Where Is Blaise Pascal When You Really Need Him?

Both the Washington Post and the New York Times have reported that the Trump White House refused to approve the written testimony of Dr. Rod Schoonover for entry into the permanent Congressional Record. Dr. Schoonover had testified on Wednesday before the House Permanent Select Committee on Intelligence on the dangers that climate change poses to the security of the US.

Both the Post and the Times had links to the MS Word document of
Dr. Schoonover’s comments complete with the editorial comments of the WH censors reviewers. I have posted a copy of that document here. (I have added the RBC “Seal” and OCR’d the document.) Reading the document is more alarming than the fact of the suppression of Dr. Schoonover’s comments. It reveals a White House or NSC staff that is dominated with climate-denier ideologues.

For instance, one comment reads:

[T]here is nothing exceptional about current climate and it is profoundly incorrect to say that ‘characteristics of global climate are moving outside the bounds experienced in human history.” There was faster and greater Medieval warming around the year 1000 when Norse settled southern Greenland and developed a thriving agricultural society.

BJME 3.

The blog Skeptical Science shoots a hole in that nonsense:

Firstly, evidence suggests that the Medieval Warm Period may have been warmer than today in many parts of the globe such as in the North Atlantic. This warming thereby allowed Vikings to travel further north than had been previously possible because of reductions in sea ice and land ice in the Arctic. However, evidence also suggests that some places were very much cooler than today including the tropical pacific. All in all, when the warm places are averaged out with the cool places, it becomes clear that the overall warmth was likely similar to early to mid 20th century warming.


Since that early century warming, temperatures have risen well-beyond those achieved during the Medieval Warm Period across most of the globe.  The National Academy of Sciences Report on Climate Reconstructions in 2006 found it plausible that current temperatures are hotter than during the Medieval Warm Period.  Further evidence obtained since 2006 suggests that even in the Northern Hemisphere where the Medieval Warm Period was the most visible, temperatures are now beyond those experienced during Medieval times  (Figure 1).  This was also confirmed by a major paper from 78 scientists representing 60 scientific institutions around the world in 2013.


Secondly, the Medieval Warm Period has known causes which explain both the scale of the warmth and the pattern. It has now become clear to scientists that the Medieval Warm Period occurred during a time which had higher than average solar radiation and less volcanic activity (both resulting in warming). New evidence is also suggesting that changes in ocean circulation patterns played a very important role in bringing warmer seawater into the North Atlantic. This explains much of the extraordinary warmth in that region. These causes of warming contrast significantly with today’s warming, which we know cannot be caused by the same mechanisms.

However, at the center of the WH attack is the “uncertainty principle.” That is, the proposition that we cannot act on the threat of global climate change because it is possible that our conclusions are not airtight. Thus, they include this quote from Syukuro “Suki” Manabe: “Don’t put your model in a race with nature. Your model will lose this race.” The quote is literally accurate but taken out of context. What Manabe did in his work was to simplify his models, taking out complexities and, thereby, isolating specific factors in climate change. See here. Manabe believes in the reality of CO2 driven climate change and the basic accuracy of climate models.

Finally, we get to Blaise Pascal and his famous wager. In its most simple form, Pascal posits that we cannot by human reason either prove or disprove whether God exists. He points out that if a wager was between the equal chance of gaining two lifetimes of happiness and gaining nothing, then a person would be a fool to bet on the latter. He then concludes that it is irrational to risk an eternal life of happiness for the possibility of gaining nothing. (“If you gain, you gain all; if you lose, you lose nothing.”) (I’m certain that many of the members of the RBC would jump on me if I did not point out that one of the flaws in the wager is that there are many competing gods and that one cannot, using human reasoning, prove which is the true god.)

But that’s not the choice we face in addressing global climate change.

First, modeling, while not perfect, allows us to fairly accurately compute the future temperature rise and rise in ocean acidity due to CO2 buildup. Thus, we are out of “coin flip” territory. The probabilities of a disastrous outcome are, if not certain, very high.

Second, we can assess our costs, but downside and upside, with some degree of accuracy. We have projections of populated areas that are threatened by sea rise, species that are at risk of extinction, and the geographic shift of areas that can be used in agriculture.

