A LOOK BACK AT IMMIGRATION

"People will not look forward to posterity, who never look backward to their ancestors."  Edmund Burke

I recently read a timely article reviewing a history of the forced emigration of thousands of Scottish people from their homeland. (The Scottish Clearance: A History of the Dispossessed 1600-1900. By TM. Devine) Wealthy English land owners needed more space to graze their livestock, principally sheep. Entire villages, first in the Scottish Lowlands, later in the Highlands, were given the option of starving to death or embarking on boats for America, Canada and Australia.

A well read English periodical in 1739, the Gentlemen’s Magazine, gave the following justification for the forced emptying out of Scotland:

“Being destitute of all means of knowledge, and without any schools to educate their children, [they] are entirely ignorant of the principles of religion and virtue, live in idleness and poverty, have no notion of industry, or sense of liberty, are subject to the will and command of their popish disaffected chieftains, who have always opposed the propagating of Christian knowledge, and the English tongue, that they might with less difficulty keep their miserable vassals in a slavish dependence.”

The ancestors of Scottish Americans were summarily exported from their homeland, not unlike the bales of wool that replaced them. The number of Americans of Scottish descent today is estimated to be 20 to 25 million (up to 8.3% of the total US population), and Scotch-Irish 27 to 30 million (up to 10% of the total US population). The Scotch-Irish immigrated to Ireland before coming to America.

This article gave me pause to consider the views of any American supporting the Trump policies on legal immigration, who happens to be of Scottish heritage.  How is it possible to deny the same opportunity to others, an opportunity that literally saved the lives of their ancestors and made a path for their forbearers to thrive and contribute to the American dream?

 Other immigration histories tell a similar story. Approximately 84% of Italian immigrants came from Southern Italy and Sicily, which was still largely rural and agricultural. Much of the populace had been impoverished by centuries of foreign misrule, and an oppressive taxation system. In 1870, there were less than 25,000 Italian immigrants in America.  Shortly thereafter about 5.5 million Italians immigrated to the United States and Italians are now the fourth largest group of Europeans in the country.

The Irish were an even a bigger mass migration.  About 33 million Americans,10.5% of the total population, reported Irish ancestry in 2013. This compares with a population of 6.7 million on the island of Ireland.  A significant factor was the Irish famine. During the mid-19th Century, Ireland experienced the worst social and economic disaster a nation could suffer. A quarter of the island's population starved to death or emigrated to escape truly appalling conditions.  England did little to help and was more than happy to see their catholic neighbors seek greener pastures.

Closer to home, my Quaker ancestors immigrated much earlier, in the late 1600s. But the reasons were no less severe. English religious persecution made life unbearable in the homeland. Lastly, almost all Jewish Americans can trace their journey to America through European and Russian pogroms or the rise of fascism.   

The point is that other than African Americans, brought to America against their will and forced to endure the unthinkable, we are all here and our American family stories permitted to take root because of persecution, hate, or starvation in our ancestral homelands.  No nation is as diverse as American.  Other than Native Americans, no ethnic group can lay claim to owning the historical foundation story of America.  We were all once unwanted, unwashed, penniless, facing certain death and/or considered undesirable.

Attempts to label America “a Christian nation” in order to exclude those of other faiths is a false narrative.  The very reason for our national formation was to cobble together a nation built on religious freedom.  Moreover, those masses of people at our southern border, attempting to immigrate legally from Latin America, are often more dedicated Christians than those who seek to block their path.

This commentary is not about illegal immigration.  There is no hiding behind the claim: “my ancestors immigrated legally, and I only oppose illegal immigration.” The discussion point is much less complicated.  Given the opportunities that were afforded our ancestors, how can any of us support the Trump Administration’s assault on legal immigration?

Part II of this commentary will review Trump policies on legal immigration, the response of the legal community and the courts, and why this matters to all of us.

THE TRUMP ASSAULT ON LEGAL IMMIGRATION

“Shall we refuse the unhappy fugitives from distress that hospitality which the savages of the wilderness extended to our fathers arriving in this land? Shall oppressed humanity find no asylum on this globe?” Thomas Jefferson, First Report to Congress

Part one of this commentary reviewed the history that brought our forefathers to America.  What follows is a summary of the Trump Administration’s concerted effort in 2018 to reverse years of legal immigration policy.  While there were other egregious attacks on legal immigration that took place in 2017, the most significant actions took place last year.  If such a hostile immigration environment had been permitted to take hold in previous generations, most of us would not be Americans today.

·      *Despite the fact that the number of displaced people is at the highest level since WWII, the Trump Administration lowered the refugee cap for 2018 to 45,000 and then only admitted half that number, 22,491, the lowest number in 40 years.

·      *Immigration authorities in 2018 denied 37 percent more filings related to immigration including travel documents, work permits, and green cards.

·     *The number of immigrants who received visas to move permanently to the United States, normally highly skilled workers, dropped 12 per cent in 2018.

·      *The Trump Administration began seeking a regulatory policy change in 2018 to deny the spouses of H-1B visas, the right to work.  If this change receives final clearance, over 100,000 spouses could lose their jobs.

·      *In 2018 the Administration separated thousands of children from their families. The humanitarian crisis that resulted was blamed on the Latin American families with young children fleeing violence and oppression rather than on the misplaced policy which had been set in motion with no method of uniting the families in the future.  Internal Administration documents have revealed that the program was designed as a threat to cut the flow of families seeking legal asylum.

