March 22, 2018

Oil Prices Are Going Down: The Wickenburg Indicator

Only a fool would predict commodity prices, so I’ll do that. I’ve been to Wickenburg and I know oil prices are headed down

Wickenburg’s in Arizona, a little more than an hour northwest of Phoenix. It’s on the Hassayampa River. Most of the time you can drive on the river bed, but the cottonwood still flourishes on the banks because the river runs under the sand. Wickenburg was a mining town: gold, copper, and a few other metals.

WickenburgRight now Wickenburg is full of horse trailers and the cowboys who own them. These aren’t just any cowboys; they specialize in steer roping. The headers rope the horns and the footers rope the hindfeet. Winners get buckles and saddles. Although there are a few professional ropers in Wickenburg, a large percentage of these “cowboys” actually make their living in the Bakkan oil fields far to the north. They frack; they sell sand for fracking; they sell water for fracking; they produce the oil that’s driving OPEC and Russia crazy and that has helped spur the American economy.

For the last couple of years American abundance drove world oil prices down. The frackers fracked less wells and roped more steers. OPEC and Russia blinked and cut back their own production. The price of oil almost doubled. The horse trailers turned north early this year; the frackers are going home to get back to work. Sorry Putin: you can steal Crimea; you can steal a Russian election; you can hack at America’s politics; but you can’t set the price of oil. That’s done in Wickenburg.

If you’re not convinced yet, let me tell you about the gold mine guy. We met him on the road and asked directions; he invited us to see his goldmine. Bought it a couple of years ago because oil prices were low and gold prices high. He’s selling it and going back to North Dakota to frack some more. Don’t know if that means gold prices are going up but do know that oil prices are going down.

March 03, 2018

Proposed Alternative Town Meeting Resolution on Climate Change

Thursday I posted my reasons for objecting to the 350VT resolution proposed for Stowe and other town meetings. Far below is my proposed substitute resolution. Immediately below is a summary of the changes I am proposing.

I changed the whereas clauses to make them more science-based.

The call to ban new fossil fuel infrastructure including gas pipelines is removed since substitution of natural gas for coal and oil is the reason why the US is the leader among developing countries in reducing greenhouse gas (GHG) emissions.

The biggest change is to urge the state to make GHG reduction the goal for which renewables are just one means rather than making renewables themselves the goal regardless of efficacy or cost. The target date is changed from 2050 to 2030 so we can actually measure what we are doing.

There is a list which I'm sure is not complete of alternatives for reducing GHGs which should be weighed against each other as means to reach the goal of GHG emissions.

Although I largely agree with the strategies recommended to the Town for reducing local GHG emissions, I've added some alternatives 350VT didn't consider.


Advisory Resolution on Climate Change

Whereas atmospheric levels of carbon dioxide, a greenhouse gas, have been rising due in a large degree to human activities;

Whereas the earth has been warming for about 20,000 years since the last glacial epoch;

Whereas the combination of these two factors raises the probability of rapid and disruptive climate change worldwide;

Whereas it is prudent to reduce the emission of greenhouse gasses in the most cost-effective ways available while realizing that climate will continue to change and mitigation of climate change effects may also be necessary;

And whereas the use of renewables alone for such reduction is neither environmentally nor fiscally responsible;

Now, therefore, let it be resolved;

  1. That the Town urges the State of Vermont to:
    1. Target a specific goal of reducing greenhouse gas emissions in Vermont by 2030 using the most effective means available;
    2. Consider all alternatives for reducing greenhouse gas emissions including but not limited to renewables, conservation, increased access to hydropower, and substitution of natural gas for coal, oil, and propane;
    3. Ensure that the transition to lower emissions of greenhouses gasses considers impact on all residents.
  1. That the town will do its part the goal of lower emissions by committing to efforts such as:
    1. Reducing transportation emissions by enhancing public transportation and bike lanes, increasing opportunities for usage of electric, hybrid, and natural gas vehicles, and providing commuter parking area;
    2. Weatherizing town buildings and schools where applicable;
    3. Identifying sites for both solar photovoltaic and solar hot water panels including town and school building rooftops;
    4. Supporting initiatives for the reduction of personal energy consumption.




March 01, 2018

Renewables Are a Means, Not an End

Especially if the goal is to reduce greenhouse gasses.