Basically, Pascal basic approach was correct. Weigh the upside against the downside. He was in error in assessing the upside (i.e., that there are many competing gods) and could not calculate the probabilities involved. We are not so limited. Except in the White House.

The Queen of Hearts

From today’s Meet the Press transcript, a portion of the colloquy between Chuck Todd and Sarah Sanders:

CHUCK TODD:
Well it sounds like you’re not — that’s my point. It doesn’t sound like you want him to do his job. It sounds like you, the president has already determined the outcome.
SARAH SANDERS:
Chuck, that’s the reason that he’s granted the attorney general the authority to declassify that information, to look at all the documents necessary is so that we can get to the very bottom of what happened. Once again, we already know about some wrongdoing. The president’s not wrong in that. But he wants to know everything that happened and how far and how wide it went.

I’ve posted the entire Sanders portion of the Meet the Press transcript here.


5 U.S.C. § 3(a) and (b) provide as follows:

§ 3. Appointment of Inspector General; supervision; removal; political activities; appointment of Assistant Inspector General for Auditing and Assistant Inspector General for Investigations
(a) There shall be at the head of each Office an Inspector General who shall be appointed by the President, by and with the advice and consent of the Senate, without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations. Each Inspector General shall report to and be under the general supervision of the head of the establishment involved or, to the extent such authority is delegated, the officer next in rank below such head, but shall not report to, or be subject to supervision by, any other officer of such establishment. Neither the head of the establishment nor the officer next in rank below such head shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpena [sic] during the course of any audit or investigation.
(b) An Inspector General may be removed from office by the President. If an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer. Nothing in this subsection shall prohibit a personnel action otherwise authorized by law, other than transfer or removal.

5 U.S.C. § 3(g) provides as follows:

Each Inspector General shall, in accordance with applicable laws and regulations governing the civil service, obtain legal advice from a counsel either reporting directly to the Inspector General or another Inspector General.

The “investigation” being undertaken by Bill Barr at the direction of Trump is nothing more than a de facto removal from office of the Inspector General of the Department of Justice. When, as Sarah Sanders says, “we’re going to let the attorney general make that determination [of whether James Comey committed treason and should be arrested] as he gets to the conclusion of this investigation” (lines 95-99), what she is saying is that the Trump Administration is intentionally violating 5 U.S.C. § 3(g). That section goes to the core of the independence of the Inspector General. It makes it clear that the Inspector General can only seek legal counsel from an attorney who reports directly up the line to the Inspector General, not the head of the agency that the Inspector General is charged with overseeing.

 “Let the jury consider their verdict,” the King said, for about the twentieth time that day.
“No, no!” said the Queen. “Sentence first–verdict afterward.”
“Stuff and nonsense!” said Alice loudly. “The idea of having the sentence first!

Alice in Wonderland, by Lewis Carroll : Chapter XII

Shortly after that passage, Alice awoke:

‘Oh, I’ve had such a curious dream!’ said Alice, and she told her sister, as well as she could remember them, all these strange Adventures of hers that you have just been reading about; and when she had finished, her sister kissed her, and said, ‘It was a curious dream, dear, certainly: but now run in to your tea; it’s getting late.’ So Alice got up and ran off, thinking while she ran, as well she might, what a wonderful dream it had been.

Somehow, I don’t think that we will soon awaken from this dream. Certainly, we will not view it in retrospect as a wonderful dream.

Another Win for Original Intent

Tonight, the United States District Court for the Northern District of California (Gilliam, J.) issued an injunction as follows:

Defendants Patrick M. Shanahan, in his official capacity as Acting Secretary of Defense, Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security, Steven T. Mnuchin, in his official capacity as Secretary of the Department of the Treasury, and all persons acting under their direction, are enjoined from taking any action to construct a border barrier in the areas Defendants have identified as Yuma Sector Project 1 and El Paso Sector Project 1 using funds reprogrammed by DoD under Section 8005 of the Department of Defense Appropriations Act, 2019.