·      *The separation of families was exasperated on April 6, 2018 when then Attorney General Jeff Sessions announced his “zero tolerance” policy to criminally prosecute asylum seekers who were not afforded a timely review at ports of entry and crossed the border without inspection.  This policy was in direct opposition to immigration laws passed by Congress. In short order, 3000 children were forcibly separated from their families.

·       *Throughout 2018 the Trump Administration systematically ended temporary protection status (TPS) for hundreds of thousands of immigrants who fled natural, criminal and political disasters.  When deadlines came up for certain countries, the Administration simply refused to “redisignate” a TPS for each country.  This placed immigrant from those countries in immediate peril of deportation and made it impossible for new individuals to be classified under TPS. The countries most affected by this policy were Salvador; Haiti; Nepal; Honduras; Syria; and Yemen.

·     *In May and June 2018, the number of individuals permitted to enter the country to seek asylum dropped by 42 percent.  This was due in great part to new implementation rules adopted by the Administration.  First, more restrictive guidelines for the first screening interview, narrowed the qualifications for entry.  Second, the Department of Homeland Security (DHS) exasperated backlogs under a new policy of “metering” that limited the number of individuals seen each day at ports of entry.  The hope was that long waits would turn the asylum seekers around.  Third, the Administration began limiting the “credible fear” test for asylum to “persecutions by the government” and by removing “gang violence” as a factor to be used in granting asylum. (there is great irony in this given Trump’s use of the horrors of Latino gang violence as a reason to wall-in the border)

·    *  The Department of Justice sought to make major changes in the asylum process by making the immigration court system more restrictive. First, a long held requirement that asylum seekers receive a full hearing before an immigration Judge was eliminated.  Second, after an asylum seeker passed the “credible fear screening” test they must now remain in detention, unable to collect the data needed to be granted asylum.  Third, there have been Administration attempts, not yet implemented, to charge $50.00 for an asylum application.

·     * In June, 2018, Donald Trump nixed Congressional attempts to address the backlog of immigration cases by increasing the number of immigration judges.

There are other actions taken by Trump and his minions of political appointees throughout the federal government designed to undermine legal immigration.  The above examples are merely the highlights.  What I hope is clear is that none of these policies has anything to do with illegal immigration, or building a wall, or providing more security for the American people.

Whatever one thinks about the ACLU, we must be grateful at the fortitude of this organization in swiftly filing lawsuits to protect the recognized rights of immigrants.  The ACLU’S guiding principle is that when the government has the power to deny legal rights and due process to one vulnerable group, everyone’s rights are at risk. The ACLU Immigrants’ Rights Project is dedicated to expanding and enforcing the civil liberties and civil rights of immigrants and in combating public and private discrimination against them.  In 2018 they were busy filing lawsuits around the country…and winning.

It would be a mistake to assume that America’s approach to immigration was a fair and equitable one, prior to 2016.  Before Trump was elected President, our immigration system was already in need of major repair.  For example, individuals from many countries were forced to wait for decades to receive a green card. Workers without college decrees only received 5,000 green cards despite the overwhelming need for agricultural workers.  There was no immigration category for entrepreneurs who wanted to start a business. There was an unreasonable cap on immigrants with “extraordinary abilities” (scientists, business leaders, professional athletes).

Now that Trump has placed the spotlight on immigration by attempting to further destabilize a troubled system, it would be a good time for a more enlighten Congress to consider and overhaul all aspects of immigration. We need to return to the fundamental belief that: “all are welcome”.  Unfortunately, the present policies tell the world: America is closed to those who need our help the most.

THERE IS NO GOING BACK TO NORMAL

The March 1, 2019 NYT editorial comment, penned by Alex Kingsbury, struck me as significant on many levels. (Go Back to Normal After Trump? No Thanks) Mr. Kingsbury pointed out that the statement made by House Oversight Committee Chairman, Elijah Cummings following the public testimony of Michael Cohen: “We have to get back to normal,” is not the result that concerned Americans should be looking for. Hoping to rid the country of a President who ignores the rule of law, who is incapable of truth telling and who has destroyed 50 years of hard earned political diplomacy, may bring us back to the old normal, but this is not enough and in some cases impossible to achieve.  

 Chairman Cummings eloquent comments following the Cohen hearing were widely reported by the media as the high point of the day long proceedings and an attempt at reconciliation in our fractious political climate. But there can be no return to the “good times” engendered by the Obama or Clinton presidencies if one is a Democrat or to those years surrounding the Bush(s) or Reagan administrations if one is a Republican. The Donald Trump presidency has exposed too many shortcomings of “normal” and created a new paradigm.

As Mr. Kingsbury points out, the investigations by the Mueller probe and by the Justice Department in the Southern District of New York have brought additional focus to the “normal” policy of: “treating crimes by the poor as felonies and crimes by the powerful as misdemeanors.”  It is jaw dropping to me that Paul Manafort’s defense team recently argued to the sentencing federal Judge that he should receive a more lenient sentence because “were it not for the Mueller investigation his crimes would never have been exposed”.

