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Post Scripts #2

[Since our first Post Scripts on July 13, 2019, readers have continued to respond to Other Aspects posts with interesting comments. Thank you to all who have written. I’ll periodically gather and share items of general interest in these posts called “Post Scripts”. The headings give the name and date of the most recent post being addressed (some posts build upon previous ones). The readers’ comments are in italics, to distinguish from what I write in reply. I edit only in the interest of space and context. Enjoy, and please keep sending your thoughts to KenBossong@gmail.com. Again, if anyone does not wish to be quoted, even anonymously as I’ll be doing it, please just say so when you email me.]

Missing The Trane (7/18/19)

Really, really enjoyed the Coltrane piece. Well-written and an excellent overview of his career, recordings and influences, as well as those he affected.  One of the best short summaries I’ve read about an artist.

Thanks for saying it was “short”, since I can get carried away – especially with a topic like John Coltrane, who deserves a treatise.

Wow, Ken. I just read your Coltrane piece and was blown away. I saw the email linking it earlier in the week, but wasn’t able to read it because I had one helluva busy week. I’m glad I waited until Saturday morning to read it. I could then savor the flowing prose and insights… Even though I knew most of what you wrote of Trane, I liked the way you methodically went through his recordings and evolution. Great perspective.

Thanks for the kind words, and for subscribing. I finally realized how to make that easily available by placing the button up to the right just below the blog’s header. That way, you get new posts without having to do anything.

I’m still hoping to do an in-person presentation of A Love Supreme before the year of its 55th anniversary is over.

The Flores v. Barr Cringe Fest (8/21/19)

I watched the news snippets of the DOJ’s attorney in front of the judges and listened to the judges chastise her for the Trump Administration’s version of what constitutes “safe and sanitary conditions” for minor immigrants. I also read articles following the case. Your legal knowledge and drill down of the case really helped confirm unfortunately what this administration is doing at the border.

I would like to see money spent on better temporary hospitals, housing and vetting stations at the border instead of a wall. Taking care of those people risking their lives to get here while taking time to decide who gets to stay seems logical and humanitarian. We are better than this and what’s happening now. History is not going to be good to this administration especially on the immigration issues, but we shouldn’t be waiting for history to decide the moral responsibility we have as a democratic nation.

How often do we find ourselves saying, “We are better than this”? If there’s one theme to Other Aspects, it’s this: We better be better; it’s up to us. From the same reader a few days later:

Can Trump get rid of the Flores agreement?

Here’s an edited version of how I responded on August 27:

“There is no easy answer to this. It could play out any number of ways. If the Agreement were simply the settlement of a case, that would be one thing. But it’s incorporated into a court order. The executive branch can’t simply ignore or override a court order. Yet, I don’t think res judicata (the thing’s been adjudicated; can’t reopen) applies in the usual way to a case involving ongoing interactions.
A few scenarios:
1) Congress passes legislation comprehensively addressing the issue and obviating Flores. Not happening, which is the subject of my ire going back to the post of 5/10/19.
2) Appropriate agency in executive branch does formal rule-making and issues regulations, which are litigated. This would also involve a lot of time and work.
3) Trump announces he’s defying the court order. Plaintiffs move to hold him in contempt. Mess ensues.
4) The administration does something akin to a hybrid of 2) and 3) not simply defying, but not issuing formal regs either. Perhaps an executive order or something. Litigation ensues.
Looks like 4) has already begun, as one might expect. Trump has announced a plan to abandon Flores, whatever that means, and 19 states have joined in a suit.”

Here’s an update: Shortly after this post, the Trump Administration announced new policies called the “Final Rules”, tossing out the Flores principles (by providing for indefinite detention, diminished safety standards, etc.). Plaintiffs sought continued enforcement of Flores. On 9/27/19 Judge Gee ordered just that, with an injunction against enforcement of the Final Rules. Appeal by the Trump Administration remains pending with the Ninth Circuit Court of Appeals.

…Your Flores blog is the perfect pitch [for a non-technical book about famous legal cases]. In just a few words, you took a complex matter and made it both clear and interesting to read.