Slip op. at 55

The court’s reasoning is succinctly summed up in the conclusion of the opinion as follows:

Congress’s “absolute” control over federal expenditures—even when that control may frustrate the desires of the Executive Branch regarding initiatives it views as important—is not a bug in our constitutional system. It is a feature of that system, and an essential one. See [U.S. Dep’t of Navy v. FLRA, 665 F.3d 1339 (D.C. Cir. 2012)] at 1346–47 (“The power over the purse was one of the most important authorities allocated to Congress in the Constitution’s ‘necessary partition of power among the several departments.’”) (quoting The Federalist No. 51, at 320 (James Madison)). The Appropriations Clause is “a bulwark of the Constitution’s separation of powers among the three branches of the National Government,” and is “particularly important as a restraint on Executive Branch officers.” Id. at 1347. In short, the position that when Congress declines the Executive’s request to appropriate funds, the Executive nonetheless may simply find a way to spend those funds “without Congress” does not square with fundamental separation of powers principles dating back to the earliest days of our Republic. See City & Cty of San Francisco, 897 F.3d at 1232 (“[I]f the decision to spend is determined by the Executive alone, without adequate control by the citizen’s Representatives in Congress, liberty is threatened.”) (internal quotation marks and brackets omitted) (quoting Clinton, 524 U.S. at 451) (Kennedy, J., concurring). Justice Frankfurter wrote in 1952 that “[i]t is not a pleasant judicial duty to find that the President has exceeded his powers,” Youngstown, 343 U.S. at 614 (Frankfurter, J., concurring), and that remains no less true today. But “if there is a separation-of-powers concern here, it is between the President and Congress, a boundary that [courts] are sometimes called upon to enforce.” E. Bay Sanctuary Covenant, 909 F.3d at 1250; see also Ctr. for Biological Diversity v. Mattis, 868 F.3d 803, 825–26 (9th Cir. 2017) (“To declare that courts cannot even look to a statute passed by Congress to fulfill international obligations turns on its head the role of the courts and our core respect for a co-equal political branch, Congress.”). Because the Court has found that Plaintiffs are likely to show that Defendants’ actions exceeded their statutory authority, and that irreparable harm will result from those actions, a preliminary injunction must issue pending a resolution of the merits of the case.

Slip opinion at 54-55.

I have posted a copy of the opinion here.

Emergency Etiquette Help Needed

I am a past chair of the Section of Taxation of the Maryland State Bar Association. Tonight, May 22, the Section will be holding its annual dinner. The keynote speaker is the current I.R.S. Commissioner, Charles P. Rettig. I will be in attendance.

An article appeared in today’s Washington Post, revealing that there was a memo (perhaps simply a draft), that concluded that the Secretary of the Treasury does not have the authority to deny a request for taxpayer returns from the House Ways and Means Committee. Here’s a copy of the memo. I don’t have quick access to the relevant documents right now, but I’m am fairly certain that the obligation to enforce the tax code has been delegated to the IRS Commissioner and that this delegation order has (i) not been revoked and (ii) cannot be revoked except upon thirty days’ notice, which notice has not been made. So, Mr. Rettig would seem to be under a specific legal obligation to honor the Ways and Means Committee’s request.

Now, I try to remain civil and non-confrontational in face-to-face interactions. (My internet interactions are, um, somewhat different.) This leaves me in a bit of a quandary that I am hoping members of the RBC can help me resolve. Should I:

  • Question Mr. Rettig about the issue in a semi-confrontational matter (“Isn’t it true, Mr. Commissioner that . . . .”)
  • When Mr. Rettig is called to the rostrum, ostentatiously turn my back to him.
  • When Mr. Rettig is called to the rostrum, ostentatiously leave the room.
  • When Mr. Rettig is called to the rostrum, quietly and unobtrusively leave the room.
  • Simply maintain the ordinary sort of courtesies expected in such social and professional situations (ala Nancy Pelosi in her recent meeting with Attorney General Barr), remaining in the room and politely applauding Mr. Rettig after he finishes his remarks.
  • Any other suggestion?

I note that while I have never meet Mr. Rettig, I know a good number of my colleagues who have. They are unanimous in their appraisal of him that he is an intelligent, decent, and honorable man.

Lab Report

In his dissent in New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), Justice Brandeis wrote:

[T]he advances in the exact sciences and the achievements in invention remind us that the seemingly impossible sometimes happens. There are many men now living who were in the habit of using the age-old expression: ‘It is as impossible as flying.’ The discoveries in physical science, the triumphs in invention, attest the value of the process of trial and error. In large measure, these advances have been due to experimentation. In those fields experimentation has, for two centuries, been not only free but encouraged. Some people assert that our present plight is due, in part, to the limitations set by courts upon experimentation in the fields of social and economic science; and to the discouragement to which proposals for betterment there have been subjected otherwise. There must be power in the states and the nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the Fourteenth Amendment, or the states which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity which have attended progress in the useful arts.