While Manafort’s plea for leniency is ridiculous, his point supports Mr. Kingsley’s conclusions.  There are too few prosecutors investigating too many white collar crimes, which are time consuming and complicated.  Wealthy Criminals are violating the public trust, jeopardizing national security and corrupting the political system to rack up millions in profits, often untaxed profits, with impunity. For the most part, these wealthy criminals know that regulations are lax and enforcement underfunded.

Before the Trump gang gained power to remind us how the wealthy flaunt the rule of law, we had the worst recession in our lifetimes. This meltdown, which adversely affected millions of Americans, was caused in great part by the malfeasance of bankers and financial manipulators.  In the aftermath there were few prosecutions. There can be no returning to normal when it comes to ferreting out white collar crime.

Statistics clearly show that when resources are directed against violent crime, these crimes drop dramatically. The same is true of tax fraud but the number of IRS agents has not increased in over 50 years due to congressional underfunding.  The federal government, now in the middle of a deficit crisis, is losing 458 billion a year due to tax evasion, according to the IRS.  There can be no returning to normal when it comes to enforcing our tax laws.

Again, in the area of enforcement, bringing powerful individuals and organizations to the bar, for their complicity in sex trafficking and pedophilia, cannot return to normal. American Universities (Penn State, Michigan State), religious institutions (the Catholic Church) and private individuals (Jeffery Epstein, massage parlor owners) must all be investigated when criminality is apparent. Having a friend in high places must not prevent investigations with adequate resources committed to prosecuting these complex crimes against children and women that often cross state and national borders.

There are many other issues, not touched on by Mr. Kingsley, where it would be a mistake to return to normal. Climate change is one of them.  There is no doubt that President Trump has reversed eight years of progress on climate issues by calling global warming a hoax, by withdrawing from international agreements and recently, by ignoring a report released by the Defense Department raising concerns.  But it is too late for the “old” normal.

Global warming is now out of the slow and steady manageable stage and is entering an accelerated period of worldwide crisis.  Even China, with its commitment to electric cars is showing more concern than the United States.  The “new” normal must replace superficial strategies for a comprehensive policy where our country becomes an inspiration to encourage, not a drag to discourage solutions.

The “old” normal in American politics called for the wealthy and social conservatives in one voting block against the middle class, poor and social liberals on the other.  The Trump election and presidency have shattered this view.  Trump has exposed the existence of a large voting population, in traditional Democratic strongholds, who are economically disadvantaged and who believe the traditional two party system has left them behind.  These voters will continue to support a President who will seek to keep out immigrants, fight against the effects of globalization, promise to bring back basic industry and to withdraw America from international commitments.  These voters will not magically disappear when Trump is no longer in office.

For those who thought that the election of Barrack Obama meant that racism was no longer pervasive in America, the election of Donald Trump has proven this a pipe dream.  Clearly, racism remains virulent. There is no returning to the past belief that respect for minorities was winning the day.  The “new” normal must begin with early childhood education to teach all students the history of slavery, of segregation, of the past use of legal remedies to deny minorities their basic human rights and of the meaning of white privilege in today’s society. Only then can we all understand and share the same national story, learn from it and grow past our racial divide.

In foreign affairs, there is no returning to normal with respect to the Atlantic Alliance.  After two plus years of Trump treating our European allies more like rivals than partners, very few Europeans believe the President will do the right thing during a crisis.  There are too many cracks in the Alliance to return the relationship to “normal”, even with a new President in the White House. European leaders have been forced to move beyond Trump because of the ambiguities caused by his actions on Iran, in Syria, on arms control treaties and in imposing tariffs. There is also outright fear and indignation caused by his rhetoric on threatening not coming to the aid of NATO members who do not pay their bills.

While the next President might attempt to restart the Alliance, Europe will now be inclined to develop other strategic partners, particularly economic ones, and to act independently of American interests.  Not all the goodwill that has been lost will be regained.  The United States will be more alone in the world than at any time since WWII.

Donald Trump has made it impossible to return to the “old” normal, following his departure. His wrecking ball adventurism in domestic and foreign affairs has been cataclysmic and will require not simple repairs but rather major resets in policy. The challenge for Democrats reaches far beyond winning elections.  The ultimate test will be governing in the post Trump world.

TOLERANCE IS NOT A VIRTUE

“Everybody's joining up to fight
For the right to be wrong
I need some
Sentimental hygiene”         Warren Zevon

The subject of tolerance in a mature democratic republic such as the United States would appear to require little thought or discussion.  One would assume that tolerance of others is a positive notion that always signifies good character and is an enlightened, liberal goal, above reproach. 

In fact, the history of tolerance in political theory and philosophical circles reveals that the concept of tolerance is complicated and is often exercised without any compassion or even true acceptance of others. Since the time of the classical philosophers there have been two opposing schools of thought. On the one hand are those who believe tolerance is a positive force that can be used to strengthen diverse societies.  On the other is the belief that tolerance is nothing more than another tool of the majority to keep well-meaning minorities in their place.

 I have concluded that as tolerance is utilized in practice today, it is often anything but a virtue.  On the bright side, understanding tolerance as it relates to “the others”, with whom we are in conflict, can provide a roadmap to help us understand the difficult social, political and moral issues with which we struggle.  The key is to recognize the difference between intolerance, permissive tolerance and respectful tolerance.