Talent and Success in Sports (Part 1, 9/18/19 and Part 2, 10/2/19)

The following is from a reader from inside the Washington D.C. beltway:

Very well done! I enjoyed your analysis despite its “inside Philly BBall” skewing and skewering. We have a process here in Skins Country, too. It consists of:

  • knowing to a certainty every year that the season is a lost cause before any games are played;
  • understanding that Snyder’s strategy is to lose now and lose later;
  • being too ignorant to understand the grammatical subtleties of terms such as “transitive verb;” and
  • being mindful that there is little to choose between “tanking” and monumental incompetence.
    At least we have Max, Steven, Anthony and Juan.

You do have them, and what a remarkably unprecedented World Series they won with the Nationals! I wasn’t kidding about being grateful as an Eagles fan that Dan Snyder owns the Redskins, by the way. Now, if only the Dallas Cowboys could have retained their head coach even longer…The only real difference between tanking and monumental incompetence is intent.

Consider the Kurds and Weigh (10/31/19)

Well said…[Trump] is a deep insult to every veteran who stood up and served our country. I have spoken to my fellow veteran friends about his betrayal of the Kurds and they are livid.
I have run out of adjectives to describe his behavior and am stunned that his “base” cannot see or understand the harm he is doing, much of it irreparable.

Another reader cited a specific line in the post before commenting:

Abandonment of the Kurds to the Turks in Syria is the single most despicable act of a president in my lifetime.

What about the Abandonment of the Iraqis to isis by the prince of darkness? Or how about the thousands of Coptic Christians left to be slaughtered by isis? No help offered … Wouldn’t even allow asylum to the US for them… ask yourself why… Or how about our own soldiers and ambassador left to be slaughtered in Libya to cover up the running of weapons to Syria. Obama let isis run unopposed throughout North Africa while they offered almost daily videos of their beheadings, burning people alive etc… Or maybe we can remember the abandonment of the South Vietnamese in 75 with untold slaughtered by the North Vietnamese after the dems leveled Nixon, then defunded the south’s ability to hold the truce.
[A]t least the Kurds have hundreds of millions in guns and weapons that you and I paid for.   After 19 years of this Middle East crap, The American People are fed up with it.

Prince of Darkness? I don’t recall Miles Davis or Ozzy Osbourne being President.

I believe Obama’s withdrawal of troops from Iraq in 2011 to have been one of his mistakes, premature at best. Perhaps he felt the American people were fed up with this Middle East crap. It was in accord with a status of forces agreement (SOFA) signed by George W. Bush on December 14, 2008 that all US troops would be out of Iraq by December 31, 2011. (Remember the press conference where W had to dodge a couple of shoes flung at him by an Iraqi journalist? That was the one.) The withdrawal followed painstaking analysis in consultation with experts, and months of unsuccessful negotiations with the Iraqi government to keep 3-5000 there. I wish we had. While it would not have prevented the rise of ISIS, 2014 may not have played out so badly had we maintained a presence.

That includes what happened to the Coptic Christians, who have been the victims of persecution for centuries. While 2014 was the worst recent year, the persecution continues to the present. This is one of the outrages in the world that must be addressed by all as simply unacceptable. Of course, we still have wackos who deny the Holocaust.

Obama has called the Libya debacle his “worst mistake”. Gadhafi deserved to be ousted by the US-led NATO intervention (approved by UN resolution), but a lack of planning for what was to happen next left the violent mess it remains. Unfortunately, we failed to learn from W’s declaration of victory in Iraq after toppling Saddam Hussein. We seem astonished when the locals don’t  celebrate by rushing into the streets and setting up an American-style democracy the next day.

Then there was Benghazi, where inadequate security despite warnings left the embassy vulnerable to a deadly attack. The ambassador and three others were murdered; Obama and Hillary Clinton foolishly denied the attack was a terrorist act when they must have known better. Conspiracy theorists had a field day, especially after American arms found their way into the hands of terrorists in Syria. Altogether, Obama may be right that Libya was his worst mistake. Had I been writing a blog back then, my displeasure with Obama’s handling of Libya, Iraq, and other items would have been clear. That doesn’t change my assessment of Trump’s actions.