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

Id., 285 U.S. at 310-311.

The states either supported by their courts or, in some cases, lead by their courts, have been doing a good deal of experimentation.

For instance, in League of Women Voters v. Pennsylvania, __ Pa. __ (February 18, 2018), the Pennsylvania Supreme Court held that a Republican attempt to gerrymander congressional districts violated the Pennsylvania state constitution. The U.S. Supreme Court refused to block the Pennsylvania ruling. Thus, the Pennsylvania ruling is impervious to the sort of attack I recognized as a possibility with respect to the various federal cases holding gerrymandering unconstitutional under the federal constitution.

Earlier, I posted a report on a Kansas decision based on that state’s constitution, upholding, at least temporarily, a woman’s right to an abortion.

Finally, this week, the Maryland Court of Special Appeals, Maryland’s intermediate appellate court, in Montgomery County v. Complete Lawn Care, Inc., fended off an attack on a county ordinance restricting the use of certain pesticides for cosmetic purposes in the county. The attack was based upon a claim that the county enactment was preempted by state law. (Among the plaintiffs seeking to block the law was the misleadingly named “Responsible Industry for a Sound Environment, a Committee of Croplife America,” a pesticide trade organization.)

I suppose that it could be argued that the current round of cases differs from the situation presented in New State Ice Co. There, the courts were blocking progressive legislative actions. In the Pennsylvania and Kansas cases above, the courts were acting as bulwarks against legislative attacks on progressive positions. Of course, this gives a somewhat different take on the concept of states’ rights.

Decision Overturning Ohio’s Political Gerrymandering

I have uploaded the decision of a three-judge district court overturning the political gerrymandering of Congressional districts in Ohio engineered by Republican legislators.

The opinion is 301 pages and, no, I have not read it from beginning to end. However, due to the length of this opinion, the Court provided the reader with a more concise summary which states, in part:

“Partisan gerrymandering” occurs when the dominant party in government draws district lines to entrench itself in power and to disadvantage the disfavored party’s voters. Plaintiffs in this action are individual Democratic voters from each of Ohio’s sixteen congressional districts, two non-partisan pro-democracy organizations, and three Democratic-aligned organizations. They challenge the constitutionality of Ohio’s 2012 redistricting map. Defendants are Ohio officials, and Intervenors are Ohio Republican Congressmen; Defendants and Intervenors both argue that the Plaintiffs’ claims are not properly before this Court and defend the map’s constitutionality on the merits.

* * * * *

We join the other federal courts that have held partisan gerrymandering unconstitutional and developed substantially similar standards for adjudicating such claims. We are convinced by the evidence that this partisan gerrymander was intentional and effective and that no legitimate justification accounts for its extremity. Performing our analysis district by district, we conclude that the 2012 map dilutes the votes of Democratic voters by packing and cracking them into districts that are so skewed toward one party that the electoral outcome is predetermined. We conclude that the map unconstitutionally burdens associational rights by making it more difficult for voters and certain organizations to advance their aims, be they pro-Democratic or pro-democracy. We conclude that by creating such a map, the State exceeded its powers under Article I of the Constitution. Accordingly, we declare Ohio’s 2012 map an unconstitutional partisan gerrymander, enjoin its use in the 2020 election, and order the enactment of a constitutionally viable replacement.


This raises a significant question. For me, this might even be characterized as an existential question. I went to law school. I then went to graduate law school. I’ve always believed that there are, roughly speaking, neutral principles of law that I can master. While there are close cases, at some point, one can discern an authoritative answer to legal questions.

There are currently pending two political gerrymandering cases before the Supreme Court: Rucho v. Common Cause, from North Carolina, and Lamone v. Benisek, from Maryland. Assume that the Court holds that courts cannot address claims that political gerrymandering violates the Constitution. That would mean that the various judges in the numerous cases that have all held to contrary have misinterpreted the law. And, of course, their actions were not off-the-cuff. Every case was well-briefed both by the litigants and by numerous amici curiae. The opinions were detailed and scholarly.