An organization called 350VT has caused an advisory item to be placed on the town meeting agenda for my town of Stowe and many other towns around the state whose first plank is to “Halt any new or expansion of fossil fuel infrastructure, including but not limited to pipelines”. It also calls on the state to “Firmly commit to at least 90% renewable energy for all people in Vermont.” Interestingly the goal of reducing greenhouse gas (GHG) emissions is not mentioned anywhere in the resolution.

 If these resolutions are adopted by towns and if the state government heeds them, the result will be an INCREASE, not a DECREASE in GHG emissions. On environmental grounds, the resolutions should be amended or defeated.

The United States has reduced GHG emissions more than any other developed country largely because it has replaced coal and oil with natural gas in electrical generation and as an industrial boiler fuel. Burning natural gas emits 50% less CO2 than burning coal and 26% less CO2 than burning oil or propane for each BTU or kilowatt-hour produced. We have increased our use of renewables significantly also; when not over-priced, this is a good thing. But the major reduction is because we have cheap natural gas available and we’ve used it.

According to the Federal Energy Information Agency, in 2014 Vermont had the lowest output of CO2 in the country per electrical Megawatt hour (Mwh) generated: 19lbs/Mwh; the national average is 1123lbs/Mwh. However, at that time, 72 per cent of our electricity was generated at a nuclear power plant which has now shut down. 4.4% of our production was from wind and .2% from solar.

Now we generate less than 35% of the 5.5 million Megawatt-hours we use annually. The rest is carbon-free power from Hydro Quebec and “traditional” power from the New England Grid.  As a whole, New England in 2014 emitted 571lbs/Mwh of generation. Net net we are responsible for a lot more CO2 emissions than we were when Vermont Yankee was still producing. Nuclear power is a perfect example of a “non-renewable” highly effective way to reduce GHG emissions. But we won’t be building any new nukes in Vermont soon.

Vermont is reducing its emissions thanks to the Vermont Gas pipeline extension to Middlebury. Almost every new customer of that pipeline is substituting cleaner natural gas for oil or propane. One of the biggest customers of that pipeline is Middlebury College, which likes to boast that it is carbon-neutral. There’s some irony here: 350VT is the Vermont affiliate of, an organization co-founded by Middlebury professor Bill McKibben. The classrooms Bill teaches in are heated by natural gas from just the kind of pipeline extension and 350VT are against. Natural gas allowed Middlebury to stop burning very dirty #6 oil and was an essential part of its achieving carbon-neutrality. If pipeline opponents had had their way, Middlebury would still be burning oil. Hmmm.

350VT advocates encouraging electric cars. This is not a bad idea but they are ignoring the inconvenient fact that incremental electricity in New England is produced mainly by burning natural gas, especially with New England nukes shutting down. Although there are huge supplies of inexpensive natural gas just west of us in central Pennsylvania, there is not enough pipeline capacity from there to meet the winter demand by New England electrical generators. This winter old oil and coal plants had to come back online and a tanker full of Siberian liquified natural gas (LNG) discharged in Everett Harbor. Why hasn’t pipeline capacity increased, you ask? Because organization including have successfully opposed proposed new pipelines even though the price of not having them is more GHG emission (and higher costs for consumers).

Making renewables a goal instead of a means is environmentally irresponsible; it is making the perfect the enemy of the good.

Opponents of natural gas use point out that its main component, methane, is itself a much more potent GHG than CO2. This would be relevant if methane were released instead of burned; it would be relevant if a large amount of methane were released in extraction or transportation; but they aren’t. It would be relevant if atmospheric concentrations of methane were increasing as CO2 concentrations certainly are; however, according to the UN International Panel on Climate Change, the bible of climate change, atmospheric methane is stable to declining despite more drilling than ever and despite a world which consumes more beef than ever (bovine flatulence and manure are major methane sources).

I intend to offer an amendment to the 350VT advisory resolution at Stowe town meeting. It will replace the call for an arbitrary percentage of renewable energy and the ban on “new fossil fuel infrastructure” with a call for the state to:

  1. Target a specific goal of reducing greenhouse gas emissions in Vermont by 2030 using the most effective means available;
  2. Consider all alternatives for reducing greenhouse gas emissions including but not limited to renewables, conservation, increased access to hydropower, and substitution of natural gas for coal, oil, and propane;

We are trying to reduce the probability of rapid human-caused climate change, not create a business case for any particular energy technology. Renewables are one of the means toward that end.

