defend against Russia's attacks. Moreover, the military strikes against Iran may not have been as effective as first claimed and the unconscionable war in Gaza goes on.  All of which means a comprehensive negotiated settlement is paramount, as outlined above.    

Collecting on Debt Unwillingly Incurred

June, 2025

Washington — Two months ago, Secretary of Education Linda McMahon announced that the Education Department will resume collecting on defaulted student loan debt, so it does not become a burden on taxpayers.  She wrote that willingly incurred debt must be repaid when due, or collection tools such as wage garnishments will be employed.*  

So far, so good under the law.  Also, the timing of the announcement was appropriate because Covid-related repayment pauses have expired.  This should have taken no one by surprise, as it conforms with statements from the previous administration.   

However, she did not address student loan debt unwillingly incurred through loan servicer error, abuse, or incompetence.  If your local credit union tried to over-collect on a loan balance created by its own mistakes, you would go to your county attorney or state consumer protection office to report it, perhaps even charge the financial institution with fraud, and get resolution.  But what happens if the lender is the federal government and the collection agent is a servicer that badly botched your student loan?  Is the Education Department going to collect on the amount you unwillingly incurred, with its draconian collection tools?  

Which raises the question of how much student loan debt has actually been unwillingly incurred.  For the past two years I've been trying to estimate the amount.  Inquiries to the Department have not yielded answers, even when I have suggested methods to determine at least orders of magnitude.  

Turning to AI for help, I get answers ranging from "billions" to "tens of billions" of dollars.  AI also explains how it arrives at estimates of unwillingly incurred student loan debt, which is helpful as it corroborates some of my own estimates.  AI relies on reports of multiple sources to look at issues such as outright miscalculation errors, how borrowers were systematically steered away from acting in their own best interests to reduce and cancel debt under borrower benefit programs, and schemes that advantaged servicers or lenders at the expense of borrowers.  Borrower complaints I have personally received also suggest significant amounts of debt have been incurred in the Parent PLUS program as the result of coercion, deception, and false certification of eligibility.   

Whatever the explanation, unwillingly incurred student loan debt is a remarkably large amount.  One AI description calls it "massive."  Collecting on it will needlessly ruin many people, and their families, financially.  

What is the procedure for borrowers who want to repay only debt they willingly incurred?  There seems to be none — at least none being offered — despite existing statutory authority for the Secretary to settle and compromise debt.  The current administration's Department of Government Efficiency has eliminated offices and personnel previously assigned to consumer protection and debt resolution. 

Let me again suggest a fair and efficient partial remedy, both for taxpayers and borrowers.  Borrowers who repay original principal and simple interest should have any remaining balances cancelled, inasmuch as those balances are not due taxpayers but artifacts of varying degrees of maladministration of the student loan program.  The statutory authority is 20 U.S.C. 1082. This would also significantly simplify student loan administration going forward, by closing many accounts.    

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"Resuming collections protects taxpayers from shouldering the cost of federal student loans that borrowers willingly undertook to finance their postsecondary education."  --Secretary Linda McMahon, April 21, 2025. 

Herewith My Application, Mr. President

June, 2025

Dear Mr. President:

I am responding to your wish as U.S. president to repopulate the federal employee workforce with patriotic recruits from “...land-grant universities... 4-H youth programs, and the... veterans... communities" among others.  

Please consider this my application, as I can check those boxes and several others that you mention.  I am twice a graduate of a land-grant university, as a youth I was the initial president of the Rock Creek Ranchers 4-H Club of Lancaster County, Nebraska, and I later served as a U.S. Navy officer with officer-of-the-deck (underway) qualifications on one of the Navy's most dangerous ships, USS Rainier (AE-5).   

Your vetting process, however, will turn up other information that I hope you will not consider to disqualify my application:  

I have a reputation of working well with respectable higher education institutions, including those considered elite.  My academic credentials also include a degree from a German university, FU Berlin, and peer-reviewed publications.  Among my friends and colleagues is a longtime Harvard lobbyist in Washington and I would expect us to quickly restore good federal-university relations to keep America foremost in the world in higher education and research.   

Much of my work over the years in public finance has been devoted to fiscal responsibility at state and federal levels.  As Nebraska's chief fiscal officer several years ago, I was responsible for developing balanced budgets. As former staff to the U.S. Senate Budget Committee, I was among those whose work paid off when the federal government balanced its budget in the late 1990s, significantly reducing our crippling interest payments on the federal debt.  I would expect to continue that work with an urgency as never before, your BBB proposal notwithstanding as the debt is also a huge national security issue. 

I have been a dogged foe of waste, fraud, and abuse in government, wherever it occurs.  I have personally brought successful lawsuits against hundreds of millions of dollars of civil fraud in student loans under the federal False Claims Act and, at the state level, against illegal raids of millions from a state environmental trust fund.  I would expect to continue working to throw out the trash associated with waste, fraud, and abuse wherever it occurs, based in no small part on important Eleventh and First Amendment victories won in the litigation process.  

In recent years I have helped establish Veterans Education Success, an advocacy group for veterans that has had much success in protecting veterans' G.I. Bill benefits from fraudulent schools.  I would expect to continue to help veterans through all agencies, including the VA.

