On the Air Again with Tim Corrimal and Friends – Episode 160

… Or, Back in Business.

After a brief hiatus from posting comments about our weekly podcast, I am back. Episode 160 of the Tim Corrimal Show has now been posted, and this week Tim and I were joined by our old friend (and frequent contributor to The Political Carnival) Seth Pajak (@SethP23 on Twitter) and Cathy of the blog Two Dozen Other Stupid Reasons (@66Betty on Twitter).

First off, I’d like to thank Tim for giving me the opportunity to expound on my St. Patrick’s Day post (and I apologize for running a little long!). That piece means a lot to me after losing my mother this past November; but more importantly, I think the point I attempted to articulate – the commonness of our shared immigrant stories here in the U.S. – is worth contemplating. So, thanks Tim, for letting me ramble on about it.

After that, we next addressed, briefly, the current military action against Muammar Gaddafi’s regime in Libya. To reiterate my point: I am ambivalent about it, to be sure; but on a visceral level I feel like we, and the international community generally, had to do something to stop that monster from slaughtering his own people. In my comments on the show, I mentioned Pres. Bill Clinton’s failure to act to stop the Rwandan genocide in 1994, and I think it’s a point that’s worth reiterating here:

President Bill Clinton’s administration knew Rwanda was being engulfed by genocide in April 1994 but buried the information to justify its inaction, according to classified documents made available for the first time.

Senior officials privately used the word genocide within 16 days of the start of the killings, but chose not to do so publicly because the president had already decided not to intervene.

Intelligence reports obtained using the US Freedom of Information Act show the cabinet and almost certainly the president had been told of a planned “final solution to eliminate all Tutsis” before the slaughter reached its peak.

It took Hutu death squads three months from April 6 to murder an estimated 800,000 Tutsis and moderate Hutus and at each stage accurate, detailed reports were reaching Washington’s top policymakers.

While Pres. Clinton hasn’t exactly acknowledged that his administration knew of the genocide early on, his inaction on Rwanda has haunted the former president ever since. Here’s how he described it in an August 2008 interview on ABC’s Good Morning America:

“No, not guilt. I’ve atoned for that,” Clinton said. “I’ve been here in 1998 and told them I was sorry.

“But I do feel a lifetime responsibility. I feel like a lot of people you know you had something to do with it.”

Clinton continued, “When I left the White House, I told [Rwandan] President [Reuben] Kigame that I felt I should do whatever I could for the rest of my life to help them become whole and make a new beginning.”

Which is not to say that Libya today is the equivalent of Rwanda in 1994; but looking back on that awful experience, and knowing the cost of failing to act in the face of unspeakable violence directed at innocent people, I certainly don’t envy Barack Obama for having to decide what to do about Gaddafi’s full-on assault against rebels and civilians alike.

So, anyway, after our brief discussion of Libya (in which, I think, we all expressed ambivalence about the military action there), we turned our attention to the aftermath of Japan’s recent earthquake and tsunami, and Seth provided an update on the Herculean efforts by members of the U.S. Armed Forces to assist in the relief efforts. Thanks, Seth, for reminding us what good we can do when we really want to; and thanks for highlighting the good work our military engages in behind the scenes and usually without accolades. (By the way, the crises in Libya and Japan lead me to wonder aloud what we’d be able to do if we weren’t bogged down in two unnecessary wars in Iraq and Afghanistan …)

In addition to Libya and Japan, on this week’s show we also discussed the continuing Republican assault on voters on the state level, including the GOP-sponsored bill in Michigan under which “the governor could declare a ‘financial emergency’ in towns or school districts … [and] could then appoint a manager to fire local elected officials, break contracts, seize and sell assets, eliminate services - and even eliminate whole cities or school districts without any public input”; and the proposal by Pennsylvania’s Republican Governor, Tom Corbett, to give one of his cabinet members – C. Alan Walker, who happens to be an energy company executive – the power to override state regulatory agencies, including agencies charged with protecting the environment that might, for example, prohibit natural gas “fracking” on private land. So much for the Tea Party’s ideals, huh?

But I want to clarify one thing I said on the show that may have been, well, a bit overzealous on my part. When we discussed the Michigan “financial emergency” bill, I suggested that municipalities and other taxing districts, when faced with the possibility that Gov. Rick Snyder might exercise his draconian powers and attempt to take over their government and/or financial affairs, might be wise to pull the trigger and file for federal bankruptcy protection under Chapter 9 of the United States Bankruptcy Code before the Governor had a chance to act. Well, that advice may be sound, but there are some important caveats. First:

Although similar to other chapters in some respects, chapter 9 is significantly different in that there is no provision in the law for liquidation of the assets of the municipality and distribution of the proceeds to creditors. Such a liquidation or dissolution would undoubtedly violate the Tenth Amendment to the Constitution and the reservation to the states of sovereignty over their internal affairs. Indeed, due to the severe limitations placed upon the power of the bankruptcy court in chapter 9 cases (required by the Tenth Amendment and the Supreme Court's decisions in cases upholding municipal bankruptcy legislation), the bankruptcy court generally is not as active in managing a municipal bankruptcy case as it is in corporate reorganizations under chapter 11.

In other words, although Chapter 9 allows municipalities and other subdivisions of state government to declare bankruptcy, the bankruptcy court has less authority vis-à-vis the state’s government than it has in a personal or business bankruptcy, and, therefore, the state of Michigan may be able to argue that it can exercise its “emergency” powers even if a municipality files for protection under Chapter 9.

Second, while the United States Supreme Court upheld a predecessor to Chapter 9 against a Tenth Amendment challenge in United States v. Bekins, 304 U.S. 27 (1938), crucial to the Court’s decision was the fact that the then-existing municipal bankruptcy laws only permitted a municipality to file bankruptcy if the state government had consented and/or specifically granted its municipalities the authority to file for bankruptcy protection. Today Chapter 9 of the Bankruptcy Code, in order to avoid Tenth Amendment defects, likewise provides that a municipality can file bankruptcy only if it “is specifically authorized, in its capacity as a municipality or by name, to be a debtor under such chapter by State law, or by a governmental officer or organization empowered by State law to authorize such entity to be a debtor under such chapter.” 11 U.S.C. § 109(c)(2).

So, unless the state gives its municipalities the specific authority to declare bankruptcy, a municipality cannot file a petition under Chapter 9 – and it’s quite possible, although I haven’t had a chance to read it yet, that Michigan’s “financial emergency” bill withdraws that authority from cities and towns in the state.

But there’s one more thing about Michigan’s new law I have to comment on. In United States v. Bekins the Court noted that states often granted their municipalities and other taxing districts the authority to declare bankruptcy for the simple reason that only the federal government, and not the states themselves, has the power to get state and municipal governments out of contracts they’ve entered into or debts they’ve incurred: “The natural and reasonable remedy through composition of the debts of the [local taxing] district was not available under state law by reason of the restriction imposed by the Federal Constitution upon the impairment of contracts by state legislation.” 304 U.S. at 54 (emphasis supplied). See U.S. Const. Art. I § 10 (“No State shall … pass any … Law impairing the Obligation of Contracts …”). Which suggests that any action by the state of Michigan, unilaterally, to “appoint a manager to … break contracts” entered into by local government entities would likely run afoul of the federal Constitution in the first place. So, take that, Rick Snyder!

© 2011 David P. von Ebers. All rights reserved.