The Stowe version of the 350VT resolution is here; the proposed substitute resolution is here. I’m quite happy to amend it before town meeting in response to comments on this blog or comments on Facebook.

[full disclosure: I am the founder and chairman of NG Advantage, a Vermont company which delivers compressed natural gas (CNG) by truck to large users who don’t have access to a pipeline. Last year our customers reduced CO2 emissions by about 160,000,000 lbs., about the same reduction as can be attributed to all the commercial wind turbines in Vermont. We delivered gas to be used by Middlebury College before the pipeline got down there; but I support the pipeline although it cost us the Middlebury business.]


February 13, 2018

A Surprising Letter from David Koch

Recently we got a letter from David Koch. As you would guess, it is a request for support for Americans for Prosperity (AFP), which he co-founded. What I wouldn’t have guessed before reading is that there is nothing in the eight pages I disagree with and much which is compelling.

Some of the letter could’ve come from the left as easily as the right:

“We are rapidly becoming a two-tiered society where the well-connected thrive and everyone else falls further and further behind.  What’s worse, all of this corporate welfare and the government picking winners and losers is moving us towards as society characterized by cronyism, government dependency, and poverty where individuals and groups are pitted against each other as they compete for government largess.”

Nowhere in the letter (or on the AFP website) is there a complaint against welfare payments to individuals.  There is no discussion of the social issues often associated with the right. The letter is pro-immigration. Koch is afraid of growing socialism; he doesn’t like Bernie Sanders any more than Bernie Sanders likes him.  Koch puts the blame for this lurch to the left squarely where it belongs:

“There is more behind this turn towards government [control] than the economic stagnation and falling standards of living of the past decade.

“I believe the answer lies in the fact that across America, people are seeing that those who are well-connected in Washington and, yes, the wealthy, are winning favors and thriving while the rest of the nation falls further behind.

“…why is it that countless other large companies can get artificially cheap loans while people starting out can’t get any?

“…American consumers …[pay] double the world price for sugar while a small handful of sugar farmers are getting rich off government subsidies and quotas.

“…at the same time as Americans were hurting and record numbers were signing up for food stamps, countless American companies were getting huge corporate welfare payments or thousands of tax breaks that other Americans can’t utilize…"

He quotes a bumper sticker I haven’t seen: “our system isn’t broken… it’s fixed.”  David Koch is honest enough to admit that, although ethanol mandates are one more example of crony capitalism, Koch Industries makes ethanol.

What Koch doesn’t say but I believe is that Americans feeling the system is rigged are responsible not only for Bernie’s near victory over Hillary but also Trump’s actual victory. The Clintons as well as most of the people who ran in the Republican primary are part of the establishment which benefits from a rigged system where success depends on connections and big government and big corporations are in each other’s pockets (or, more accurately, in our pockets). Bernie and the Donald were both perceived as outsiders. If you add their supporters together, that’s an outraged majority.

Yes, there is great irony that this letter is signed by the owner of the second largest privately-owned corporation in America. Bernie’s website points out the extreme platform of the Libertarian Party in 1980 as evidence of what the Koch brothers want and David Koch was the Libertarian candidate for vice president that year. On the other hand, Bernie works for the biggest government in the country and would like to make it bigger.

The lesson of socialism is an equality of misery for most people except those who benefit enormously by being close to the all-controlling government (see Venezuela or North Korea for current examples). But crony capitalism suffers from many of the same faults.  Too often Democrats ignore the dangers of socialism; too often Republicans ignore the danger of oligarchy. Right now the danger is that so many Americans are disaffected and prone to lurch from one extreme to the other.  Part of the solution is to un-rig the system.  Americans for Prosperity seems to be dedicated to that un-rigging.  I’ve signed their petition against corporate welfare and may support them further.

February 08, 2018

Software Nerd Goes Hard

Result works but isn’t pretty

Patched pc

Q: How many programmers does it take to change a lightbulb?

A: Can’t be done. It’s a hardware problem.

I’m a software guy (58 years of programming) but I had a hardware problem.  Closed the screen of my almost new laptop on my portable mouse while getting up from my airline seat.  The screen was crushed and had only a shimmering rainbow on the bottom and the right side radiating from the ugly black imprint of the mouse.