My moral and ethical views are shaped by trying to live by the Ten Commandments, by admonitions to follow the Golden Rule, and to love one's neighbor as oneself.  I would expect to live and work by those standards.  

I earnestly hope you do not consider any this vetting information disqualifying, although I fully understand that you may.  My early one-room country school teachers Mrs. Hayes, Miss Mussman, and Miss Murphy would likely consider the above activities commendable, as they hoped all of their students would go on to lives that reflect well on their teaching.  They would not look kindly on anyone who suggests, as is implicit in your announcement, that there is somewhere an "elite" that is out of reach for the aspirations of their pupils and that the way to remedy the imagined disparity is to rig federal recruitment.  They would surely not stoop to the level of disparaging anyone's patriotism as a basis for discriminating in federal employment, as is unfortunately explicit in your announcement.  

As to the position for which I would like to be considered, it is OMB director.  Your current director's record is unfathomably bad.  Many of his actions are unconstitutional and morally wretched, resulting in untold numbers of deaths from hunger and disease.  If I were appointed director, within 18 months I could return the executive branch patriotically to its rightful constitutional position and save lives.  I would agree to serve at $1 per year, costing taxpayers $1.50.  I would sleep in the office, perhaps on a Navy rack, always ready to "heave out and trice up".

This application is not written tongue-in-cheek.  Every word is true and I am ready to serve.  My cup of credentials is full and there should be no confirmation obstacles, as my work has always been non-partisan.  I can start immediately.

Yours truly,

Jon H. Oberg

     

How to End the Attacks on Higher Education

May, 2025

Washington — The Trump Administration is mounting multiple attacks on U.S. higher education.  Federal judges in several jurisdictions have temporarily halted the assaults based on statutory and constitutional considerations, only to see the Administration defy the courts or appeal the decisions to drag the process out indefinitely, causing irreparable harm across an astonishingly broad spectrum of education, research, and economic activity.   

So what are judges doing about being defied?  So far, they have not found any Administration officials in either criminal or civil contempt, which serves to encourage more attacks.  Moreover, the House of Representatives has passed a bill to limit federal judges' powers over contempt.  Its fate in the Senate is uncertain.  

So what are states doing to defend their higher education institutions, for which they are responsible under the Constitution?  They seem to have been caught unaware, dumbfounded. 

There are remedies if states would only pursue them.  For example, Trump Administration employees who violate constitutional rights are specifically not immunized by the federal Westfall Act dealing with immunity.*  There is little case law on such situations because the scale and audacity of the attacks on higher education are unprecedented, but there is considerable legal scholarship that suggests a role for the states.  

Which leads to this question: what are governors and state attorneys general doing to protect their higher education institutions, public and private?  Should they not be in court, given the dire threat to their economies, if for no other reason?  Should they not consider calling special sessions of their legislatures if needed to pass tort legislation?  

Only when violators of constitutional rights know they will be held accountable will the attacks end.  

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*The Act does not apply to claims “brought for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A).

 

Asking for Another Lawsuit

April, 2025

Lincoln — Another raid on the Nebraska Environmental Trust (NET) will likely result in another lawsuit to stop it.  

The NET was established pursuant to a 1992 statewide voter initiative — reaffirmed by voters in 2004 — to use state lottery funds for environmental projects such as habitat restoration and recycling, to conserve, enhance and restore the natural environments of Nebraska.

But in 2019, the NET board, then under the control of Gov. Pete Ricketts' appointees, proposed granting millions from the Trust to for-profit companies to purchase ethanol blender pumps at filling stations. Many Nebraskans cried foul over the proposed grants, not least because it looked suspiciously like a quid pro quo for the ethanol industry's large and ongoing political contributions to the governor.  It also appeared as if the NET board had contrived the proposed grants in violation of the state's Open Meetings Act.  

Two of us filed suit, as citizens and taxpayers, objecting to the shenanigans.  The NET board soon dropped the blender pump grants, changed its open meetings procedures and, under court direction, paid a state settlement to us for our trouble and expense.  

This year, Gov. Pillen proposes to raid the Trust again in the millions, this time using a shell game to fill gaps in his state budget.  He and his appointees on the NET board have withheld grants from worthy environmental projects in order to build up a balance of millions for transfer elsewhere.  It begs credulity to believe this somehow happened on its own, so again litigation seems necessary to demonstrate, through FOIAs, legal discovery, and depositions, how the Open Meetings Act and other laws are being circumvented.*  

Or the legislature could simply drop the idea of the transfers, act with fidelity to the will of Nebraska voters, avoid expensive and time-consuming litigation, and restore state budget integrity. 

____________________________

*AI suggests this:  "If the NET Board were to build up a surplus by systematically not approving grants, such actions would likely need to be discussed and decided upon in a public meeting. The Act emphasizes transparency in the formulation of public policy and prohibits secret decision-making. Any violation of these provisions could result in legal challenges, including the potential voiding of actions taken in violation of the Act."

On Fifth Amendment due process, the Congressional Research Services advises this regarding attempts to move funds collected for one purpose to be expended for another: "[C]ourts consider the retroactive application of a statute separately from any prospective application, subjecting retroactive laws to somewhat more exacting scrutiny than prospective laws."