The Divine Mr. M

"This morning I began to seriously wonder how long it would be before my posts regarding the relationship between Greece and Germany would migrate from “Our Doomed Present” [my Economic, Environmental and Social Issues Blog] to “Politics By Other Means” [my War Blog]. The American Left may have been reduced to mostly a bunch of gutless middle class big mouths who are offended by everything, but the Greek Left has a storied history of Armed Resistance. We shall see if that tradition is still alive."

Provisions that allow foreign investors to bypass the federal courts could undermine U.S. legal protections.

Alan Morrison Jun 23, 2015

It is January 2017. The mayor of San Francisco signs a bill that will raise the minimum wage of all workers from $8 to $16 an hour effective July 1st. His lawyers assure him that neither federal nor California minimum wage laws forbid that and that it is fine under the U.S. Constitution.

Then, a month later, a Vietnamese company that owns 15 restaurants in San Francisco files a lawsuit saying that the pay increase violates the “investor protection” provisions of the Trans-Pacific Partnership (TPP) agreement recently approved by Congress. The lawsuit is not in a federal or state court, but instead will be heard by three private arbitrators; the United States government is the sole defendant; and the city can participate only if the U.S. allows it.

It is not a far-fetched scenario. The TPP reportedly includes such provisions, as a means of solving a thorny problem. In the United States, the courts are, by and large, independent and willing to fairly decide challenges to arbitrary government laws and rulings, no matter who the plaintiff is. The same is not consistently true in less developed countries.

The solution proposed in the TPP is to allow foreign investors to bring claims for money damages over violations of the TPP’s investor protection provisions before a private arbitration tribunal that operates outside the challenged government’s court system. One arbitrator would be chosen by the investor, one by the country being challenged, and a third by agreement of the other two arbitrators.

The arbitrators are often lawyers who specialize in international trade and investment, for whom serving as arbitrators is only one source of their income. Unlike U.S. judges, they are not salaried but paid by the hour, and they can rotate between arbitrating cases and representing investors suing governments.

Despite the fairness of our court system, the U.S. government has consented in prior trade agreements, and in a leaked version of the still-secret TPP, to allow foreign investors to bypass our courts and instead move to “investor-state” arbitration. Thus, challenges based upon TPP to our duly enacted laws and other regulatory actions would be decided by three individuals who are not government officials and need not be American citizens. And they would have the final word as to whether the federal government will be compelled to pay damages, because there is no judicial review in any U.S. court of the merits of these arbitral rulings.

If such a case were brought, the foreign investor would sue the United States and ask that the arbitrators find that “investor-based expectations” under the TPP were violated. So, for example, it might claim that doubling the minimum wage from its prior level violated the TPP’s provisions requiring fair and equitable treatment of foreign investors. If the arbitrators agreed, they would assess money damages that would be paid from the federal treasury, but the San Francisco wage law would not be directly affected. However, because the ruling would open the door for other foreign investors in any number of businesses to bring similar claims, Congress would almost assuredly step in and override the wage increase to prevent opening the doors to the Treasury to every foreign investor in San Francisco. Indeed, in a similar situation Canada reversed a toxics ban and published a worldwide advertisement that the chemical was safe in order to avoid the possibility of having to pay substantial damages.

In recent years, there has been a major increase in the use of arbitration in the United States to decide commercial disputes, but those cases involve contracts in which the parties agreed to arbitration, with the outcome generally depending on how factual issues are resolved. TPP arbitrators, by contrast, will decide what is essentially a legal question: whether governmental actions, which are designed to protect our health, safety, environment and economic well-being, are consistent with the TPP. Those protections extend from locally enacted laws like the San Francisco minimum-wage provision, to state statutes and regulatory actions, to laws passed by Congress and decisions of federal regulatory agencies. And under the TPP, as under other trade agreements, decisions of a majority of the arbitrators on compliance with the TPP will not be subject to review in any court, federal or state. Among the other important public policy measures currently being debated that might be the basis for a TPP claim by a foreign investor include water rationing in California, the legality of selling e-cigarettes to minors, and the state regulation of medical facilities performing abortions. If a foreign investor won a TPP arbitration in these situations or the wage increase discussed above, that would not only cost the Treasury, but it would disadvantage American competitors who cannot benefit from TPP arbitrations, unless the offending law were set aside. And if governments feel compelled to set aside such laws in response to adverse rulings, the three arbitrators will effectively have substituted their own judgments for that of the electorate.

Under the TPP, the arbitrators will act like judges, deciding legal questions just as federal judges decide constitutional claims. However, unlike judges appointed under Article III of the Constitution, TPP arbitrators are not appointed by the president or confirmed by the Senate, nor do they have the independence that comes from life tenure. And that presents a significant constitutional issue: Can the president and Congress, consistent with Article III, assign to three private arbitrators the judicial function of deciding the merits of a TPP investor challenge?