At some level, if so many judges with such a mammoth amount of legal resources at their fingertips cannot reach a “correct” conclusion, the concept of law based upon principles comes into question. In other words, I have simply been fooling myself for the last 45 years?

We’re All Human

In early April of this year, a class action complaint captioned Richard Cole v United Health Insurance Company was filed in the United States District Court for the Southern District of Florida. The complaint alleges that:

Instead of acting solely in the interests of the participants and beneficiaries of its health insurance plans, upon information and belief, UHC denied coverage for [Proton Beam Radiation Therapy (“PBRT”)] to treat prostate cancer because, on average, PBRT is significantly more expensive than traditional Intensity Modulated Radiotherapy (“IMRT”) or other treatments.

The case was assigned to Judge Robert N. Scola, Jr. Earlier this week, Judge Scola recused himself. The substance of the recusal order should be read in full:

In early 2017, the Court was diagnosed with prostate cancer. In
determining the best course of treatment, the Court consulted with top medical experts throughout the country. All the experts opined that if I opted for radiation treatment, proton radiation was by far the wiser course of action. Although the Court opted for surgery, rather than radiation, those opinions still resonant.

Further, a very close friend of the Court was diagnosed with cancer in 2015. He opted to have proton radiation treatment at M.D. Anderson in Houston. His health care provider, United Healthcare, refused to pay for the treatment. Fortunately, he had the resources to pay $150,000 for the treatment and only upon threat of litigation did United Healthcare agree to reimburse him.

It is undisputed among legitimate medical experts that proton radiation therapy is not experimental and causes much less collateral damage than traditional radiation. To deny a patient this treatment, if it is available, is immoral and barbaric.

The Court’s opinions in this matter prevent it from deciding this case fairly and impartially.

What’s Wrong With Stephen Moore?

If asked the question posed above, I could cite the thirteen reasons listed by the 794 economists who oppose Moore’s appointment to the Fed. These include the fact that:

[Moore’s] statements reveal a deep ignorance of economics and an inability to listen to credible experts. He repeats fake and misleading economic statistics, and pushes fallacies about the VAT and trade competitiveness.

Or, I could point out that Moore is nothing more than a Trump sycophant.

But oh, there’s so much more. Like:

Is it possible that Trump could attempt to appoint anyone to the Fed who is less qualified? Oh, wait.

Kansas Abortion Ruling

In Hodes & Nauser, MDs, P.A. v. Schmidt, the Kansas Supreme Court sustained a temporary injunction against the enforcement of a bill that:

[P]rohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when “necessary to preserve the life of the pregnant woman” or to prevent a “substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”

The Court noted that 95% of second-trimester abortions in the United States are performed using the D & E procedure.

What is most significant about the ruling is (i) that it relies on the authority of the state constitution, thus cannot be reviewed by the U.S. Supreme Court and (ii) it rests on Section 1 of the Kansas Constitution Bill of Rights. That Section provides that:

All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.

The Court held that this provision is not merely an “idealized aspiration,” but sets forth “substantive rights [that] include a woman’s right to make decisions about her body, including the decision whether to continue her
pregnancy.”

Those who bang on the issue of “original intent” should be comfortable with the ruling since it carefully examines the historical and philosophical foundation of Section 1, citing, inter alia, John Locke, Sir William Blackstone, Sir Edward Coke, Edmund Burke, James Kent, Louis Brandeis, Dr. James Mohr, author of “The Origins and Evolution of National Policy, 1800-1900 (1978),” and Edward Mansfield.

Note: The citation to Mansfield is used more to refute Mansfield than to celebrate him.

[T]he husband’s control over the person of his wife is so complete that he may claim her society altogether; that he may reclaim her if she goes away or is detained by others; that he may use gentle constraint upon her liberty to prevent her going away, or to prevent improper conduct; that he may maintain suits for injuries to her person; that he may defend her with force; that she cannot sue alone; and that she cannot execute a deed or valid conveyance, without the concurrence of her husband. In most respects she loses the power of personal independence, and altogether that of separate action in legal matters.


Mansfield, The Legal Rights, Liabilities and Duties of Women 272-73.

Quite apart from the strategic/tactical advance in the battle over a woman’s right to choose, the opinion offers a good theoretical framework for addressing the issues.