The misadventures of Vietnam are a whole other ballgame, well beyond the scope of the post. Mistakes go back at least to the Gulf of Tonkin resolution, yet another lesson that if you must misrepresent the truth, there is something wrong with your position. The democrats did not level Nixon, however; Nixon’s behavior leveled Nixon. Back then, reprehensible behavior had consequences. It was over for Nixon when Barry Goldwater, a conservative’s conservative, and Hugh Scott told him his Watergate position was indefensible, which it was, though nothing much compared to current presidential behavior. Now, Senate republicans are led by the likes of Mitch McConnell. [Sigh]

The point remains: Any president makes mistakes, but not Trump; just ask him. He don’t need no stinking experts. Issues are easy when all you care about is what’s best for you. (In an unsettling way, actually, this was no mistake. The president deliberately sought to create a diversion from the Mueller report and Ukraine.) Trump’s unique blend of ignorance, arrogance, dishonesty, corruption, and narcissism make him as spectacularly ill-suited for the presidency as a person can be. It’s interesting that his grave flaws are finally dawning on some of his fans due to his atrocious handling of COVID-19, the only crisis of his presidency not of his own making.

As we see how much worse the pandemic gets than it had to be, the withering criticism is richly deserved. I’m still concerned, meanwhile, about what an increasingly desperate candidate for re-election will do as he realizes he was correct in wanting to run against Bernie rather than Joe. Will there be any inspector generals left? Will any act of telling the truth in the executive branch go unpunished? Will the Trump campaign simply merge into the Department of Justice? After the Memorial Day we just had, one shudders to consider the distress and harm this one man can cause leading up to November.

I, Citizen (12/15/19)

I found it very interesting. I especially thought the part where you spoke about Hamilton was amusing since the majority of its viewers/fans are actually kids or young adults…I think I’ll share this with my government teacher from last year…

It should be safe to share my post with a former teacher, since he is no longer grading you. Meanwhile, I should probably ask you to explain some parts of Hamilton to me.

Thoughts on Choosing a College (1/25/20)

Thanks for posting this, Ken, as we are in the college application process for my youngest daughter. At this time the things that hit home for me were in your summary: do not believe there is only one perfect place for your child, the option to transfer later if things don’t work out, and the chemistry or subjective feel according to the student (something I believe applies more to the girls than the boys).

We don’t want 17 or 18-year-olds thinking their lives are ruined if they didn’t get in to good ol’ Alma Mater. Or somewhere a couple friends want to attend (for no particular reason). Or…

As to the chemistry or subjective-feel thing, my two favorite stories on this point involve one girl and one boy. Since writing this post, I’ve been feeling badly for high school seniors who were relying on college visits this spring to make their final decisions. Hopefully, the post’s checklist helps.

Ken, two comments:
1. Community colleges merit mention. Some of the most dynamic programs geared to actually achieving rewarding employment upon graduation are centered here, and the cost is very reasonable. Moreover, it is a good maturation ground for those who need some maturity before moving on to a four-year school.
2. Changing majors is not so easy at places like Cornell and Penn. This is key info that students and parents need to know before they hand over the check.

These are two good thoughts. The second point is generally true at some schools, and may depend on which majors are involved at others. If a school is particularly renowned in one field, securing admission to the college may not automatically mean that major is available to all. Some places just seem to make things more bureaucratic than others, though my overall sense is that these issues have improved over the years. When frustrated, we used to call red tape the “RU screw” at Rutgers in the 70s, but it is much better there now.

McCoy Tyner, Philly’s Pianist Supreme (3/9/20)

I read your excellent ode to McCoy Tyner, then listened to some of his work. I’m afraid my tin ear doesn’t get it, but then it took me until maturity (some would argue that’s still in the future) to appreciate Mozart, Beethoven, Patsy Cline, Husker Du and Meatloaf. Keep the good stuff coming.

Give McCoy another listen sometime. He really is all that. By the way, what did Husker Du? 

Tony Allen, Fela’s legendary drummer, died [on 4/30]. He wasn’t as iconic, but he was every bit as important [as Fela Kuti].

Indeed, what is Afrobeat without the beat? The list of greats we’ve lost recently is getting way too long. In addition to McCoy and Tony, RIP: Jimmy Heath, Lyle Mays, Henry Grimes, Jymie Merritt, Bill Withers, Bucky Pizzarelli, Wallace Roney, Ellis Marsallis, Lee Konitz, Little Richard, Lucky Peterson, Jimmy Cobb.