The machine was useable at home where it’s docked to an external monitor but I have some travel coming up when it needs to be self-contained.  Sending the machine back to Lenovo was possible, but I know from experience that would mean being without it for two weeks and having to set up another computer.  There are no authorized Lenovo dealers within a hundred miles.

Tried a local computer repair place, hoping they could order a replacement screen and only take the laptop for an installation day. Apparently they couldn’t find parts from their distributor, probably because the machine is a new model and not many people have managed to break their screens yet.

Reluctantly decided to do hardware myself; after all, I did fix a vacuum cleaner after watching a video and two weeks ago I hung a window shade to Mary’s delighted surprise.  Searched YouTube for a how-to replacement video. Plenty of videos but all for older models. Googling “X1 Carbon fifth generation replacement screen” did lead me to LcdOLed on Amazon (surprisingly it’s often easier to find products on Amazon with Google than with Amazon’s own search).

I ordered. But LcdOLed contacted me through Amazon and said there are multiple screens for this model (touch, non-touch, different resolutions, WLAN antenna etc.). They advised me to open up the machine to get the part number.

“Can you point me to a video for that?” I asked.

They did and I ordered the tools needed to remove the screen. Fortunately, when I asked Mary to look over my shoulder, she diagnosed that the reason I couldn’t get the screen out is that the model in the video was different from my computer.

Serious googling. Found the Lenovo training video for its techs. Looked hard but doable. However, on the chance that once I took it apart I’d never get it back together, I didn’t want to liberate the screen until I had the replacement. Eureka, the Lenovo tech site could map my serial number to a part number.

“Send it,” I emailed to LcdOled.

“OK,” they said. “If it’s the wrong one, you can ship it back. We’ll get it out right away before Chinese New Year shuts our shipping down.”

Gathered my courage for a day after it arrived and started on the job last night. Lots of things to do in the right order. I watch each video twice on a spare computer before each step.

  1. Turn off the internal battery (software step to build my confidence)
  2. Remove the SIM holder (insert paper clip. I can do that.)
  3. Remove the back (last step which doesn’t void warrantee)
  4. Disconnect camera cable from motherboard (finally spotted the little clip that needed to be lifted by watching the video on how to put camera cable back.) Clip
  5. Disconnect LCD cable
  6. Disconnect hinges from case
  7. Remove LCD unit
  8. Remove LCD bezel (supposed to do with fingers but I had to use a tool)
  9. Remove LCD hinges (the other side of them)
  10. Remove LCD strip bezel
  11. Remove LCD unit
  12. Remove other end of LCD cable (now I’m good at the little clips)

Then you substitute the new screen and reverse all the steps. The bezel didn’t quite go back completely; that’s why the scotch tape in the picture above. One tiny nasty black screw disappeared. If you have a tremor, you should be sure you use a magnetic screwdriver. Hopefully the screw’s not rattling around inside waiting to short something. Hinge seems strong enough with two rather than three screws.

But, worth it all, its works!

February 05, 2018

Protecting Civil Liberties

There is no way that the allegations in the Nunes memo, even if they are all true and there is no mitigating evidence which was withheld, exonerate the President from allegations that he or his campaign collaborated with Russians or that he attempted to obstruct justice. Conversely, what Trump did or didn’t do is not relevant to whether the Justice Department and FBI have misused the FISA process.

We need the Mueller investigation to continue.  My first hope is Mueller finds that there were no serious offenses by Trump.  That would be best for the country so long as it is true. If there were offenses, I hope the evidence is strong and clear.  Weak charges would also be bad for the country.

We need the investigation into the FBI and Justice Department to continue.  Of course, the Democratic memo should be released once it is vetted for possible security problems. The FISA Courts, set up after 9/11, were a deliberate dangerous compromise to find a way to deal with the threat of terrorism while preserving our Constitutional right to be free from unreasonable government surveillance.  Because FISA is secret, it can easily be abused.  There must be oversight by Congress; Congress needs to be able to cry foul.  The partisan system is good for assuring that oversight is not just cheerleading.