In order to understand tolerance, it is important to recognize that majorities cannot come to tolerate a racial group, a religion, a sexual orientation, gender roles or any other minority without first having an objection to the particular group the majority decides to tolerate. Most often, the gift of tolerance from the majority to the minority comes at a price and with rules.  This has been defined as permissive tolerance. 

Consider the following examples of permissive tolerance from American and European history.  Jews will be tolerated but must live in ghettoes and pay special taxes.  African Americans will be tolerated as long as they live in red lined districts, accept impediments to voting and racial profiling.  Non heterosexuals will be tolerated under “don’t ask, don’t tell” policies or as long as they do not seek marriage status.  Women in the work place will be tolerated as long as they accept lower wages for equal work.  In this manner majorities throughout history, in both authoritarian and democratic societies, have used tolerance to dominate minorities.  In this context, tolerance is about power, not morality. 

The problem with permissive tolerance, as history has often proven, is that the majority may change its collective mind and have the original objection to the minority reinstated.  In this way intolerance returns and the minority is again persecuted, with no rights at all.

 Moreover, permissive tolerance is often used to compel assimilation of the minority into the majority.  While some assimilation is necessary to encourage a “national identity”, when the majority demands changes to fundamental values of a minority, it becomes an obvious affront to the minority seeking to maintain its own views and identity.

The process is a bit different for individuals as opposed to majorities who claim to be tolerant of others. When one who believes they are tolerant says: “I was racist in the past but now I am tolerant of minorities who mind their own business”; or: “homosexual behavior is against the Bible, but now I tolerate them as long as they are not permitted to marry”; or “I tolerate women at work as long as they do not bid on the highest paying jobs”, this is hardly a virtue. 

The minorities we attempt to shower with permissive tolerance want no such thing.  It is not enough to not be persecuted.  They want to be respected as fellow human beings.  They want to be considered as neighbors, friends and colleagues who are diverse but treated equally in every respect.  This is called respectful tolerance.

I will consider two additional questions raised by the tolerance debate.  First, when is intolerance (refusal to tolerate or respect opinions contrary to one’s own) the appropriate course to take?  After all, notwithstanding our democratic freedoms and liberties, the majority is rightfully intolerant of incest, pedophilia, terrorists and anyone who would exercise the “assassins veto” by killing another individual who disagrees with them. (think Saudi Arabia and Russia).  But where do we draw the line? When do we come down on the side of individual freedom and when do we seek to ban unacceptable views and behavior?

This leads directly to the second question.  Should we confront those who practice unacceptable intolerance like racism, homophobia, religious persecution and attacks on the LGLT community by coaxing them back into tolerance through rationale discourse or should we attack their views with vigor to show our displeasure of intolerant behavior? Here lies one of the paradoxes: In order to preserve tolerance, must we be intolerant toward those who are intolerant? 

Since the election of Donald Trump, this question has become a daily dilemma for many progressive Americans. Some take the position that Trump supporters must be met with intolerance because they will never change.  Others (myself included) believe that the key to winning back democratic supporters is to stay tolerant toward these voters who elected Trump and show respect for their opinions and concerns.

The conceptual framework developed by the esteemed political philosopher, Rainer Forst, offers a commonsense solution to some of these questions.  He believes that tolerance and justice are closely correlated. The majority or individual with an objection to a particular group or behavior must justify its objection by asking: “are my reasons for objecting sufficient to reject the group or practice as a law abiding citizen?… The objection cannot be based on religious or ethical views or some traditional belief that can be generally justified in a pluralist society.”  See: The Power of Tolerance, A Debate (2014)

This approach also works when confronting unacceptable intolerance. Rejection of an egregious behavior, belief or group must always be supported by justifiable legal/ethical norms rather than by emotions or unsupported subjective standards of the majority.

By applying this simple test, it is possible for each of us to make our own value judgments on whether to reject a behavior or group as outside the parameters of a modern democratic society, or whether the group or behavior deserves our respect. The Trump supporter in the Mid-West, concerned about losing his job and worried that the information age and globalization are leaving him behind can be shown respect by progressive democrats, not intolerance.  

Under this model it becomes possible for competing interests to live together in conflict, but with a high degree of understanding.  In weighing whether to be tolerant: rejection or respect become the only two choices.  We eliminate permissive tolerance which has been the cause of so much unbridled resentment by minorities, trying to make their way in the modern world.

With permissive tolerance, majorities are resentful because the minorities who are tolerated do not accept the concessions that are extended to them and remain angry. Minorities are resentful that society has failed to offer respect instead of superficial permission for their views.   For example, I believe the Democratic Party was guilty of permissive tolerance in the last Presidential Election, toward many Mid-Western voters and their views. Presidential candidate Hillary Clinton’s “deplorable” label on Trump supporters was even worse and bordered on intolerance toward a large portion of the electorate.   When there is no justifiable reason for an objection toward a minority view or behavior, it is time to demonstrate respectful tolerance, with no strings attached.

I will finish with an observation that may not be obvious to all.  When one respectfully tolerates another religion, racial minority, political ideology or the like, this does not mean that one is adopting that person or belief as one’s own.  Conflict between competing interests remains and the (civilized) debate continues on a level playing field.  After all, this healthy conflict is the basis for our pluralistic democracy.