Dynamic Duos (5/10/20)

One reader already had a suggestion for a duo:

Dolphy and Mingus

They are on the list and a compelling pair. Also under consideration was Charles Mingus and his long-time drummer, Dannie Richmond. Given the volcanic temperament that accompanied Mingus’s genius, it’s astonishing how long and how consistently Danny played with him – and how well.

Multi-reed virtuoso Eric Dolphy, like his friend Bobby Hutcherson, was one-half of a dynamic duo with a number of colleagues, including the two of them together (Out To Lunch and Iron Man, among other truly great albums).

Again, thank you for reading – and writing.

Ken Bossong

© 2020 Kenneth J. Bossong

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The Flores v. Barr Cringe Fest

A few days ago, on August 15, the U.S. Court of Appeals for the Ninth Circuit released its decision in the remarkable case of Flores v. Barr. I was not expecting to write on immigration again so soon (see “Immigration – Governing with Nods and Winks”, 5/10/19), but there are aspects of this case so cringe-worthy as to require mention. The good news is that a terrible argument lost. The bad news is that such an argument was made and by whom.

Background – the Flores Agreement

A 1987 class action lawsuit on behalf of minors detained by immigration authorities was litigated for years before being settled in 1997. The consent order settling the case became known as the Flores Agreement, or simply “the Agreement”. It required immigration agencies to hold minors in their custody “in facilities that are safe and sanitary.” Such facilities must also be “consistent with…concern for the particular vulnerability of minors.”

The Agreement gets into some specifics: “Facilities will provide access to toilets and sinks, drinking water and food as appropriate, medical assistance if the minor is in need of emergency services, adequate temperature control and ventilation, adequate supervision to protect minors from others, and contact with family members who were arrested with the minor.” There was no dispute that the Agreement remains in effect as a matter of law to this day.

This Case

In May 2016, the plaintiffs filed a motion to enforce the Agreement. They contended that the government continued to violate it by, among other things, detaining class members – that is, minors – in unsafe and unsanitary conditions.

In June 2017, Judge Gee of the U.S. District Court granted plaintiffs’ motion to enforce. The court found that the government was violating the Agreement’s express requirements to provide adequate access to appropriate food and water and “adequate temperature controls at a reasonable and comfortable range.”

The court further found that although the Agreement “makes no mention of the words ‘soap,’ ‘towels,’ ‘showers,’ ‘dry clothing,’ or ‘toothbrushes,’ . . . these hygiene products fall within the rubric of the Agreement’s language requiring ‘safe and sanitary’ conditions.”

Certain Border Patrol stations, the district court found, were violating paragraph 12A of the Agreement by failing to provide such sanitary necessities. Other facilities were depriving the children of adequate sleep. The government appealed to the U.S. Court of Appeals for the Ninth Circuit.

Jurisdictional Quirk

Bear with me here, because it’s worth understanding this point. By federal statute, the Circuit Court of appeals has jurisdiction in this type of case over district court orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.”

Since everyone agreed that Judge Gee did not grant, continue, refuse or dissolve the Agreement, the Court of Appeals can review her ruling only if it “modified” the Agreement. The Ninth Circuit dismissed the appeal because the district court did not modify (change) the Agreement in its ruling, but simply interpreted it. Here’s why this matters.

The Crux

The Ninth Circuit’s recounting of the government’s position is as follows:

Specifically, the government contends that, by interpreting paragraph 12A in the body of its opinion to require that Border Patrol stations provide the most basic human necessities—accommodations that allow for adequate sleep, essential hygiene items, and adequate, clean food and water—the district court modified the Agreement’s requirement that minors be held in “safe and sanitary” conditions that comport with the “special concern for the particular vulnerability of minors.” We emphatically disagree. 

The government first suggests that the key phrases in paragraph 12A—“safe and sanitary” and “special concern for the particular vulnerability of minors”—add nothing to the enumerated specific requirements found in the next sentence of the Agreement (requiring “access to toilets and sinks, drinking water and food as appropriate,” and so on). The government’s brief maintains that as the enumerated conditions said nothing about, for example, allowing the children in government custody to sleep or to wash themselves with soap, reading the “safe and sanitary” requirement to cover those requirements is a modification of the Agreement rather than an interpretation of it.