One of the dangers in the FISA Court is that the judge hears only from the FBI and Justice.  That has to be since you don’t want to tip off the target of investigation.  However, the one-sided nature of what the judge hears puts a burden on the prosecutors and investigators to tell the judge everything significant that they know and puts a burden on the judge to be curious about sources.  If the judge wasn’t told that the Steele memorandum was paid for by the Democratic National Committee and the Hillary campaign, that is at least a violation of trust.  If the decision to grant a warrant to spy on Carter Page was based mostly on the memo whose origin was not revealed to the judge, this is a very serious violation of Carter Page’s civil rights, no matter what he may or may not be guilty of.  The FBI and Justice need to be told that withholding material information from the court is NOT OK IN ANY CIRCUMSTANCE.

There must always be oversight of the FBI.  Such oversight is not anti law enforcement or unpatriotic.  The FBI has some great accomplishments.  It also has dark spots in its history starting with J. Edgar Hoover, harassment of Martin Luther King and Einstein, and, according to both Trump and Hillary Clinton, continuing in the tenure of James Comey.  It is sad to see my liberal friends criticizing investigation of the FISA incident because they are afraid that it will somehow exculpate Trump or at least distract attention from the Mueller investigation.

The defense of civil liberties often means defending unpopular or even obnoxious causes and people. Currently, we must have a thorough investigation of the allegations against Trump and also oversight of the investigators.  No matter how much you may wish Trump impeached, you should want the evidence to be solid and credible AND CONSTITUTIONAL.  On the other hand, no matter how much you want Trump to stay in office, you should want the investigation to continue free from obstruction.

Whether Trump is innocent or guilty, the FBI and Justice can still be guilty of unconstitutional behavior.  Whether the FBI and Justice are guilty, on the other hand, has no bearing on whether Trump colluded or obstructed justice.  Both Trump and his opponents are conflating these issues; we shouldn’t let ourselves be confused.

February 02, 2018

Vermont Trailers v. the Tanker from Siberia



Truck with Logo_0



In the recent winter cold snap, the LNG tanker GASELYS hooked up in Everett near Boston to discharge what’s assumed to be Siberian natural gas into the dangerously depleted pipelines of southern New England.  The arrival was well reported as was the irony of an almost energy-independent US being dependent on gas from sanctioned Russian producers.  Much more quietly, trailers from NG Advantage (NGA) were already delivering natural gas from Vermont to our southern neighbors whenever we had adequate supplies and they didn’t (full disclosure: I cofounded the company and own a stake in it). NGA will continue these deliveries as long as there is a need.

Both LNG (liquified natural gas) tankers and CNG (compressed natural gas) trailers are examples of virtual pipelines, delivery capacity that moves to routes where it’s needed.  However, the unloading facilities for LNG tankers are huge; the one in Everett was built when it was thought the US would run out of natural gas. CNG can be unloaded much more simply from trailers into existing natural gas pipelines.  The gas NGA delivers to southern New England currently comes mainly from Canada though a pipeline which enters the US at Highgate, VT.  It’s an easy argument that it’s better for us to be dependent on North American supply than Siberian; an even easier one that it’s better to create jobs in rural New England than in Siberia.

There are two main reasons why southern New England has an increasing appetite for natural gas on cold days: the shutdown of nuclear plants and a switch from coal and oil to much cleaner natural gas for electrical generation. When natural gas is used to generate electricity, there is 50% less carbon dioxide emitted than when coal is used and 26% less than when energy comes from oil.  Moreover, there is no soot and almost no Sulphur dioxide or nitrous oxides when natural gas is burned nor is there any black smoke.  The switch from coal and oil to natural gas is a huge environmental plus and is the reason why the US was able to meet its carbon reduction goal under the Kyoto treaty it never signed even when the actual signatories weren’t.

There is a huge supply of natural gas just a few hundred miles west of New England in the Marcellus shale. Normally the east-west pipelines are adequate to carry what New England needs. But, during winter cold snaps, the demand exceeds pipeline capacity. The cost of natural gas can increase tenfold or more on the spot market. Oil and even coal powerplants replace gas-fired generators so that there will be enough gas to keep houses warm. The air gets dirtier and electricity gets more expensive, even in Vermont, which gets much of its electricity from the New England grid now that Vermont Yankee is closed.

There were plans to build much more east-west capacity.  But new pipelines didn’t get permitted. Three arguments were used against them:

  1. I don’t want a pipeline through my town to serve people in New England;
  2. We shouldn’t build permanent infrastructure for any fossil fuel even if we’re replacing a fossil fuel which emits more pollutants;
  3. The pipelines are only needed part of the year so they don’t justify the investment or right-of-way required to build them.