For those that take the time to understand tolerance, a new method of understanding “the other” opens up.  It compels each of us, when in the majority, to consider what it is like to be in the minority, where permissive tolerance feels a lot like no tolerance at all.

 It also works when confronted with a political debate, where both factions are too concerned with “being right” and complaining about the intolerance of the other.  Searching for objective justifications for the other’s position encourages respectful tolerance and civility as we seek to regain a semblance of political order in our fragmented society.

THE NEW CUBAN REVOLUTION

Part I of my commentary on Cuba concerned the Cuban people and their adaptation to socialism following the 1959 revolution. I will now review what our group from the Washington County Bar Association learned, concerning recent political events and the state of Cuban-American relations, on our recent trip to the island.

Other than the Miami Newspapers and the Latin American press, there has been little reporting on the significant changes that are taking place politically in Cuba.  With the notable exception of South Florida, Americans are not aware that a new Cuban Revolution is in full swing, one that is characterized by new leadership and a new constitution rather than by bullets.

For the first time since 1959, a man not named Castro is the head of state in Cuba. Effective in April 2018, Miguel Diaz-Canel, became Prime Minister. The previous head of state, Raul Castro, brother of former leader, Fidel Castro, remains First Secretary of the Communist Party and Commander-in-Chief of the Revolutionary Armed Forces.  Diaz-Canel is scheduled to replace Castro as head of the Communist Party in 2021. This represents a clearly non-dynastic form of succession for the Communist Party as well as the Republic of Cuba.

With this background in place, the next phase of the revolution is underway with a new comprehensive constitution. A constitutional referendum is scheduled for February 24, 2019 following much debate and many amendments. Voters will be asked to approve the draft passed by the National Assembly in July 2018.  The referendum is expected to pass, with a large majority of Cubans casting ballots (86% of voters participated in the last general election) following an intense period of discussion, education and local media exposure. Cuban exiles were invited to participate in the discussions leading up to the final draft. In traveling around Havana, we saw many bill boards dedicated to explaining the referendum.

The new Constitution calls for the recognition of private property and the creation of a freer market, although it does not go as far as China or Viet Nam in establishing a market based economy.  Even before the referendum, private labor had expanded to 30% of the available jobs. Now, 200 legal forms of private employment will be recognized, mostly in the agricultural, restaurant and tourist trades. We saw firsthand that Cubans entering the private sector were among the wealthiest in Havana.  Private homes were doing double duty as restaurants and art galleries.  Tour guides were able to afford homes and vehicles well beyond the reach of the average Cuban.

The Constitution creates two consecutive five-year term limits imposed on the office of President.  There are provisions that ban discrimination and some general language that would seem to permit same-sex marriage.  There is a restoration of a “presumption of innocence” in the justice system.  A major reform calls for decentralization of decision making by allowing regional and local levels of government to discuss their problems, develop their own resources and to implement solutions.

To get to the heart of the new constitution one must carefully consider Article I as well as the reforms that were not introduced.  Article I, which sounds like it was written with Thomas Jefferson in mind calls for: “A socialist state based on the rule of law, democratic…aimed at the employment of political freedom, equity, justice and social equality…welfare and individual and collective prosperity.” But the devil is in the details.  Despite the new constitution Cuba will remain an authoritarian state with the communist party and military still firmly in control of the political apparatus and major institutions.

 While in the United States we move ever so slowly toward more “collective prosperity” with changes to health care and inequality, Cuba does the opposite, moving at a snail’s pace toward “individual prosperity”.  The age old democratic debate between the principles of liberty versus those of equality plays out in two countries 90 miles apart.

In light of these transformative political changes, what is the state of Cuban-U.S. relations?  One would think that our foreign policy would be to encourage these reforms and to reward Cuba by finally lifting the crippling embargo, that has caused untold suffering to the Cuban people for years.  This assessment would be wrong.

 The Obama administration recognized that Cuba was taking steps to become less authoritarian and no longer posed a threat to America by exporting communism to Latin America.  At the end of his second term Obama took the necessary steps to re-establish diplomatic relations and to ease the embargo.  When President Trump assumed office he immediately reversed course and again placed relations on a belligerent footing.  This was despite the fact that during the presidential campaign, the Trump business interests actively pursued the building of a hotel in the resort area of Cuba.

Some observers would attribute Trump’s actions to a simple knee jerk reaction toward any foreign policy initiative formulated by Obama. Others have focused on a more sinister political motivation based on the politics of South Florida. Marco Rubio and the politically powerful group of wealthy Cubans who defend the United States embargo against Cuba can deliver a great deal of money and enough votes to keep Florida in the Republican fold. Trump needed Florida to win the presidency in 2016 and will need Rubio’s support again in 2020.

It seems obvious to most observers of recent events in Cuba that tourism, foreign investment, and fewer restrictions would do more to encourage further change than a seventh decade of embargo.  Unlike our ally, Saudi Arabia, the Cuban government does not execute political critics.  Our group’s discussions with Cuban intellectuals revealed that politics are openly discussed and that a great deal of political dissent is tolerated.

A recent poll conducted by the Miami press (see Sun-Sentinel, February 1, 2019) shows that as fewer Cubans in South Florida are actually born in Cuba, attitudes are changing. Cuba came in dead last as the social issue Cuban-Americans care most about in elections.  Overall support for the embargo has declined significantly over time with 51% now in favor versus 78% in 1997. 83% of Cuban Americans now believe that the embargo has not worked at all or not worked very well.