The Supreme Court has not ruled on this precise question. But the collective reasoning in four of its recent rulings bearing on the issue leans heavily toward a finding of unconstitutionality. The Court has placed significant limits on the ability of Congress to assign the power to decide cases traditionally handled by the courts to people other than Article III judges, even when the judicial substitutes are full-time federal officials, such as bankruptcy judges or the heads of federal agencies. Moreover, in each case in which the Court approved of a dispute being taken away from federal judges, there was judicial review at the end of the process, which is not the case with TPP. Moreover, although the Justice Department issued a lengthy opinion in 1995 on when arbitration can be used to replace court adjudication, it did not then, and has not since then, defended the constitutionality of arbitration provisions like those in the proposed TPP.

As it presses for the passage of TPP, the administration needs to explain how the Constitution allows the United States to agree to submit the validity of its federal, state, and local laws to three private arbitrators, with no possibility of review by any U.S. court. Otherwise, it risks securing a trade agreement that won’t survive judicial scrutiny, or, even worse, which will undermine the structural protections that an independent federal judiciary was created to ensure.

http://www.theatlantic.com/politics/archive/2015/06/tpp-isds-constitution/396389/

...this was a set of comments on a post about Racism...

"Human beings are Tribal by nature. We organically gravitate to 'our own'. This usually applies to 'ethnicity', but, in the case of artists - especially musicians - this can be purely Cultural. Note how 'interracial' musicians are. They Hear more than they See.

What European Civilization has done is to distil that Tribalism into Racism, with The so-called White Race on top. And that was done almost exclusively for Fiscal reasons, as Money drove their Empires.

I say so-called because in the early to mid 19th Centuries, Catholic Irish were not considered White. And I'm old enough to remember when Italians were 'not White' either.

Truth is, Race is purely a Social Construct.

Of course Racism is quite real. But Race itself is bullshit. The DNA bouillabaisse of the American People is proof of that. [Love that White Supremacist who found out he was 17% Black. lol]

That said, a lotta Old White Folks are gonna have to die off before this shit eases up. They're too skert to let go of their Racism. For many, it's all they have left to feel better about.

I believe the fatal error The Rulers have made is to show that they think of all of us 'ruled folks' as niggers. That's what has really upset the lower class Whites. And I use that word purposefully because it is so hateful.

I believe it to be the only word that truly conveys the utter contempt The Rulers have for the rest of us.

Growing up White in America, even in the most liberal of households, subtly embeds Racist perceptions in all of us. The best one can do is be aware of them, not let them run you and don't go in the other direction - White Guilt - which simply makes you prey to non-White demagogues, who are also 'allies' of The Rulers in that they fuel the racial divide among the ruled."

I have been thinking about the 20th Century struggle between Democracy, Communism and Fascism. I have come to the conclusion that Fascism is the victor.

The reasons for that victory are many, but here are the basics:

Democracy followed the money and alined itself with Industrial Capitalism, thereby allowed Fascism in through the back door. It also requires a level of communal selflessness and personal commitment that most humans are simply not capable of. Its ebullient exhortations constantly annoyingly remind of us of that harsh fact.

Stalin devoured the Communist Dream of a Workers Paradise and vomited up a totalitarian nightmare that has poisoned Leftest politics throughout the world, in all probability forever. First all the Useful Idiots who sang his praises and then, when faced with the truth, the Western Left's retreat into Bourgeois complacency and impotent faux-pacifism.

Nazism, the most effective form of Fascism ever, addressed both Euro-Sapian arrogance and fears, plus had absolutely fabulous design aesthetics. It was also brutally honest in ways that Twenty Century Communism never was and of which Democracy is systemically incapable.

Ultimately the primary reason for Fascism's victory is that, as Norman Mailer once observed, “Fascism in the most natural from of human government.” It gives people very clear guidelines about how to behave and what to believe. And most importantly, it allows people to openly hate that which they fear. That is tremendously liberating.

This is also why everyone hates the Jews. Even Jews hate other Jews. I have personally observed that quite often. It's not because they are arrogant, though God knows they are, a 'stiffed necked people'. It's not even the Christ Killer thing, the perfect example of Jews hating Jews.

No, it is because of their greatest strength and their greatest gift; Talmudic thinking, the Jew's literally inbred capacity to examine every single thing from every single angle, endlessly. While that has yielded amazing intellectual, spiritual and scientific results in all fields of human endeavor, it also sows the seeds of doubt everywhere and in everything.

That is why we really hate the Jews; the Jews are The Fathers of Doubt. And we [secretly] love Fascism because it promises us the certainty that in our hearts we all crave.