In my view, argument one is simply NIMBY (Not In My BackYard). NIMBY’s been around since before the Roman roads were built.  Property owners need to be properly compensated but the greater good must prevail or we’d have no infrastructure.

Argument two makes the perfect the enemy of the good; it boils down to polluting more now than we have to because we don’t yet have an ideal energy source.

Argument three is sometimes right. It would not be justified, for example, to build a pipeline from Vermont to southern New England to relieve a fraction of winter shortage.  Where a physical pipeline isn’t justified or hasn’t been built yet, a virtual pipeline can deliver the energy needed. If there comes a time when the energy isn’t needed or a pipeline is built, the trucks can go work somewhere else.  For example, NGA delivered natural gas by truck to Middlebury, VT before the Vermont Gas pipeline to that city was finished. Middlebury business and institutions got some of the economic and all the environmental benefits of natural gas earlier than they would have otherwise.

Environmentally, it’s better to burn Siberian natural gas than coal or oil; but it’s much better to burn North American gas and create jobs here.  NGA and its competitors don’t have the capacity yet to make occasional tanker visits unnecessary; but we’re working on it.

See also:

Natural Gas vs. Climate Change

Vermont Shouldn't Let the Perfect be the Enemy of the Good

January 25, 2018

Microsoft Is Uploading Files from Your Computer

You may be in breach of nondisclosure agreements.

While setting up a new computer, I was horrified to see this default security setting:


This says that documents you’re working on, spreadsheets, confidential presentations, personal pictures, clever algorithms, or anything else on your computer may be uploaded to Microsoft at any time without your knowledge. How does Microsoft decide what is “personal”? Do they notify you or do they ask you if they are uploading personal information? What if the document is top secret but impersonal?

How much of your company’s confidential information is already at Microsoft? What if the document contains material non-public information about a public company; will the SEC hold you liable if it gets out? Maybe you obtained the document under a confidentiality agreement and aren’t allowed to share it; you just did.

How is Microsoft protecting your data, which it shouldn’t have in the first place, from unauthorized use by its own employees or hackers? How does Microsoft know that you are on a secure connection while it is happily transmitting your data? The only assurance in their privacy statement is that they won’t use this data to target you for specific advertising.

Are you worried about government surveillance? The government may be getting your data from Microsoft with or without a subpoena. Are you involved in a lawsuit? How long before opposing council demands your documents from Microsoft.

Having this option on by default is an outrage. [Note: I found it turned on in Windows 10 on a Lenovo X1 Carbon; it is possible that the setting is different in different versions of Windows or on different machines. Note also that this "feature" is part of Windows Defender, the default ant-virus program distributed with Windows. You don't need to worry about this if you are using other anti-virus programs. ]

 Here’ s how to check the setting and turn off document pilfering in Windows 10:


Start by clicking the arrow circled below in the taskbar.

Next click the shield.


Scroll down and you’ll be able to turn off this worse-than-intrusive option. However, your shield like mine will now have a yellow exclamation point. Microsoft wants you to know you are unsafe because you won’t let them spy on you.

January 16, 2018

The Wretched Refuse of Your Teeming Shore

There are two major reasons why we accept immigrants.

One is purely selfish: some immigrants have skills or money to bring which will make America better. These potential immigrants can presumably be identified. It shouldn’t matter where they’re from or what their race or religion is so long as they are bringing something of value. We have various programs like H1B for people with skills we need and EB-5 for people with money. They need examination and I think we should actively be recruiting those with skills; but there is no crisis here.

The second reason is much more important to America and the world. There are people who need refuge and we are able to grant it to some of them.

“Give me your tired, your poor,
Your huddled masses, yearning to breathe free,
The wretched refuse of your teeming shore,
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door.”

That’s what it says on the plaque on the Statue of Liberty. That describes most of my ancestors when they came two generations ago. Yes, the places they left were shitholes, at least for them. That doesn’t make them shit, just wretched refuse yearning to breathe free.

My grandparents were fleeing pogroms in Russia and the Ukraine. They contributed to their new country and I hope we who were lucky to be born here have contributed as well. But there was no way to know what they or their progeny would add when they came. They wouldn’t have qualified for H1B or been able to pay half a million dollars for an EB-5 visa.