Young Cuban voters are overwhelmingly against the embargo. The diplomatic relations resumed by President Obama at the end of his administration were supported by 77% of Cubans born in America.

With this degree of sea change, it is difficult to imagine that the old school conservative Cuban “hate machine” against Cuban socialism can hold together its grip on Miami politics much longer. Once Cuban Americans decide that freely visiting their homeland and removing the economic hardships for the average Cuban are more important than waiting for a regime change that will never happen, Cuban-U.S. relations will permanently open up. 

America will learn to live with its small socialist neighbor, as it has with other illiberal regimes around the world.  The trade and investment opportunities available in Cuba will far outweigh the continuation of an ideological conflict that most Americans do not remember, or care much about.

CUBA: IT’S COMPLICATED

When one asks a native Cuban a question about the state of affairs in their fascinating country, the answer is invariably, “it’s complicated”.  After spending five days in Havana and being introduced to all aspects of Cuban political, social, economic and artistic culture, I have come to believe that this remark is an understatement.

Recently, 24 intrepid lawyers, spouses and friends, interested in learning more about our neighbor off the coast of Miami, took advantage of a whirl wind cultural exchange sponsored by the Washington County Bar Association.  The tour was packed with lectures, diverse eating experiences, museums, an art colony and music/dance ensembles.  By the end of the five days, many of the questions and misconceptions surrounding this socialist island nation had been addressed.  But no one would disagree that Cuba remains a mystery wrapped in an enigma……and very complicated.

In talking to Cubans about their history and place in the world, the generation gaps are even more pronounced than in America.  Those born BC (before Castro) remember the inequality and corruption rampant in the Batista regime.  These older Cubans, now in their 70s and 80s tend to favor the revolution despite the many hardships.  Cubans born AC (after Castro) base their more pessimistic views on the Russian-Soviet withdrawal from the island during in the 90s.  This was a period of extreme economic hardship when many believed Cuba’s socialist experiment would not survive.

The even younger Cubans, now entering adulthood, are less conscious of the advances in education, healthcare and social equality achieved under socialism.  Many cannot wait to receive their excellent free education and seek to leave the island.   They are no doubt influenced by the siren call of uncensored internet and accessible media broadcasts from the U.S. mainland.

Another complication of Cuban culture is the dichotomy between the significant advances Castro’s socialism has achieved for the Cuban people, particularly those disadvantaged under the previous regime, and the massive dysfunctions caused by the same system.  On the one hand is the highest literacy rate in Latin America that turns out some of the best engineers and physicians in the world.  On the other hand, there are few employment opportunities in many segments of the economy. Professionals, even in essential fields, are poorly paid.  With the increase in tourism, it is not uncommon for a private restaurant owner or even a taxi driver with tips to earn more than a top surgeon.

Free comprehensive health care for all, with less infant mortality than the United States, is contrasted with little access to high tech medical equipment, because of the embargo. (see Nicholas Kristof NYT 1/18/19) As a result, every Cuban has some of the best basic universal health care in the world, with no opportunity to be treated with cutting edge procedures.

Housing in Cuba is complicated.  The homes of wealthy citizens who left the island following the revolution were turned into multifamily residences.  Cubans were permitted to purchase their living space from the government over a 15 year period.  The good news is that most Cubans now own their homes.  The bad news is that several generations of the same family often occupy the same space. Transfers of real estate are difficult with the value on the deed much lower than the market value.  Non Cubans are not permitted to own property which encourages very creative transactions with ex-pats who seek to live on the island.

New infrastructure and renovation of Cuban buildings has been nonexistent since the 1959 revolution.  Havana, once the pride of the Caribbean and Latin America, is now shabby at best.  Certain streets would not look out of place in the war torn Middle East. The problem is complicated by the embargo which makes it difficult to import building materials when other necessities are in high demand.  Moreover, Cuban housing regulations do not provide for maintaining common areas of residential buildings. Accordingly, there is no incentive for owners in a building to repair stained facades, crumbling steps, or dingy hallways. Lastly, new investment on the island is going to build up the resort area, not Havana.

The Cuban citizens’ relationship with their country is complicated.  My observation is that many complain about socialism with its dysfunctional economy, authoritarian government and stifling bureaucracy that manages to “find a problem for every solution.”  At the same time, Cubans are strongly nationalistic and are well aware that the violence and abject poverty found throughout Latin America does not exist in Cuba.

Guns are not permitted, with even long guns used for hunting in rural areas tightly controlled. Illegal drug use is nominal with strict criminal penalties and there are no gangs of disillusioned youth.  Havana streets are among the safest in the world.

One comes away from Cuba amazed at the resourcefulness of the people in dealing with the many complications.  The fact that 60,000 American vintage cars are still on the streets of Havana, wowing tourists, is itself a testimony to making the best of things. A “hybrid” vehicle is one that is kept running from parts pirated from many makes and models.

For under $5.00 Cuban young people can enjoy a romantic night on the town. This would include a movie (prices are subsidized by the government) ice cream at one of the famous parlors and a moon lit stroll down the Malecon, the five-mile sea walk that separates Havana from the ocean.