Wait, What?

You read that correctly. The U.S. Department of Justice argued before a three-judge panel of the U.S. Court of Appeals that requiring a bar of soap, a toothbrush, and food that is edible “modified” a decades-old Agreement requiring safe and sanitary conditions.

That’s after arguing that “safe and sanitary” adds nothing to the requirements for toilets, sinks, water and food. Therefore, the toilets, sinks, water and food need not be safe and sanitary, even though the Agreement says they must.

The Circuit Court’s Decision

The Circuit Court goes on to demolish the argument as an untenable approach to contractual interpretation. It also dismisses the notion that the phrase “safe and sanitary” is so vague that either it cannot be enforced, or it leaves “the specifics of compliance [with the Agreement’s paragraph 12A] up to” the government. From the opinion:

The district court’s interpretation of the Agreement is consistent with the ordinary meaning of the language of paragraph 12A, which does provide a standard sufficiently clear to be enforced. The court found, among other things, that minors (1) were “not receiving hot, edible, or a sufficient number of meals during a given day,” (2) “had no adequate access to clean drinking water,” (3) experienced “unsanitary conditions with respect to the holding cells and bathroom facilities,” (4) lacked “access to clean bedding, and access to hygiene products (i.e., toothbrushes, soap, towels),” and (5) endured “sleep deprivation” as a result of “cold temperatures, overcrowding, lack of proper bedding (i.e., blankets, mats), [and] constant lighting.”

After so finding, the district court concluded that these conditions fall short of paragraph 12A’s requirement that facilities be “safe and sanitary,” especially given “the particular vulnerability of minors.” Those determinations reflect a commonsense understanding of what the quoted language requires… The district court properly construed the Agreement as requiring such conditions rather than allowing the government to decide whether to provide them.

There are other issues in the case, also decided against the government. The opinion is available at http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/15/17-56297.pdf.

An Aside

I am not going after the individual attorney from the Department of Justice who (apparently drew the short straw and) found herself handling the oral argument in this case. The lawyers standing before judges, or justices of the Supreme Court, are seldom the ones deciding which cases to appeal, and on what grounds.

Conclusion (at least for now)

Really, I ask you to pause for a moment to absorb this. A lawyer for the United States of America asked a federal court of appeals to rule that while the Flores Agreement requires detained children to be provided “drinking water and food as appropriate”, it says nothing about potable water or edible food.

This should be the stuff of satire, but I am making none of this up. Most of this post comes straight from the court’s recent opinion. A recording of the oral argument went “viral” – presumably for the equal parts incredulity and dismay with which the judges received such arguments. Consider whether the position taken is worse legally or morally.

Yet, those arguing there are no issues or problems at our borders are clearly wrong as well. Apparently, thousands of people daily find arrest in America preferable to what they face at home. The logistical issues, alone, of dealing with such numbers of people are daunting and must be addressed. According to a July 29 Time Magazine article, 363,300 people from Guatemala, El Salvador and Honduras have been arrested at borders since October. Assuming the number correct and including every day of October 2018, that’s 12,030 people per day for ten months.

Saying we should simply open our borders is almost as silly as saying that our country is “full”. Or that immigrants are a bunch of dangerous criminals. Or that we don’t want hard, honest work done inexpensively and well, when clearly we do. You know the drill.

So, again, we see us paying the price for governing with intellectual dishonesty in this area for many years. In this case, the price is the spectacle of our government taking foolish and despicable positions in formal litigation. Not to mention the suffering at the borders.

Are there folks we need to send home? Yep. Start with the elected members of the executive and legislative branches of our government who refuse to do their jobs. You know, the ones who are too busy pandering, grandstanding, and fear-mongering. Again, we must get adults in the room to hammer out immigration law and policy we can believe in enough to enforce.

Hot off the Press

As I publish this, I understand that the Trump Administration, predictably perhaps, has announced plans today to end the Flores Agreement. Without knowing the details, I’d like to be optimistic and think that’s to replace it with something better. It seems wise to gird oneself for the next outrage, however. Also, I’ll be interested to see how the executive branch would “end” a court order settling a federal class action lawsuit. Presumably there will be new rule-making, with litigation quickly to follow. [Sigh]

Ken Bossong

© 2019 Kenneth J. Bossong