At least partially because of prejudice, America refused most Jewish refugees from the Nazis even as it became apparent what would happen to them in Nazi-occupied Europe. As a Jew, I don’t want to see us turn back Moslems fleeing catastrophe.

There are so many refugees that the US can’t possibly take them all. Unfortunately, there are so many refugees from conflict that we must prioritize them over people who “just” want to be free or “just” what a chance to make a better living. In a world plagued by terror we have to vet refugees as best we can rather than let them teem into Ellis Island the way my ancestors did. We do have a right to insist that refugees adapt to our country and follow our laws. But we have a responsibility to provide refuge.

America is no longer great if we cannot lift our lamp beside the golden door.

January 11, 2018

Marijuana and the Constitution

It took the 19th amendment to the US Constitution to ban most manufacture, transport, and sale of alcoholic beverage in the United States. Why then was Congress able to ban marijuana and a host of other substances by simply passing a law? Good question and one worth addressing when this congressional prohibition is at odds with what most American apparently want and actions taken by the states. The question of congressional power is especially worth examining given a dysfunctional Congress which complains about enforcement of its own law but seems incapable of the simple act of amendment.

Section 8 of Article 1 of the US Constitution gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. Clearly that gives Congress the power to regulate interstate sale of marijuana and its importation. Article X of the bill of rights says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” For most of American history, these two clauses were read together to reserve the power to regulate intrastate commerce to the states. That’s why it took a constitutional amendment to impose prohibition.

In 1942 a Supreme Court decision Wickard v Filburn essentially took the words “between the states” out of the commerce clause.  From Wikipedia:

“An Ohio farmer, Roscoe Filburn, was growing wheat to feed animals on his own farm. The U.S. government had established limits on wheat production based on acreage owned by a farmer, in order to stabilize wheat prices and supplies. Filburn grew more than the limits he was permitted and was ordered to pay a penalty. In response, he said that his wheat was not sold, so his activity could not be regulated as commerce, let alone "interstate" commerce…

“The Court decided that Filburn's wheat-growing activities reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally (interstate), and is therefore within the scope of the Commerce Clause. Although Filburn's relatively small amount of production of more wheat than he was allotted would not affect interstate commerce itself, the cumulative actions of thousands of other farmers just like Filburn would certainly become substantial. Therefore, according to the court, Filburn's production could be regulated by the federal government.”

The background of this ruling is that in 1942 eight of the nine justices had been appointed by President Roosevelt, the architect of the law being challenged – as good a reason as any for term limits. The US was also at war and draconian regulation of all kind was tolerated.

Fast forward to 2003 and Gonzales v Raich, a case challenging the federal government’s right to prosecute the instate use of medicinal marijuana in California where a referendum had legalized such use. Relying heavily on the Wickard v Filburn decision, the Supreme Court ruled 6-3 that the feds did have this right because the intrastate use of marijuana might interfere with interstate commerce in pot (even though such commerce was illegal).

Justice Thomas wrote in dissent:

“Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”

It's not a good idea for the federal government to have unlimited powers even if it weren’t dysfunctional.

Justice O’Conner wrote in her dissent:

“Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.”

I think she is right. People the world over are resentful of over-reaching central authority (see Brexit, Catalonian separatists, Iranian demonstrators, and the election of Donald Trump for just a few examples). We in the United States are fortunate that the states and the US Constitution are a mechanism for resumed local control. We don’t need a revolution to ratchet back central power, just a return to federalism as it was practiced for most of our history. Invalidating federal control over instate drug use and sale will not make all drugs legal everywhere any more than the end of prohibition made alcohol legal everywhere. Control will just go back to the states and localities – and the feds will still be free to combat international smuggling or even interstate drug commerce.

 The Court is reluctant to reverse prior decisions but has done so. Brown v Topeka, which outlawed segregated public schools, expressly undid Plessy v. Ferguson, which held that separate but equal is good enough.  I hope the Court will give itself the opportunity to reverse the overreach of both Wickard v Filburn and Gonzales v Raich. 

Meanwhile, Congress should stop blowing smoke and promptly undo its own unwise listing of marijuana on the same schedule as heroin in the possibly unconstitutional Controlled Substances Act. See Marijuana and Congress for more on that.

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