Cubans have learned how to circumvent the socialist system to get what they need in a variety of ways.  Many have second and third sources of income in addition to the low government wages.  When there is a crack in the monolithic socialist economy that permits a small degree of private enterprise, restaurants, creative arts groups and small businesses flourish.  Families work around the slim pickings on Cuban television by renting a black market video box full of current media, streamed from the U.S. over the internet.

Part two of this commentary will discuss the changing political environment in Cuba and the state of Cuban-American relations.

  

THE REAL CRISIS: LOSS OF EXPERIENCE IN THE FEDERAL GOVERNMENT

As we enter 2019, there is a long list of problems to concern the neutral observer on the health of American governance.  In my view, almost all the ongoing crises, including trade wars, a prolonged governmental shutdown, uncertainty in foreign policy (that has allies and opponents alike scratching their heads) and even the threat of impeachment can all be traced to one overriding factor.  

There is a pronounced lack of knowledgeable advisors in the White House, in Congress and throughout the federal bureaucracy.  I am speaking of the paucity in today’s White House and federal government of old school political operatives; of foreign policy experts who are well versed in strategic options as well how foreign regimes think and act; and of economists and international experts with experience in negotiating agreements with other countries.

First, consider the Senate and the House of Representatives.  On matters of trade, the use of force, international agreements and even crafting bipartisan legislation on complex technical matters, Congress has gone AWOL. The past practice of members of Congress developing expertise in a certain area of governance in order to advise and challenge the President is no longer the case. It has been reported that new Republican members in the House of Representatives proudly announced their lack of a passport rather than their eagerness to learn and dive deeply into foreign policy. Exasperating the problem, today’s members of Congress seek to be placed on more committees then in the past, giving them little opportunity to gain proficiency in any one area.

The world is a complicated and dangerous place.  When we elect legislators who are partisan ideologues rather than those with the desire to get involved with policy and to govern, a valuable check and balance is lost. Power is ceded to the Presidency by default.  The White House is relied on to provide the expertise necessary to navigate through troubled waters without Congressional input or oversite.

Which brings us to Donald Trump’s two-year-old presidency. In the modern era, Presidents have been pleased that Congress has shirked its responsibilities. For example, shortly after 9/11, Congress passed the Authorization for Use of Military Force to combat terrorism. The AUMF has remained in place and given subsequent presidents the unchecked ability to expand military operations throughout the Middle East. Presidents Bush 43 and Obama gladly assumed the additional responsibility and staffed up the National Security Council with well-versed policy experts to replace what was clearly a congressional duty.  No one seemed to care.

Unfortunately, President Trump, while welcoming the lack of constraint on his actions, has not taken the manpower steps necessary to run an effective presidency. Where Obama hired the best experts he could find to present multiple options and encouraged debate, Trump openly criticizes or terminates those who disagree with him and seeks minimal input.

Now, two years into his presidency, Trump has left himself a skeleton crew of ideologically loyal staffers, with questionable expertise, who are willing to accept his “hunches” as the best way forward. The result has been a basketful of questionable unilateral decisions, made by the President with enormous consequences and no Congressional debate. While the media is reporting on Presidential tweets and the Mueller probe, Trump has walked away from the Trans-Pacific Partnership, the Paris Agreement on Climate Change, and the Iran nuclear deal. His international travels have disrupted relations with our allies while embracing totalitarian regimes around the world.

The same can be said of Trump’s use of White House political operatives.  Their main task should be to protect the President from himself. Even with Trump’s loose cannon tendencies, it is difficult to believe that White House political advisors with the accumulated wisdom of a James Baker (Ronald Reagan) or John Podesta (Clinton, Obama) would have permitted Trump to fire FBI Director James Comey and to make the incriminating comments that lead to appointment of an Independent Counsel.

Lastly, the federal bureaucracy has been severely compromised in its ability to effectively carry out its responsibilities since Trump assumed the presidency.  In 2017, the State Department, lost 60 percent of its career ambassadors and a substantial cut to its budget. After more than 24 months in office, hundreds of key jobs that require Senate confirmation have yet to be filled.  In most cases a candidate has not been chosen by the White House. Thirteen Inspector General positions, charged with rooting out waste fraud and abuse, remain unfilled.  So much for Trump’s pledge to drain the swamp in Washington.

All of the above is a crisis, not simply a talking point.  It is not Trump’s fault that over the past several decades Congress has relinquished powers granted to it under the Constitution.  But he is responsible for firing NJ Governor, Chris Christie, who attempted to put a rational transition plan in place and for refusing to recognize his new responsibilities.

A president who states he “knows more than the Generals”, who refuses to read his daily security brief and who despises expertise is a danger indeed.  In the event of a real national emergency, one not manufactured by President Trump, the challenge may be beyond his ability to cope.

THE MEANING OF JUSTICE

The wordsmiths at Merriam-Webster recently declared “justice” the word of the year.  This difficult to define concept, arguably one of the foundations of our constitutional republic, saw a 74% increase in lookups in 2018 over the previous year.  No doubt the public’s interest in “obstruction of Justice” and “Justice Brett Kavanaugh” had something to do with the increase. But whatever the cause of additional focus, justice deserves a more in depth analysis than most Americans are willing to give it.

The origins of justice can be traced to a Gallicized version of the Latin word “iustitia” meaning fairness or equity. Over time the Roman goddess of Justice, portrayed as a woman holding scales in one hand and a sword in the other was adopted as an important symbol.  In the 16^th century, Lady Justice began wearing a blindfold to represent impartiality. The English common law turned justice into the watchword for a new type of court process, later faithfully imported into the American legal system. 

Justice is now used to impart a variety of meanings including equity, objectivity, honesty, morality and a judge of the supreme court.  For those willing to get down in the weeds and consider political philosophy, there are much deeper meanings.

  Understanding the manner in which justice has evolved from Plato and Aristotle through Immanuel Kant to John Rawls gives us a way to understand the deep political conflicts that divide our citizens into unrelenting tribes. It also explains why conservative and liberal judges have such different views on interpreting the law and in deciding what is just.

In a nutshell, the Hellenistic ancients believed that a just society should seek to promote the virtue of its citizens.  This would include passing laws that reflect the most desirable way for people to live.  On the other hand, more modern political philosophers have placed the emphasis on each person’s freedom to choose his or her subjective concept of how to live. Other recent philosophers have focused on the common good or on inequality. These conflicts of virtue versus freedom versus inequality have always been at the heart of the justice debate and remain with us today.

To investigate all of the philosophical nuances of justice is a long and complicated undertaking. Thankfully we have the excellent book by Michael J. Sandel: Justice, What’s The Right Thing To Do?, to help us along.  Professor Sandel teaches the most popular and discussed course at Harvard University, on understanding Justice.  His book is the summary of his scholarship for the rest of us.

Sandel starts with Utilitarianism: the principle of the most good for the most people.  This type of justice maximizes pleasure for the majority no matter how much pain for the minority.  Because we cannot all agree on what is good, utilitarianism and individual freedom are always in conflict.  Should we ban tobacco smoking?  How about soft drinks that lead to obesity?

Second, is Libertarianism: the idea that individual freedom trumps other factors.  Individuals can choose to harm themselves as long as others are not affected. No one should be deprived of individual liberty to help others. This includes taxing the well off to help the poor.  The government does not get the right to decide what is best for the individual.

The problem with formulating a system of justice based on libertarian thought is that we live in a society, not on individual islands.  For example, while it may seem logical to let each person determine their own healthcare, when the individual without insurance gets sick, we all pay for it. To many of us, leaving the social safety net to chance, with no safeguards, seems like cruel punishment to the disadvantaged.

Next, Professor Sandel considers the teachings of Immanuel Kant, which turned libertarian thought on its head.  Kant wrote that justice is a moral precept where it is rational for everyone to act in a way that harms no one. If individual actions cannot be scaled up to be good for everyone, without bad consequences for anyone, the actions are not moral and therefore not just. Conveniently, Kant never explained what his rules of morality should be.  Many consider his concept of justice difficult to follow in the real world.

Fourth, Sandel focuses on John Rawls, often credited with being the most important political philosopher of the 20^th century. The basis of his theory of justice is reason devoid of self-interest. He asks each of us to image a just society where there are no identity politics and where we have no subjective idea of where each of us would fit in, in terms of wealth or social structure.  His conclusion is that as rational beings we would all choose a society where those who have impediments in achieving social or economic standing would be well taken care of and inequality would be frowned upon.

The only inequality permitted in Rawls’ system would be if it were necessary to make all people better off.  For example, it might be required to pay certain professionals more money in medicine and other fields to maintain quality for the greater good.  As a contrast, libertarians believe that “value creators” deserve to keep all the value they create.  Rawls theorized that the entrepreneurs and professionals among us should only get enough “value” to be willing to do what they do.

Of course the Rawls model of justice is the kind of social liberal democratic model, now in vogue in Scandinavia and under severe attack by many illiberal, populist governments. While the western world appeared to accept the Rawls premise after the end of WWII and again after the defeat of Soviet communism, we are moving away from this justice concept that maximizes equality, with basic rights guaranteed for everyone, including minorities.

The last justice concept introduced by Professor Sandel is the virtue ethics of Aristotle. Here, a well-run society is one that encourages virtue, both by rewarding it and by building it through just laws and in the education of young people.  Aristotle disagreed with Kant that a society could develop rules for all people in all situations.  Instead, “the right thing to do” changes with the circumstances. Good people make good societies where good decisions are made, based on virtue. 

Consider four individuals arrested for theft.  The first stole solely to feed his family; the second was a young immature teenager following peer pressure; the third was an addict; the fourth a professional thief. Aristotelian virtue would not apply one hard and fast law to all four cases, but rather consider the right thing to do in each situation.  With Aristotle, “practical wisdom” goes a long way in forming a just society.

These diverse approaches to justice all ask the same question, how do we distribute the things we value in the right way? Each idea, rational in some respects and questionable in others, comes up with a different answer. This debate is important because how we view justice determines how we approach problems as diverse as affirmative action, incarceration, climate change, economic recession and paying for higher education.

The best political philosophers throughout history have been unable to provide one answer acceptable to all citizens living in our democratic republic.  But to understand the underpinnings of the different theories we have regarding justice is to bring moral clarity to the choices that must be made.

When it comes to justice, perhaps the best we can hope for is that informed citizens will consider the validity of different solutions in building a just society.